COURT OF APPEAL FOR ONTARIO

CITATION: Fleming v. Ontario, 2018 ONCA 160

DATE: 20180216

DOCKET: C62876

Cronk, Huscroft and Nordheimer JJ.A.

BETWEEN

Randolph (Randy) Fleming

Respondent/Plaintiff

and

Her Majesty the Queen in right of the Province of
    Ontario, Provincial Constable Kyle Miller of the Ontario Provincial Police, Provincial
    Constable Rudy Bracnik of the Ontario Provincial Police, Provincial Constable Jeffrey
    Cudney of the Ontario Provincial Police, Provincial Constable Michael C. Courty
    of the Ontario Provincial Police, Provincial Constable Steven C. Lorch of the
    Ontario Provincial Police, Provincial Constable R. Craig Cole of the Ontario
    Provincial Police and Provincial Constable S.M. (Shawn) Gibbons of the Ontario
    Provincial Police.

Appellants/Defendants

Judie Im, Erin Rizok and Sean Hanley, for the appellants

Michael Bordin and Jordan Dicacur, for the respondent

Heard: November 14, 2017

On appeal from the judgment of Justice Kim Carpenter-Gunn
    of the Superior Court of Justice sitting without a jury, dated September 22,
    2016.

Nordheimer J.A.:

Background

[1]

The appellants appeal from the trial judgment dated September 22, 2016
    that awarded damages to the respondent in the amount of $139,711.90 together
    with costs. The respondent cross-appeals certain aspects of the damages
    awarded. The claim arises out of events that took place on May 24, 2009 near
    Argyle Street South in the Town of Caledonia but it is directly related to a
    longstanding dispute involving land claims in the Caledonia area of Ontario.

[2]

On February 28, 2006, a dispute over land between Six Nations of the
    Grand River (Six Nations) and the Crown led to the occupation of land known
    as the Douglas Creek Estates (DCE) in Caledonia by Indigenous protestors. As
    part of the occupation of DCE, certain Indigenous flags, including Mohawk
    Warrior and Haudenosaunee flags, were hung at different times on Argyle Street,
    which runs past the front entrance of DCE.

[3]

In mid-June 2006, the Ontario government agreed to purchase DCE from its
    owner, Henco Industries Ltd. The Ontario government then made the decision to
    allow the protestors to continue to occupy DCE.

[4]

In response to the occupation of DCE, other individuals and groups began
    their own campaigns, rallies and marches protesting the occupation, the flying
    of Indigenous flags on Argyle Street, and what was alleged to be the Ontario
    Provincial Police's (O.P.P.) race-based policing of the Caledonia conflict.
    The Ontario governments decision to allow the protesters to remain on DCE and
    the O.P.P.s policing policies in Caledonia has been the subject of criticism,
    protest and litigation ever since.

[5]

Many of the protests in Caledonia have been violent, including protests
    on May 21, 2006, December 1, 2007 and September 1, 2008. All of the appellant
    officers were members of the O.P.P.s Emergency Response Team and most had been
    deployed to Caledonia numerous times since the beginning of the conflict. They
    all agreed that many of these protests have been opportunities for civil
    disobedience and a venue for criminal acts to occur. The appellant officers
    described how conflicts between the protestors resulted in violence and
    injuries. The officers explained that the potential for violence increased as
    the two sides were allowed to come within proximity of each other.

[6]

Inspector Skinner, the Aboriginal Critical Incident Commander who had 30
    years of policing experience with the O.P.P., was responsible for 30 O.P.P.
    operations in Caledonia prior to retiring in 2012. He testified that the
    numbers and situation could change rapidly from peaceful to violent. Thus, it
    was necessary to have O.P.P. resources on site so that they could be quickly
    deployed. Officer Gibbons, one of the appellants, testified that he has
    witnessed rapid escalation of small to large numbers of individuals as a large
    volume of vehicles arrived on DCE from Six Nations territory located
    immediately behind DCE. Officer Cudney, another of the appellants, said that he
    has seen situations where a phone call is made and the numbers double or triple
    in minutes.

[7]

The respondent gave evidence that, before May 24, 2009, he took part in rallies
    and marches protesting the occupation of DCE, amongst other things. He agreed
    that rallies in the past were inundated with violence. He also agreed that,
    if many protesters attended an event, often similar numbers of DCE protestors
    would show up in response, and it was difficult to predict how many people on
    either side would attend on any given day. However, all parties appear to have
    agreed that the level of confrontation and violence has diminished since 2006.

[8]

Some months prior to May 24, 2009, the O.P.P. learned that a flag
    raising rally was being organized by members of the Canadian Advocates for
    Charter Equality to protest the occupation of DCE, the Indigenous flags flying
    on Argyle Street, and what was viewed by these protesters as race-based
    policing by the O.P.P (the Flag Rally). The Flag Rally organizers intended
    to meet at Lions Hall, proceed to Argyle Street, and then march south to hang
    Canadian flags across from the front entrance of DCE where DCE protesters are
    known to be present.

[9]

On March 30, 2009, Inspector Skinner was tasked with planning, organizing
    and executing the O.P.P.s contingency plan, regarding the Flag Rally, in
    accordance with the Framework for Police Preparedness for Aboriginal Critical
    Incidents (the Aboriginal Framework) and other relevant O.P.P. policies. To
    that end, he created the Ontario Provincial Police Haldimand County Detachment
    Operational Plan Flag Rally (Operational Plan).

[10]

In
    preparing the Operational Plan, Inspector Skinner communicated directly and
    indirectly with various members of the Indigenous community and the local City council,
    as contemplated by the Aboriginal Framework and other applicable O.P.P.
    policies. He also held organizational meetings with various O.P.P. resources
    that he intended on utilizing. In these meetings, he received information and
    gave directions in respect of obtaining more information regarding potential
    responses, resourcing and logistics, which were then incorporated into the
    Operational Plan. While the Operational Plan was generally finalized as of May
    22, Inspector Skinner said that there may have been some last minute changes
    on May 24.

[11]

Inspector
    Skinner understood that the Flag Rally would raise the tension of people who
    were on the [DCE] and within the Six Nations. He also understood that the
    local City council was not in support of the planned Flag Rally. However,
    Inspector Skinner also testified that the position of the Indigenous community
    varied. Some members, he said, were more moderate than others.

[12]

Based
    on his past experience in Caledonia, and information from the Aboriginal
    Relations Teams of the O.P.P. as to what kinds of events would raise tensions
    on DCE, Inspector Skinner was of the view that the two groups needed to be kept
    apart in order to preserve the peace. He was also of the view that the
    potential for conflict would increase as their proximity to each other increased.
    His views were not altered by any information or intelligence he received up to
    and including the day of the Flag Rally.

[13]

On
    April 17, 2009, Inspector Skinner met with the Flag Rally organizers and informed
    them that they had a right to protest in a peaceful manner but that the march
    would not be permitted near the vicinity of DCE. At some point, he also
    conveyed to them that individuals, other than DCE occupiers, were not permitted
    on DCE.

[14]

Based
    on past experience policing protests in Caledonia, Inspector Skinner determined
    that two public order units, each containing about 30 officers in six squads,
    were required. The Alpha Unit, in soft tac, was to be initially deployed on
    Argyle Street while the Bravo Unit, in hard tac, was to be held back at the
    Oneida public school a few kilometres away.

[15]

The
    Operational Plan set out the following three-fold mission which was
    communicated to all O.P.P. officers in the Alpha and Bravo Units at the morning
    briefing:

ž

Maintain order
    and ensure public safety to the residents, community members and police.

ž

Allow [Flag
    Rally] protestors to exercise their lawful rights and cause the least possible
    disruption to others.

ž

Maintain the
    safe and orderly flow of traffic on Argyle Street South in the Town of Caledonia
    and Highway 6 By-Pass.

[16]

At
    the briefing, Inspector Skinner also advised the assigned officers that the
    Flag Rally protest would not be allowed within the vicinity of DCE and that
    they should stop anyone from going onto DCE. However, whether this would be
    done through communication or physical restraint would depend upon the circumstances
    and officer discretion.

[17]

Inspector
    Skinner planned on keeping the Flag Rally protesters and DCE protesters apart
    initially through negotiation and discussions with both sides but ultimately,
    if necessary, by creating a buffer zone between them. Specifically, he planned
    to keep the Flag Rally protestors on Argyle Street some distance from the DCE
    entrance while DCE protestors would not be permitted to proceed north, from the
    entrance, to approach them.

[18]

On
    May 24, 2009, the respondent was at the Browns residence attending a barbeque
    where t-shirts were being sold to pay the court costs of protestors opposed to
    the occupation of DCE and who were arrested in and around Caledonia. The
    Browns residence was the first private residence south of the entrance of DCE
    on Argyle Street.

[19]

The
    respondent had a Canadian flag with him. It was his intention to walk north on Argyle
    Street and watch a Canadian flag being raised at the entrance of DCE. While at
    the Browns residence, Mr. Fleming was informed that the march had started. He
    began walking north on the west shoulder of Argyle Street, with his Canadian flag.
    The flag was attached to a wooden pole between 40 to 42 inches in length.

