Judge rebukes police for putting ‘demands of occupiers’ over

Lawsuits against police and police-related pertinent court decisions.

Judge rebukes police for putting ‘demands of occupiers’ over

Postby Thomas » Tue Oct 11, 2016 2:22 am

Christie Blatchford: Judge rebukes police for putting ‘demands of occupiers’ over other Canadians

More than 10 years after the oft-violent native occupation of the Douglas Creek Estates housing site began in Caledonia, Ont., a judge has given teeth to the claim that the Ontario Provincial Police engaged in “two-tiered” law enforcement that favoured occupiers over non-native residents.

“The OPP acted in accordance with a framework to put the demands of the occupiers ahead of the rights of other Canadian citizens,” Ontario Superior Court Judge Kim Carpenter-Gunn said in part last month.

Her decision was given orally from the bench on Sept. 22; Postmedia has obtained a transcript.

The case was a civil lawsuit against the OPP and six of its members filed by Randy Fleming, a 55-year-old retired steelworker and long-time resident of the picturesque small town south of Hamilton.

On May 24, 2009, Fleming had attempted to walk peacefully, carrying a Canadian flag, up the main Caledonia street to a so-called “flag rally,” the first time since the occupation had begun that the police were going to allow the maple leaf to be raised anywhere near Douglas Creek Estates — often referred to as DCE — lest the mere sight of it inflame the occupiers.

But as he approached the entrance to DCE, three OPP vans drove past him, turned around and then drove toward him, forcing him to clamber into a ditch and then up to the higher ground of the occupied site, whereupon he was forcibly taken to the ground by a half-dozen officers, his left elbow and nerves permanently injured, and then arrested.

The judge came down strongly on Fleming’s side — awarding him a total of almost $300,000 in general and special damages and legal costs, proclaiming him a credible witness who had handled both the chronic pain and simmering rage that were the residue of his arrest with stoic grace and finding the OPP had been “very heavy-handed” and that several officers were evasive or not believable in their evidence.

Carpenter-Gunn found that Fleming had done nothing wrong, let alone illegal, and that the police had breached his Charter and common-law rights “in order to appease certain unidentified Aboriginal individuals who may have been involved in the occupation of DCE.”

In the end, she said, the police falsely arrested and unlawfully imprisoned Fleming.

All he’d done, she said, “was to stand peacefully and alone with the Canadian flag, on a piece of public land in Canada, potentially angering a group of people (the occupiers) who were about 100 metres away.”

Ironically, the judge said, there were only 20 or so native occupiers at the main gate that day, and only about half of them even noticed Fleming’s approach and moved towards him. None of them was armed, and none carried weapons.

And though two officers testified that if “there was a threat of violence at all, it was coming from the occupiers,” the judge said unequivocally if the police hadn’t interfered with Fleming’s quiet walk, “he would simply have passed in front of DCE and moved onto the flag-raising event.”

In other words, she said, it was the conduct of the police in “driving directly” at Fleming that forced him to leave the shoulder of the road and “walk a few feet onto what may have been DCE land.”

If the decision was a tremendous personal victory for the tenacious Fleming and his lawyer Michael Bordin, it also offered in microcosm a vindication for many in Caledonia.

From the moment the occupation began on Feb. 28, 2006, when a handful of protesters from the nearby Six Nations reserve walked onto DCE, the OPP policed as they had never policed before: Occupiers broke the law, sometimes violently right under police noses, with arrests, when they were made, not made contemporaneously but weeks or months later.

Often, even in the face of egregious law-breaking, the OPP simply did nothing.

But non-native citizens who objected — or God forbid, took to the streets to protest the uneven treatment and their abandonment by the state — were treated by the OPP as instigators, and arrested, as Fleming was, for daring to assert their rights to freedom of speech and expression.

Roads were blocked, bridges and cars burned, the residents who lived on roads around DCE at one point actually issued “passports” by masked occupiers and forced to show them to enter their property. A Hydro One transformer station was vandalized and set on fire, knocking out power to almost 8,000 people in the area.

And when the OPP belatedly deigned to enforce a court order to remove the occupiers, they were driven off the site by a mob of natives, many armed with bats, axes, shoves and the like, with their tails between their legs.

It was an astonishing decimation of the rule of law that went on for years, with the OPP and Ontario government both denying the truth of what citizens saw daily with their own eyes.

Even Fleming’s arrest was a joke, with the OPP saying they’d arrested him to prevent a breach of the peace or because he’d breached the peace, but actually charging him with obstructing a police officer.

Fleming appeared in court 12 times to defend himself against the charge (those legal fees of almost $13,000 were part of the damages the judge awarded) only to see the Crown withdraw the charges 19 months later.

The flag rally on the day when Fleming was arrested was, he testified, a response to the fact that until that date, “no one had been allowed to put up a Canadian flag on Argyle Street,” though the flag of the Mohawk Warriors flew all that time on DCE.

The Canadian flag meant something to Fleming: He’d been told stories by his father and grandparents about the First and Second World Wars and, the judge found, he was “sincere regarding his respect for the flag.”

As Christine McHale, a veteran in Caledonia’s fight for fair policing, said this week, “At least Randy and the rest of our little group can hold our heads high, knowing we did the right thing.”

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Matt Gurney: The ongoing shame of Caledonia

Postby Thomas » Thu Oct 13, 2016 2:44 am

Ontarians have long known that the provincial Liberals, under then-premier Dalton McGuinty, sold out the interests of law-abiding citizens in the community of Caledonia, rather than be forced to confront lawlessness among members of the aboriginal community. And now, a judge has said so.

The ruling dates back to the 2009 occupation by aboriginal protesters of a parcel of land outside town that was slated for development. They opposed development of the land, on grounds that it properly belonged to the nearby Six Nations reserve. The occupation of the would-be development site became a flashpoint of tension; aboriginal protesters engaged in acts of sabotage, intimidation and sometimes outright violence against locals and, occasionally, members of the Ontario Provincial Police (OPP), who had responsibility for policing the crisis.

The occupation and standoff was a bitterly unpleasant experience. But it was hardly unprecedented — these protests happen. What was new was the extent to which the OPP, no doubt under orders from the Ontario government, utterly abandoned their duty. The police exist only to uphold the law neutrally and fairly. In Caledonia, they didn’t even try.

