Court of Appeal for Ontario

Date: February 16, 2018

Docket: C62876

Judges: Cronk, Huscroft and Nordheimer JJ.A.

Between

Randolph (Randy) Fleming Respondent/Plaintiff

and

Her Majesty the Queen in right of the Province of Ontario, Provincial Constable Kyle Miller of the Ontario Provincial Police, Provincial Constable Rudy Bracnik of the Ontario Provincial Police, Provincial Constable Jeffrey Cudney of the Ontario Provincial Police, Provincial Constable Michael C. Courty of the Ontario Provincial Police, Provincial Constable Steven C. Lorch of the Ontario Provincial Police, Provincial Constable R. Craig Cole of the Ontario Provincial Police and Provincial Constable S.M. (Shawn) Gibbons of the Ontario Provincial Police

Appellants/Defendants

Counsel

For the Appellants: Judie Im, Erin Rizok and Sean Hanley

For the Respondent: Michael Bordin and Jordan Dicacur

Heard: November 14, 2017

On appeal from: The judgment of Justice Kim Carpenter-Gunn of the Superior Court of Justice sitting without a jury, dated September 22, 2016.

Majority Opinion

Nordheimer J.A.:

Background

[1] The appellants appeal from the trial judgment dated September 22, 2016 that awarded damages to the respondent in the amount of $139,711.90 together with costs. The respondent cross-appeals certain aspects of the damages awarded. The claim arises out of events that took place on May 24, 2009 near Argyle Street South in the Town of Caledonia but it is directly related to a longstanding dispute involving land claims in the Caledonia area of Ontario.

[2] On February 28, 2006, a dispute over land between Six Nations of the Grand River ("Six Nations") and the Crown led to the occupation of land known as the Douglas Creek Estates ("DCE") in Caledonia by Indigenous protestors. As part of the occupation of DCE, certain Indigenous flags, including Mohawk Warrior and Haudenosaunee flags, were hung at different times on Argyle Street, which runs past the front entrance of DCE.

[3] In mid-June 2006, the Ontario government agreed to purchase DCE from its owner, Henco Industries Ltd. The Ontario government then made the decision to allow the protestors to continue to occupy DCE.

[4] In response to the occupation of DCE, other individuals and groups began their own campaigns, rallies and marches protesting the occupation, the flying of Indigenous flags on Argyle Street, and what was alleged to be the Ontario Provincial Police's ("O.P.P.") "race-based policing" of the Caledonia conflict. The Ontario government's decision to allow the protesters to remain on DCE and the O.P.P.'s policing policies in Caledonia has been the subject of criticism, protest and litigation ever since.

[5] Many of the protests in Caledonia have been violent, including protests on May 21, 2006, December 1, 2007 and September 1, 2008. All of the appellant officers were members of the O.P.P.'s Emergency Response Team and most had been deployed to Caledonia numerous times since the beginning of the conflict. They all agreed that many of these protests have been "opportunities for civil disobedience and a venue for criminal acts to occur". The appellant officers described how conflicts between the protestors resulted in violence and injuries. The officers explained that the potential for violence increased as the two sides were allowed to come within proximity of each other.

[6] Inspector Skinner, the Aboriginal Critical Incident Commander who had 30 years of policing experience with the O.P.P., was responsible for 30 O.P.P. operations in Caledonia prior to retiring in 2012. He testified that the numbers and situation could change rapidly from peaceful to violent. Thus, it was necessary to have O.P.P. resources on site so that they could be quickly deployed. Officer Gibbons, one of the appellants, testified that he has witnessed rapid escalation of small to large numbers of individuals as a large volume of vehicles arrived on DCE from Six Nations' territory located immediately behind DCE. Officer Cudney, another of the appellants, said that he has seen situations where a phone call is made and the numbers double or triple in minutes.

[7] The respondent gave evidence that, before May 24, 2009, he took part in rallies and marches protesting the occupation of DCE, amongst other things. He agreed that rallies in the past "were inundated with violence". He also agreed that, if many protesters attended an event, often similar numbers of DCE protestors would show up in response, and it was difficult to predict how many people on either side would attend on any given day. However, all parties appear to have agreed that the level of confrontation and violence has diminished since 2006.

[8] Some months prior to May 24, 2009, the O.P.P. learned that a flag raising rally was being organized by members of the Canadian Advocates for Charter Equality to protest the occupation of DCE, the Indigenous flags flying on Argyle Street, and what was viewed by these protesters as "race-based policing" by the O.P.P ("the Flag Rally"). The Flag Rally organizers intended to meet at Lion's Hall, proceed to Argyle Street, and then march south to hang Canadian flags across from the front entrance of DCE where DCE protesters are known to be present.

[9] On March 30, 2009, Inspector Skinner was tasked with planning, organizing and executing the O.P.P.'s contingency plan, regarding the Flag Rally, in accordance with the Framework for Police Preparedness for Aboriginal Critical Incidents (the "Aboriginal Framework") and other relevant O.P.P. policies. To that end, he created the "Ontario Provincial Police Haldimand County Detachment Operational Plan Flag Rally" ("Operational Plan").

[10] In preparing the Operational Plan, Inspector Skinner communicated directly and indirectly with various members of the Indigenous community and the local City council, as contemplated by the Aboriginal Framework and other applicable O.P.P. policies. He also held organizational meetings with various O.P.P. resources that he intended on utilizing. In these meetings, he received information and gave directions in respect of obtaining more information regarding potential responses, resourcing and logistics, which were then incorporated into the Operational Plan. While the Operational Plan was generally finalized as of May 22, Inspector Skinner said that there may have been "some last minute changes" on May 24.

[11] Inspector Skinner understood that the Flag Rally would "raise the tension of people who were on the [DCE] and within the Six Nations". He also understood that the local City council was not in support of the planned Flag Rally. However, Inspector Skinner also testified that the position of the Indigenous community varied. Some members, he said, were "more moderate" than others.

[12] Based on his past experience in Caledonia, and information from the Aboriginal Relations Teams of the O.P.P. as to what kinds of events would raise tensions on DCE, Inspector Skinner was of the view that the two groups needed to be kept apart in order to preserve the peace. He was also of the view that the potential for conflict would increase as their proximity to each other increased. His views were not altered by any information or intelligence he received up to and including the day of the Flag Rally.

[13] On April 17, 2009, Inspector Skinner met with the Flag Rally organizers and informed them that they had a right to protest in a peaceful manner but that the march would not be permitted near the vicinity of DCE. At some point, he also conveyed to them that individuals, other than DCE occupiers, were not permitted on DCE.