[20]

At
    about this time, the Alpha Support Squad, one of the six squads in the Alpha
    Unit, which was made up of the appellant officers, was proceeding north on
    Argyle Street in two vans followed by officers driving an Offender Transport
    Unit. The squad was being relocated to a church parking lot immediately north
    of the front entrance of DCE on Argyle Street. They passed the respondent as
    they proceeded north on Argyle Street.

[21]

Sergeant
    Huntley advised Officer Lorch  the Alpha Support Leader  over the police
    radio that a flag was coming up the road and directed the Alpha Support Squad
    to change their destination and deploy between the Browns residence and the
    entrance to DCE. The two Alpha Support Squad vehicles, and the Offender
    Transport Unit, turned around and proceeded south to approach the respondent.

[22]

The
    respondent saw the approaching vehicles. As the vehicles moved onto the
    shoulder of Argyle, he left the shoulder because they were approaching him with
    speed. After he left the shoulder of Argyle Street, he continued walking in a westward
    direction a fair distance away from the shoulder  down into a grassy ditch,
    through the grassy ditch and up the other side, over a low fence (which appears
    to mark the boundary of DCE) and then a few steps onto DCE. The respondents
    evidence was that he did this voluntarily in order to get on level ground.

[23]

Once
    the respondent left the shoulder of Argyle Street and the vans stopped, the appellant
    officers began yelling various commands to him, including return to the
    shoulder, stop and stay away from DCE. The respondent says that he glanced
    behind, saw the officers, and heard them yell. His evidence was that he did not
    comply with the officers commands because he did not think they were talking
    to him as he knew that he wasnt doing anything wrong.

[24]

The
    respondents entry onto DCE caused an immediate reaction from the DCE
    protesters at the front entrance of DCE. They became angry and upset. Approximately
    eight to ten DCE protesters started moving towards the respondent. Some of them
    were running. The appellant officers said that they were concerned for the
    respondents safety as a result.

[25]

It
    is clear that the respondent was also concerned. In his evidence, he said:

A. My first, my initial thought was who do I take my chances
    with? That was my initial thought. Do I, do I walk down to the entrance of the [DCE]
    and meet the people coming out or do I turn around and, and walk back into the police?
    Honest, that was my first thought.

Q. Okay.

A. Fairly quickly decided it would likely be better if I turned
    and went with the police.

Q. Why was that?

A. Well, that would diffuse [
sic
] the situation. It
    was  I mean I wasnt there to prove a point or anything, I , I just  I was
    just disappointed when I realized they were talking to me.

[26]

Officer
    Miller followed the respondent over the fence and told him that he was under
    arrest to prevent a breach of the peace in accordance with O.P.P. policy. He
    then took the respondents right arm and escorted him over the low fence and
    off DCE.

[27]

Officer
    Miller and some of the other appellant officers ordered Mr. Fleming to drop the
    flag as they viewed the flag pole as a potential weapon. The respondent
    admitted that he had no intention of allowing the officers to take his flag. Indeed,
    he testified:

The last person I would have ever handed my flag to that day
    would have been a member of the OPPIm not sure I can properly convey the
    anger that I felt but if I had to pick one group on the planet that would be
    the absolute last that I would have handed my flag to that day it would have
    been the very group asking for it.

[28]

A
    struggle ensued. The respondent and some of the officers went to the ground. Eventually,
    the officers wrested the Canadian flag from the respondents hands and
    handcuffed him. Prior to the handcuffing, however, the respondent says that one
    of the officers yanked his left arm up behind his back. This action resulted in
    a serious injury to the respondents left elbow leaving him with what was later
    determined to be a permanent chronic pain condition.

[29]

Some,
    but not all, of these events were captured on a video recording. The recording
    shows the respondent walking along Argyle; it shows the O.P.P. vehicles go past
    the respondent and then subsequently return; it shows the respondent leaving
    the shoulder of Argyle and walking west where he eventually walks onto DCE
    property; and it shows Officer Miller arresting the respondent. Unfortunately,
    due to the presence of a large bush, the recording does not show the respondent
    being taken down, relinquishing his flag, or being handcuffed.

[30]

At
    the end of an 11 day trial, the trial judge concluded that the respondent was
    falsely arrested and wrongfully imprisoned and that his rights under the
Canadian
    Charter of Rights and Freedoms
were violated. She awarded general damages
    of $80,000; damages for false arrest, wrongful imprisonment and breach of right
    to pass of $10,000; special damages of $12,986.97; and damages for breach of
    the respondents s. 2(b)
Charter
rights of $5,000. She declined to
    award aggravated or punitive damages.

Issues and Analysis

[31]

The
    two main issues raised in this appeal are:

(i)

Did the police have the authority to arrest the respondent for a breach,
    or an anticipated breach, of the peace?

(ii)

If so, did the police use excessive force in effecting the arrest?

(i)    Authority to arrest for breach of the peace

[32]

The
    primary issue raised by this appeal is whether the police were justified in
    arresting the respondent to avoid a breach of the peace. There is no doubt that
    the respondent was entitled, in normal circumstances, to walk along a public
    street carrying a Canadian flag. He was also entitled to participate in political
    action and to participate in a protest about the ongoing activities on DCE. The
    respondent was not entitled to engage in any of these activities, however, if
    his actions would likely lead to a breach of the peace. There are constraints
    on the exercise of any persons rights and one of those constraints is where
    the exercise of a right will lead to a breach of the peace or other public
    safety concerns. This potential for conflict between individual rights and effective
    policing was discussed by Iacobucci J. in
R. v. Mann
, 2004 SCC 52, [2004]
    3 S.C.R. 59, where he said, at para. 16:

Charter
rights do not exist in a vacuum; they are
    animated at virtually every stage of police action. Given their mandate to
    investigate crime and keep the peace, police officers must be empowered to
    respond quickly, effectively, and flexibly to the diversity of encounters
    experienced daily on the front lines of policing.

[33]

As
    I have mentioned, there is a long history of problems in the Caledonia area, including
    a long history of violent confrontations over Indigenous land claims. This was
    well-known to the O.P.P. who are responsible for policing the area and for
    maintaining public safety and order. It is one of the reasons why the O.P.P.
    has developed the Aboriginal Framework.

[34]

For
    reasons that are unclear, the trial judge held that the events of May 24, 2009 were
    not Aboriginal Critical Incidents as defined in the Aboriginal Framework. With
    respect, it is difficult to see how they could be reasonably characterized as anything
    else. The principal event was a planned flag raising directly across from the
    entrance to DCE that would undoubtedly lead to a reaction from the DCE protestors.
    As the Aboriginal Framework expressly notes, its purpose is to address such
    events before they become a problem. It is difficult to understand why the
    trial judge was critical of the O.P.P. for using its developed framework to
    both plan for the event and in an effort to avoid any clash between the
    protesting sides. It may be that this error arises from the apparent focus of
    the trial judge on the actions of the respondent as a stand-alone event as
    opposed to them being part of the broader flag raising event with which the
    O.P.P. was concerned.

[35]

The
    trial judge moved from her finding that this was not an Aboriginal Critical
    Incident to her central finding that the officers arrested the respondent
    without lawful cause. More specifically, the trial judge said:

The O.P.P. prevented Mr. Fleming from exercising his lawful
    rights of walking up Argyle Street with a Canadian flag and violently arrested
    him without cause. The court finds the evidence is clear that the O.P.P.
    intended to prevent Mr. Fleming from walking up Argyle Street with a Canadian
    flag, and that he was arrested a few feet onto DCE. (at p. 64)

[36]

There
    are two difficulties with these findings. First, the O.P.P. did not prevent the
    respondent from walking up Argyle Street with his flag. There is simply no
    evidence to support this finding. Nothing occurred between the O.P.P. and the
    respondent until he moved away from Argyle Street onto DCE.

[37]

Second,
    there is also no evidence that the O.P.P. intended to prevent the respondent
    from walking up Argyle Street. The respondent chose to leave the shoulder of
    Argyle Street and walk some distance westward onto DCE. Why he did that is
    unclear on the record, but what is clear is that it was not a necessary
    consequence of the O.P.P. vehicles arriving. The respondent could have avoided
    any danger that he perceived from the arrival of the vehicles on the shoulder
    of Argyle Street without going either the direction or the distance that he
    did. It is simply unknown what would have transpired between the respondent and
    the officers had the respondent remained at the side of Argyle Street after the
    officers arrived.

[38]

As
    a result, both of these critical findings are tainted by palpable and
    overriding error. It therefore falls to this court to determine whether the
    arrest of the respondent, on DCE, was a lawful arrest.

[39]

I
    begin with this courts decision in
B
rown v. Durham (Regional
    Municipality) Police Force

(1998), 43 O.R. (3d) 223, which addressed
    the common law police power to arrest an individual in order to keep the peace.
    This power derives from what is commonly referred to as the
Waterfield
test that is discussed in
Brown
.
[1]
In order to exercise that common law power, Doherty J.A. said, at para. 61:

That approach requires first, that the police be acting in the
    execution of their duties and second, that in all the circumstances, the police
    conduct constitutes a justifiable interference with individual liberty.

