Justice at last for doing the right thing
And so, in the middle of this utterly disheartening election campaign, there comes a welcome ray of light.
An institution, in this case a court, has done what Canadian politicians and political parties find so achingly difficult to do — that is, the palpably, plain-as-the-noseon-your-face right thing.
It is a unanimous decision, bitingly written by Justice Suzanne Côté from the Supreme Court of Canada and it puts a shine — a happy ending — on the disgraceful 10-year-long ordeal of Randy Fleming.
Fleming was arrested by half a dozen Ontario Provincial Police officers on May 24, 2009, wrestled to the ground, hands cuffed behind his back and permanently injured, transported to a nearby detachment and kept in a cell for almost three hours.
A resident of Caledonia, Fleming was protesting the then three-year-old occupation of Douglas Creek Estates, once a housing development under construction, by Six Nations protesters.
By this time, the province of Ontario had bought the land and allowed the protesters to remain on the site and fly the flag of the Mohawk Warriors. The OPP had perfected its two-tiered policing (whereby officers spent most of their time arresting non-native protesters while allowing native protesters to terrorize the area, the best illustration of that a period when the occupiers issued “passports” to non-natives who lived near Douglas Creek Estates and demanded they show them whenever they were coming or going), and the citizenry was exhausted by it all.
Most everyone but a small group led by activist Gary Mchale had completely given up. This one small group organized occasional “flag rallies,” where they would attempt to walk up the town’s main street, carrying a Canadian flag, the lawless bastards.
They were always poignant events: Poorly attended, there was never any illegal activity planned — just a mild show of defiance — and yet to judge by the police presence, it was, every time, as though a giant mask-clad group of Antifa had descended brandishing weapons.
May 24, 2009 was one such rally.
This time, the plan was for the protesters to walk along the main street and raise a Canadian flag across from the main entrance of Douglas Creek Estates.
Fleming began walking toward the housing development, where he planned to meet up with the others. He was carrying a Canadian flag on a wooden pole.
An OPP squad passed him, turned around and headed back to his location.
He saw the two vans and a prisoner’s wagon approaching, moving fast.
To avoid being smushed by them, he moved off the shoulder of the road, into a ditch and up onto DCE property, causing a group of DCE occupiers to begin moving toward him. None of them had any weapons nor even uttered any threats.
The cops flew out of their vehicles and began shouting various commands at him. They told Fleming to drop his flag; he refused and then they arrested him.
As Côté wrote, “He had committed no crime. He had broken no law. He was not about to commit any offence, harm anyone, or breach the peace.
“In essence, the OPP officers claimed to have arrested Mr. Fleming for his own protection,” she said.
Among a police officer’s many tasks are preserving the peace, preventing crime and protecting life and liberty, the judge said.
But while the execution of these duties sometimes means police have to interfere with the liberty of individuals, “… a free and democratic society cannot tolerate interference with the rights of law-abiding people as a measure of first resort.
“There is a line that cannot be crossed. The rule of law draws that line. It demands that, when intruding on an individual’s freedom, the police can only act in accordance with the law.”
Here, the police were seeking what Côté described as the power “to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace” by someone else.
That, of course, is just plain dopey. Côté essentially said so — no such power exists at common law and thus Fleming’s arrest was unlawful.
Oh — the OPP had also charged Fleming with obstructing a peace officer. He appeared in court on 12 different occasions to defend himself before the charge was withdrawn by the Crown almost 19 months after being laid.
In March of 2011, Fleming filed a civil suit against the province and the seven officers involved in his arrest.
In 2016, at trial, Superior Court Judge Kim Carpenter-gunn vindicated Fleming, finding that his arrest was illegal, that the police used excessive force and breached his Charter and common-law rights. She awarded him almost $300,000 in general and special damages and legal costs.
The OPP appealed, of course, Fleming’s temerity apparently a noxious thorn in the state side.
Last year, the Ontario Court of Appeal overturned the Carpenter-gunn decision, finding, in effect, that the police had been arresting Fleming for his own good.
But the resolute Fleming and his lawyers, Michael Bordin and Jordan Diacur, persevered and in the result, the stirring words from Côté: “Here, the respondents (the OPP) are proposing a power that would enable the police to interfere with the liberty of someone who they accept is acting lawfully and who they do not suspect or believe is about to commit any offence.
“It would be difficult to overemphasize the extraordinary nature of this power.”
It is finally over for Randy Fleming. He won.
And the state, and the police, have been sharply reminded that, to paraphrase a British judge Côté quoted, it’s better to protect the rights of the innocent rather than force him to cease exercising them.