[14] Based on past experience policing protests in Caledonia, Inspector Skinner determined that two public order units, each containing about 30 officers in six squads, were required. The Alpha Unit, in "soft tac", was to be initially deployed on Argyle Street while the Bravo Unit, in "hard tac", was to be held back at the Oneida public school a few kilometres away.

[15] The Operational Plan set out the following three-fold mission which was communicated to all O.P.P. officers in the Alpha and Bravo Units at the morning briefing:

• Maintain order and ensure public safety to the residents, community members and police.
• Allow [Flag Rally] protestors to exercise their lawful rights and cause the least possible disruption to others.
• Maintain the safe and orderly flow of traffic on Argyle Street South in the Town of Caledonia and Highway 6 By-Pass.

[16] At the briefing, Inspector Skinner also advised the assigned officers that the Flag Rally protest would not be allowed within the vicinity of DCE and that they should stop anyone from going onto DCE. However, whether this would be done through communication or physical restraint would depend upon the circumstances and officer discretion.

[17] Inspector Skinner planned on keeping the Flag Rally protesters and DCE protesters apart initially through negotiation and discussions with both sides but ultimately, if necessary, by creating a buffer zone between them. Specifically, he planned to keep the Flag Rally protestors on Argyle Street some distance from the DCE entrance while DCE protestors would not be permitted to proceed north, from the entrance, to approach them.

[18] On May 24, 2009, the respondent was at the Brown's residence attending a barbeque where t-shirts were being sold to pay the court costs of protestors opposed to the occupation of DCE and who were arrested in and around Caledonia. The Brown's residence was the first private residence south of the entrance of DCE on Argyle Street.

[19] The respondent had a Canadian flag with him. It was his intention to walk north on Argyle Street and watch a Canadian flag being raised at the entrance of DCE. While at the Brown's residence, Mr. Fleming was informed that the march had started. He began walking north on the west shoulder of Argyle Street, with his Canadian flag. The flag was attached to a wooden pole between 40 to 42 inches in length.

[20] At about this time, the Alpha Support Squad, one of the six squads in the Alpha Unit, which was made up of the appellant officers, was proceeding north on Argyle Street in two vans followed by officers driving an Offender Transport Unit. The squad was being relocated to a church parking lot immediately north of the front entrance of DCE on Argyle Street. They passed the respondent as they proceeded north on Argyle Street.

[21] Sergeant Huntley advised Officer Lorch – the Alpha Support Leader – over the police radio that a "flag was coming up the road" and directed the Alpha Support Squad to change their destination and deploy between the Brown's residence and the entrance to DCE. The two Alpha Support Squad vehicles, and the Offender Transport Unit, turned around and proceeded south to approach the respondent.

[22] The respondent saw the approaching vehicles. As the vehicles moved onto the shoulder of Argyle, he left the shoulder because they were approaching him with speed. After he left the shoulder of Argyle Street, he continued walking in a westward direction a fair distance away from the shoulder – down into a grassy ditch, through the grassy ditch and up the other side, over a low fence (which appears to mark the boundary of DCE) and then a few steps onto DCE. The respondent's evidence was that he did this voluntarily in order to get on level ground.

[23] Once the respondent left the shoulder of Argyle Street and the vans stopped, the appellant officers began yelling various commands to him, including "return to the shoulder", "stop" and "stay away from DCE". The respondent says that he glanced behind, saw the officers, and heard them yell. His evidence was that he did not comply with the officers' commands because he did not think they were talking to him as he knew that he "wasn't doing anything wrong".

[24] The respondent's entry onto DCE caused an immediate reaction from the DCE protesters at the front entrance of DCE. They became angry and upset. Approximately eight to ten DCE protesters started moving towards the respondent. Some of them were running. The appellant officers said that they were concerned for the respondent's safety as a result.

[25] It is clear that the respondent was also concerned. In his evidence, he said:

A. My first, my initial thought was who do I take my chances with? That was my initial thought. Do I, do I walk down to the entrance of the [DCE] and meet the people coming out or do I turn around and, and walk back into the police? Honest, that was my first thought.

Q. Okay.

A. Fairly quickly decided it would likely be better if I turned and went with the police.

Q. Why was that?

A. Well, that would diffuse [ sic ] the situation. It was – I mean I wasn't there to prove a point or anything, I , I just – I was just disappointed when I realized they were talking to me.

[26] Officer Miller followed the respondent over the fence and told him that he was under arrest to prevent a breach of the peace in accordance with O.P.P. policy. He then took the respondent's right arm and escorted him over the low fence and off DCE.

[27] Officer Miller and some of the other appellant officers ordered Mr. Fleming to drop the flag as they viewed the flag pole as a potential weapon. The respondent admitted that he had no intention of allowing the officers to take his flag. Indeed, he testified:

The last person I would have ever handed my flag to that day would have been a member of the OPP…I'm not sure I can properly convey the anger that I felt but if I had to pick one group on the planet that would be the absolute last that I would have handed my flag to that day it would have been the very group asking for it.

[28] A struggle ensued. The respondent and some of the officers went to the ground. Eventually, the officers wrested the Canadian flag from the respondent's hands and handcuffed him. Prior to the handcuffing, however, the respondent says that one of the officers yanked his left arm up behind his back. This action resulted in a serious injury to the respondent's left elbow leaving him with what was later determined to be a permanent chronic pain condition.

[29] Some, but not all, of these events were captured on a video recording. The recording shows the respondent walking along Argyle; it shows the O.P.P. vehicles go past the respondent and then subsequently return; it shows the respondent leaving the shoulder of Argyle and walking west where he eventually walks onto DCE property; and it shows Officer Miller arresting the respondent. Unfortunately, due to the presence of a large bush, the recording does not show the respondent being taken down, relinquishing his flag, or being handcuffed.

[30] At the end of an 11 day trial, the trial judge concluded that the respondent was falsely arrested and wrongfully imprisoned and that his rights under the Canadian Charter of Rights and Freedoms were violated. She awarded general damages of $80,000; damages for false arrest, wrongful imprisonment and breach of right to pass of $10,000; special damages of $12,986.97; and damages for breach of the respondent's s. 2(b) Charter rights of $5,000. She declined to award aggravated or punitive damages.

Issues and Analysis

[31] The two main issues raised in this appeal are:

(i) Did the police have the authority to arrest the respondent for a breach, or an anticipated breach, of the peace?

(ii) If so, did the police use excessive force in effecting the arrest?

