Hamilton

Supreme Court rules in favour of man arrested protesting 2009 Six Nations blockade

The Supreme Court has backed a lower court ruling saying police acted improperly in the arrest of a man near Six Nations during a land rights blockade.

Court backed a lower court ruling in a case where police acted improperly in arrest

The Supreme Court of Canada finds that a trial judge's order needs to be restored after they deemed police did act improperly in arresting Randy Fleming as he carried a large Canadian flag near a Six Nations community at Caledonia in 2009. (CBC)

The Supreme Court of Canada has backed a lower court ruling in a case involving the arrest of a man during a protest against an Ontario Indigenous community's land-rights blockade. 

The court said police did act improperly in arresting Randy Fleming as he carried a large Canadian flag near a Six Nations community at Caledonia in 2009. 

The court said Fleming did nothing unlawful before being arrested. 

There was no evidence that he had committed any offence in walking along the street, the ruling said, entering the occupied property or standing there with his flag. Nor was there evidence that he was about to commit an indictable offence or a breach of the peace.

The supreme court ruled "a new trial on the issue of excessive force is not necessary. As the police were not authorized at common law to arrest [Fleming], no amount of force would have been justified for the purpose of accomplishing that task."

Fleming was carrying Canadian flags onto Indigenous-claimed lands, on his way to a counter-protest over a First Nations blockade on the site.  

According to court documents, Fleming, when trying to avoid police vehicles during the protest, stepped onto the occupied property. Police then proceeded to come towards him and "told him he was under arrest to prevent a breach of the peace."

Fleming was "forced to the ground, handcuffed, placed in an offender transport unit van, moved to a jail cell and released two and a half hours later," according to the Supreme Court's ruling. 

Fleming claims his elbow was permanently injured in the struggle with police after he refused to drop the large stick holding the flags, once off the disputed lands. 

The trial judge had initially awarded damages to Fleming, but a decision at the Court of Appeal set aside the trial judgment and ordered a new trial restricted to determining whether excessive force was used during the arrest. 

Issues include "whether minimal impairment of individual rights and proportionality remain factors to be weighed when analyzing necessity in Waterfield test for determining whether police were justified in exercising ancillary common law power to arrest." Waterfield refers to an English Court of Appeal decision from 1963 regarding the authority of a police officer to stop and detain individuals.

Fleming appealed on whether the police acted lawfully and whether a new trial should have been ordered about excessive force. 

Fleming's appeal was allowed and the Supreme court ruled the trial judge's order be restored.