This conclusion, obvious to locals and most Canadians who observed the crisis from afar, was recently confirmed by a ruling in the Ontario Superior Court. Justice Kim Carpenter-Gunn found in favour of Randy Fleming, a man who sustained permanent injuries when he was tackled by OPP officers and arrested while waving a Canadian flag near the protest site. Charged with obstructing an officer — a preposterous charge, since he was minding his own business until engaged by police — Fleming ultimately had the charges against him dropped. But he sued the OPP and, last month, Justice Carpenter-Gunn ruled in his favour, awarding him nearly $300,000.

The ruling is obviously a huge victory for Fleming, who was behaving reasonably, and entirely legally, when he was falsely arrested and unlawfully imprisoned by the OPP. But it is also a victory for the people of Ontario. It verifies the truth of what happened at Caledonia: the police abandoned their duty to the people of the province, and were at the very least permitted to do so by a weak premier and a government desperate to avoid a contentious, potentially politically damaging clash with aboriginal protesters. More likely still is that the OPP abandoned their duty not with the government’s mere acceptance, but in fact, under its orders.


No one wanted bloodshed in Caledonia. But the government’s claim that the OPP was “keeping the peace” — McGuinty used those exact words in a meeting with the National Post editorial board — doesn’t hold water. The police keep the peace by enforcing the law, equally and neutrally, without concern for matters of race and political sensitivities. If they are not able to do so, because the situation is too dangerous — in other words, if there’s no peace to keep — the police can request help, via the provincial government, from the Armed Forces. It’s called Aid to the Civil Power and is (for obvious reasons) rarely used in Canada — there’s little need. But the option exists for those dire situations where the police are literally unable to enforce the law because civil order has broken down. That didn’t happen in Caledonia. What was the OPP so afraid of? Why couldn’t police enforce the law?

The people of Caledonia spent more than a year knowing they were effectively defenceless. The police did nothing when citizens were harassed by protesters. They did nothing when an electrical transformer station was torched, leaving thousands without power. They even did nothing when fellow police officers were assaulted by the mob. But non-aboriginal citizens remained subject to the law and, in the case of Fleming, could even be injured and arrested without breaking it. This remains a black mark on the reputation of both the OPP and the former premier and his party.

And it has absolutely established a precedent in Ontario: in 2013, another Ontario Superior Court judge issued a rare, public rebuke to the police for refusing to enforce a court order to end an aboriginal blockade of a railway. “We seem to be drifting into dangerous waters in the life of the public affairs of this province when courts cannot predict, with any practical degree of certainty, whether police agencies will assist in enforcing court injunctions,” Justice David Brown wrote.

Dangerous waters indeed. Hopefully Randy Flemming’s victory in the court will help reverse this slow slide into lawlessness that began under Dalton McGuinty’s watch, and continues, sadly, to this day.

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OPP Caledonia tactics repudiated in court

Postby Thomas » Fri Oct 14, 2016 4:39 am

Critics of the Ontario Provincial Police and the Dalton McGuinty government have long maintained that the OPP presided over "two-tier" justice during the Caledonia land dispute standoff in 2009.

Anyone with even cursory knowledge of the events of those days would be hard pressed to deny that, and it's even harder today now that an Ontario Superior Court judge has found it is the case. It's a shocking finding, even though it's hardly surprising. It flows out of a civil case brought by Randy Fleming, a civilian who sustained injuries, including permanent damage to nerves and his left elbow when he was tackled and pinned down by OPP officers for the crime of peacefully carrying a Canadian flag down the main street near the Douglas Creek Estates protest site.

Fleming was eventually charged with obstructing an officer — a ludicrous charge since police instigated the confrontation, not Fleming. The charges were eventually dropped, after which he sued the OPP and was eventually awarded about $300,000.

The OPP, and McGuinty himself, defended their actions in this case and in general around Caledonia, by saying police were only trying to keep the peace. That was a suspect claim at the time and it's even more so after the judge's decision, which said, among other things, that the OPP in Fleming's case had been "heavy-handed" and that the evidence presented by some officers was not credible.

In short, the judge said Fleming did nothing wrong. No aboriginal protesters were a threat. The only party that acted aggressively, resulting in Fleming's injury and forceful arrest, was the OPP.

This episode is a microcosm. Native protesters were allowed to break the law, sometimes violently, while non-native protesters were treated to the iron fist of the police. Citizens of Caledonia were denied their right to equal protection under the law.

And for what? Clearly, the OPP and the provincial government were anxious to avoid another Ipperwash, the 1995 standoff in which protester Dudley George was killed by police as he walked toward them with a stick in his hand. But in their efforts to do that, they violated the trust of Caledonia residents and left a black mark on the reputation of the OPP.

No one knows for sure the extent to which the provincial government may have driven OPP strategy in Caledonia, but there remains to this day the widely-held view that the police were following orders from Queen's Park, just as what happened with the police at Ipperwash taking direction from the Harris government of the day. If that's true, the sin is magnified.

Chances are, we will have another DCE situation at some point. When that happens, it's imperative this not be repeated. Law and order unevenly applied is not law and order, it's persecution.

Howard Elliott

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Supreme Court to hear case exploring police use of force

Postby Thomas » Fri Oct 26, 2018 2:54 am

Supreme Court to hear case exploring police use of force in Caledonia, Ont.

OTTAWA — The Supreme Court of Canada says it will hear a case involving a man who sued the Ontario Provincial Police and claimed permanent injury after a struggle in Caledonia, Ont. in 2009.

Randy Fleming says he was walking down a street with Canadian flags near lands occupied by Indigenous protesters with the intention of joining a counter-protest to the occupation of a development known as Douglas Creek Estates.

As officers spotted Fleming walking alone, police vehicles approached him, causing him to retreat on to disputed lands.

A struggle ensued after an officer moved on to the land and arrested Fleming.

A trial judge awarded damages including for false arrest, wrongful imprisonment and a breach of charter rights but a majority of the Ontario Court of Appeal set aside this judgment, ordering a new trial to determine whether excessive force was used during the arrest.

