Police Power to Arrest Protesters for Their Own Safety

• Author: Omar Ha-Redeye
• Date: October 06, 2019

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,

[7] …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:

1. the court must clearly define the police power that is being asserted and the liberty interests that are at stake;
2. the court must ask whether the police conduct at issue falls within the general scope of a statutory or common law police duty; and,
3. the court must ask whether the police action is reasonably necessary for the fulfillment of the duty.

The...