[40]

There
    is no doubt that in this case the police were acting in the execution of their
    duties. They had a duty to keep the peace and protect the public in an area
    that had a history of conflict. They had been called on many times to carry out
    that duty and they had developed policies and protocols to accomplish their
    task. No issue is taken with the efficacy of those policies and protocols.

[41]

The
    central issue is whether the arrest of the respondent was a justifiable
    interference with his individual liberty. Every person has constitutionally
    protected rights including freedom of thought, belief, opinion and
    expression: s. 2(b) of the
Charter
. However, the public as a whole
    has a right to peace and security. Where there is the potential for a conflict
    between the two, there is never an easy answer as to which should triumph. As Doherty
    J.A. noted in
Brown
, at para. 62:

The infinite variety of situations in which the police and
    individuals interact and the need to carefully balance important but competing
    interests in each of those situations make it difficult, if not impossible, to
    provide pre-formulated bright-line rules which appropriately maintain the balance
    between police powers and individual liberties.

[42]

The
    police have a duty to keep the peace. They also have a duty to protect
    individuals from harm. To serve and protect is not just a convenient slogan. It
    reflects the central role of the police. As Rouleau J.A. said in
Figueiras
    v. Toronto (City) Police Services Board
, 2015 ONCA 208, 320 C.C.C. (3d)
    437, at para. 88: [k]eeping the peace and preventing property damage or
    personal injury are clearly important duties.

[43]

The
    issue then becomes whether the officers were justified in taking the steps that
    they did to arrest the respondent and remove him from the area of conflict in
    order to avoid a breach, or potential breach, of the peace. Doherty J.A.
    defined a breach of the peace as follows in
Brown
, at para. 73:

A breach of the peace contemplates an act or actions which
    result in actual or threatened harm to someone. Actions which amount to a
    breach of the peace may or may not be unlawful standing alone. Thus, in
Percy
    v. D.P.P.
, (1994), [1995] 3 All E.R. 124 (Eng. Q.B.) at 131, Collins J.
    observed:

The conduct in question does not itself have to be
    disorderly or a breach of the criminal law. It is sufficient if its natural
    consequence would, if persisted in, be to provoke others to violence, and so
    some actual danger to the peace is established.

[44]

Doherty J.A. added that the apprehended breach of the peace must be
    imminent and the risk of a breach must be substantial. He concluded, at para.
    74:

To properly invoke either power,
    the police officer must have reasonable grounds for believing that the
    anticipated conduct, be it a breach of the peace or the commission of an
    indictable offence, will likely occur if the person is not detained. [Footnote
    omitted.]

[45]

In
R. v. MacDonald
, 2014 SCC 3, [2014] 1 S.C.R. 37, LeBel J. commented on
    what form of police conduct will be a justifiable exercise of the common law
    power, at para. 36:

Thus, for the infringement to be justified, the police action
    must be reasonably necessary for the carrying out of the particular duty in
    light of all the circumstances. [Citations omitted.]

[46]

In
    determining whether the police action is reasonably necessary, LeBel J.
    referred to the
Dedman

and

Mann
lines of cases
    as defining the limits on the exercise of the police power.
[2]
Those limits involve the importance of the duty; the necessity of the
    infringement arising from the duty; and the extent of the resulting
    infringement. In terms of the importance of the duty, LeBel J. said, at para.
    39:

No one can reasonably dispute that the duty to protect life and
    safety is of the utmost importance to the public good and that, in some
    circumstances, some interference with individual liberty is necessary to carry
    out that duty.

[47]

In
    this case, as I have already mentioned, the police had a long history of dealing
    with disputes in the Caledonia area. They were aware of the potential for
    clashes to occur with little warning and for what might appear to be minor
    skirmishes to escalate very quickly. It was the obligation and duty of the
    O.P.P. to be prepared and to take reasonable steps to avoid confrontation.

[48]

I
    note on this point that the trial judge said, at p. 59, that the actions on
    May 24, 2009 must be based on what happened on that date, not what the
    situation was in 2006. I disagree. One cannot compartmentalize the history of
    events in the Caledonia area and thus isolate individual incidents one from the
    other. The steps taken by the O.P.P. on May 24, 2009 were necessarily, and
    properly, informed by the history of the various confrontations that had
    occurred.

[49]

In
    that regard, the decision of Inspector Skinner to adopt, as part of the
    Operational Plan, a buffer zone between the factions was an entirely
    legitimate one. Police have the authority to create such zones for proper
    purposes in order to carry out their duties. For example, in
R. v. Knowlton
,
    [1974] S.C.R. 443, the Supreme Court of Canada upheld the creation of a buffer
    zone around the entrance to a hotel in Edmonton where the Premier of the then
    U.S.S.R. was attending. In upholding the restriction on access to the hotels
    entrance, Fauteux C.J.C. said, at pp. 447-448:

According to the principles which, for the preservation of
    peace and prevention of crime, underlie the provisions of s. 30, amongst
    others, of the Code, these official authorities were not only entitled but in
    duty bound, as peace officers, to prevent a renewal of a like criminal assault
    on the person of Premier Kosygin during his official visit in Canada. In this
    respect, they had a specific and binding obligation to take proper and
    reasonable steps. The restriction of the right of free access of the public to
    public streets, at the strategic point mentioned above, was one of the steps  not
    an unusual one  which police authorities considered and adopted as necessary
    for the attainment of the purpose aforesaid. In my opinion, such conduct of the
    police was clearly falling within the general scope of the duties imposed upon
    them.

[50]

A
    similar point was made by Rouleau J.A. in
Figueiras
,

at para.
    60:

As the case law demonstrates, even in the absence of statutory
    authority, the police must be taken to have the power to limit access to
    certain areas, even when those areas are normally open to the public.

[51]

It
    must also be remembered that the focus of the O.P.P.s attention was with the
    group of protestors who were organizing to the north of DCE and who were
    expected to march south towards DCE for the flag raising. The respondents
    presence was an unexpected event that arose from an entirely different
    direction. The O.P.P. had no idea what the respondents intentions were,
    including whether he was acting alone or with others, but they quickly decided
    that they needed to institute a buffer zone to the south to accomplish the same
    purpose as the existing buffer zone to the north. This is clear from the radio
    instructions given to the O.P.P. officers involved:

Going to have to deploy you between Browns place and the, uh,
    DCE, entrance to DCE. Youre going to have to do that soon as weve got a flag
    coming down that direction.

[52]

What
    confronted the O.P.P. officers after they turned around, was to see the
    respondent walk away from Argyle Street westward and onto DCE. This caused a
    group of eight to ten DCE protestors to rush towards the respondent in a
    threatening fashion.

[53]

The
    rushing protestors posed a risk, both to the public peace and to the respondent
    individually. This reality is implicitly, if not expressly, acknowledged by the
    respondent in his evidence that I have set out at para. 25 above. The
    respondent realized that he was in trouble from the approaching protestors and
    he knew that the situation was perilous. He acknowledges the risk by his
    reference to defusing the situation. There would be no reason to defuse the
    situation if it was not a hazardous one. The trial judges conclusion that
    there was no threatened breach of the peace cannot be reconciled with the
    evidence, particularly with the video of the event. The trial judge appears to
    have tried to avoid this reality by speculating that the protestors may have
    been angry with the O.P.P. officers, and not with the respondent. That explanation
    finds no foundation in the evidence.

[54]

In
    my view, the officers were reasonably justified in taking action to prevent
    harm coming to the respondent and a corresponding breach of the peace. The
    officers had reasonable grounds to effect the arrest of the respondent as a
    necessary step to address the situation. The officers had not only seen the
    rushing protestors as a threat to the safety of the respondent, they also knew
    that the respondent had refused to obey their orders to stop and to leave DCE. I
    would note on this point that it is important to remember that the arrest
    occurred on DCE, not on Argyle Street. The trial judges frequent erroneous
    references to the police interfering with the respondents right to walk on
    Argyle Street may be what led her into the wrong analysis and conclusion.

[55]

In
    concluding that the officers actions were necessary, I adopt the observation
    of Rouleau J.A. in
Figueiras
,

at para. 93:

In other words, where the power being exercised is in
    furtherance of the police duty to keep the peace, it must be rationally
    connected to the risk sought to be managed (that is, the risk that the peace
    will be breached), and it must be an effective means of materially reducing the
    likelihood of that risk occurring.

[56]

In
    my view, the actions of the O.P.P. officers were being undertaken in order to
    avoid a breach of the peace and they were effective at doing that. The
    respondent was removed from the area without any further issue and without any
    further disturbance or confrontation with the DCE protestors. In exercising
    their duty to keep the peace, it was not necessary, nor would it be in the
    public interest, for the police to wait until violence actually occurred. The
    point of the common law power is to avoid violence, not simply to deal with its
    aftermath.

