When raising the flag breaches the public peace
Behold the lawless bastard, Randy Fleming.
Almost nine years ago, he dared to walk along Argyle Street in the town of Caledonia, Ont., carrying a Canadian flag on a pole towards a peaceful so-called “flag rally.”
For this impudence, he was wrestled to the ground by a half-dozen Ontario Provincial Police officers, permanently injured and charged with obstructing police (though officers told him he was being arrested to “prevent a breach of the peace,” a loathsome preventative detention offence).
After 12 court appearances, the Crown abruptly withdrew the criminal charge.
Fleming sued the OPP and more than two years ago, he won.
Ontario Superior Court Judge Kim Carpenter-Gunn vindicated him, ruling that his arrest was unlawful, that the police used more force than necessary and that they breached his Charter and common-law rights.
She also awarded him almost $300,000 in general and special damages and legal costs.
But you annoy the state at your peril. The state does not like being found in the wrong. The state does not brook defiance by individual citizens.
The state has the money to never say die.
The OPP, with its infinite resources, appealed. Three lawyers from the Ontario Attorney General were dispatched.
The decision was appealed, and last month, the appeal court overturned the Carpenter-Gunn decision, finding that the judge had made “palpable and overriding error” and that the OPP officers were justified in arresting Fleming, both “to prevent harm” being done to him and to prevent a breach of the peace.
In other words, said the appeal court, the police had been arresting him for his
own good, the ungrateful swine.
And the court ordered Fleming to pay $25,000, or about half, of the government’s legal costs of the appeal.
ALL MR. FLEMING HAD DONE WAS TO STAND PEACEFULLY ... WITH THE CANADIAN FLAG. SUPERIOR COURT RULING POLICE HAD REASONABLE GROUNDS TO BELIEVE THERE WAS AN IMMINENT RISK. APPEAL COURT RULING
As a citizen of Ontario, of course, he was already paying for the cost of the action, as do all citizens. Now he gets to pay twice.
The trial judge’s legal error appears to be that she determined the OPP had prevented Fleming from “exercising his lawful rights of walking up Argyle Street (the main drag in Caledonia)” when, in fact, he wasn’t on Argyle Street.
Fleming had jumped off the road to the ditch and then onto the adjacent land — native-occupied, and thus sacred, land — in order to avoid the OPP cars rushing toward him at some speed.
This happened on May 24, 2009, three long years after the violent occupation of Douglas Creek Estates (DCE), a subdivision then under construction, by Six Nations protesters.
Now, those were protesters who could do, and indeed had done for those three years, whatever they wanted.
They had occupied the site without a peep from the OPP.
When the late Ontario Superior Court Judge David Marshall made various orders, telling them to remove their barricades and get off DCE, they ignored the orders and, in one case at least, burned the order and ground it into the mud.
Some of them broke the law in spectacular fashion — burning bridges and cars, issuing “passports” to nonnative residents who lived near the site, vandalizing a Hydro One station, terrorizing citizens who drove too close — and throughout, the OPP was most concerned with anything that might “provoke” the occupiers further.
The police mostly busied themselves arresting nonnative protesters, such as Fleming and activist Gary McHale — anyone whose presence, however peaceful, might enrage the native occupiers and thus spur them unto violence.
All the while, of course, in the backrooms, government bureaucrats, negotiators and handmaidens — the latter including the OPP commissioner at the time, Julian Fantino — all but urinated themselves as they sought to placate the occupiers and their allies.
It was with all this in the background that the sad flag rallies began.
They were sad because they were usually poorly attended, most Caledonia residents either long earlier bullied into acquiescence or filled with the fervent Canadian desire to turn the other cheek.
They were sad because there was never any illegal activity planned, merely the raising of a Canadian flag, a stubborn gesture of defiance to those who flew the flag of the Mohawk Warriors at DCE. As a patriotic gesture, they were inherently sad.
The appeal court decision was written by Ian Nordheimer. Eleanore Cronk, now retired, agreed with him.
But in an unusually strong dissent, Judge Grant Huscroft backed the trial judge, who after all had heard the evidence for 11 days.
He found that the purported errors weren’t serious and that it was clear the OPP had pre-emptively decided to limit the rights of the Flag Rally participants.
“In my view,” Huscroft wrote, “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.
“…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 protesters.”
Randy Fleming is a 57-year-old retired steelworker, a stoic guy with big cajones. Whatever the government says, whatever the appeal court says, he fought for his country at a time when very few others did, and for his trouble, he’s been nicely smacked down. It’s a disgrace, from start to finish.