Ancillary Powers of Arrest to Prevent Harm OverruledFleming v. Ontario, 2019 SCC 45 (CanLII)
Despite the increased ability of citizens to voice their political opinions through online media, or perhaps because of it due to the creation of "echo chambers," political expression in person has retained its attraction in our democracy.The greater polarization observed online is also reflected in real life.
Last month, an anti-LGBTQ Christian group's march through Toronto's gay village was met by a rally promoting unity. The counter-protest was just as notable, but both were dwarfed by the police presence, which kept the two groups apart. At times, this separation was achieved forcibly.Similar protests and counter-protests, especially with white supremacists, have been observed across Canada.
The federal government has attributed much of this polarization to the Internet, releasing the House Standing Committee on Justice and Human Rights' report, Taking Action to End Online Hate, in June 2019. The recommendations include creating civil liability for hate, regulate online platforms and ISPs, and require some form of online authentication.
However, a research memo by the Digital Democracy Project in September 2019 concluded that polarization in Canada arises from intense party loyalty instead, having negative feelings to voters and parties in an out-group. This comfort level towards members and voters of other parties extended to all groups in society, including Anglophones, Francophones, Christians, and people from other races, with the exception of Muslims, who outranked every other indicator of social distance. Media consumption alone was unable to explain these patterns.
What is clear is that this type of polarization isn't going away soon, and police will continue to have a challenging time keeping protesters and counter protesters safe.
How they do so was the subject of a recent Supreme Court of Canada decision in Fleming v. Ontario.In this case, the police arrested a counter-protester who had not committed a crime or broken any law. Instead, they claimed to arrest him for his own protection as he approached the protest he intended to protest against.
The police relied on the ancillary power doctrine in common law to prevent an apprehended breach of the peace. The unanimous court soundly rejected this argument, stating,
 ...no such power exists at common law. The ancillary powers doctrine does not give the police a power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace. A drastic power such as this that involves substantial interference with the liberty of law-abiding individuals would not be reasonably necessary for the fulfillment of the police duties of preserving the peace, preventing crime, and protecting life and property. This is particularly so given that less intrusive powers are already available to the police to prevent breaches of the peace from occurring.The Court emphasized that the police have limited powers, and are only entitled to interfere with the liberty or property of a citizen to the extent authorized by law. The organizing principle between the social, legal and political aspects of criminal law is the general right of an individual to be left alone.
Courts incrementally adapt the common law rules where there are legislative gaps, and have used the ancillary power doctrine to affirm R.I.D.E. program stops, investigative detentions, search incident to arrest, home entries, and sniffer dog searches.
The test for these powers was set out by the Court in Dedman v. The Queen, which was applied by the Court here as follows:
- the court must clearly define the police power that is being asserted and the liberty interests that are at stake;
- the court must ask whether the police conduct at issue falls within the general scope of a statutory or common law police duty; and,
- the court must ask whether the police action is reasonably necessary for the fulfillment of the duty.
- the importance of the performance of the duty to the public good;
- the necessity of the interference with individual liberty for the performance of the duty; and,
- the extent of the interference with individual liberty.
 This case does not concern a situation in which an arrested individual was about to commit a breach of peace. Instead, the power at issue in this case would target individuals who are not suspected of being about to break any law or to initiate any violence themselves, in situations in which the police nonetheless believe that arresting the individuals in question will prevent a breach of the peace from occurring. For example, these individuals might themselves be the targets or victims of anticipated violence. They could be “provocateurs” whose lawful actions or words are feared to be prompting others to respond violently. In such a situation, the police might believe that removing the person from the area will defuse the situation, avert the apprehended violence and even protect him or her.... This proposed power of arrest would involve substantial prima facie interference with significant liberty interests. Indeed, few police actions interfere with an individual’s liberty more than arrest — an action which completely restricts the person’s ability to move about in society free from state coercion. As this Court recently noted, “placing a person under arrest inherently infringes his or her liberty” (R. v. Penunsi, 2019 SCC 39 (CanLII), at para. 73). Freedom from arbitrary arrest and detention is of course itself constitutionally guaranteed by s. 9 of the Charter. Further, where the police use force to effect an arrest, they also directly engage a general liberty interest in being free from the exercise of force by the state as well as the interests in liberty and security of the person protected by s. 7 of the Charter.Applying the MacDonald factors to the balancing of the powers here, the court acknowledged the importance of preserving the peace and protecting people from violence, as well as the possibility in exceptional circumstances to interfere with liberty to prevent a breach of the peace.
However, less intrusive means should be used if they are available, and an arrest is one of the most extreme intrusions on individual liberty there is.The Court pointed to the statutory powers under Section 129 of the Criminal Code,
The police could have continued to direct the protesters and counter protesters appropriately, and if any of these protesters resisted or obstructed the officers in their duty, failed to assist the officer where required to, or even assaulted the officer, the statutory powers under the Code already provide the power to arrest without warrant,
Every one who
(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,
(b) omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so
. . .
is guilty of
(d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(e) an offence punishable on summary conviction.
 The respondents’ purported power of arrest would result in serious interference with individual liberty. As a result, such an arrest cannot be justified under the ancillary powers doctrine. There is already a statutory power of arrest that can be exercised should an individual resist or obstruct an officer taking other, less intrusive measures. It is not reasonably necessary to recognize another common law power of arrest in such circumstances. Therefore, to be clear, the only available powers to arrest someone in order to prevent an apprehended breach of the peace initiated by other persons are the ones that are expressly provided for in the Criminal Code. In my view, these statutory powers are sufficient, and any additional common law power of arrest would be unnecessary.The approach described by the police in this case are reminiscent of several incidents across Canada in recent years, especially with large protests or crowds, even when not explicitly invoked. The "kettling" technique was notably used in 2010 during the G20, with hundreds of residents or even bystanders being swept up by police actions, and many subsequently arrested when being unable to leave the area.
The police disciplinary decision of Supt. David Fenton found the officer guilty of two of three counts of unnecessary exercise of authority under the Police Services Act, and one of two counts of discreditable conduct, but still concluded that "containing or kettling is not illegal" based on Toronto Police policies at the time.
Where this kettling is also used in conjunction with arrests, and done so for the purposes of keeping the peace with individuals who have otherwise complied fully with the law, this decision means that such conduct would likely be considered unlawful. Police dealing with protesters should provide them an opportunity to leave an area, comply with instructions, and abide by lawful behaviour, and should not be subject to preventative arrests to protect them from harm where less intrusive measures to liberty are available to them.