As per its custom the Supreme Court gave no reasons for the decision to hear the appeal.

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Police can’t arrest those who aren’t breaking law

Postby Thomas » Sat Oct 05, 2019 4:23 am

Police can’t arrest those who aren’t breaking law to prevent others’ violent actions: SCC

In a decision hailed as preserving Canadians’ civil liberties, the Supreme Court of Canada has unanimously restored a $140,000 damages award to a peaceful demonstrator who was unlawfully arrested and injured by the Ontario Provincial Police in 2009 during the occupation by Indigenous protesters of disputed Crown land in Caledonia, Ont.

Justice Suzanne Côté’s 7-0 ruling Oct. 4 reverses the Ontario Court of Appeal below, and pronounces, for the first time, on whether police, in order to prevent an anticipated breach of the law by others — such as violence during a demonstration — can use their common law ancillary power under the Waterfield doctrine to arrest someone who is neither doing, or planning to do, anything illegal: Fleming v. Ontario 2019 SCC 45.

The short answer is “no,” the court held, concluding that that there is no common law police power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace by others.

“A drastic power such as this that involves substantial interference with the liberty of law-abiding individuals would not be reasonably necessary for the fulfillment of the police duties of preserving the peace, preventing crime, and protecting life and property,” Justice Côté explained. “This is particularly so given that less intrusive powers are already available to the police to prevent breaches of the peace from occurring.”

Sean Dewart of Toronto’s Dewart Gleason LLP, who with Adrienne Lei and Mathieu Bélanger represented the intervener Canadian Civil Liberties Association, hailed Justice Côté’s judgment.

“The court could not have spoken more clearly,” he told The Lawyer’s Daily. “The power of the police to arrest political protesters for ‘apprehended breach of the peace,’ has been all but eliminated by today’s decision,” Dewart remarked. “This power is the authority that police used to justify the biggest mass arrests in Canadian history in the G-20 [protests in Toronto] debacle. Democracy and freedom of expression are considerably more safe than they previously were as a result of this ruling.”

The successful appellant, plaintiff Randy Fleming, was walking on the side of the road to join a counter‑protest “flag rally,” against the Six Nations protesters’ occupation of certain land, when he stepped on to the disputed land in order to avoid a police vehicle blocking the way to the property. When some First Nations protesters headed toward Fleming, a police officer told the plaintiff he was under arrest in order to prevent a breach of the peace. This occurred against the backdrop of previous violent clashes and the resulting determination of police to forestall further breaches of the peace.

When Fleming disregarded a police order to put down the Canadian flag he was carrying, he was forced to the ground, handcuffed, placed into an offender transport unit van, and sent to jail — from which he was released two and a half hours later. During the struggle with police, his left elbow was injured, leaving him with permanent chronic pain. The criminal charge against him was withdrawn months later.

In Fleming’s subsequent civil suit, the trial judge held that his arrest was unlawful and not reasonably necessary. She awarded him $139,711 for false arrest, wrongful imprisonment, breach of right to pass and breach of his s. 2(b) Charter right to freedom of expression. A majority of the Ontario Court of Appeal allowed the Crown’s appeal, finding no illegal arrest but they sent the case back to trial to determine whether police used excessive force on Fleming (Justice Grant Huscroft dissented).

Justice Côté restored the trial decision, awarded the appellant his costs at the Supreme Court and affirmed cost orders below of $151,000 at trial and $48,000 at the Court of Appeal.

Justice Côté remarked that “in essence” the respondent Ontario Crown and seven defendant OPP officers were proposing a common law power to arrest individuals who have not committed any offence, who are not about to commit any offence, who have not already breached the peace, and who are not about to breach the peace themselves.

“For an intrusion on liberty to be justified, the common law rule is that it must be ‘reasonably necessary’,” she stressed. “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.”

She emphasized “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.”

She concluded that Fleming’s arrest was not authorized by law, and that there was no basis for intervening in the trial judge’s conclusion that the province and the police were liable for battery for their use of force in unlawfully arresting him. Thus no new trial is needed on the issue of excessive force.

Michael Bordin of Gowling WLG (Canada) LLP in Hamilton, Ont., co-counsel with Jordan Diacur for Fleming, said his client feels the decision marks “an important day for the rule of law and fundamental rights and freedoms in Canada. The Supreme Court of Canada has once again protected freedom of expression and the ability of Canadians to express our views peacefully.”

Bordin said the case was “a long, lonely fight” for Fleming, in the face of much greater government resources. “He has been waiting for this vindication since his arrest on May 24, 2009,” Bordin explained. “More than anything else, he is relieved. A burden has been lifted from his shoulders — a burden that he has often felt he was carrying alone, for all law-abiding Canadians.”

As a matter of law, the judgment provides clarity for police and citizens, Bordin noted.

“The state cannot use arrest as a pretext for shutting down lawful conduct and expression, which the state finds troublesome,” he explained. “For police, it clarifies what constitutes a breach of the peace and delineates the extent of their common law powers. For Canadians, it provides assurance that their lawful conduct and the pursuit of their fundamental freedoms will not result in a form of arrest that is evasive of judicial review,” he continued. “It ensures that the state cannot unreasonably interfere with constitutionally protected and lawful political engagement and other forms of freedom of expression.”

Bordin advised that the primary conclusion to be drawn “is that no common law power to arrest a person acting lawfully exists, especially to protect the lawful citizen from the conduct of others. Moreover, it appears that the police power to arrest to prevent a breach of the peace must be found in the Criminal Code, rather than the common law.”

A spokesperson for the respondent Ontario, Brian Gray of the province’s Ministry of the Attorney General, said Ministry counsel are reviewing the decision. He had no further comment.

On behalf of the CCLA, Dewart said the most immediate result of the ruling will be in the policing of political protests and counter-protests. “OPP officers used their powers to arrest Mr. Fleming, even though he had broken no law and was not about to harm anyone,” he noted. “Police jumped straight to the power to arrest, which is the most intrusive power they have, and in doing so, took free political expression out of circulation. … The police have been told in clear terms that they are expected to develop sophisticated and nuanced responses rather than simply arresting people at random.”