(i) Authority to arrest for breach of the peace

[32] The primary issue raised by this appeal is whether the police were justified in arresting the respondent to avoid a breach of the peace. There is no doubt that the respondent was entitled, in normal circumstances, to walk along a public street carrying a Canadian flag. He was also entitled to participate in "political action" and to participate in a protest about the ongoing activities on DCE. The respondent was not entitled to engage in any of these activities, however, if his actions would likely lead to a breach of the peace. There are constraints on the exercise of any person's rights and one of those constraints is where the exercise of a right will lead to a breach of the peace or other public safety concerns. This potential for conflict between individual rights and effective policing was discussed by Iacobucci J. in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, where he said, at para. 16:

Charter rights do not exist in a vacuum; they are animated at virtually every stage of police action. Given their mandate to investigate crime and keep the peace, police officers must be empowered to respond quickly, effectively, and flexibly to the diversity of encounters experienced daily on the front lines of policing.

[33] As I have mentioned, there is a long history of problems in the Caledonia area, including a long history of violent confrontations over Indigenous land claims. This was well-known to the O.P.P. who are responsible for policing the area and for maintaining public safety and order. It is one of the reasons why the O.P.P. has developed the Aboriginal Framework.

[34] For reasons that are unclear, the trial judge held that the events of May 24, 2009 were not "Aboriginal Critical Incidents" as defined in the Aboriginal Framework. With respect, it is difficult to see how they could be reasonably characterized as anything else. The principal event was a planned flag raising directly across from the entrance to DCE that would undoubtedly lead to a reaction from the DCE protestors. As the Aboriginal Framework expressly notes, its purpose is to address such events before they become a problem. It is difficult to understand why the trial judge was critical of the O.P.P. for using its developed framework to both plan for the event and in an effort to avoid any clash between the protesting sides. It may be that this error arises from the apparent focus of the trial judge on the actions of the respondent as a stand-alone event as opposed to them being part of the broader flag raising event with which the O.P.P. was concerned.

[35] The trial judge moved from her finding that this was not an Aboriginal Critical Incident to her central finding that the officers arrested the respondent without lawful cause. More specifically, the trial judge said:

The O.P.P. prevented Mr. Fleming from exercising his lawful rights of walking up Argyle Street with a Canadian flag and violently arrested him without cause. The court finds the evidence is clear that the O.P.P. intended to prevent Mr. Fleming from walking up Argyle Street with a Canadian flag, and that he was arrested a few feet onto DCE. (at p. 64)

[36] There are two difficulties with these findings. First, the O.P.P. did not prevent the respondent from walking up Argyle Street with his flag. There is simply no evidence to support this finding. Nothing occurred between the O.P.P. and the respondent until he moved away from Argyle Street onto DCE.

[37] Second, there is also no evidence that the O.P.P. "intended" to prevent the respondent from walking up Argyle Street. The respondent chose to leave the shoulder of Argyle Street and walk some distance westward onto DCE. Why he did that is unclear on the record, but what is clear is that it was not a necessary consequence of the O.P.P. vehicles arriving. The respondent could have avoided any danger that he perceived from the arrival of the vehicles on the shoulder of Argyle Street without going either the direction or the distance that he did. It is simply unknown what would have transpired between the respondent and the officers had the respondent remained at the side of Argyle Street after the officers arrived.

[38] As a result, both of these critical findings are tainted by palpable and overriding error. It therefore falls to this court to determine whether the arrest of the respondent, on DCE, was a lawful arrest.

[39] I begin with this court's decision in Brown v. Durham (Regional Municipality) Police Force (1998), 43 O.R. (3d) 223, which addressed the common law police power to arrest an individual in order to keep the peace. This power derives from what is commonly referred to as the Waterfield test that is discussed in Brown. In order to exercise that common law power, Doherty J.A. said, at para. 61:

That approach requires first, that the police be acting in the execution of their duties and second, that in all the circumstances, the police conduct constitutes a justifiable interference with individual liberty.

[40] There is no doubt that in this case the police were acting in the execution of their duties. They had a duty to keep the peace and protect the public in an area that had a history of conflict. They had been called on many times to carry out that duty and they had developed policies and protocols to accomplish their task. No issue is taken with the efficacy of those policies and protocols.

[41] The central issue is whether the arrest of the respondent was a justifiable interference with his individual liberty. Every person has constitutionally protected rights including "freedom of thought, belief, opinion and expression": s. 2(b) of the Charter. However, the public as a whole has a right to peace and security. Where there is the potential for a conflict between the two, there is never an easy answer as to which should triumph. As Doherty J.A. noted in Brown, at para. 62:

The infinite variety of situations in which the police and individuals interact and the need to carefully balance important but competing interests in each of those situations make it difficult, if not impossible, to provide pre-formulated bright-line rules which appropriately maintain the balance between police powers and individual liberties.

[42] The police have a duty to keep the peace. They also have a duty to protect individuals from harm. "To serve and protect" is not just a convenient slogan. It reflects the central role of the police. As Rouleau J.A. said in Figueiras v. Toronto (City) Police Services Board, 2015 ONCA 208, 320 C.C.C. (3d) 437, at para. 88: "[k]eeping the peace and preventing property damage or personal injury are clearly important duties".

[43] The issue then becomes whether the officers were justified in taking the steps that they did to arrest the respondent and remove him from the area of conflict in order to avoid a breach, or potential breach, of the peace. Doherty J.A. defined a breach of the peace as follows in Brown, at para. 73:

A breach of the peace contemplates an act or actions which result in actual or threatened harm to someone. Actions which amount to a breach of the peace may or may not be unlawful standing alone. Thus, in Percy v. D.P.P., (1994), [1995] 3 All E.R. 124 (Eng. Q.B.) at 131, Collins J. observed:

The conduct in question does not itself have to be disorderly or a breach of the criminal law. It is sufficient if its natural consequence would, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established.

[44] Doherty J.A. added that the apprehended breach of the peace must be imminent and the risk of a breach must be substantial. He concluded, at para. 74:

To properly invoke either power, the police officer must have reasonable grounds for believing that the anticipated conduct, be it a breach of the peace or the commission of an indictable offence, will likely occur if the person is not detained. [Footnote omitted.]

[45] In R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, LeBel J. commented on what form of police conduct will be a justifiable exercise of the common law power, at para. 36:

Thus, for the infringement to be justified, the police action must be reasonably necessary for the carrying out of the particular duty in light of all the circumstances. [Citations omitted.]

[46] In determining whether the police action is reasonably necessary, LeBel J. referred to the Dedman and Mann lines of cases as defining the limits on the exercise of the police power. Those limits involve the importance of the duty; the necessity of the infringement arising from the duty; and the extent of the resulting infringement. In terms of the importance of the duty, LeBel J. said, at para. 39:

No one can reasonably dispute that the duty to protect life and safety is of the utmost importance to the public good and that, in some circumstances, some interference with individual liberty is necessary to carry out that duty.

