(e) written submissions shall be delivered by 5:00 p.m. on the
20th business day following the date on which this ruling is
(f) in the event either party wishes to deliver a reply to the
costs submissions of the opposing party, the reply submis-
sions shall be delivered by 5:00 p.m. on the 25th business
day following the date on which this ruling is released.
Reply submissions shall comply with paras. (a) to (d) above.
Fleming v. Her Majesty the Queen in Right of
the Province of Ontario et al.
[Indexed as: Fleming v. Ontario]
2018 ONCA 160
Court of Appeal for Ontario, Cronk, Huscroft and Nordheimer JJ.A.
February 16, 2018
Criminal law — Arrest — Breach of peace — Plaintiff attending flag-raising rally to protest contentious Aboriginal occupation of land —
Ontario Provincial Police having developed Aboriginal framework for
dealing with potential confrontations in light of history of violence and
criminal acts surrounding occupation — Plaintiff not complying with
police direction not to attempt to enter onto occupied land — Police justified in arresting plaintiff in order to prevent breach of peace — Trial
judge erring in finding that flag-raising rally was not “Aboriginal Critical Incident” as defined in Aboriginal framework developed by OPP for
dealing with potential confrontations — Police decision to adopt buffer
zone between two factions legitimate in light of their duty to keep peace
— Trial judge’s finding that police used excessive force to arrest plaintiff rooted in her erroneous conclusion that plaintiff’s arrest was unlawful — New trial ordered to determine whether excessive force was used.
A dispute over land between the Six Nations of the Grand River and the Crown
led to the occupation of the Douglas Creek Estates (“DCE”) in Caledonia by
indigenous protestors. As part of the occupation, indigenous flags were hung. The
occupation resulted in confrontations and conflicts, some violent, between the
occupiers and groups opposed to the occupation. The Ontario Provincial Police
developed a “Framework for Police Preparedness for Aboriginal Critical Incidents”
(the “Aboriginal framework”) for dealing with potential confrontations. The
plaintiff participated in a Canadian-flag-raising rally to protest the occupation of
the DCE. In response to the rally, the OPP decided to adopt buffer zones between
the participants and the DCE occupiers. The plaintiff approached the DCE while
carrying a Canadian flag and ignored police directions not to enter onto the occupied land. His entry onto the DCE caused an immediate reaction from the occupiers at the front entrance, and approximately eight to ten of them started