[57]

The
    trial judge faults the officers for not instituting a buffer zone between the
    respondent and the protestors and for not calling for back-up from other available
    officers, as alternatives to arresting the respondent. While both of these
    routes were available, the basis for the trial judges criticism of the
    officers is unclear. There was no need to institute a buffer zone if the matter
    could be addressed by removing the respondent as the source of the friction. Further,
    there is no reason to believe that a buffer zone of six or seven officers
    against eight to ten rushing protestors (with others available to join that
    group) would have been effective or whether it would have simply resulted in a
    larger confrontation. Similarly, there was no reason to call for back-up, and
    run the risk of inflaming tensions by such a show of force, if, again, the
    matter could be addressed by removing the respondent. In my opinion, courts
    ought to be very cautious about criticizing the tactical actions of the police in
    situations such as that presented here. It should go without saying that the
    police have a great deal more training and experience in such matters than do judges.

[58]

None
    of these observations are intended to suggest that the courts will defer to the
    police in such matters. The courts maintain their role to ensure that police
    conduct complies with the prevailing law, including the requirements of the
Charter
.
    Hindsight, however, is not a proper basis for imposing liability on the police
    because, among other things, it fails to reflect the realities of police work:
Hill
    v. Hamilton-Wentworth Regional Police Services Board
, [2007] 3 S.C.R. 129,
    2007 SCC 41, at para. 68.

[59]

In
    my view, the police had reasonable grounds to believe that there was an
    imminent risk to the public peace, and a substantial risk of harm to the
    respondent, that justified their decision to arrest the respondent. The trial
    judges holding to the contrary is fundamentally flawed and cannot stand.

(ii)     Excessive force

[60]

The
    conclusion that the police had reasonable grounds to arrest the respondent does
    not end the inquiry. There is evidence that, in effecting the arrest, one of
    the officers may have used excessive force.

[61]

The
    fact that the police have lawful authority to arrest an individual does not
    authorize them to use whatever force they may choose to use. The force used
    must be reasonable. Section 25(1) of the
Criminal Code
, R.S.C., 1985,
    c. C-46 reads:

Every one who is required or authorized by law to do anything
    in the administration or enforcement of the law

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what
    he is required or authorized to do and in using as much force as is necessary
    for that purpose.

[62]

An
    officer who uses excessive force in making an arrest cannot avail him/herself
    of the protection afforded by s. 25(1). As the Alberta Court of Appeal said in
Crampton
    v. Walton
, 2005 ABCA 81, 363 A.R. 216, at para. 43:

Even if the police acted on reasonable grounds in executing the
    warrant in an aggressive manner, they will be denied the protection of s. 25(1)
    if they used excessive force.

[63]

That
    said, the police are not to be held to a standard of perfection in this regard.
    Allowances must be made for the nature of the duties that police officers
    perform and the situations in which they may have to perform them. The actions
    of a police officer are also not to be judged with the benefit of hindsight. As
    LeBel J. said in
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R. 206, at
    para. 35:

Police actions should not be judged against a standard of
    perfection. It must be remembered that the police engage in dangerous and
    demanding work and often have to react quickly to emergencies. Their actions
    should be judged in light of these exigent circumstances.

[64]

The
    trial judge found that the force used to arrest the respondent was excessive. However,
    her analysis of this issue was rooted in her erroneous conclusion that the
    arrest of the respondent was unlawful. Her analysis is irretrievably tainted by
    that error and, consequently, cannot be relied upon. It therefore falls to this
    court to assess whether a proper determination of this issue can be made on the
    record before us.

[65]

The
    force used to arrest the respondent escalated because of his refusal to let go
    of his flag pole. It was this resistance that led the officers to take the
    respondent down to the ground. It was only after the respondent was on the
    ground that the officers were able to get the flag pole out of his hands.

[66]

The
    arresting officer said that, after the flag pole was removed, he asked the
    respondent to put his hands behind his back and the respondent complied. He was
    then handcuffed. However, the evidence at trial was that, prior to that
    happening, an officer, who was holding the respondents left arm, yanked it up,
    causing the injury to the respondent that I described earlier. Unfortunately,
    the trial judge did not make any finding as to which officer did this.

[67]

A
    review of the transcripts does not assist in identifying the involved officer. None
    of the officers was asked who yanked the respondents arm before the handcuffs
    were applied. The respondent said that it was Officer Lorch who yanked his arm
    but, as the respondent acknowledged as a possibility at trial, he appears to be
    mistaken in that regard. Officer Lorchs evidence, which was accepted by the trial
    judge, was that he was not involved in taking Mr. Fleming to the ground or in
    what occurred after, as he was dealing with the DCE protestors.

[68]

Officers
    Miller, Cudney, Bracnik, Courtney and Gibbons all gave evidence that they were
    involved in getting the respondent handcuffed while he was on the ground. With
    the sole exception of Officer Miller, all of the officers said that the
    respondent was actively resisting their efforts to handcuff him while he was on
    the ground. Officer Miller said that the respondent was not resisting although
    I note that the trial judge did not accept Officer Millers evidence with
    respect to how the arrest came about.

[69]

Given
    this state of the evidentiary record, it is not possible to determine how or
    why the respondents left arm was yanked, or whether, in the process, excessive
    force was used. If the respondent was struggling with the officers the entire
    time he was on the ground until he was handcuffed, it is possible that the
    force used to gain control of his arms, remove the flagpole, and apply the
    handcuffs, did not involve the use of excessive force, even if an injury
    resulted.

[70]

It
    is, of course, necessary to know how and why the respondents left arm was
    yanked in order to determine whether excessive force was used. Without a
    determination of that critical question, it is not possible to determine the
    potential liability of any individual officer or, indeed, the potential
    vicarious liability of the Crown, for any resulting damages.

[71]

The
    evidence before this court is insufficient to make those key determinations. As
    a result, a new trial on these narrow issues is required to permit those
    factual determinations to be made.

(iii)  Cross-appeal

[72]

The
    respondent takes issue with the damages awarded by the trial judge. Specifically,
    he submits that there should have been an award of aggravated damages in the
    amount of $15,000 for false arrest, wrongful imprisonment and/or breach of his
    right to pass unhindered on a public highway. The respondent also submits that
    the award of damages for breach of his s. 2(b)
Charter
rights should
    be increased from $5,000 to $30,000. Finally, the respondent seeks an award of
    punitive damages in the amount of $20,000.

[73]

Given
    the conclusion on the main appeal, I do not reach these issues. Insofar as they
    relate to the excessive use of force issue, they will have to be considered
    afresh at any new trial. The conclusion on the main appeal does mean, though,
    that the damages awarded at trial for the unlawful arrest and
Charter
breaches must be vacated.

Conclusion

[74]

Accordingly,
    for the reasons given, I would allow the appeal, set aside the trial judgment
    including all of the damage awards, and direct a new trial on the sole issue of
    whether excessive force was used when the respondent was arrested and, if so,
    what damages follow. I would dismiss the cross-appeal.

[75]

The
    respondent asked that, if the appeal was allowed, he be able to make
    submissions as to why he ought not to have to pay the costs of the appeal. Consequently,
    the respondent shall have 10 days from the date of these reasons to file
    written submissions on the costs of the appeal. The appellants shall have 10
    days to respond. No reply submissions are to be filed. The submissions are not
    to exceed five pages. The costs of the trial are reserved to the judge who
    hears and determines the new trial or through any other order of the Superior
    Court of Justice.

I.V.B. Nordheimer J.A.

I agree. E.A. Cronk J.A.

Huscroft J.A.
    (Dissenting):

OVERVIEW

[76]

The
    primary issue raised by this appeal is whether the police were justified in
    arresting the respondent to avoid a possible breach of the peace. My colleague
    Nordheimer J.A. concludes that they were. With respect, I disagree.

[77]

The
    basic facts in this case are not in dispute. Randy Fleming was on his way to a
    Flag Rally in Caledonia led by a group called Canadian Advocates for Charter
    Equality. The rally occurred in the context of the ongoing occupation of DCE,
    Crown-owned land, by Indigenous protesters. The rally organizers planned to march
    down Argyle Street and hang Canadian flags across from the front entrance of
    DCE. Mr. Fleming was walking along the shoulder of Argyle Street, which borders
    the disputed land, carrying a large Canadian flag, when the events that are the
    subject of this appeal occurred.

[78]

My
    colleague defers to the police in their decision to arrest Mr. Fleming, rather
    than to the trial judge, whose decision came following an 11-day trial. The
    trial judge found that Mr. Flemings arrest was not justified in the
    circumstances. In my view, there is no basis for this court to interfere with
    her decision.

[79]

I
    would dismiss the appeal.

DISCUSSION

A.

THE STANDARD OF REVIEW

[80]

The
    burden is on the appellants to demonstrate an error of fact or an error of
    mixed fact and law that is both palpable and overriding. It must be palpable,
    in the sense that the error is obvious or apparent without further inquiry or
    explanation. More important, it must be overriding in terms of its
    significance. It must be so significant that it undermines the very core of the
    case  the trial judges decision that Mr. Flemings arrest was unlawful: see
    generally
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at
    p. 246;
Waxman v. Waxman

(2004), 186 O.A.C. 201, at paras.
    292-309; and most recently
Benhaim v. St. Germain
, 2016 SCC 48, 2
    S.C.R. 352, at para. 38, citing
South Yukon Forest Corp. v. R
.,
2012 FCA 165, 4 B.L.R. (5th) 31, at para. 46.