[47] In this case, as I have already mentioned, the police had a long history of dealing with disputes in the Caledonia area. They were aware of the potential for clashes to occur with little warning and for what might appear to be minor skirmishes to escalate very quickly. It was the obligation and duty of the O.P.P. to be prepared and to take reasonable steps to avoid confrontation.

[48] I note on this point that the trial judge said, at p. 59, that "the actions on May 24, 2009 must be based on what happened on that date, not what the situation was in 2006". I disagree. One cannot compartmentalize the history of events in the Caledonia area and thus isolate individual incidents one from the other. The steps taken by the O.P.P. on May 24, 2009 were necessarily, and properly, informed by the history of the various confrontations that had occurred.

[49] In that regard, the decision of Inspector Skinner to adopt, as part of the Operational Plan, a "buffer zone" between the factions was an entirely legitimate one. Police have the authority to create such zones for proper purposes in order to carry out their duties. For example, in R. v. Knowlton, [1974] S.C.R. 443, the Supreme Court of Canada upheld the creation of a buffer zone around the entrance to a hotel in Edmonton where the Premier of the then U.S.S.R. was attending. In upholding the restriction on access to the hotel's entrance, Fauteux C.J.C. said, at pp. 447-448:

According to the principles which, for the preservation of peace and prevention of crime, underlie the provisions of s. 30, amongst others, of the Code, these official authorities were not only entitled but in duty bound, as peace officers, to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada. In this respect, they had a specific and binding obligation to take proper and reasonable steps. The restriction of the right of free access of the public to public streets, at the strategic point mentioned above, was one of the steps – not an unusual one – which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid. In my opinion, such conduct of the police was clearly falling within the general scope of the duties imposed upon them.

[50] A similar point was made by Rouleau J.A. in Figueiras, at para. 60:

As the case law demonstrates, even in the absence of statutory authority, the police must be taken to have the power to limit access to certain areas, even when those areas are normally open to the public.

[51] It must also be remembered that the focus of the O.P.P.'s attention was with the group of protestors who were organizing to the north of DCE and who were expected to march south towards DCE for the flag raising. The respondent's presence was an unexpected event that arose from an entirely different direction. The O.P.P. had no idea what the respondent's intentions were, including whether he was acting alone or with others, but they quickly decided that they needed to institute a buffer zone to the south to accomplish the same purpose as the existing buffer zone to the north. This is clear from the radio instructions given to the O.P.P. officers involved:

Going to have to deploy you between Brown's place and the, uh, DCE, entrance to DCE. You're going to have to do that soon as we've got a flag coming down that direction.

[52] What confronted the O.P.P. officers after they turned around, was to see the respondent walk away from Argyle Street westward and onto DCE. This caused a group of eight to ten DCE protestors to rush towards the respondent in a threatening fashion.

[53] The rushing protestors posed a risk, both to the public peace and to the respondent individually. This reality is implicitly, if not expressly, acknowledged by the respondent in his evidence that I have set out at para. 25 above. The respondent realized that he was in trouble from the approaching protestors and he knew that the situation was perilous. He acknowledges the risk by his reference to "defusing" the situation. There would be no reason to defuse the situation if it was not a hazardous one. The trial judge's conclusion that there was no threatened breach of the peace cannot be reconciled with the evidence, particularly with the video of the event. The trial judge appears to have tried to avoid this reality by speculating that the protestors may have been angry with the O.P.P. officers, and not with the respondent. That explanation finds no foundation in the evidence.

[54] In my view, the officers were reasonably justified in taking action to prevent harm coming to the respondent and a corresponding breach of the peace. The officers had reasonable grounds to effect the arrest of the respondent as a necessary step to address the situation. The officers had not only seen the rushing protestors as a threat to the safety of the respondent, they also knew that the respondent had refused to obey their orders to stop and to leave DCE. I would note on this point that it is important to remember that the arrest occurred on DCE, not on Argyle Street. The trial judge's frequent erroneous references to the police interfering with the respondent's right to walk on Argyle Street may be what led her into the wrong analysis and conclusion.

[55] In concluding that the officers' actions were necessary, I adopt the observation of Rouleau J.A. in Figueiras, at para. 93:

In other words, where the power being exercised is in furtherance of the police duty to keep the peace, it must be rationally connected to the risk sought to be managed (that is, the risk that the peace will be breached), and it must be an effective means of materially reducing the likelihood of that risk occurring.

[56] In my view, the actions of the O.P.P. officers were being undertaken in order to avoid a breach of the peace and they were effective at doing that. The respondent was removed from the area without any further issue and without any further disturbance or confrontation with the DCE protestors. In exercising their duty to keep the peace, it was not necessary, nor would it be in the public interest, for the police to wait until violence actually occurred. The point of the common law power is to avoid violence, not simply to deal with its aftermath.

[57] The trial judge faults the officers for not instituting a buffer zone between the respondent and the protestors and for not calling for back-up from other available officers, as alternatives to arresting the respondent. While both of these routes were available, the basis for the trial judge's criticism of the officers is unclear. There was no need to institute a buffer zone if the matter could be addressed by removing the respondent as the source of the friction. Further, there is no reason to believe that a buffer zone of six or seven officers against eight to ten rushing protestors (with others available to join that group) would have been effective or whether it would have simply resulted in a larger confrontation. Similarly, there was no reason to call for back-up, and run the risk of inflaming tensions by such a show of force, if, again, the matter could be addressed by removing the respondent. In my opinion, courts ought to be very cautious about criticizing the tactical actions of the police in situations such as that presented here. It should go without saying that the police have a great deal more training and experience in such matters than do judges.

[58] None of these observations are intended to suggest that the courts will defer to the police in such matters. The courts maintain their role to ensure that police conduct complies with the prevailing law, including the requirements of the Charter. Hindsight, however, is not a proper basis for imposing liability on the police because, among other things, it fails to reflect the realities of police work: Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129, 2007 SCC 41, at para. 68.

[59] In my view, the police had reasonable grounds to believe that there was an imminent risk to the public peace, and a substantial risk of harm to the respondent, that justified their decision to arrest the respondent. The trial judge's holding to the contrary is fundamentally flawed and cannot stand.

(ii) Excessive force

[60] The conclusion that the police had reasonable grounds to arrest the respondent does not end the inquiry. There is evidence that, in effecting the arrest, one of the officers may have used excessive force.

