Canadian Supreme Court To Cops: You Can't Arrest Someone Just Because You Think Something Illegal Might Happen In The Future

from the not-how-'keeping-the-peace'-works dept

Free speech protections have been given a bit of a boost in Canada. Simultaneously, the leash on the country's law enforcement has been tightened a little. That's how these things go. Personal rights and government power are often zero-sum. This case -- dealing with the arrest of a counter-protester -- ensures Canadian law enforcement can't just go around arresting people for the "crime" of not committing any crimes. (via a site that wrote about it but somehow found it impossible to include a link to the freely-available ruling, so here's a link to the Supreme Court's site)

This is important. And the ruling [PDF] rolls back consecutive lower court decisions that said Canadian cops can arrest people if they think some lawlessness might be imminent. In this case, Randy Fleming was arrested by law enforcement as he approached an indigenous occupation of land owned by the Canadian government. Fleming was carrying a Canadian flag, presumably to make the point the land belonged to the Canadian government, rather than the representational occupiers opposed to that view.

Carrying the flag was legal. Approaching the protest was legal. Provoking a reaction where several protesters starting heading toward Fleming was legal. And yet, five law enforcement officers grabbed Fleming, pushed him to the ground, and handcuffed him. After 12 court appearances in 19 months, the charge of resisting arrest was dropped.

The Appeals Court said police did indeed have the power to arrest people if they felt doing so would "keep the peace," even if the person they arrested committed no crimes and, at least in this case, was possibly on his way to becoming the victim of a crime. Arresting people for their own safety was, briefly, legal in Canada. Not anymore.

The country's Supreme Court is shocked that any court in the land would arrive at this conclusion. It also appears to be appalled the government would even argue that it has this power. While Canadian law enforcement does have a "duty to preserve the peace," it should never opt immediately to separate people who've committed no crimes from their freedom.

Here, the respondents are proposing a power that would enable the police to interfere with the liberty of someone who they accept is acting lawfully and who they do not suspect or believe is about to commit any offence. It would be difficult to overemphasize the extraordinary nature of this power. Such a power would constitute a major restriction on the lawful actions of individuals in this country.

Not only would this deprive citizens of their freedom, it would also seriously harm their ability to seek recourse for being arrested for not committing crimes.

[T]he exercise of the respondents’ purported police power would be evasive of review. Since this power of arrest would generally not result in the laying of charges, the affected individuals would often have no forum to challenge the legality of the arrest outside of a costly civil suit... Judicial oversight of the exercise of such a police power would therefore be rare.

Finally, the court harshly dismisses the government's "ends justifies the means" argument that arresting non-criminals does a pretty good job at preventing breaches of the peace.

[T]he mere fact that a police action was effective cannot be relied upon to justify its being taken if it interfered with an individual’s liberty. For an intrusion on liberty to be justified, the common law rule is that it must be “reasonably necessary”. If the police can reasonably attain the same result by taking an action that intrudes less on liberty, a more intrusive measure will not be reasonably necessary no matter how effective it may be. An intrusion upon liberty should be a measure of last resort, not a first option. To conclude otherwise would be generally to sanction actions that infringe the freedom of individuals significantly as long as they are effective. That is a recipe for a police state, not a free and democratic society.

Sure, warrantless searches and randomly tossing people in jail is sure to result in the prevention of criminal activity, but that's not how rights and protections work. The government's attempt to get the court to sympathize with its result-oriented work in this case fails spectacularly.

And since the arrest wasn't justifiable in any way, Fleming's excessive force claims are upheld because… well, any force used to effect an illegal arrest is going to be excessive. That means Canadian taxpayers will be covering all of the plaintiff's court fees, including the $199,000 racked up at the appellate and Supreme Court level.

Filed Under: arrests, canada, free speech, pre-crime, predictions


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 22 Oct 2019 @ 4:33am

    Herrick's not going to like this, is he?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Oct 2019 @ 5:25am

      Re:

      Why? Is he Canadian?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Oct 2019 @ 5:40am

        Re: Re:

        Jhon boi is generally not fond of anything that gives civilians the benefit of the doubt.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Oct 2019 @ 5:56pm

        Re: Re:

        There was a post where horse with no name claimed to be Canadian.

        He's also claimed to have spent a lot of time in China.