In Dewart’s view, the decision does not hamstring police in their efforts to prevent breaches of the peace. “The decision merely requires them to search for the least intrusive means of doing so and to escalate only as and when required,” he suggested. “On a more general level, the court made it clear that the state will be held to high standards when it seeks to justify police conduct — [including other measures they use such] as investigative detention — on the basis of the ancillary powers doctrine.”

Dewart highlighted the Supreme Court’s firm rejection of the appellate reasoning below that the OPP’s conduct was justified because it proved to be effective in forestalling anticipated conflict. “The Supreme Court correctly identified this type of reasoning as ‘a recipe for a police state, not a free and democratic society.’ ”

Counsel for the intervener Canadian Association of Chiefs of Police did not immediately respond to a request for comment.

Brandon Kain of Toronto’s McCarthy Tétrault LLP, who was co-counsel with Adam Goldenberg and Natalie Kolos for the intervener Canadian Constitution Foundation, told The Lawyer’s Daily their client is pleased with the Supreme Court’s decision that freedom of expression must be protected from undue interference by the state. “The Supreme Court of Canada has held that a protester, who is not breaking any laws or inciting any violence themselves, cannot be arrested by the police at common law simply because their expression might provoke or enrage another party to breach the peace,” Kain said. “This helps ensure a zone of protection for the lawful exercise of constitutional and other fundamental rights, which is critical in a free and democratic society.”

Justice Côté explained that the ancillary powers doctrine must be applied to determine whether a particular police action that interferes with individual liberty is authorized at common law. At the preliminary step of the analysis, the police power that is being asserted and the liberty interests that are at stake must be clearly defined. The analysis then proceeds in two stages. “First, the court must ask whether the police conduct at issue falls within the general scope of a statutory or common law police duty,” she advised.

Second, the court must determine whether the conduct involves a justifiable exercise of police powers associated with that duty. “At the second stage, the court must ask whether the police action is reasonably necessary for the fulfillment of the duty,” Justice Côté held.

The judge identified three factors to be weighed in answering the question of reasonable necessity: (1) the importance of the performance of the duty to the public good, (2) the necessity of the interference with individual liberty for the performance of the duty, and (3) the extent of the interference with individual liberty.

She stipulated that the onus is always on the state throughout the analysis. “The second stage of the ancillary powers doctrine must always be applied with rigour to ensure that the state has satisfied its burden of demonstrating that the interference with individual liberty is justified and necessary,” she stressed. “The standard of justification must be commensurate with the fundamental rights at stake.”

Justice Côté noted that in the unique context of a purported power of arrest such as the one in Fleming’s case, the standard “is especially stringent for a number of reasons. First, the purported power would enable the police to interfere with the liberty of someone acting lawfully. Such a power is extraordinary in nature and it is especially important for the court to guard against intrusions on the liberty of persons who are neither accused nor suspected of committing any crime,” she reasoned. “Second, the purported police power is preventative, and the court must be very cautious about authorizing police actions merely because an unlawful or disruptive act could occur.”

Justice Côté warned that “vague or overly permissive standards in such situations would sanction profound intrusions on liberty with little societal benefit.”

Moreover, she noted, because the purported power of arrest would generally not result in charges, judicial oversight of its exercise would be rare. “As a result, any standard outlined at the outset would have to be clear and highly protective of liberty.”

Justice Côté concluded that the purported police power is not reasonably necessary for the fulfilment of police duties recognized at common law, i.e. to preserve the peace, prevent crime and protect life and property. “While preserving the peace and protecting people from violence are immensely important, and while there may be exceptional circumstances in which some interference with liberty is required in order to prevent a breach of the peace, an arrest cannot be justified under the ancillary powers doctrine,” she ruled. “There is already a statutory power of arrest that can be exercised should an individual resist or obstruct an officer taking other, less intrusive measures.”

Supreme Court Justices Andromache Karakatsanis and Clement Gascon did not sit on the appeal.

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Police cannot arrest lawful protesters, even to prevent viol

Postby Thomas » Sat Oct 05, 2019 4:23 am

Police cannot arrest lawful protesters, even to prevent violence by others, Supreme Court rules

Police cannot arrest lawful protesters to prevent violence by others, the Supreme Court ruled on Friday.

The decision comes in the case of Randy Fleming, who carried a Canadian flag on a pole as part of a counterprotest against an Indigenous occupation of Crown land in Caledonia, Ont., in 2009.

It has wide implications for peaceful protests in Canada. The police, the court said, have no authority under the English common law (a centuries-old body of precedents) to arrest provocative but lawful protesters – even when police fear others may engage in violence.

It was the first Supreme Court ruling in Canadian history to address police powers in such circumstances, the court said. Two lower courts that dealt with the case both accepted that such an arrest power existed.

“This is the authority that police used to justify the biggest mass arrests in Canadian history in the G-20 debacle,” lawyer Sean Dewart said, referring to the preventive arrests of more than 1,000 people in 2010 in downtown Toronto. Mr. Dewart represented the Canadian Civil Liberties Association, which intervened in the Fleming case. “Democracy and freedom of expression are considerably more safe than they were as a result of this ruling.”

Mr. Fleming had broken no law with his flag protest, police told the Supreme Court. But when eight to 10 people from an Indigenous demonstration headed toward him, Ontario Provincial Police officers ordered Mr. Fleming to drop the flag. He refused, and five officers pulled his arm behind his back, forced him to the ground and handcuffed him. He accused the police of an unlawful arrest, and causing him lasting physical injuries.

A charge of resisting arrest was dropped 19 months later, after he had made 12 court appearances.

Mr. Fleming sued police in 2011. An Ontario Superior Court judge ordered the OPP to pay him $139,711 in damages – including $5,000 for violation of his constitutional right to free speech – and $151,000 in legal costs. But the OPP appealed, and won 2-1 at the Ontario Court of Appeal, which threw out the damages award, saying the police tactic was effective in preventing violence.

The Supreme Court restored the damages order (adding appeal costs of $48,000), and sharply criticized the appeal court for stressing the effectiveness of the police action when constitutional rights were at stake.