[61] The fact that the police have lawful authority to arrest an individual does not authorize them to use whatever force they may choose to use. The force used must be reasonable. Section 25(1) of the Criminal Code, R.S.C., 1985, c. C-46 reads:

Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

[62] An officer who uses excessive force in making an arrest cannot avail him/herself of the protection afforded by s. 25(1). As the Alberta Court of Appeal said in Crampton v. Walton, 2005 ABCA 81, 363 A.R. 216, at para. 43:

Even if the police acted on reasonable grounds in executing the warrant in an aggressive manner, they will be denied the protection of s. 25(1) if they used excessive force.

[63] That said, the police are not to be held to a standard of perfection in this regard. Allowances must be made for the nature of the duties that police officers perform and the situations in which they may have to perform them. The actions of a police officer are also not to be judged with the benefit of hindsight. As LeBel J. said in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 35:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances.

[64] The trial judge found that the force used to arrest the respondent was excessive. However, her analysis of this issue was rooted in her erroneous conclusion that the arrest of the respondent was unlawful. Her analysis is irretrievably tainted by that error and, consequently, cannot be relied upon. It therefore falls to this court to assess whether a proper determination of this issue can be made on the record before us.

[65] The force used to arrest the respondent escalated because of his refusal to let go of his flag pole. It was this resistance that led the officers to take the respondent down to the ground. It was only after the respondent was on the ground that the officers were able to get the flag pole out of his hands.

[66] The arresting officer said that, after the flag pole was removed, he asked the respondent to put his hands behind his back and the respondent complied. He was then handcuffed. However, the evidence at trial was that, prior to that happening, an officer, who was holding the respondent's left arm, yanked it up, causing the injury to the respondent that I described earlier. Unfortunately, the trial judge did not make any finding as to which officer did this.

[67] A review of the transcripts does not assist in identifying the involved officer. None of the officers was asked who yanked the respondent's arm before the handcuffs were applied. The respondent said that it was Officer Lorch who yanked his arm but, as the respondent acknowledged as a possibility at trial, he appears to be mistaken in that regard. Officer Lorch's evidence, which was accepted by the trial judge, was that he was not involved in taking Mr. Fleming to the ground or in what occurred after, as he was dealing with the DCE protestors.

[68] Officers Miller, Cudney, Bracnik, Courtney and Gibbons all gave evidence that they were involved in getting the respondent handcuffed while he was on the ground. With the sole exception of Officer Miller, all of the officers said that the respondent was actively resisting their efforts to handcuff him while he was on the ground. Officer Miller said that the respondent was not resisting although I note that the trial judge did not accept Officer Miller's evidence with respect to how the arrest came about.

[69] Given this state of the evidentiary record, it is not possible to determine how or why the respondent's left arm was yanked, or whether, in the process, excessive force was used. If the respondent was struggling with the officers the entire time he was on the ground until he was handcuffed, it is possible that the force used to gain control of his arms, remove the flagpole, and apply the handcuffs, did not involve the use of excessive force, even if an injury resulted.

[70] It is, of course, necessary to know how and why the respondent's left arm was yanked in order to determine whether excessive force was used. Without a determination of that critical question, it is not possible to determine the potential liability of any individual officer or, indeed, the potential vicarious liability of the Crown, for any resulting damages.

[71] The evidence before this court is insufficient to make those key determinations. As a result, a new trial on these narrow issues is required to permit those factual determinations to be made.

(iii) Cross-appeal

[72] The respondent takes issue with the damages awarded by the trial judge. Specifically, he submits that there should have been an award of aggravated damages in the amount of $15,000 for false arrest, wrongful imprisonment and/or breach of his right to pass unhindered on a public highway. The respondent also submits that the award of damages for breach of his s. 2(b) Charter rights should be increased from $5,000 to $30,000. Finally, the respondent seeks an award of punitive damages in the amount of $20,000.

[73] Given the conclusion on the main appeal, I do not reach these issues. Insofar as they relate to the excessive use of force issue, they will have to be considered afresh at any new trial. The conclusion on the main appeal does mean, though, that the damages awarded at trial for the unlawful arrest and Charter breaches must be vacated.

Conclusion

[74] Accordingly, for the reasons given, I would allow the appeal, set aside the trial judgment including all of the damage awards, and direct a new trial on the sole issue of whether excessive force was used when the respondent was arrested and, if so, what damages follow. I would dismiss the cross-appeal.

[75] The respondent asked that, if the appeal was allowed, he be able to make submissions as to why he ought not to have to pay the costs of the appeal. Consequently, the respondent shall have 10 days from the date of these reasons to file written submissions on the costs of the appeal. The appellants shall have 10 days to respond. No reply submissions are to be filed. The submissions are not to exceed five pages. The costs of the trial are reserved to the judge who hears and determines the new trial or through any other order of the Superior Court of Justice.

I.V.B. Nordheimer J.A.

I agree. E.A. Cronk J.A.

Dissenting Opinion

Huscroft J.A. (Dissenting):

Overview

[76] The primary issue raised by this appeal is whether the police were justified in arresting the respondent to avoid a possible breach of the peace. My colleague Nordheimer J.A. concludes that they were. With respect, I disagree.

[77] The basic facts in this case are not in dispute. Randy Fleming was on his way to a "Flag Rally" in Caledonia led by a group called "Canadian Advocates for Charter Equality". The rally occurred in the context of the ongoing occupation of DCE, Crown-owned land, by Indigenous protesters. The rally organizers planned to march down Argyle Street and hang Canadian flags across from the front entrance of DCE. Mr. Fleming was walking along the shoulder of Argyle Street, which borders the disputed land, carrying a large Canadian flag, when the events that are the subject of this appeal occurred.

[78] My colleague defers to the police in their decision to arrest Mr. Fleming, rather than to the trial judge, whose decision came following an 11-day trial. The trial judge found that Mr. Fleming's arrest was not justified in the circumstances. In my view, there is no basis for this court to interfere with her decision.

[79] I would dismiss the appeal.

Discussion

A. The Standard of Review

[80] The burden is on the appellants to demonstrate an error of fact or an error of mixed fact and law that is both palpable and overriding. It must be palpable, in the sense that the error is obvious or apparent without further inquiry or explanation. More important, it must be overriding in terms of its significance. It must be so significant that it undermines the very core of the case – the trial judge's decision that Mr. Fleming's arrest was unlawful: see generally Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at p. 246; Waxman v. Waxman (2004), 186 O.A.C. 201, at paras. 292-309; and most recently Benhaim v. St. Germain, 2016 SCC 48, 2 S.C.R. 352, at para. 38, citing South Yukon Forest Corp. v. R., 2012 FCA 165, 4 B.L.R. (5th) 31, at para. 46.