[81]

In my view, none of the alleged errors identified by Nordheimer
    J.A. rises to this high standard. As a result, it is not open to this court to
    substitute its view as to the lawfulness of Mr. Flemings arrest.

B.

THE ARREST FOR POSSIBLE BREACH OF THE PEACE

(1)

Did the Flag Rally constitute an Aboriginal Critical Incident?

[82]

My
    colleague concludes that the trial judge erred in finding that the Flag Rally
    did not constitute an Aboriginal Critical Incident and, as a result, that the
    O.P.P.s Aboriginal Framework for Police Preparedness for Aboriginal Critical
    Incidents did not apply. He does not characterize this as a palpable and
    overriding error, nor could he. Nothing follows from it: the O.P.P.s policy
    had no special status in law. Even assuming that the trial judge erred
    assuming that the Flag Rally was an Aboriginal Critical Incident and the
    police were following the policy they had established  the lawfulness of Mr.
    Flemings arrest depended not on whether it complied with police policy but,
    instead, on whether it complied with the common law police power to arrest an
    individual to avoid a possible breach of the peace.

[83]

The
    error my colleague attributes to the trial judge is significant, however,
    because it reinforces the subtext of his decision: the trial judge erred in
    determining that Mr. Flemings arrest was unlawful because, in his view, she
    failed to defer to the operational decisions of the police and failed to
    appreciate the circumstances at Caledonia, in particular the history of
    conflict. Nordheimer J.A. specifically disagrees with the trial judges
    statement that the lawfulness of Mr. Flemings arrest must be determined based
    on the police actions on May 24, 2009, the date of his arrest. This, he says,
    wrongly compartmentalizes the history of the conflict at Caledonia; the steps
    taken by the police on that day were necessarily and properly informed by the
    history of that conflict.

[84]

The
    difficulty with this position is that, as outlined below, the police power to
    arrest for a possible breach of the peace depends on an evaluation of the
    circumstances existing
at the time of the
    arrest
.
Those circumstances are, of course, informed by the
    relevant history. But the legality of an arrest depends on whether a breach of
    the peace is imminent and the risk that the breach will occur is substantial,
    and those determinations must be made based on extant circumstances. It cannot
    be assumed that a history of conflict justifies the exercise of police power in
    all future circumstances.

[85]

In
    any event, it was not contested that the level of conflict had decreased in the
    years since the occupation of DCE began. As Nordheimer J.A. notes, at para. 7,
    all parties appear to have agreed that the level of confrontation and violence
    has diminished since 2006. The trial judge was aware of the context and cannot
    be said to have failed to appreciate the circumstances at Caledonia or the
    history of the conflict.

(2)

Did the O.P.P. prevent Mr. Fleming from walking up Argyle Street with
    his flag?

[86]

My
    colleague concludes that the trial judge made a palpable and overriding error
    in finding that the O.P.P. prevented Mr. Fleming from walking up Argyle Street
    with his flag, and in finding that the police intended to prevent him from
    walking up Argyle Street. His analysis is contained in this passage, at paras.
    36-37:

There are two difficulties with these findings. First, the
    O.P.P. did not prevent the respondent from walking up Argyle Street with his
    flag. There is simply no evidence to support this finding. Nothing occurred
    between the O.P.P. and the respondent until he moved away from Argyle Street
    onto DCE.

Second, there is also no evidence that the O.P.P. intended to
    prevent the respondent from walking up Argyle Street. The respondent chose to
    leave the shoulder of Argyle Street and walk some distance westward onto DCE.
    Why he did that is unclear on the record, but what is clear is that it was not
    a necessary consequence of the O.P.P. vehicles arriving. The respondent could
    have avoided any danger that he perceived from the arrival of the vehicles on
    the shoulder of Argyle Street without going either the direction or the
    distance that he did. It is simply unknown what would have transpired between
    the respondent and the officers had the respondent remained at the side of
    Argyle Street after the officers arrived.

[87]

With
    respect, the conclusion that
nothing
occurred between the O.P.P. and
    Mr. Fleming until he left Argyle Street and moved onto DCE does not square with
    the trial judges other findings, supported by the evidence. The trial judges
    key finding is that Mr. Fleming left Argyle Street and stepped onto DCE
because
    of the police
, as she explains in this passage, at p. 42:

The court finds based on all of the evidence, including the
    video, that if the defendants had not interfered with Mr. Flemings passage
    along Argyle Street on May 24, 2009, he would simply have passed in front of
    DCE and moved on to the flag raising event. It was the conduct of the defendant
    officers, in driving directly at Mr. Flemings location as he was walking along
    the shoulder of Argyle Street, approximately 100 metres from the entrance to
    DCE, that caused Mr. Fleming to leave the shoulder and walk a few feet on to
    what may have been DCE land.

[88]

The
    trial judges finding is amply supported by the record. It is not contested
    that, once the police saw Mr. Fleming walking to the Flag Rally from a
    direction they had not expected, two unmarked police vehicles drove towards him
    to intercept him. The police drove with speed (as my colleague notes, at
    para. 22) and didnt look like [they were] slowing down (as the trial judge
    found, at p. 10). Mr. Fleming testified, and the trial judge accepted, that he
    left the shoulder of the road, walked into the ditch, and stepped onto the DCE
    to move away from the police vehicles and reach level ground.

[89]

The
    trial judge found that the evidence was clear that the police intended to
    prevent Mr. Fleming from walking up Argyle Street with a Canadian flag. Not
    only did she accept Mr. Flemings testimony that he left the shoulder because
    of the police vehicles, but she noted that Inspector Skinner conceded that the
    O.P.P. had pre-emptively decided to limit the rights of the Flag Rally
    participants and that, for him, public safety [took] priority over other
    rights such as the freedom of expression and the freedom to walk down the
    street.

[90]

Whatever
    the
intention
of the O.P.P. may have been in approaching Mr. Fleming
    as they did, their conduct had the
effect

of preventing him
    from walking up Argyle Street. The trial judges findings on this issue cannot
    be construed as a palpable and overriding error.

[91]

My
    colleague characterizes things differently than the trial judge. Mr. Fleming,
    he says, chose to leave the shoulder of Argyle Street for reasons that are
    unclear on the record. Nordheimer J.A. states that Mr. Flemings decision to
    leave Argyle Street was not a consequence of the O.P.P.s arriving on the
    scene, yet he acknowledges that Mr. Fleming may have perceived danger from the
    arrival of the O.P.P. vehicles. He then suggests that Mr. Fleming is the author
    of his own misfortune  that he might have avoided his problems by remaining at
    the side of Argyle Street.

[92]

With
    respect, it is not open to this court to recharacterize the evidence in this
    fashion and substitute its inferences for those made by trial judge. The trial
    judge made findings that were open to her on the evidence. It cannot be said
    that they constitute palpable and overriding error.

(3)

Was Mr. Flemings arrest lawful?

[93]

Having
    concluded that the findings identified above were tainted by palpable and
    overriding error, Nordheimer J.A. frames the issue of the lawfulness of Mr.
    Flemings arrest in this way, at para. 32:

There is no doubt that the respondent was entitled,
in
    normal circumstances
, to walk along a public street carrying a Canadian
    flag. He was also entitled to participate in political action and to
    participate in a protest about the ongoing activities on DCE. The respondent
    was not entitled to engage in any of these activities, however, if his actions
    would likely lead to a breach of the peace. There are constraints on the
    exercise of any persons rights and one of those constraints is where the
    exercise of a right will lead to a breach of the peace or other public safety
    concerns. [Emphasis added.]

[94]

In
    my view, this understates the importance of both the common law liberty to
    proceed unimpeded along a public highway and the right to engage in political
    protest  the heart and soul of freedom of expression in a democracy. At the
    same time, it overstates the scope of the police power to arrest someone to
    avoid a possible breach of the peace  a breach that may never occur, and a
    breach that, if it were to occur, would be caused by the unlawful actions of
    others. The police power to arrest for a possible breach of the peace is an
    extraordinary power. Its exercise cannot easily be justified, according to the
    case law of this court, which is based on the
Waterfield
test.

(a)

The
Waterfield
test

[95]

The
Waterfield

test sets out a two-stage analysis for determining
    whether the police have acted within their authority at common law. The test
requires first, that the police be acting in the execution of their
    duties. Second, in all the circumstances the police conduct must constitute a
    justifiable exercise of their powers. Put another way,
Waterfield

requires that the court strike a balance between the polices
    public duty and of the liberty and other interests at stake:
R. v.
    Waterfield
, [1964] 1 Q.B. 164;
R. v. MacDonald
, 2014 SCC 3, [2014] 1 S.C.R. 37, at paras. 35-36;
R. v.
    Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 24-26.

[96]

I
    agree with my colleague that, in this case, the police were acting in the
    execution of their duty to preserve the peace. We differ at the second stage of
    the
Waterfield
inquiry, which is concerned with whether the police
    action constitutes a justifiable exercise of powers associated with the duty:
MacDonald
, at para. 36.