“That is a recipe for a police state, not a free and democratic society,” Justice Suzanne Côté wrote in a 7-0 ruling. “It would directly undermine the expectation of all individuals, in the lawful exercise of their liberty, to live their lives free from coercive interference by the state.”

She stressed that in general, arrests of peaceful protesters when no charges are laid pose a danger to civil liberties because no court would be involved, and therefore no judge would review police actions.

“The purported power in this case would directly impact on a constellation of rights that are fundamental to individual freedom in our society,” she wrote.

Mr. Fleming declined to be interviewed, but one of his lawyers, Michael Bordin, said his client feels his victory is an important day for the rule of law. “This has been a long, lonely fight, in which he faced all the resources of the government. He has been waiting for this vindication since his arrest on May 24, 2009. More than anything else, he is relieved. A burden has been lifted from his shoulders, a burden that he has often felt he was carrying alone, for all law-abiding Canadians.”

Police have arrest powers under the Canadian Criminal Code for such things as resisting or obstructing officers carrying out their duty, but only when they use less intrusive methods in circumstances such as Mr. Fleming’s case, the court said. The OPP did not argue that any Criminal Code powers applied to the situation involving Mr. Fleming.

A spokesperson for the OPP said the force was not ready to comment on Friday. Lawyer Bryant Mackey, representing the Canadian Association of Chiefs of Police, which intervened in the case, said the court’s recognition of the powers of arrest under the Criminal Code is “helpful, and undoubtedly will continue to be used in appropriate circumstances to preserve the peace during public protests.”

The incident arose from an at-times violent dispute in which protesters from the Six Nations of the Grand River reserve 25 kilometres south of Hamilton, Ont., occupied a housing development in nearby Caledonia in 2006. A court ordered them to leave. After the Crown bought the land and permitted the protesters to remain, Mr. Fleming arrived in counterprotest on May 24, 2009.

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Justice at last for Caledonia man arrested for carrying a Ca

Postby Thomas » Sat Oct 05, 2019 4:25 am

Christie Blatchford: Justice at last for Caledonia man arrested for carrying a Canadian flag

And so, in the middle of this utterly disheartening election campaign, there comes a welcome ray of light.

An institution, in this case a court, has done what Canadian politicians and political parties find so achingly difficult to do — that is, the palpably, plain-as-the-nose-on-your-face right thing.

It is a unanimous decision, bitingly written by Justice Suzanne Cote from the Supreme Court of Canada and it puts a shine — a happy ending — on the disgraceful 10-year-long ordeal of Randy Fleming.

Fleming was arrested by a half-dozen Ontario Provincial Police officers on May 24, 2009, wrestled to the ground, hands cuffed behind his back and permanently injured, transported to a nearby detachment and kept in a cell for almost three hours.

A resident of Caledonia, Fleming was protesting the then three-year-old occupation of Douglas Creek Estates, once a housing development under construction, by Six Nations protesters.

By this time, the province of Ontario had bought the land and allowed the protesters to remain on the site and fly the flag of the Mohawk Warriors, the OPP had perfected its two-tiered policing (whereby officers spent most of their time arresting non-native protesters while allowing native protesters to terrorize the area, the best illustration of that a period when the occupiers issued “passports” to non-natives who lived near Douglas Creek Estates and demanded they show them whenever they were coming or going), and the citizenry was exhausted by it all.

Most everyone but a small group led by activist Gary McHale had completely given up. This one small group organized occasional “flag rallies,” where they would attempt to walk up the town’s main street, carrying a Canadian flag, the lawless bastards.

They were always poignant events: Poorly attended, there was never any illegal activity planned just a mild show of defiance, and yet to judge by the police presence, it was, every time, as though a giant mask-clad group of Antifa had descended brandishing weapons.

May 24, 2009 was one such rally.

This time, the plan was for the protesters to walk along the main street and raise a Canadian flag across from the main entrance of Douglas Creek Estates.

Fleming began walking toward the housing development, where he planned to meet up with the others. He was carrying a Canadian flag on a wooden pole.

An OPP squad passed him, turned around and headed back to his location.

He saw the two vans and a prisoner’s wagon approaching, moving fast.

To avoid being smushed by them, he moved off the shoulder of the road, into a ditch and up onto DCE property, causing a group of DCE occupiers to begin moving towards him. None of them had any weapons nor even uttered any threats.

The cops flew out of their vehicles and began shouting various commands at him. They told Fleming to drop his flag; he refused and then they arrested him.

As Cote wrote, “He had committed no crime. He had broken no law. He was not about to commit any offence, harm anyone, or breach the peace.

“In essence, the OPP officers claimed to have arrested Mr. Fleming for his own protection,” she said.

Among a police officer’s many tasks are preserving the peace, preventing crime and protecting life and liberty, the judge said.

But while the execution of these duties sometimes means police have to interfere with the liberty of individuals, “…a free and democratic society cannot tolerate interference with the rights of law-abiding people as a measure of first resort.

“There is a line that cannot be crossed. The rule of law draws that line. It demands that, when intruding on an individual’s freedom, the police can only act in accordance with the law.”

Here, the police were seeking what Cote described as the power “to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace” by someone else.

That, of course, is just plain dopey. Cote essentially said so — no such power exists at common law and thus Fleming’s arrest was unlawful.

Oh — the OPP had also charged Fleming with obstructing a peace officer. He appeared in court on 12 different occasions to defend himself before the charge was withdrawn by the Crown almost 19 months after being laid.

In March of 2011, Fleming filed a civil suit against the province and the seven officers involved in his arrest.

In 2016, at trial, Superior Court Judge Kim Carpenter-Gunn vindicated Fleming, finding that his arrest was illegal, that the police used excessive force and breached his Charter and common-law rights. She awarded him almost $300,000 in general and special damages and legal costs.

The OPP appealed of course, Fleming’s temerity apparently a noxious thorn in the state side.

Last year, the Ontario Court of Appeal overturned the Carpenter-Gunn decision, finding, in effect, that the police had been arresting Fleming for his own good.

But the resolute Fleming and his lawyers, Michael Bordin and Jordan Diacur, persevered and in the result, the stirring words from Cote: “Here, the respondents (the OPP) 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.”