[81] In my view, none of the alleged errors identified by Nordheimer J.A. rises to this high standard. As a result, it is not open to this court to substitute its view as to the lawfulness of Mr. Fleming's arrest.

B. The Arrest for Possible Breach of the Peace

(1) Did the Flag Rally constitute an "Aboriginal Critical Incident?"

[82] My colleague concludes that the trial judge erred in finding that the Flag Rally did not constitute an "Aboriginal Critical Incident" and, as a result, that the O.P.P.'s "Aboriginal Framework for Police Preparedness for Aboriginal Critical Incidents" did not apply. He does not characterize this as a palpable and overriding error, nor could he. Nothing follows from it: the O.P.P.'s policy had no special status in law. Even assuming that the trial judge erred – assuming that the Flag Rally was an "Aboriginal Critical Incident" and the police were following the policy they had established – the lawfulness of Mr. Fleming's arrest depended not on whether it complied with police policy but, instead, on whether it complied with the common law police power to arrest an individual to avoid a possible breach of the peace.

[83] The error my colleague attributes to the trial judge is significant, however, because it reinforces the subtext of his decision: the trial judge erred in determining that Mr. Fleming's arrest was unlawful because, in his view, she failed to defer to the operational decisions of the police and failed to appreciate the circumstances at Caledonia, in particular the history of conflict. Nordheimer J.A. specifically disagrees with the trial judge's statement that the lawfulness of Mr. Fleming's arrest must be determined based on the police actions on May 24, 2009, the date of his arrest. This, he says, wrongly compartmentalizes the history of the conflict at Caledonia; the steps taken by the police on that day were necessarily and properly informed by the history of that conflict.

[84] The difficulty with this position is that, as outlined below, the police power to arrest for a possible breach of the peace depends on an evaluation of the circumstances existing at the time of the arrest. Those circumstances are, of course, informed by the relevant history. But the legality of an arrest depends on whether a breach of the peace is imminent and the risk that the breach will occur is substantial, and those determinations must be made based on extant circumstances. It cannot be assumed that a history of conflict justifies the exercise of police power in all future circumstances.

[85] In any event, it was not contested that the level of conflict had decreased in the years since the occupation of DCE began. As Nordheimer J.A. notes, at para. 7, "all parties appear to have agreed that the level of confrontation and violence has diminished since 2006." The trial judge was aware of the context and cannot be said to have failed to appreciate the circumstances at Caledonia or the history of the conflict.

(2) Did the O.P.P. prevent Mr. Fleming from walking up Argyle Street with his flag?

[86] My colleague concludes that the trial judge made a palpable and overriding error in finding that the O.P.P. prevented Mr. Fleming from walking up Argyle Street with his flag, and in finding that the police intended to prevent him from walking up Argyle Street. His analysis is contained in this passage, at paras. 36-37:

There are two difficulties with these findings. First, the O.P.P. did not prevent the respondent from walking up Argyle Street with his flag. There is simply no evidence to support this finding. Nothing occurred between the O.P.P. and the respondent until he moved away from Argyle Street onto DCE.

Second, there is also no evidence that the O.P.P. "intended" to prevent the respondent from walking up Argyle Street. The respondent chose to leave the shoulder of Argyle Street and walk some distance westward onto DCE. Why he did that is unclear on the record, but what is clear is that it was not a necessary consequence of the O.P.P. vehicles arriving. The respondent could have avoided any danger that he perceived from the arrival of the vehicles on the shoulder of Argyle Street without going either the direction or the distance that he did. It is simply unknown what would have transpired between the respondent and the officers had the respondent remained at the side of Argyle Street after the officers arrived.

[87] With respect, the conclusion that nothing occurred between the O.P.P. and Mr. Fleming until he left Argyle Street and moved onto DCE does not square with the trial judge's other findings, supported by the evidence. The trial judge's key finding is that Mr. Fleming left Argyle Street and stepped onto DCE because of the police, as she explains in this passage, at p. 42:

The court finds based on all of the evidence, including the video, that if the defendants had not interfered with Mr. Fleming's passage along Argyle Street on May 24, 2009, he would simply have passed in front of DCE and moved on to the flag raising event. It was the conduct of the defendant officers, in driving directly at Mr. Fleming's location as he was walking along the shoulder of Argyle Street, approximately 100 metres from the entrance to DCE, that caused Mr. Fleming to leave the shoulder and walk a few feet on to what may have been DCE land.

[88] The trial judge's finding is amply supported by the record. It is not contested that, once the police saw Mr. Fleming walking to the Flag Rally from a direction they had not expected, two unmarked police vehicles drove towards him to intercept him. The police drove "with speed" (as my colleague notes, at para. 22) and "didn't look like [they were] slowing down" (as the trial judge found, at p. 10). Mr. Fleming testified, and the trial judge accepted, that he left the shoulder of the road, walked into the ditch, and stepped onto the DCE to move away from the police vehicles and reach level ground.

[89] The trial judge found that the evidence was "clear" that the police intended to prevent Mr. Fleming from walking up Argyle Street with a Canadian flag. Not only did she accept Mr. Fleming's testimony that he left the shoulder because of the police vehicles, but she noted that Inspector Skinner conceded that the O.P.P. had pre-emptively decided to limit the rights of the Flag Rally participants and that, for him, public safety "[took] priority over other rights such as the freedom of expression and the freedom to walk down the street."

[90] Whatever the intention of the O.P.P. may have been in approaching Mr. Fleming as they did, their conduct had the effect of preventing him from walking up Argyle Street. The trial judge's findings on this issue cannot be construed as a palpable and overriding error.

[91] My colleague characterizes things differently than the trial judge. Mr. Fleming, he says, chose to leave the shoulder of Argyle Street for reasons that are unclear on the record. Nordheimer J.A. states that Mr. Fleming's decision to leave Argyle Street was not a consequence of the O.P.P.'s arriving on the scene, yet he acknowledges that Mr. Fleming may have perceived danger from the arrival of the O.P.P. vehicles. He then suggests that Mr. Fleming is the author of his own misfortune – that he might have avoided his problems by remaining at the side of Argyle Street.

[92] With respect, it is not open to this court to recharacterize the evidence in this fashion and substitute its inferences for those made by trial judge. The trial judge made findings that were open to her on the evidence. It cannot be said that they constitute palpable and overriding error.

(3) Was Mr. Fleming's arrest lawful?