[97]

My
    colleague proceeds from the premise that the public has a right to peace and
    security that is in conflict with Mr. Flemings freedom of expression. With
    respect, this mischaracterizes the nature of the conflict. The conflict in this
    case is not between
Charter
rights; it is between the exercise of
    police duty to preserve the peace and Mr. Flemings rights, both common law and
Charter
rights, and in particular his freedom of expression. In such a
    conflict, Mr. Flemings rights enjoy presumptively greater force. As Doherty
    J.A. put it in
Brown v. Durham Regional Police Force

(1999), 43
    O.R. (3d) 223 (C.A.), at para. 79, The balance struck between common law police
    powers and individual liberties puts a premium on individual freedom and makes
    crime prevention and peacekeeping more difficult for the police.

[98]

The
    appellants submit that the trial judge ignored the social and political
    considerations at issue in Caledonia. They assert that the police had the duty
    not only to preserve the peace for the public good, but for the greater public
    interest in reconciliation and negotiation with Indigenous communities in
    Canada.

[99]

I
    have already noted that the trial judge was well aware of the history and
    ongoing conflict at Caledonia. However, the public interest in reconciliation
    and negotiation with Indigenous communities is not a relevant consideration in
    determining the lawfulness of Mr. Flemings arrest for breaching the peace. The
    exercise of his rights is not contingent on acknowledging or endorsing
    reconciliation and negotiation or any other government policy. Mr. Fleming was
    entitled to attend and participate in the Flag Rally regardless of its effect
    on the governments political goals at Caledonia or anywhere else, and, in
    particular, regardless of whether the Flag Rally was considered provocative by
    the government or the protesters.

[100]

Political
    expression will often be provocative, and so considered problematic, but there
    is no doubt that its protection is a core purpose of freedom of expression. I
    emphasize this point in order to reinforce the importance of protecting the
    rights of those who would take part in political protest. Although the police
    may, in exceptional circumstances, arrest someone to avoid a breach of the
    peace even if that person has broken no law, police efforts should be directed towards
    those who would threaten violence  not those exercising their constitutionally
    protected rights to protest peacefully.

[101]

This approach is
    well established in American First Amendment doctrine, which requires the
    police to take all reasonable steps before resorting to controlling the
    speaker. What reasonableness requires is not always clear, but, as Frederick
    Schauer notes, it is clear that law enforcement may not initially or
    prematurely arrest the speaker: see Frederick Schauer, The Hostile Audience
    Revisited, (Paper commissioned by the Knight First Amendment Institute at
    Columbia University, Emerging Threats Series (December, 2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3093114),
    at p. 17.

[102]

The appellants
    submit that this court in
Brown
did not dictate that the police
    officer must arrest the angry crowd or individuals who are threatening harm
    or being provoked into violence. Indeed, it did not. But nor did Doherty J.A.
    endorse the arrest of individuals exercising
Charter
protected rights
    and freedoms as a first step in seeking to preserve the peace. On the contrary,
    he was careful to emphasize that the necessity of taking steps to preserve the
    peace arises only when there is a real risk of imminent harm. Before that
    point is reached, he wrote, at para. 78, proactive policing must be limited
    to steps which do not interfere with individual freedoms.

[103]

This last point
    bears repeating: proactive policing must be limited to steps which do not
    interfere with individual freedoms. There is no doubt, as Doherty J.A.
    acknowledged in
Brown
, that the protection of rights and freedoms
    makes crime prevention and peacekeeping more difficult for the police; it may
    even preclude the police from preventing crime. But that is the price that must
    be paid if rights and freedoms are to be respected.

(b)

Was Mr. Flemings arrest necessary?

[104]

In order to
    justify the use of the common law police power to arrest Mr. Fleming, the
    appellants must show that the police action [was]
reasonably necessary

for the carrying out of the particular [police] duty in light of all of the
    circumstances (emphasis in original):
MacDonald
,
at para. 36.

[105]

This is the key
    question on appeal  whether or the extent to which it was necessary to
    interfere with Mr. Flemings liberty in the circumstances. This depends on
    whether a breach of the peace was imminent and there was a substantial risk
    that it would occur. As Doherty J.A. explained in
Brown
, at para. 74,
    the mere possibility of some unspecified breach at some unknown point in time
    will not sufficethe police officer must have reasonable grounds for believing
    that the anticipated conductwill likely occur if the person is not detained.
    The imminence and substantial risk test has been endorsed by this court in
R.
    v. Baker

(2005), 73 O.R. (3d) 132, at para. 20 and
Figueiras v.
    Toronto Police Service Board
,
2014 ONCA 208, 124 O.R. (3d) 641, at
    paras. 98, 120.

[106]

The trial judge
    found, at p. 43, that it is not clear from the evidence that the natural
    consequence of Mr. Fleming walking up a street in Canada with a Canadian flag,
    and then walking onto and standing on land owned by the province would provoke
    others to violence, so as to establish an actual danger to the peace. She
    found, further, that any apprehended breach of the peace was neither imminent,
    nor was the risk that the breach would occur substantial.

[107]

Nordheimer J.A.
    concludes that she erred in so holding. He states, at paras. 53-54:

The rushing protestors posed a risk, both to the public peace
    and to the respondent individuallyThe trial judges conclusion that there was
    no threatened breach of the peace cannot be reconciled with the evidence,
    particularly with the video of the event.

In my view, the officers were reasonably justified in taking
    action to prevent harm coming to the respondent and a corresponding breach of
    the peace. The officers had reasonable grounds to effect the arrest of the
    respondent as a necessary step to address the situation. The officers had not
    only seen the rushing protestors as a threat to the safety of the respondent,
    they also knew that the respondent had refused to obey their orders to stop and
    to leave DCE. I would note on this point that it is important to remember that
    the arrest occurred on DCE, not on Argyle Street. The trial judges frequent
    erroneous references to the police interfering with the respondents right to
    walk on Argyle Street may be what led her into the wrong analysis and
    conclusion.

[108]

In essence, my
    colleague concludes that Mr. Flemings arrest was justified because the
    protestors rushed towards him and threatened his safety.

[109]

It is not clear
    that the police would have been justified in arresting Mr. Fleming even
    assuming the events unfolded as Nordheimer J.A. describes. After all, there
    were several armed police in attendance, almost equal in number to those my
    colleague says rushed towards Mr. Fleming, and additional police were close by.
    But, in any event, my colleagues description of rushing protestors is at
    odds with the findings of the trial judge, who stated as follows, at p. 2:

Of the approximately eight to ten male and female occupiers
    approaching Mr. Flemings location, several were carrying cameras, some walked,
    some jogged. There were no weapons. They were not known to be individuals with
    a history of violence. The seven O.P.P. officers arrived at Mr. Flemings
    location in advance of the first two or three occupiers who were moving more
    quickly. The occupiers never arrived at Mr. Flemings location, that is, they
    kept their distance.

[110]

Nordheimer J.A. cites
    an extract from Mr. Flemings testimony in finding that there were concerns for
    his safety, but that testimony does not demonstrate the requisite
imminent

and

substantial risk
of harm. The trial judge, who heard
    the relevant testimony, specifically found that (i) there were no threats
    uttered by the occupiers (at p. 38); (ii) the occupiers conduct was not
    threatening (at pp. 15-16); and (iii) it was unlikely that Mr. Fleming would
    have been harmed (at p. 38). It is not open to this court to substitute its
    findings for those of the trial judge on this or any other point of factual
    disagreement.

[111]

In my view, my
    colleague misconstrues and so minimizes the necessity requirement. He acknowledges
    that the police could have instituted a buffer zone between Mr. Fleming and the
    protesters and could have called for backup rather than arresting him, but concludes,
    at para. 57:

There was no need to institute a buffer zone
if the matter
    could be addressed by removing the respondent as the source of the friction
.
    Further, there is no reason to believe that a buffer zone of six or seven
    officers against eight to ten rushing protestors (with others available to join
    that group) would have been effective or whether it would have simply resulted
    in a larger confrontation. Similarly, there was no reason to call for back-up,
    and run the risk of inflaming tensions by such a show of force,
if, again,
    the matter could be addressed by removing the respondent
. [Emphasis
    added.]

[112]

Thus, in the
    face of concern that illegal violence
might
occur, my colleague sanctions
    the removal and arrest of Mr. Fleming  whose exercise of
Charter
rights broke no laws  as a
first
option in preserving the peace
    rather than a last resort.

[113]

This turns the
    concept of necessity on its head. The question is not whether arresting and
    removing someone
might
prevent a breach of the peace; the answer to
    that question will almost always be yes. The question is whether the
    extraordinary step of a preemptive arrest was
necessary
because a breach
    of the peace was imminent and the risk that it would occur was substantial, and
    that breach could not be reasonably prevented by some alternative police
    action. In this regard, I note that the trial judge found, at pp. 54-65, that
    [t]here were many other less invasive options that could have been implemented
    to defuse the situation.

