In Fleming v. Ontario, 2019 SCC 45, the Supreme Court of Canada held that police do not have the authority to arrest someone engaging in lawful conduct in order to prevent others from breaching the peace.
Police in Canada have overarching duties to preserve the peace, prevent crime, and protect life and property, from which several related more specific duties flow (see, for example, s.42 of the Police Services Act which provides a non-exhaustive list of police duties in Ontario). So that police can fulfill these duties, they’re given special powers. Some of these police powers stem from legislation (e.g. the arrest power set out in s.495 of the Criminal Code of Canada); others are derived from the common law, which means they’re defined by the courts (e.g. powers relating to home entries following 911 calls or sniffer dog searches).
But police powers are not without limits. Take, for example, the power to arrest someone. When someone is arrested, they are deprived of their freedoms. For this reason, while police have long held the power to arrest, they cannot act do so whenever they want to. When arresting someone, police must either do so by means of a warrant or, if proceeding with a warrantless arrest, they must have reasonable and probable grounds to believe that the person has committed a crime, is committing a crime, or is about to commit a crime (R. v. Storrey,  1 S.C.R. 241).
But can police arrest someone to prevent others from breaking the law? In the civil case of Fleming v. Ontario, 2019 SCC 45, the Supreme Court of Canada answered this question with a no.
The case of Mr. Fleming and what the Supreme Court decided
Mr. Fleming was a counter-protester to the occupation by the First Nation of Six Nations of the Grand River of a piece of land, the ownership of which was in dispute with the Crown. Due to a history of violence between the protesters and counter-protesters, police had informed counter-protesters that they could not be on the occupied land during their demonstrations. Mr. Fleming, who was holding a Canadian flag, walked along the occupied land towards the counter-protest area where he intended to meet up with other counter-protest participants. Police told him to stop. Not thinking he was doing anything wrong, Mr. Fleming continued walking, ultimately ending up on occupied territory. Protesters from the occupied land began to move towards him, some walking and others jogging. None of the protestors were carrying weapons or uttered any threats. Mr. Fleming did not say anything to the protestors either. As the protestors drew within ten to twenty feet of Mr. Fleming, he was arrested by police. He was later charged with obstructing a peace officer and resisting arrest for what purportedly happened after his arrest. Eventually, the charges against Mr. Fleming were withdrawn by the Crown.
Mr. Fleming initiated a lawsuit against the arresting officers and against the province of Ontario, seeking financial remuneration from the civil defendants for assault and battery, wrongful arrest, and false imprisonment. His case made its way to the Supreme Court of Canada. The Supreme Court, using a test called “the ancillary powers doctrine”, ultimately concluded that “the ancillary powers doctrine does not give the police a power to arrest someone who is acting lawfully in order to prevent an apprehended breach of peace” (para. 7). Accordingly, Mr. Fleming’s arrest was determined to be unlawful, and police were held liable for battery for their use of force in unlawfully arresting Mr. Fleming in the first place.
What is the ancillary powers doctrine?
The ancillary powers doctrine is a test derived from a 1963 case from the English Court of Appeal, R. v. Waterfield; it operates on the premise that “police actions that interfere with individual liberty are permitted at common law if they are ancillary [i.e., reasonably necessary] to the fulfillment of recognized polices duties.” This test is therefore used to delineate new police powers that are reasonably necessary for police to perform their duties.
To establish a new police power, the court must:
- initially define the proposed police power as well as the liberties involved, i.e., constitutional rights and freedoms and common law civil liberties;
- look at whether the police action is encompassed in a police duty; and
- consider if, in fulfilling such a duty, the action (the proposed power) is justified. The significance of the police duty, the need to interfere with the individual liberties to perform the duty, and the extent of such interference are factors considered at this stage.
No power to arrest a law-abiding individual
Returning to Fleming, the proposed power, as indicated above, was the police power to arrest someone who is acting lawfully in order to prevent an apprehended breach of peace. In defining this potential police power, the Supreme Court specified that it is “aimed at individuals who have not committed, and are not about to commit, either an indictable offence or a breach of the peace” (para. 57) or a breach of the peace involving “some level of violence and risk of harm” (para. 59). Since this power entails the arrest of individuals, it forcibly puts many fundamental liberties at stake, namely the freedom to live in society without state coercion.
As a result, while the Court recognized at the first stage of the ancillary powers doctrine that the proposed power to prevent breaches of peace does fall within the general scope of police’s duties to preserve the peace, prevent crime, and protect life and property, the Court ultimately concluded at the second stage that such a power is not reasonably necessary to fulfill these duties. More specifically, the Court expressed difficulty in justifying the proposed power due to the availability of existing measures that interfere less with liberties. After all, as the Supreme Court explained, the police already have sufficient statutory powers that enable them to prevent apprehended breaches of peace that do not require them to arrest law-abiding individuals. For example, pursuant to s.129 of the Criminal Code, police officers can arrest individuals who resist or willfully obstruct police in the execution of their duties, such as preventing breaches of peace. Similarly, individuals who omit to assist police in the execution of their duties after having been given reasonable notice of such an obligation to assist can be lawfully arrested too. Notably, in finding as it did, the Supreme Court stressed that the effectiveness of a police action in performing a police duty is not a factor to be considered to justify the use of this power: the test must always be whether the police power is reasonably necessary for the fulfillment of a police duty. Put simply, the police do not have the power to arrest law-abiding individuals even if police did so in order to prevent others from breaking the law.
To sum up
There is no police power to arrest an individual who is acting in accordance with the law because of the mere possibility that other individuals may themselves breach the peace. This decision, however, applies only to the power, or the lack thereof, of arrest itself; the Court did not rule, and expressly stated that it would not make such a determination in Mr. Fleming’s case, on whether there exists a police power short of arrest that would allow for the removal of an individual who is acting lawfully to prevent an apprehended or immediate breach of peace. Since this issue was not properly before the Court in Fleming, when the issue does arrive, it will now be left to other courts to decide, by means of the ancillary powers doctrine, if such a power to remove an individual acting lawfully to prevent an apprehended or immediate breach of peace exists.
*This blog is not intended and does not constitute legal advice. Instead, it is intended to provide an overview of the Supreme Court of Canada’s decision of Fleming v. Ontario and to provide some preliminary legal information about the ancillary powers doctrine and the limits on the police power to arrest. If you are detained or arrested, contact a criminal defence lawyer right away.