It is finally over for Randy Fleming. He won.

And the state, and the police, have been sharply reminded that to paraphrase a British judge Cote quoted, it’s better to protect the rights of the innocent rather than force him to cease exercising them.

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No, you can’t be arrested just because you might upset someo

Postby Thomas » Thu Oct 10, 2019 1:43 pm

No, you can’t be arrested just because you might upset someone

Imagine you’re planning to attend a protest to express your views on a contentious issue and that at the rally, there will be people whose opinions are opposed to yours.

On your way to the event, with your colourfully worded picket sign on your shoulder, a police officer approaches you and asks where you’re going. You tell him. He arrests you.

You are understandably dismayed. You ask why you’re being detained. The officer explains that – even though you’ve done nothing wrong – he is concerned that your act of protest might provoke a counterprotester to assault you. You are held in jail for three hours before you are released. You’re also charged with resisting arrest.

That precise scenario occurred in Caledonia, Ont, a decade ago. Last week, the Supreme Court of Canada confirmed just how wrong and absurd it was.

In 2009, Randy Fleming was walking to a “flag rally” – one of a series of protests during a long standoff between Caledonia residents and a group of First Nations protesters occupying a disputed parcel of land. The standoff had flared into violence on numerous occasions.

On his way to the join the rally, carrying a Canadian flag on a pole and heading in the direction of the entrance to the disputed land, Mr. Fleming was passed by three Ontario Provincial Police vehicles going in the opposite direction. The police were there to keep the opposing sides apart.

On seeing Mr. Fleming, the police turned their vehicles around, but in doing so, they forced him off the shoulder. Mr. Fleming crossed a ditch and climbed over a small fence onto the disputed land.

Several officers yelled at him to return to the shoulder. Off in the distance, about 100 metres away, a group of First Nations protesters started to walk or jog toward Mr. Fleming. He remained where he was.

As the protestors approached, a police officer told Mr. Fleming he was under arrest and marched him off the disputed land. The officers then ordered him to drop his flag. He refused. The officers forced him to the ground and, in the process of handcuffing him, permanently injured his left arm.

Mr. Fleming was held for 2 1/2 hours and charged with resisting arrest. He appeared in court 12 times before the charge was dropped 19 months later.

He subsequently filed a suit against the police and the provincial government. He won in a lower court, lost on appeal and was vindicated by last week’s Supreme Court decision. His efforts have resulted in a ruling that clearly defines the proper limits of police powers in Canada.

The OPP had no statutory grounds for arresting Mr. Fleming. He hadn’t committed an offence and was not suspected of being about to do so. But police argued that a common-law precedent allows them to apprehend a law-abiding person in order to prevent an anticipated breach of the peace. The police were not anticipating that Mr. Fleming was about to break the law; they rather worried that people who disagreed with his protest were about to break the law by attacking him.

Given the sometimes violent nature of the lengthy Caledonia standoff, two judges on the Ontario Court of Appeal agreed that the police were justified in arresting Mr. Fleming. The OPP officers knew that minor incidents could turn into serious clashes, and the appeals court ruled that the police had taken legal actions to keep the peace.

The Supreme Court found otherwise. Even if the arrest of Mr. Fleming had indeed prevented some sort of violence from occurring – the facts of the case don’t bear out that claim – it wasn’t justified.

In fact, the court said, no police action should ever be justified solely by the fact it meets a desired end. “That is a recipe for a police state, not a free and democratic society,” the ruling correctly concludes.

Detaining a person is the most extreme infringement on personal liberty allowed in a free society; it becomes even more fraught when a police officer arrests a hypothetical future victim of a breach of the peace who is merely expressing an opinion. Canadians must be free to express opinions in public in a peaceful manner – a right that can’t be pre-empted by the worry that others might respond with violence.

Otherwise, it would be too easy to shut down protests before they even start. Mr. Fleming’s 10-year ordeal has made Canadians’ freedom of expression a little more secure.

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Supreme Court of Canada Case in Depth: Fleming v Ontario, 20

Postby Thomas » Sun Oct 20, 2019 6:58 am

THE SUPREME COURT OF CANADA HOLDS THAT THE COMMON LAW DOES NOT EMPOWER THE POLICE TO ARREST A PERSON WHO IS ACTING LAWFULLY

Supreme Court of Canada Case in Depth: Fleming v Ontario, 2019 SCC 45

The Supreme Court of Canada released its decision in Fleming v Ontario, on October 4, 2019. The decision was unanimous, with Côté J. writing for the Court.

The case is about common law police powers of arrest. In arresting Mr. Fleming (the Appellant), the Respondent Attorney-General of Ontario and police officers argued that they had made use of an "ancillary" common law police power authorizing the arrest of an individual who was acting lawfully in order to prevent an apprehended breach of the peace. This purported police power has been used to justify arrests in circumstances of protest, including mass arrests during the 2010 G20 protests in Toronto. However, the question of whether such a power exists and its scope had not previously come before the Supreme Court. Accordingly, this case had significant implications for the rule of law in Canada.

The Court accepted the Appellant's argument that recognizing such a common law power of arrest would substantially interfere with the liberty of law-abiding individuals and would not be reasonably necessary for the fulfilment of police duties. Further, as the Court could not conceive any circumstance in which the arrest of someone who is acting lawfully in order to prevent a breach of the peace would be reasonably justified, the Court concluded that "no such power exists at common law".

Facts and Background

The basic facts of the case were not in dispute. On May 24, 2009, Randy Fleming ("Fleming") was lawfully and peacefully exercising his common law rights and Charter freedoms, walking north on the shoulder of Argyle Street in Caledonia, Ontario. He was carrying a Canadian flag. He was walking to a long-planned 'flag rally' involving the raising of a Canadian flag and speeches. His goal was to watch the rally.

Seven Ontario Provincial Police ("OPP") officers set out to intercept Fleming as he walked. They drove at him in two vans, onto the shoulder of the road at speed, from the opposite direction. The lead van was unmarked. Carrying his Canadian flag, Fleming walked a few meters through a ditch to higher ground onto land owned by the Province of Ontario known as Douglas Creek Estates ("DCE").

