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Supreme Court of Canada establishes limits on common law arrest powers

Date Closed

March 21, 2019

Lead Office


On March 21, 2019, the Supreme Court of Canada released its judgment in Fleming v. Ontario, 2019 SCC 45.

In 2009, Mr. Fleming was arrested en route to a protest against the occupation of a piece of land by an Indigenous group, in which the police had plans to keep the protesters and Indigenous individuals apart. Mr. Fleming had not committed a crime; the basis for his arrest was said to be to prevent a breach of the peace. A majority of the Court of Appeal for Ontario held that his arrest was lawful.

The Supreme Court of Canada disagreed. It confirmed that "there is no common law power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace" by others, and ruled in favour of Mr. Fleming. 

The Canadian Constitution Foundation, a non-profit with the mission of defending the constitutional rights and freedoms of Canadians, acted as intervener in this appeal.

McCarthy Tétrault LLP represented the Canadian Constitution Foundation with a team led by Brandon Kain that included Adam Goldenberg, Natalie Kolos, and Jessica Mank.