[114]

The trial judge
    concluded, at p. 43, that there was no evidence to support a finding that
    there was a reasonable basis for the O.P.P officers to believe there was an
    imminent risk that a breach of the peace would occur, or that the risk that it
    would occur was substantial. Nordheimer J.A. rejects this conclusion, but he
    does not analyze the requirements of imminence or substantiality, nor does he
    explain why the trial judges interpretation and application of the test was
    wrong. His conclusion, that the police had reasonable grounds to believe that
    there was an imminent risk to the public peace and a substantial risk of harm
    to Mr. Fleming, appears to flow from his view that the police are entitled to
    deference in such matters. He notes, at para. 57:

In my opinion, courts ought to be very cautious about
    criticizing the tactical actions of the police in situations such as that
    presented here. It should go without saying that the police have a great deal
    more training and experience in such matters than do judges.

[115]

I accept that
    the police have training and experience that judges do not. I do not accept
    that their decisions are entitled to deference as a result, especially when
    they limit the exercise of
Charter
rights. My colleague states that
    his observations are not intended to suggest that the courts will defer to the
    police, but in my view his decision does precisely this.

[116]

The trial judge
    was required to determine the legality of Mr. Flemings arrest in order to
    ensure that his rights were protected. She applied the case law of this court,
    and in particular the factors set out in
Brown
, in concluding that Mr.
    Flemings arrest was not lawful. I set out her findings, at pp. 44-45, in full:

(a) any apprehended harm was not imminent; b) there was no
    specific identifiable harm which the arrest of Mr. Fleming sought to prevent,
    other than a generic assertion that there would be a breach of the peace. The
    defendants had instructions not to let any protesters in the area of DCE or
    onto DCE based on the unfounded conclusion of Inspector Skinner, reached well
    in advance of the flag rally, that these steps were necessary to prevent a
    breach of the peace; c) the defendant O.P.P. officer[s] concerns that some
    harm could occur was based not on what Mr. Fleming had done, or even on what
    the occupiers who were approaching had done, but rather was based on a
    generalized concern that there had been violence in the past at protests; d)
    the liberty interfered with was a fundamental right to move about the community
    and fundamental
Charter
rights; e) the interference with Mr. Flemings
    liberty resulting from the defendants conduct was substantial in terms of the
    impact on Mr. Flemings freedom, the length of his detainment and the injury he
    suffered; and f) the detention of Mr. Fleming could not be said to be necessary
    to the maintenance of the public peace.

[117]

I can see no
    basis to interfere with these findings or the trial judges conclusion. In my
    view, the deference my colleague accords to the operational decisions of the
    police is more properly due to the decision of the trial judge.

C.

EXCESSIVE FORCE

[118]

Given my
    conclusion that the arrest was unlawful, there is no need to return the matter
    for re-trial to determine whether excessive force was used during the arrest.
    The protection of s. 25 of the
Criminal Code
is not available in the
    case of an unlawful arrest. The trial judges conclusion that the police
    officers and the Crown are jointly liable regardless of who yanked Mr.
    Flemings arm was not challenged on appeal.

D.

THE CROSS-APPEAL

[119]

I see no basis
    to interfere with the trial judges exercise of discretion in assessing the
    quantum of damages.

CONCLUSION

[120]

I
    would dismiss the appeal and award costs to the respondent in the agreed amount
    of $53,000. I would dismiss the cross-appeal and award costs to the appellants
    in the agreed amount of $5,000.

Released: IVBN FEB 16
    2018

Grant
    Huscroft J.A.

[1]

R. v. Waterfield
, [1963] 3 All E.R. 659 (C.A.).

[2]

Dedman v. The Queen
, [1985] 2 S.C.R. 2;
Mann
,
supra.


COURT OF APPEAL FOR ONTARIO

CITATION: Gourgy v. Gourgy, 2018 ONCA 166

DATE: 20180216

DOCKET: C64395 & C64396

Sharpe, Watt and Benotto JJ.A.

BETWEEN

Christine Gourgy

Applicant (Appellant)

and

Amir Gourgy

Respondent (Respondent in Appeal)

AND BETWEEN

Amir
    Gourgy

Applicant (Respondent in Appeal

and

Christine
    Gourgy

Respondent (Appellant)

Shawn Philbert, for the appellant

Sarah Boulby and Kenneth Fishman, for the for the respondent

Heard and released orally: February 15, 2018

On appeal from the order of Justice Gordon D. Lemon of
    the Superior Court of Justice, dated September 13, 2017.

REASONS FOR DECISION

[1]

This appeal concerns two related applications brought by the
    father of a six year old boy. The father sought his return to Texas pursuant to
    the
Hague Convention
and also
    sought to dismiss the mothers Ontario divorce application for lack of
    jurisdiction. Both applications were allowed and the mother appeals.

[2]

The parties moved to the
    United States in 2012, first to California and then to Texas. The mother came
    back to Ontario from time to time with the fathers consent. On October 30,
    2016, she came to Ontario with the child in order to visit her family and to
    work the necessary 15 days so that she could keep her status as a teacher in
    Ontario. She did not return. In November, she sent the father a text that she
    had filed for divorce. The applications appealed from followed.

[3]

The
Hague
    Convention
requires that a child
    wrongfully removed or retained by a parent shall be promptly returned to the
    habitual residence unless the other parent has acquiesced in the removal
    pursuant to art. 13(a) or the return will place the child in an intolerable situation
    pursuant to art. 13(b).

[4]

The mother submits that
    the application judge articulated the correct test, but erred in law with
    respect to his findings on habitual residence, acquiescence and an intolerable situation
    for the child.

[5]

With respect to habitual
    residence, the mother submits that the application judge erred when he stated
    that there was no minimum amount of time necessary to establish habitual
    residence. In that regard she relies on conflicting lower court decisions on
    this point. She also alleges that the child could not be returned to Texas
    because the father had no custody right in Texas having moved there only six
    weeks earlier from California.

[6]

We do not agree.

[7]

The question of habitual
    residence is one of fact. It is the location where the parents demonstrated a settled
    intention to reside. The application judge considered the parents move to the
    United States, the subsequent move to Texas; the fact that they obtained
    principal residence status; applied for US social security; bought a house and
    enrolled the child in school. On this basis it was open to him to find that the
    parents had a settled intention to reside in the United States.

[8]

With respect to
    acquiescence, the appellant submits that the application judge erred in law by
    failing to convene an oral hearing and by failing to draw an adverse inference
    from the fathers failure to file affidavits from people he says he spoke to
    about the appellants return.

[9]

Again, we disagree. The
    burden is on the parent alleging acquiescence by the other to establish clear
    and cogent evidence of an unequivocal consent or acquiescence. The application
    judge reviewed the evidence and concluded that the appellant had not met this
    burden. Her submission that the application judge should have convened an oral
    hearing is ill-founded. There was no such request by the parties and it runs
    contrary to the objectives of the
Hague Convention
which contemplate a speedy process leading to a
    prompt return. An adverse inference involves the exercise of discretion which
    is afforded deference.

[10]

With respect to
    intolerable situation, the appellant submits that the application judge erred
    in concluding that the evidence on this point was conflicting. Here too, we
    disagree. The burden was on the appellant to establish an intolerable situation
    and the application judges conclusion that the high burden had not been met is
    also entitled to deference. In fact, we agree with his conclusions on the
    evidence before him and further find that the fresh evidence sought to be
    admitted does not establish an intolerable situation. Although the
Palmer
test for fresh evidence is liberally
    applied where children are concerned, here the fresh evidence, even if
    believed, could not have affected the result.

[11]

The application judges
    conclusion with respect to habitual residence informed his conclusion on
    jurisdiction and we see no error in that regard.

[12]

For these reasons we
    dismiss the appeal with costs fixed at $15,000 inclusive of disbursements and
    HST.

Robert J. Sharpe J.A.

David Watt J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Houle v. St. Jude Medical Inc., 2018 ONCA 88

DATE: 20180201

DOCKET: M48474 (C64361)

Simmons, Roberts and Nordheimer JJ.A.

BETWEEN

Shirley Houle and Roland Houle

Responding Parties (Appellants)

and

St. Jude Medical Inc. and St. Jude Medical
Canada, Inc.

Moving Parties (Respondents)

Brandon Kain and Vladimira Ivanov, for the moving
parties/respondents

Margaret Waddell, for the responding parties/appellants
and proposed class counsel

Benjamin Zarnett and David Lederman, for
Bentham IMF Capital Limited

Heard: January 18, 2018

Nordheimer J.A.:

[1]

The appellants have appealed from the order of Justice Paul Perrell of
the Superior Court of Justice dated August 29, 2017. The moving parties bring this
motion to quash the appeal on the basis that the order in issue is an
interlocutory, not final, order and thus is only appealable to the Divisional
Court with leave. This motion represents yet another salvo in the seemingly
never ending battle over what orders are final and what orders are
interlocutory.

[2]

The plaintiffs are proposed representative plaintiffs in a proposed
class action. The proposed representative plaintiffs and proposed class counsel
sought third party litigation funding from Bentham IMF Capital Limited
(Bentham). The proposed representative plaintiffs, proposed class counsel and
Bentham entered into a funding agreement dated August 6, 2017 (the Funding
Agreement) under which Bentham agreed to pay a portion of the legal fees and
disbursements for the proposed class action on certain terms.