Within seconds, Fleming was arrested and wrestled to the ground by the OPP officers after he refused to drop his Canadian flag. It was established at trial and not contested on appeal that: (a) Fleming had broken no laws and was acting lawfully at the time of his arrest; (b) upon being 'grounded', Fleming had complied with police commands to place his hands behind his back; and (c) Fleming's arm had been wrenched upwards while he was being handcuffed by the OPP officers after he complied, leaving him with a permanent injury.

For more than three years prior to May 24, 2009, DCE had been occupied by Indigenous persons in a longstanding dispute between the Crown and the First Nation of Six Nations of the Grand River. The flag rally was a protest aimed at OPP policing in the context of the occupation. The flag rally was to have occurred on the far side of Argyle Street from DCE. Argyle Street is a busy two-lane highway, and it was open to traffic. As a protester, Fleming's constitutionally-protected freedom of expression and liberty interests were involved, along with his common law rights to pass and repass on a public highway.

Fleming did not approach any persons on DCE or speak to them. The main entrance to DCE where 20 or so occupiers were gathered was about 100 meters away from Fleming. The day had been peaceful. There was a heavy police presence, with over 30 OPP officers on the ground—including the 7 officers involved in Fleming's arrest—plus 30 additional officers (in 'hard tac' riot-gear) available in reserve and able to be quickly deployed.

After the 7 OPP officers had driven their vans at Fleming and he had left the shoulder of the road, approximately 8-10 male and female occupiers began to approach. Several were carrying cameras—some walked; some jogged. They had no weapons. They uttered no threats. They were not known to be individuals with a history of violence. The occupiers never arrived at Fleming's location. They kept their distance from him and the police. One of the OPP officers acknowledged at trial that the occupiers might have been coming over simply "to see what was going on".

The OPP officers acknowledged that options were available to them other than arresting Fleming, including: (a) establishing a 'buffer zone' between Fleming and the occupiers; (b) calling for readily-available backup; or (c) sending out an officer or two to speak to Fleming and determine his intentions instead of driving towards him in vans. Nevertheless, the OPP officers asserted that Fleming was arrested in order to prevent an apprehended breach of the peace by others, i.e. a concern that the 8-10 approaching occupiers intended to harm Fleming in some unspecified manner. Fundamentally, the respondents argued that arresting Fleming was necessary for his own protection.

Trial Decision

Fleming commenced an action against the provincial Crown and the individual OPP officers seeking damages, alleging battery, false arrest, wrongful imprisonment, infringement of common law mobility rights, and breach of Charter rights and freedoms. The trial involved eight days of testimony before the Ontario Superior Court of Justice. After extensive closing submissions, Carpenter-Gunn J. rendered an oral Ruling on September 22, 2016, in favour of Fleming.

The trial judge found that:

- the OPP officers were not justified in arresting Fleming;
- the OPP officers used excessive force and caused Fleming's injury;
- Fleming was falsely arrested and wrongfully imprisoned;
- Fleming suffered interference with his common law right to walk along public roadways; and
- Fleming suffered interference with his Charter rights to freedom of expression, liberty and security of the person, and freedom from arbitrary detention.

Fleming was awarded $80,000.00 in general damages, $12,986.97 in special damages, $5,000.00 in Charter damages for the s. 2(b) breach, $10,000.00 for false arrest and wrongful imprisonment, interest from the date of his arrest, and, on consent, $151,000.00 in costs.

Court of Appeal for Ontario's Decision (2018 ONCA 160)

The Respondents appealed the findings of liability only. Fleming cross-appealed with respect to the quantum and type of damages awarded.

After a hearing in November 2017, the majority of the Court of Appeal for Ontario (per Nordheimer JA; Cronk JA concurring) rendered its decision in February 2018. The trial decision was set aside and a new trial was directed on the sole issue of whether excessive force was used when Fleming was arrested and, if so, what damages follow. The cross-appeal was dismissed. Costs of $25,000.00 were awarded against Fleming.

In finding that the arrest of Fleming was justified, the majority's decision focused on the existence of a police duty to maintain the public peace and the effectiveness of police action. The majority's decision implicitly directed courts to show deference to police who "have a great deal more training and experience than do judges" and explicitly directed courts to be "very cautious about criticizing the tactical actions of the police".

Huscroft JA wrote a dissenting opinion critical of the majority's decision on a number of fronts, including the role of the courts in exercising oversight of proactive policing decisions in order to prevent abuses. As noted in the dissenting opinion of Huscroft JA, the majority's decision:

… 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…

Issue at the Supreme Court of Canada

At the Supreme Court, the central issue was whether Fleming's arrest was lawful. As no other basis for the arrest was alleged, the question became, does the common law permit police officers to arrest an individual who is acting lawfully in order to prevent an apprehended breach of the peace?

A secondary issue was whether a new trial on the issue of excessive force was necessary.

These issues attracted interventions by the Attorneys General of Canada and of Quebec, as well as the Canadian Association of Chiefs of Police, Canadian Civil Liberties Association, Criminal Lawyers' Association (Ontario), Canadian Association for Progress in Justice and Canadian Constitution Foundation.

Defining the Ancillary Powers Doctrine

Police powers arise from both statute and the common law. For the most part, police powers are clearly outlined in statutes, such as the Criminal Code. Common law police powers are considered to stem from police duties that are not specifically mandated in any statute. Such powers are therefore considered "ancillary" to police duties.

The power to arrest a person in order to prevent an apprehended breach of the peace is not created or governed by any statute. If it exists, it could only derive from the common law, as an ancillary power.

Police duties and police authority to act in the performance of those duties are not co-extensive. Police conduct is not rendered lawful merely because it assists in the performance of the duties assigned to the police. Where police conduct interferes with the liberty or freedom of the individual, that conduct will be lawful only if it is authorized by law.

The two-part test to determine whether a police officer's conduct is authorized by a common law ancillary power was originally articulated by the English Court of Appeal in R v Waterfield, [1963] 3 All ER 659 (CA). The test had previously been adopted in Canada in Dedman v The Queen, [1985] 2 SCR 2, R v Mann, 2004 SCC 52, and R v MacDonald, 2014 SCC 3.

