Summary

38087

Randolph (Randy) Fleming v. Her Majesty the Queen in Right of the Province of Ontario, et al.

(Ontario) (Civil) (By Leave)

Keywords

Torts - Canadian charter (Non-criminal), Freedom of expression (s. 2(b)) - Torts – False arrest – Wrongful imprisonment – Charter of Rights and Freedoms – Freedom of expression – Freedom to walk down public street – Common law power of arrest – Applicant arrested to prevent breach of peace – Test applicable to review police officers’ exercise of their common law power to arrest – Whether Court of Appeal abandoned considerations of minimal impairment and proportionality in application of test?.

Summary

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Mr. Fleming was walking alone down a public street carrying Canadian flags attached to a pole. He intended to join a rally. The rally was a counter-protest to a blockade by Indigenous demonstrators of lands owned by the Province of Ontario. The street upon which Mr. Fleming was walking bordered the disputed lands. Police officers intended to maintain the public peace by establishing a buffer zone between rally participants and the disputed lands. After Mr. Fleming was spotted, police officers in unmarked vans approached him rapidly. As the vehicles drew close, he walked off the shoulder of the street, crossed a ditch, stepped over a low fence, and stepped onto the disputed lands. He later stated that he did so to find level ground. Nearby Indigenous demonstrators began approaching. Officers shouted commands at Mr. Fleming. One officer followed Mr. Fleming over the fence and arrested him to prevent a breach of the peace. Mr. Fleming was escorted off the disputed lands and ordered to drop his flag. He refused and a struggle ensued. Mr. Fleming was overpowered and his flag was taken from him. During the struggle, he suffered injury to his left elbow resulting in permanent chronic pain. Mr. Fleming was handcuffed and removed in a police transport van. The charge giving rise to the arrest eventually was withdrawn. Mr. Fleming commenced an action for damages. The trial judge awarded damages for false arrest, wrongful imprisonment, breach of right to pass, and breach of s. 2(b) of the Charter of Rights and Freedoms. A majority of the Court of Appeal allowed an appeal. They set aside the trial judgment and ordered a new trial limited to whether excessive force had been used during the arrest. The dissenting judge of the Court of Appeal would have dismissed the appeal.