        How this intersects with the mailing lists story is anyone's guess, but anything's possible when you live in Copyright Bullshit land.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Oct 2019 @ 5:20am

    precogs eh?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Oct 2019 @ 5:33am

    now tell me which other governments have the same idea as the now kicked out Canadian one? the answer is EVERY FREAKIN ONE! people just dont seem to realise that their rights, their freedom, their expressions are being removed, totally, everywhere! i doubt if there is a single government on the planet that doesn't now think it can do whatever the fuck it likes, with immunity, to achieve what it wants, ie, total citizen surveillance, not just of people via cctv and face recognition, but of what they do, who with, where, when, how, what they read, what they buy, what they spend, where they go. absolutely nothing is private anymore and that means we have no freedom! and it all came about because of the purposefully induced financial crisis, where Conservative-leaning governments came to and have remained in power, ensuring that those politicians and friends in politics and business were able to ensure their financial futures while keeping what they were up to secret. at the same time, they know every single thing about us! we are their slaves and have lost our freedom and privacy while they have enhanced theirs! and even when governments change to less Conservative biased, it will be nigh on impossible to get these elite-class laws repealed!

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 22 Oct 2019 @ 6:14am

      Re:

      now tell me which other governments

      Thank you for your constructive and well formatted rant having nothing to do with the article. I'm sure everyone appreciates it as much as I do.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Oct 2019 @ 9:19am

      Re:

      The Brady law does exactly that. It is a pre-crime law that takes our 2nd amendment rights and throws them out the window for possible future violent crimes.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Oct 2019 @ 10:40am

        Re: Re:

        "The Brady law does exactly that."
        And what do you think that is exactly?

        "It is a pre-crime law"
        I thought it imposed a background check and a waiting period, how is this pre-crime?

        You think felons convicted of armed robbery or murder should be allowed to own weapons upon release? Why would you think that ... I bet you also think that felons should not be allowed to vote after their release, but they can own a weapon.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 22 Oct 2019 @ 12:26pm

          Re: Re: Re:

          The court who convicted me of three misdemeanors after coercing a plea from me after the jail refused to let a court order to administer medicine to allow me to sleep- 300 hours of deprivation(I did not sleep for more than 12 day's) threw the Brady law at me took my firearms and now I am no longer allowef to have or use any firearm for hunting or defense all for defending myself against a psycho.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 22 Oct 2019 @ 12:27pm

            Re: Re: Re: Re:

            Don't drag me back there.

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 22 Oct 2019 @ 12:47pm

            Re: Re: Re: Re:

            There was no firearms invvolved except the cocksuccker from swat whi rifle butted me in the face as another fuckhead hand me in a chokehold while two others held my arms behind my back ALL WHILE I WAS SURRENDERING PEACEFULLY ON MY KITCHEN FLOOR. You think you know something? You don't know sqwat diddley.

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 22 Oct 2019 @ 2:19pm

            Re: Re: Re: Re:

            As brutal as that sounds, my sympathies, but I doubt that was the result of the Brady law.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 22 Oct 2019 @ 10:00pm

              Re: Re: Re: Re: Re:

              The judge had the brady law imposed as punishment so the feds will know immediately if I try to obtain a firearm right there in open court. He knew the person I was defending myself against (and I made no physical contact in the altercation) was already convicted of domestic violence. I was conspired against , tortured in jail by sleep deprivation and railroaded through coercion to plea. I was completely wiped out. Twelve days without one iota of sleep.

              reply to this | link to this | view in chronology ]

          • icon
            bhull242 (profile), 24 Oct 2019 @ 12:17pm

            Re: Re: Re: Re:

            My sympathies, but based on what you said, technically your firearms were taken away because of a crime you pleaded guilty to. We could argue whether that was fair or just given the nature of the crime, but you were convicted of a crime before your guns were taken away. Ergo, that wasn’t a pre-crime taking of your firearms.

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Oct 2019 @ 7:14am

    "an indigenous occupation of land owned by the Canadian government"

    This is rather humorous ...
    an indigenous occupation of land stolen by the Canadian government from the indigenous people.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Oct 2019 @ 8:39am

      Re:

      ... who stole it from someone else. Welcome to world history.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Oct 2019 @ 8:42am

        Re: Re:

        and who might that be ... given the title of indigenous one might wonder.

        reply to this | link to this | view in chronology ]

        • icon
          JoeCool (profile), 22 Oct 2019 @ 9:21am

          Re: Re: Re:

          Unless you live in South-East Africa, no one is indigenous.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 22 Oct 2019 @ 10:45am

            Re: Re: Re: Re:

            Indigenous peoples, also known as First peoples, Aboriginal peoples or Native peoples, are ethnic groups who are the original owners and caretakers of a given region, in contrast to groups that have settled, occupied or colonized the area more recently.
            . https://en.wikipedia.org/wiki/Indigenous_peoples

            original owners and caretakers of a given region .....

