Powers to prevent breach of peace through arrest are expressly provided for in Criminal Code

Criminal Law - Investigation and Arrest - Arrest

On day of planned rally to protest Indigenous occupation of land, plaintiff was arrested while walking in area with flag. Police injured plaintiff's arm during arrest. Plaintiff brought action for damages. Trial judge found plaintiff had done nothing unlawful, allowed claims for false arrest and unlawful imprisonment, and held police liable for battery because force used was unjustified. Police appealed. Majority of Court of Appeal allowed appeal, concluding police had authority at common law to arrest accused for anticipated breach of peace. Plaintiff appealed to Supreme Court of Canada. Appeal allowed. Ancillary powers doctrine does not give police power to arrest someone who is acting lawfully in order to prevent apprehended breach of peace by others. Such drastic power involving substantial interference with liberty of law-abiding individuals would not be reasonably necessary for fulfillment of police duties of preserving peace, preventing crime, and protecting life and property, particularly as less intrusive powers are already available to police to prevent breaches of peace from occurring. Only available powers to arrest someone in order to prevent apprehended breach of peace initiated by other persons are those expressly provided for in Criminal Code, which were sufficient. Additional common law power of arrest would be unnecessary. Arrest of accused was unlawful.

Fleming v. Ontario (2019), 2019 CarswellOnt 15608, 2019 CarswellOnt 15609, 2019 SCC 45, 2019 CSC 45, Wagner C.J.C., Abella J., Moldaver J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); reversed (2018), 2018 CarswellOnt 2369, 2018 ONCA 160, E.A. Cronk J.A., Grant Huscroft J.A., and I.V.B. Nordheimer J.A. (Ont. C.A.).

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