[93] Having concluded that the findings identified above were tainted by palpable and overriding error, Nordheimer J.A. frames the issue of the lawfulness of Mr. Fleming's arrest in this way, at para. 32:

There is no doubt that the respondent was entitled, in normal circumstances, to walk along a public street carrying a Canadian flag. He was also entitled to participate in "political action" and to participate in a protest about the ongoing activities on DCE. The respondent was not entitled to engage in any of these activities, however, if his actions would likely lead to a breach of the peace. There are constraints on the exercise of any person's rights and one of those constraints is where the exercise of a right will lead to a breach of the peace or other public safety concerns. [Emphasis added.]

[94] In my view, this understates the importance of both the common law liberty to proceed unimpeded along a public highway and the right to engage in political protest – the heart and soul of freedom of expression in a democracy. At the same time, it overstates the scope of the police power to arrest someone to avoid a possible breach of the peace – a breach that may never occur, and a breach that, if it were to occur, would be caused by the unlawful actions of others. The police power to arrest for a possible breach of the peace is an extraordinary power. Its exercise cannot easily be justified, according to the case law of this court, which is based on the Waterfield test.

(a) The Waterfield test

[95] The Waterfield test sets out a two-stage analysis for determining whether the police have acted within their authority at common law. The test requires first, that the police be acting in the execution of their duties. Second, in all the circumstances the police conduct must constitute a justifiable exercise of their powers. Put another way, Waterfield requires that the court strike a balance between the police's public duty and of the liberty and other interests at stake: R. v. Waterfield, [1964] 1 Q.B. 164; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at paras. 35-36; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 24-26.

[96] I agree with my colleague that, in this case, the police were acting in the execution of their duty to preserve the peace. We differ at the second stage of the Waterfield inquiry, which is concerned with whether the police action "constitutes a justifiable exercise of powers associated with the duty": MacDonald, at para. 36.

[97] My colleague proceeds from the premise that the public has a right to peace and security that is in conflict with Mr. Fleming's freedom of expression. With respect, this mischaracterizes the nature of the conflict. The conflict in this case is not between Charter rights; it is between the exercise of police duty to preserve the peace and Mr. Fleming's rights, both common law and Charter rights, and in particular his freedom of expression. In such a conflict, Mr. Fleming's rights enjoy presumptively greater force. As Doherty J.A. put it in Brown v. Durham Regional Police Force (1999), 43 O.R. (3d) 223 (C.A.), at para. 79, "The balance struck between common law police powers and individual liberties puts a premium on individual freedom and makes crime prevention and peacekeeping more difficult for the police."

[98] The appellants submit that the trial judge ignored the social and political considerations at issue in Caledonia. They assert that the police had the duty not only to preserve the peace for the public good, but for "the greater public interest in reconciliation and negotiation with Indigenous communities in Canada."

[99] I have already noted that the trial judge was well aware of the history and ongoing conflict at Caledonia. However, the public interest in reconciliation and negotiation with Indigenous communities is not a relevant consideration in determining the lawfulness of Mr. Fleming's arrest for breaching the peace. The exercise of his rights is not contingent on acknowledging or endorsing reconciliation and negotiation or any other government policy. Mr. Fleming was entitled to attend and participate in the Flag Rally regardless of its effect on the government's political goals at Caledonia or anywhere else, and, in particular, regardless of whether the Flag Rally was considered provocative by the government or the protesters.

[100] Political expression will often be provocative, and so considered problematic, but there is no doubt that its protection is a core purpose of freedom of expression. I emphasize this point in order to reinforce the importance of protecting the rights of those who would take part in political protest. Although the police may, in exceptional circumstances, arrest someone to avoid a breach of the peace even if that person has broken no law, police efforts should be directed towards those who would threaten violence – not those exercising their constitutionally protected rights to protest peacefully.

[101] This approach is well established in American First Amendment doctrine, which requires the police to take all reasonable steps before resorting to controlling the speaker. What reasonableness requires is not always clear, but, as Frederick Schauer notes, it is clear that "law enforcement may not initially or prematurely arrest the speaker": see Frederick Schauer, "The Hostile Audience Revisited", (Paper commissioned by the Knight First Amendment Institute at Columbia University, "Emerging Threats" Series (December, 2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3093114), at p. 17.

[102] The appellants submit that this court in Brown "did not dictate that the police officer must arrest the 'angry crowd' or individuals who are threatening harm or being provoked into violence." Indeed, it did not. But nor did Doherty J.A. endorse the arrest of individuals exercising Charter protected rights and freedoms as a first step in seeking to preserve the peace. On the contrary, he was careful to emphasize that the necessity of taking steps to preserve the peace arises only when there is a real risk of imminent harm. "Before that point is reached", he wrote, at para. 78, "proactive policing must be limited to steps which do not interfere with individual freedoms."

[103] This last point bears repeating: "proactive policing must be limited to steps which do not interfere with individual freedoms." There is no doubt, as Doherty J.A. acknowledged in Brown, that the protection of rights and freedoms makes crime prevention and peacekeeping more difficult for the police; it may even preclude the police from preventing crime. But that is the price that must be paid if rights and freedoms are to be respected.

(b) Was Mr. Fleming's arrest necessary?

[104] In order to justify the use of the common law police power to arrest Mr. Fleming, the appellants must show that "the police action [was] reasonably necessary for the carrying out of the particular [police] duty in light of all of the circumstances" (emphasis in original): MacDonald, at para. 36.

[105] This is the key question on appeal – whether or the extent to which it was necessary to interfere with Mr. Fleming's liberty in the circumstances. This depends on whether a breach of the peace was "imminent" and there was a "substantial risk" that it would occur. As Doherty J.A. explained in Brown, at para. 74, "the mere possibility of some unspecified breach at some unknown point in time will not suffice…the police officer must have reasonable grounds for believing that the anticipated conduct…will likely occur if the person is not detained." The "imminence and substantial risk" test has been endorsed by this court in R. v. Baker (2005), 73 O.R. (3d) 132, at para. 20 and Figueiras v. Toronto Police Service Board, 2014 ONCA 208, 124 O.R. (3d) 641, at paras. 98, 120.

[106] The trial judge found, at p. 43, that "it is not clear from the evidence that the natural consequence of Mr. Fleming walking up a street in Canada with a Canadian flag, and then walking onto and standing on land owned by the province would provoke others to violence, so as to establish an actual danger to the peace". She found, further, that "any apprehended breach of the peace was neither imminent, nor was the risk that the breach would occur substantial."

[107] Nordheimer J.A. concludes that she erred in so holding. He states, at paras. 53-54:

The rushing protestors posed a risk, both to the public peace and to the respondent individually…The trial judge's conclusion that there was no threatened breach of the peace cannot be reconciled with the evidence, particularly with the video of the event.