            • There is nothing addressing from where they evolved. There was no one there when they arrived and they are therefore indigenous.

            reply to this | link to this | view in chronology ]

    • identicon
      Annonymouse, 22 Oct 2019 @ 9:58pm

      Re:

      Notice that 5 indigenous occupiers were aggressively moving towards this fellow and the cops took him down and did nothing to the hooligans.
      Anybody else would have been arrested or at least encouraged to leave after making their point in the media.

      Still the supervisory officers at the time should have been held to account for their actions if not the ones that did the takedown.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Oct 2019 @ 7:45am

    O Canada, our home's on native land...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Oct 2019 @ 8:11am

    At least the Canadians arrest them instead of shooting them.

    reply to this | link to this | view in chronology ]

    • identicon
      Annonymouse, 22 Oct 2019 @ 10:01pm

      Re:

      They don't even do that except out west.
      Different attitudes between west centre and east.
      Mind the dysfunction is evident on all sides to varying degrees.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Oct 2019 @ 8:39am

    ... to sanction actions that infringe the freedom of individuals significantly as long as they are effective. That is a recipe for a police state, not a free and democratic society.

    Canada isn't a great political model for anyone but this is a lesson the US should take to heart.

    reply to this | link to this | view in chronology ]

  • identicon
    bobob, 22 Oct 2019 @ 10:44am

    Law enforcement and civil rights is only a zero sum game because the "justice" system has made it that way. If people who had done nothing wrong weren't afraid of coming out as witnesses, or providing information that could result in a trip through the "justice" system, law enforcement would get much more cooperation from people who currently don't want to get involved.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Oct 2019 @ 12:32pm

      Re:

      THEY want to take your money from you, your guns, your property and your kids. Just give them a reason. That is justice system(.)

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Oct 2019 @ 12:34pm

        Re: Re:

        And I almost forgot... your life, liberty and your pursuit of happiness.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 22 Oct 2019 @ 12:38pm

          Re: Re: Re:

          And with that said, we are at the point our forefathers were at when they broke away from England and came to America to get away from the King of England's puritanical oppression and totalitarian control.

          reply to this | link to this | view in chronology ]

          • identicon
            Annonymouse, 22 Oct 2019 @ 9:51pm

            Re: Re: Re: Re:

            All well and good except it was the Puritans that left England because they wanted to exercise their puritanical totalitarian control...oops.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 22 Oct 2019 @ 10:21pm

              Re: Re: Re: Re: Re:

              George Washington was a puritan? or should I go back to the pilgrim days?

              reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 22 Oct 2019 @ 10:22pm

              Re: Re: Re: Re: Re:

              It had something to do with the Church of England forcing its will on them? School was quite a while ago for me.

              reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 22 Oct 2019 @ 10:25pm

              Re: Re: Re: Re: Re:

              So the puritans have come out from hiding but have no real interest in God, but just totalitarian rule and sadomassochism punishment for the people?!

              reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 23 Oct 2019 @ 9:35am

              Re: Re: Re: Re: Re:

              Me thinks me see a pattern here! Says I.

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 23 Oct 2019 @ 9:39am

                Re: Re: Re: Re: Re: Re:

                But if the zcar or Russia saw through the First League of Nations and spoiled their plot so as they were force to go underground and did not emerge until the 1950s as the Council of Foreign Relations, would not they still be wise to know them at face value now and be scheming to do the same again today?

                reply to this | link to this | view in chronology ]

  • icon
    John Snape (profile), 23 Oct 2019 @ 1:44am

    This is important. And the ruling [PDF] rolls back consecutive lower court decisions that said Canadian cops can arrest people if they think some lawlessness might be imminent.

    I wonder if this ruling can be used to thwart 'conspiracy' charges. If you're just talking about committing a crime, why would your free speech rights be curtailed if police think lawlessness might be imminent?

    reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 24 Oct 2019 @ 12:25pm

      Re:

      I think you misunderstand. The guy who was arrested was not committing a crime, about to commit a crime, or talking about committing a crime. Nor was he telling someone else to commit a crime. The police arrested him because they were worried that others would commit a crime by going after him. That is, he was a potential victim.

      No one involved in this—not even the police who arrested him—ever thought he was doing anything remotely illegal or that he would do so at any point in the future. The feared lawlessness would be done by others.

      That is completely different from a charge of conspiracy, which involves the consideration by the suspects of either committing a crime or telling someone else to do so.

      reply to this | link to this | view in chronology ]


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