Fleming v. Ontario

Fleming v. Ontario

Majority held police had reasonable grounds and acted lawfully in arresting the respondent on DCE to prevent an imminent and substantial risk to public peace and respondent’s safety given the context and operational plan; however the record lacked sufficient particularized evidence to determine whether excessive...

Source-derived case information.

Citation
2018 ONCA 160
Parties
Respondent/plaintiff: Randolph (Randy) Fleming; Appellants/defendants: Her Majesty the Queen in right of the Province of Ontario; Provincial Constable Kyle Miller; Provincial Constable Rudy Bracnik; Provincial Constable Jeffrey Cudney; Provincial Constable Michael C. Courty; Provincial Constable Steven C. Lorch; Provincial Constable R. Craig Cole; Provincial Constable S.M. (Shawn) Gibbons
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
16 February 2018
Procedural Posture
Civil / Appeal From Superior Court of Justice Judgment; New Trial Ordered on Excessive Force Issue
Outcome
Appeal allowed in part; trial judgment and damage awards vacated; new trial ordered on the sole issue of whether excessive force was used and consequential damages; cross-appeal dismissed
Legal Topics
False Arrest, Wrongful Imprisonment, Excessive Force, Breach of the Peace, Charter S.2(b) Freedom of Expression, Common Law Police Powers, Section 25 Criminal Code
Source Language
english
Tort Constitutional Law Police Law Administrative Law False Arrest Wrongful Imprisonment Excessive Force Breach of the Peace +3 more

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Parties

Randolph (Randy) Fleming

Respondent/plaintiff

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

Appellants/defendants

Procedural Posture

Civil / Appeal From Superior Court of Justice Judgment; New Trial Ordered on Excessive Force Issue

Legal Issues

  1. 1 Whether police had authority to arrest to prevent a breach of the peace
  2. 2 Whether police used excessive force in effecting the arrest

Ratio Decidendi

Majority held police had reasonable grounds and acted lawfully in arresting the respondent on DCE to prevent an imminent and substantial risk to public peace and respondent’s safety given the context and operational plan; however the record lacked sufficient particularized evidence to determine whether excessive force was used causing the respondent’s injury, so the trial judgment and damage awards were set aside and a new trial on the narrow issue of excessive force and resulting damages was ordered; cross-appeal dismissed.

Court Disposition

Appeal allowed in part; trial judgment and damage awards vacated; new trial ordered on the sole issue of whether excessive force was used and consequential damages; cross-appeal dismissed

Orders

  • Set aside trial judgment dated September 22, 2016 including all damage awards
  • Order a new trial limited to whether excessive force was used during the respondent’s arrest and what damages follow