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.

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