Top court sides with Caledonia man over 2009 protest near land claims site

Canada’s Supreme Court has ruled in favour of a Caledonia protester who was unlawfully arrested by the Ontario Provincial Police a decade ago during a flag rally near the controversial Douglas Creek Estates property.

The decision, released Friday morning, reverses a ruling by Ontario’s Court of Appeal and restores the decision of the original trial judge, which found that Randy Fleming had been unlawfully arrested, wrongfully imprisoned and the victim of excessive use of force.

The Court of Appeal, in a split decision, said Fleming’s arrest was justified because police had “reasonable grounds to believe there was an imminent risk to the public peace.” A new trial was ordered.

The top court’s decision said there was no need for a new trial because it was unlawful for police to arrest Fleming — who hadn’t committed a crime — simply because they feared others might breach the peace.

The Supreme Court restored the original decision by Hamilton judge Kim CarpenterGunn to award Fleming $140,000 in damages, plus costs that have now risen to nearly $200,000.

“This wasn’t just about me,” Fleming said Friday afternoon. “This was about freedom of expression across all our nation. “Thank goodness the Supreme Court got it right,” he added.

The incident happened May 24, 2009, when emotions were still prone to boiling over in Caledonia concerning the former Douglas Creek Estates (DCE) housing project. The site, bordering the Six Nations reserve, was the centre of a long-standing dispute over Indigenous land claims. Following a lengthy occupation of the property in 2006 by Indigenous protesters, the Ontario government opted to purchase the site from the developer and allow the occupation of the property to continue.

On the day in question, a flag rally was organized to oppose the occupation. The rally included a march to DCE with the goal of hanging Canadian flags across the front entrance to the property.