The Court in this case restated the test and indicated that it prefers to call the test the "ancillary powers doctrine" rather than the "Waterfield test" or using some other nomenclature.

The Court formulated the ancillary powers doctrine as a two-stage test with a preliminary step. In that preliminary step, the Court must clearly define the police power that is being asserted and the liberty interests that are at stake. Then, in the first stage, the Court must ask, does the police action at issue fall within the general scope of a statutory or common law police duty?

In the second stage, the Court must ask, does the action involve a justifiable exercise of police powers associated with that duty? Justification turns on whether the interference with liberty is necessary and reasonable.

The factors to be balanced at the second stage include:

- The importance of the performance of the duty to the public good;
- The necessity of the interference with individual liberty for the performance of the duty; and
- The extent of the interference with individual liberty.

The Court reiterated that the onus remains on the state throughout to justify the existence of the common law police power(s) being relied on.

The Court accepted that concepts such as minimal impairment and proportionality, which play a significant role in the Charter justification context, have clear parallels in the ancillary powers doctrine analysis. The Court noted that a proportionality assessment requires the three factors to be balanced at the second stage of the ancillary powers doctrine, and that the concept of reasonable necessity leads to the conclusion that if and when the police can fulfill their duty by a less intrusive action, using a more heavy-handed power is not lawful.

Applying the Ancillary Powers Doctrine

As the purported power in this case was the power of the police to arrest a person acting lawfully in order to prevent an apprehended breach of the peace, the Court delineated what constitutes a breach of the peace. "Violence lies at the core of this concept" concluded the Court, meaning either actual or threatened harm, and so "ehaviour that is merely disruptive, annoying or unruly is not a breach of the peace"

The Court also clarified that, historically, the common law may have allowed for an arrest where the arrest was intended to prevent the arrested person from breaching the peace. However, the Court concluded that the Criminal Code powers of arrest have now entirely obviated the need for such a common law power of arrest such that it appears to have ceased to exist. Common law powers short of arrest may continue to exist, and the Court explicitly declined to make any finding in that regard.

Drawing a distinction between such cases and Fleming's case - in which it was not alleged that he threatened any breach of the peace himself, but rather that he supposedly faced a threat by others - the Court proceeded to apply the ancillary powers doctrine, noting that such a case had never before been addressed in any Canadian case.

In considering the preliminary step, the Court held that a common law police power to arrest a person acting lawfully to prevent a breach of the peace would substantially interfere with liberty interests, including constitutionally-protected rights and freedoms. The Court made specific reference to s. 2(b) freedom of expression, s.7 liberty and s.9 freedom from arbitrary detention, all of which were found at trial to have been infringed in Fleming's case.

At the first stage, the Court held that the purported police power of arrest did fall within the general scope of the police duties of preserving the peace, preventing crime, and protecting life and property.

In considering the standard of justification applicable at the second stage, the Court held that it is particularly stringent where the police power would impact law-abiding individuals, where the action would be preventative only, and where the interference with liberty would not normally lead to any criminal charges and so would be evasive of judicial review absent a costly civil suit. Indeed, in this case, it was only the fact that Fleming suffered a permanent injury during his arrest that made a civil suit a rational proposition.

At the second stage, the Court applied the three factors. The Court noted that the police duties in question were "immensely important" and that it is possible that in exceptional circumstances some interference with liberty lesser than arrest may be necessary to prevent a breach of the peace. But the Court also held that it did "not see how so drastic a power as arrest can be reasonably necessary" and that it "cannot conceive of circumstances in which a common law power of arrest will be required to prevent violence where there are no other means - available either at common law or in legislation - that would serve this purpose". The Court noted that if an individual fails to comply with less intrusive measures to avert a breach of the peace, for example, by resisting or wilfully obstructing the officer, there are statutory powers available to the police.

The Court also referred to the fact that it has only ever recognized a common law police power that interferes with liberty interests where there was some connection with criminal activities. That connection was lacking where the person in question was acting lawfully. The Court held that it was not reasonably necessary to recognize another common law power of arrest where persons acting lawfully were concerned. Therefore, to the extent that the majority of the Ontario Court of Appeal concluded that the arrest was justified under the ancillary powers doctrine, they were in error. The arrest did not prevent violence, as the trial judge had found on the evidence that there was no real risk of violence, and even if she had, mere effectiveness of a police action is insufficient to demonstrate that it was reasonably necessary:

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.

In sum, Fleming's arrest was unlawful because there is no common law power to arrest someone who is acting lawfully to prevent an apprehended breach of the peace. The trial decision was restored. No new trial on the issue of excessive force was necessary, as there was no authority for the arrest and accordingly no authority for the police to apply any force to Fleming at all.

[b]Implications


This decision provides clarity for both the police and for citizens. For police, the decision clarifies what constitutes a breach of the peace and delineates the extent of their common law powers. For citizens, it provides assurance that their lawful conduct - including peaceful political protest and pursuit of their fundamental freedoms - will not result in a form of arrest that is evasive of judicial oversight. It ensures that the state cannot unreasonably interfere with constitutionally-protected, lawful political engagement or other forms of free expression. To put it simply, the state cannot use arrest as a pretext for shutting down lawful protest that the state may regard as provocative or troublesome.

It is now clear that there is no common law power to arrest someone who is not about to breach the peace in order to prevent an apprehended breach of the peace by other persons. Indeed, the Court seriously questioned whether there exists a common law power to arrest or detain a person who is about to commit a breach of the peace but left this for another case.

Although the Court expressly left open the question of justification for interference with liberties short of arrest, Justice Côté wrote "As a general rule, it will be more difficult for the state to justify invasive police powers that are preventative in nature than those that are exercised in responding to or investigating a past or ongoing crime."

Accordingly, the decision in Fleming is clear that there is no common law police power of arrest to prevent a breach of the peace. Any such arrest must be based on the Criminal Code or other statute.

Note: Jordan appeared for the Appellant, Mr. Fleming, in the Supreme Court of Canada along with lead counsel, Michael Bordin. Jeff is a partner in Gowling WLG's Supreme Court Practice Group, which acted as Ottawa Agents to the Appellant and the intervener, the Canadian Constitution Foundation.

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