This Thursday on March 21, 2019, the Canadian Constitution Foundation (CCF) will intervene at the Supreme Court of Canada in the important case of Fleming v. Ontario to provide unequivocal support for the right to freedom of expression, and in particular, the right of all Canadians to express controversial views in a peaceful manner in the public square.
Randy Fleming was violently arrested by the OPP in 2009 on his way to a counter-protest against the Aboriginal occupation of the Douglas Creek Estates in Caledonia, Ontario. He was carrying a Canadian flag while walking on the shoulder of a public highway when unmarked police vehicles drove directly at him. He left the shoulder of the road to avoid being hit and incidentally entered the Estates. Once he did so, a number of Aboriginal occupiers began to approach him, some quickly. The police responded by arresting Fleming, not the occupiers, to avoid the possibility of a violent confrontation.
This case raises constitutional issues that are important to the CCF and that affect all Canadians.
Freedom of expression exists in order to protect the expression of unpopular opinions. While protected expression may be controversial and at times spark hostility in others, if the police have the power to arrest speakers merely to prevent a possible future breach of the peace by offended listeners, the police are effectively granting hecklers a veto on what sort of expression is permissible. Controversial, yet perfectly legal expression, may provoke a response in listeners that causes the police to become apprehensive about public order, but this cannot on its own justify the curtailment of a speaker’s right to freedom of expression.
At its core, the CCF believes that providing a rigorous defence of freedom of expression is exceedingly important so that hecklers and offended listeners cannot use the threat of violence to silence their opposition and thereby undermine the right of Canadians to express unpopular or controversial opinions.
The CCF’s factum (which you can read by clicking here) was prepared by our pro bono team of lawyers from McCarthy Tétrault in Toronto.
You can watch a live broadcast of this appeal hearing on the Supreme Court of Canada’s website on Thursday morning.
The original release is available here.