[3]

The proposed representative plaintiffs brought a motion seeking approval
of the Funding Agreement and for an order that would make the Funding Agreement
binding on all putative class members. The motion judge conditionally approved
the Funding Agreement, subject to certain changes being made to certain of its
terms, failing which the approval motion would be dismissed. The proposed
representative plaintiffs, proposed class counsel and Bentham all objected to
the required changes. As a result, rather than make the changes to the Funding Agreement,
they appealed the conditional approval order. In apparent recognition that
there might be an issue over jurisdiction, appeals were taken both to this
court and by way of a motion for leave to appeal to the Divisional Court.

[4]

The moving parties contend that the order in issue is an interlocutory
order and therefore any appeal lies to the Divisional Court with leave
Courts
of Justice Act
, R.S.O. 1990, c. C.43, s. 19(1)(b). The responding parties
contend that the order is final and thus the appeal lies to this court
Courts
of Justice Act
, s. 6(1)(b).

[5]

The problem that this motion once again raises is that there is no
definition in the
Courts of Justice Act
as to what constitutes a final
order. This problem is exacerbated by the fact that, notwithstanding the many
decisions on the subject, they have not always followed a consistent approach
for determining whether an order is final or interlocutory.  As Laskin J.A.
said in

Capital Gains Income Streams Corp. v. Merrill Lynch Canada Inc
.,
2007 ONCA 497, 87 O.R. (3d) 443, at para. 37:

And yet, despite the very large number of decisions on whether
a particular order is final or interlocutory, our court's jurisprudence on the
distinction has been anything but a model of consistency.

[6]

In an effort to resolve the problem, it is of assistance to return to
what appears to be the first decision by this court that attempted to delineate
the difference between final and interlocutory orders, that is,
Hendrickson
v. KalIio
, [1932] O.R. 675 (C.A.). In that decision, Middleton J.A. said,
at p. 678 :

The interlocutory order from which there is no appeal is an
order which does not determine the real matter in dispute between the parties
the very subject matter of the litigation, but only some matter collateral. It
may be final in the sense that it determines the very question raised by the
applications, but it is interlocutory if the merits of the case remain to be
determined.

[7]

Subsequent cases have expanded on that definition. The decision in
Ball
v. Donais

(1993), 13 O.R. (3d) 322 (C.A.) held that where a
substantive right of a party was determined, even if other aspects of the
proceeding remained to be determined, the resulting order was a final order. This
approach was explained in
Sun Life Assurance Co. v. York Ridge Developments
Ltd.
(1998), 116 O.A.C. 103 where Weiler J. A. said, at para. 13:

As stated in Holmsted and Watson on
Ontario Civil Procedure
at 62-24: "
Ball
holds that what the
Hendrickson
test really
means is that to be final an order must deal with the substantive merits as
opposed to mere procedural rights, no matter how important the procedural
rights may be. The test focuses on whether the order under appeal finally
disposes of the rights of the parties, in the sense of substantive rights to
relief (in the case of a plaintiff) or a substantive defence (in the case of a
defendant)."

[8]

In support of their position, the moving parties point to various
decisions that have dealt with this issue and which have held that the
following are all interlocutory orders in the context of class proceedings: orders
for security for costs, carriage orders, and orders denying approval of a
settlement.

[9]

The issue in this case is complicated, however, by the fact that two of
the parties appealing the conditional approval order are not, strictly
speaking, parties to the proceeding. Where non-parties are involved, the
question of whether an order is final or interlocutory is made more difficult.
[1]
Indeed, these cases would appear to demonstrate the lack of consistency to
which Laskin J.A. referred.  Needless to say, the responding parties key in on
this distinction to advance their position that the order in issue here is
final.

[10]

The
responding parties begin with the decision in
Smerchanski

v.
Lewis
(1980), 30 O.R. (2d) 370 (C.A.) where Arnup J.A. said, at p. 374:

This Court has held that an order made in a contest between a
party to an action and someone who is not a party is a final order, appealable
without leave, if the order finally disposes of the rights of the parties in
the issue raised between them.

[11]

The
responding parties refer to certain decisions that have followed on that
principle including
Morse Shoe (Canada) Ltd. v. Zellers Inc.
(1997)
,
100 O.A.C. 116;
Pennington
v. Hawley
, [2005] O.J. No. 3591 (C.A.) and
C
anWest MediaWorks Inc.
v. Canada (Attorney General)
, 2007 ONCA 567, 227 O.A.C. 116.

[12]

It
is difficult, in my view, to reconcile the rationale expressed in many of these
non-party decisions with the fundamental principle that was set out in
Hendrickson
,
as further explained in
Ball
. It seems difficult to understand how the
issues raised in those decisions, in most instances, could be seen as anything
but collateral, as that term was used in
Hendrickson
, even if the
particular issue involving the non-party was finally determined.  It is also
inconsistent with the point made in
Waldman v. Thomson Reuters Canada Ltd
.,
2015 ONCA 53, 330 O.A.C. 142, where MacFarland J.A. said, at para. 22:

This submission presumes that, to be a final order, an order
need only dispose finally of whatever issue was before the motion judge
irrespective of whether the order terminates the action or resolves a
substantive claim or defence of the parties. Were that so, the distinction
between interlocutory and final orders would cease to exist.

[13]

This
point has been picked up in more recent decisions of this court where an effort
has been made to confine the decision in
Smerchanski
to its particular
facts. As Finlayson J.A. said in
CC&L Dedicated Enterprise Fund
(Trustee of) v. Fisherman
(2001)
,
55 O.R. (3d) 794 (C.A.), at para. 16:

When given its broadest interpretation, the principle in
Smerchanski
v. Lewis
,
supra
, does not fit comfortably with the general test
for determining whether an order is interlocutory or final, as set out in
Hendrickson
v. Kallio
, [1932] O.R. 675 (C.A.) and clarified in subsequent cases such
as
Ball v. Donais
(1993), 13 O.R. (3d) 322 (C.A.).
Smerchanski
was not intended to mean that all orders directed to a non-party must be final,
and the principle expressed therein should not be further expanded in that way.

[14]

The
effort to confine
Smerchanski
was repeated in
Ambrose v. Zuppardi
,
2013 ONCA 768, 368 D.L.R. (4th) 749, where this court agreed with the view
expressed above in
CC&L
.

[15]

All
of that said, it is not necessary to fully and finally reconcile all of these
cases, assuming that would be possible, in order to determine the issue here. That
is because, in my view, the order in issue here did not finally dispose of the
rights of proposed class counsel and Bentham. On that point, the contents of
the actual formal order are important. The operative part of the order reads:

THIS COURT ORDERS that the Funding Agreement is approved if an
amended Funding Agreement, revised in accordance with the directions in the
Reasons released August 29, 2017, is delivered to the Court within 60 days,
failing which the motion for approval is dismissed.

[16]

The
motion judge did not dismiss the approval motion. Rather, his order conditionally
approves the Funding Agreement, subject to certain revisions being made to it. Subject
to making the required revisions, the proposed representative plaintiffs, proposed
class counsel and Bentham got what they had asked the motion judge for
approval of the funding agreement.

[17]

Instead,
the responding parties decided not to revise the Funding Agreement, and, as a
result, their motion for approval was dismissed. In that respect, the order
here is akin to other forms of conditional orders, such as an order for
security for costs. Where security for costs is ordered, if the security is not
posted, the proceeding may come to an end. Nevertheless, the order requiring
that security be posted is still an interlocutory order. On this point, I adopt
the observation in
Inforica Inc. v. CGI Information Systems and Management
Consultants Inc.
, 2009 ONCA 642, 97 O.R. (3d) 161, where Sharpe J.A. said,
at para. 26:

I recognize that failure to satisfy an order for security for
costs may lead to a dismissal of the claim, but the sanction for non-compliance
with an order cannot alter the nature of the order itself.  But if the claim
is dismissed, the dismissal flows from the party's failure to comply with the
interlocutory or procedural order, not from the order itself, and does not
alter the interlocutory or procedural nature of the order that led to dismissal.

[18]

In
my view, that point is apposite to the issue that is raised here. It is also
consistent with the point made in
Sun Life
that, in order to be a
final order, the order must deal with the substantive merits as opposed to
mere procedural rights, no matter how important the procedural rights may be. No
substantive right was determined by the conditional approval order. While the
responding parties say that the result is the end of the litigation because the
proposed representative plaintiffs will not have funding to pursue their claim,
that result is a consequence of the responding parties decision not to amend the
Funding Agreement. It is not a necessary result of the order. Consequently, I
conclude that the order in issue is an interlocutory order, only appealable to
the Divisional Court with leave.

[19]

In
light of that conclusion, I do not need to address the other issue raised by
the moving parties, that is, whether Bentham has standing to appeal the order.

[20]

The
appeal is quashed. The moving parties are entitled to their costs of the motion
fixed in the agreed amount of $5,000 inclusive of disbursements and HST.

Released: IVB FEB 1 2018

I.V.B. Nordheimer J.A.

I agree. Janet Simmons J.A.

I agree. L.B. Roberts J.A.

[1]

While I accept that proposed class counsel and Bentham are
non-parties, that is not the same thing as accepting that they are
strangers to the proceeding as that term has been used in many of the
non-party cases. I leave for another day whether that distinction suggests that
a different approach should be taken to the final/interlocutory analysis.