Ottawa – The Supreme Court of Canada (SCC) has today decided that Randy Fleming was illegally arrested by the Ontario Provincial Police in 2009. In so doing, the SCC has protected the right of Canadians to express controversial political opinion in the public square.
Today’s decision concerns numerous constitutional issues that are important to the Canadian Constitution Foundation (CCF) and that affect all Canadians.
Mr. Fleming was violently arrested by the police 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. Relying on their authority under the common law, the police responded by restraining and arresting Fleming, not the occupiers, to avoid the possibility of a violent confrontation.
The CCF intervened in this appeal because it believes that freedom of expression must be protected from undue interference by the state. The Fleming decision supports that view. The Supreme Court of Canada has held that a protestor, who is not breaking any laws or inciting any violence themselves, cannot be arrested by the police under common law simply because their expression might provoke or enrage another party to breach the peace. This helps ensure a zone of protection for the lawful exercise of constitutional and other fundamental rights, which is critical in a free and democratic society like Canada.
The CCF was concerned, particularly, that in this era of so-called “cancel culture”, permitting police to rely upon their power of preventative arrest to effectively silence political speech would set a precedent that could be used to entirely undermine the important institution of free speech. In our view, police efforts should be directed toward those who threaten violence, not towards those legally exercising their constitutionally protected right to political expression.
Freedom of expression must include 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.
As today’s unanimous decision says:
 Because there is no common law power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace, the officers in this case did not have lawful authority to arrest Mr. Fleming…
[The respondents] rely entirely on a common law power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace by other persons — a power that I have found to be non-existent.
Although the SCC decided in Mr. Fleming’s favour, the Court found it unnecessary to rule on whether Fleming’s arrest was also an illegal inference with his right to freedom of expression, since the arrest was found illegal on other grounds. This leaves many important constitutional questions yet unanswered.
CCF Staff Lawyer Derek From said of today’s ruling:
While pleased with the result, we would have preferred that the Court issued a stronger, more definite statement on when the common law power of preventative arrest can be used to silence peaceful political speech. As Justice Huscroft observed in his opinion at the Ontario Court of Appeal, “police efforts should be directed towards those who would threaten violence—not those exercising their constitutionally protected rights to protest peacefully.” Today’s decision leaves that important question unanswered for future cases.
Read the original release here.