In my view, the officers were reasonably justified in taking action to prevent harm coming to the respondent and a corresponding breach of the peace. The officers had reasonable grounds to effect the arrest of the respondent as a necessary step to address the situation. The officers had not only seen the rushing protestors as a threat to the safety of the respondent, they also knew that the respondent had refused to obey their orders to stop and to leave DCE. I would note on this point that it is important to remember that the arrest occurred on DCE, not on Argyle Street. The trial judge's frequent erroneous references to the police interfering with the respondent's right to walk on Argyle Street may be what led her into the wrong analysis and conclusion.

[108] In essence, my colleague concludes that Mr. Fleming's arrest was justified because the protestors rushed towards him and threatened his safety.

[109] It is not clear that the police would have been justified in arresting Mr. Fleming even assuming the events unfolded as Nordheimer J.A. describes. After all, there were several armed police in attendance, almost equal in number to those my colleague says rushed towards Mr. Fleming, and additional police were close by. But, in any event, my colleague's description of "rushing protestors" is at odds with the findings of the trial judge, who stated as follows, at p. 2:

Of the approximately eight to ten male and female occupiers approaching Mr. Fleming's location, several were carrying cameras, some walked, some jogged. There were no weapons. They were not known to be individuals with a history of violence. The seven O.P.P. officers arrived at Mr. Fleming's location in advance of the first two or three occupiers who were moving more quickly. The occupiers never arrived at Mr. Fleming's location, that is, they kept their distance.

[110] Nordheimer J.A. cites an extract from Mr. Fleming's testimony in finding that there were concerns for his safety, but that testimony does not demonstrate the requisite imminent and substantial risk of harm. The trial judge, who heard the relevant testimony, specifically found that (i) "there were no threats uttered by the occupiers" (at p. 38); (ii) the occupiers' "conduct was not threatening" (at pp. 15-16); and (iii) it was unlikely that Mr. Fleming would have been harmed (at p. 38). It is not open to this court to substitute its findings for those of the trial judge on this or any other point of factual disagreement.

[111] In my view, my colleague misconstrues and so minimizes the necessity requirement. He acknowledges that the police could have instituted a buffer zone between Mr. Fleming and the protesters and could have called for backup rather than arresting him, but concludes, at para. 57:

There was no need to institute a buffer zone if the matter could be addressed by removing the respondent as the source of the friction. Further, there is no reason to believe that a buffer zone of six or seven officers against eight to ten rushing protestors (with others available to join that group) would have been effective or whether it would have simply resulted in a larger confrontation. Similarly, there was no reason to call for back-up, and run the risk of inflaming tensions by such a show of force, if, again, the matter could be addressed by removing the respondent. [Emphasis added.]

[112] Thus, in the face of concern that illegal violence might occur, my colleague sanctions the removal and arrest of Mr. Fleming – whose exercise of Charter rights broke no laws – as a first option in preserving the peace rather than a last resort.

[113] This turns the concept of necessity on its head. The question is not whether arresting and removing someone might prevent a breach of the peace; the answer to that question will almost always be yes. The question is whether the extraordinary step of a preemptive arrest was necessary because a breach of the peace was imminent and the risk that it would occur was substantial, and that breach could not be reasonably prevented by some alternative police action. In this regard, I note that the trial judge found, at pp. 54-65, that "[t]here were many other less invasive options that could have been implemented to defuse the situation."

[114] The trial judge concluded, at p. 43, that there was "no evidence to support a finding that there was a reasonable basis for the O.P.P officers to believe there was an imminent risk that a breach of the peace would occur, or that the risk that it would occur was substantial". Nordheimer J.A. rejects this conclusion, but he does not analyze the requirements of imminence or substantiality, nor does he explain why the trial judge's interpretation and application of the test was wrong. His conclusion, that the police had reasonable grounds to believe that there was an imminent risk to the public peace and a substantial risk of harm to Mr. Fleming, appears to flow from his view that the police are entitled to deference in such matters. He notes, at para. 57:

In my opinion, courts ought to be very cautious about criticizing the tactical actions of the police in situations such as that presented here. It should go without saying that the police have a great deal more training and experience in such matters than do judges.

[115] I accept that the police have training and experience that judges do not. I do not accept that their decisions are entitled to deference as a result, especially when they limit the exercise of Charter rights. My colleague states that his observations are not intended to suggest that the courts will defer to the police, but in my view his decision does precisely this.

[116] The trial judge was required to determine the legality of Mr. Fleming's arrest in order to ensure that his rights were protected. She applied the case law of this court, and in particular the factors set out in Brown, in concluding that Mr. Fleming's arrest was not lawful. I set out her findings, at pp. 44-45, in full:

(a) any apprehended harm was not imminent; b) there was no specific identifiable harm which the arrest of Mr. Fleming sought to prevent, other than a generic assertion that there would be a breach of the peace. The defendants had instructions not to let any protesters in the area of DCE or onto DCE based on the unfounded conclusion of Inspector Skinner, reached well in advance of the flag rally, that these steps were necessary to prevent a breach of the peace; c) the defendant O.P.P. officer[s'] concerns that some harm could occur was based not on what Mr. Fleming had done, or even on what the occupiers who were approaching had done, but rather was based on a generalized concern that there had been violence in the past at protests; d) the liberty interfered with was a fundamental right to move about the community and fundamental Charter rights; e) the interference with Mr. Fleming's liberty resulting from the defendants' conduct was substantial in terms of the impact on Mr. Fleming's freedom, the length of his detainment and the injury he suffered; and f) the detention of Mr. Fleming could not be said to be necessary to the maintenance of the public peace.

[117] I can see no basis to interfere with these findings or the trial judge's conclusion. In my view, the deference my colleague accords to the operational decisions of the police is more properly due to the decision of the trial judge.

C. Excessive Force

[118] Given my conclusion that the arrest was unlawful, there is no need to return the matter for re-trial to determine whether excessive force was used during the arrest. The protection of s. 25 of the Criminal Code is not available in the case of an unlawful arrest. The trial judge's conclusion that the police officers and the Crown are jointly liable regardless of who yanked Mr. Fleming's arm was not challenged on appeal.

D. The Cross-Appeal

[119] I see no basis to interfere with the trial judge's exercise of discretion in assessing the quantum of damages.

Conclusion

[120] I would dismiss the appeal and award costs to the respondent in the agreed amount of $53,000. I would dismiss the cross-appeal and award costs to the appellants in the agreed amount of $5,000.

Released: February 16, 2018

Grant Huscroft J.A.

Footnotes

[1] R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.).

[2] Dedman v. The Queen, [1985] 2 S.C.R. 2; Mann, supra.