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.

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