Fleming v. Ontario: Police Discretion and the Heckler’s Veto

Jake Thorne

Introduction

In 2009, Ontario resident Randy Fleming began walking down a public street waving Canadian flags in protest of an ongoing blockade started by indigenous demonstrators on the Douglas Creek Estates. The Estates have been a hotbed for controversy ever since they were occupied by members of the Six Nations of the Grand River—the largest First Nations reserve in Canada—following several violent disputes between indigenous Canadians and the Crown.1 While peacefully protesting the blockade, an unmarked police car drove directly at Mr. Fleming. He avoided being hit by moving off the side of the road and onto the Estates—private property. The Indigenous demonstrators became “angry and upset” and began to threaten Mr. Fleming, with some even running toward him.2 In response, the police arrested Mr. Fleming, rather than the approaching protestors, ordering that he drop his flag.

Mr. Fleming initially challenged the arrest at the trial court level, where he received damages for false arrest and breach of his § 2(b) rights to free expression under the Canadian Charter of Rights and Freedoms. However, this decision was reversed on appeal in Fleming v. Ontario, after officers argued they had the authority to prevent Mr. Fleming from protesting, asserting that he—not the protestors actually threatening violence—had breached the peace. Appalled by the precedent set by this ruling, Mr. Fleming—with the support of numerous civil rights organizations—filed an appeal which was quickly granted by the Supreme Court. A news bulletin from the Canadian Constitution Foundation admonished the court for granting the police the authority to silence dissenting opinions,3 noting:

[T]he mere fact that controversial, yet legal, expression may provoke a response in listeners that causes the police to become apprehensive about public order cannot in itself justify the curtailment of [the] speaker’s right to freedom of expression.4

In a unanimous decision delivered by Justice Côté, the Supreme Court reversed the Court of Appeals and held that Fleming’s arrest was not authorized by law.5 Justice Côté reaffirmed the importance of clearly defining the liberty interests at stake when applying the ancillary powers doctrine,6 thereby ensuring that any interference with individual liberty is both justified and necessary.7 Her ruling made special note that lawful actors may not be arrested in an effort to prevent a potential breach of the peace caused by others, pivoting her focus away from the perspective of the police in favor of the protestor, whose rights were actually subject to deprivation.8 Finally, the reversal meant that police officers may not exercise unlimited discretion toward a protestor’s actions, as was the case in Fleming’s unjust arrest.

Mr. Fleming’s ordeal with the Ontario police is reminiscent of similar conflicts in the United States where individuals—both officers of the law and private citizens—silence the opinions of dissenters. Such actions are often labeled a “heckler’s veto,” wherein the government or private individuals unjustly curtail a speaker’s right to express an opinion based on one’s opposition to the viewpoint expressed under the guise of protecting public peace.9 Mr. Fleming’s legal odyssey demonstrates the dangers of overly deferential standards of discretion to law enforcement which have enabled countless obstructions of free expression.

The Heckler’s Veto

Broadly speaking, a “heckler’s veto” refers to a dilemma between two opposing individuals or groups seeking to exercise their expressive rights.10 The “veto” arises when one group intends to express its opposition to the opposing group by silencing or disrupting the other. In these cases, law enforcement officials must determine whose rights, if any, to protect.11 Most heckler’s veto cases involve groups of counter-protestors attempting to suppress speech they find objectionable by, among other things, disrupting presentations, blockading organized protests, and otherwise silencing dissidents.12 More recently, heckler’s vetoes have made national headlines with instances of college students intentionally disrupting and protesting objectionable speakers with the express intent of forcing the speaker to cease and desist their activities.13 In such cases, the objectionable speaker and the protestors alike will claim their actions are protected by freedom of expression. However, their intents differ significantly. While the objectionable speaker may be espousing objectionable or offensive views, their intent is often only to inform and persuade their audience. Conversely, the protestors explicitly intend not only to share their views, but to prevent the target speaker from sharing theirs.

The solution to this problem is far from straightforward. In a way, policing a heckler’s veto implicates a catch-22 between empowering opposing speakers and permitting the police to protect the public. As Harry Kalven described it:

The problem is a genuine puzzle either way it is decided. If the police can silence the speaker, the law in effect acknowledges a veto power in hecklers who can, by being hostile enough, get the law to silence any speaker of whom they do not approve. But the opposing view, that the police must go down with the speaker, has its obvious difficulties.14

Historically, courts—particularly American courts—have disfavored heckler’s vetoes brought by a “hostile audience,” arguing that the Constitution protects expression even if bystanders “simply object to peaceful and orderly demonstrations.”15 This does not mean that courts have always favored free expression; rather, courts are divided over what extent “law and order” deserves protection as well.16

The extremely consequential role law enforcement plays in framing the underlying facts which give rise to a heckler’s veto should not be understated. Police officers, by virtue of their immensely difficult job, bear an ill-defined yet powerful authority to exercise discretion in their policing in order to protect the peace and ensure order. However, protesters and their supports have routinely accused law enforcement of distorting—even fabricating—the facts used to justify police responses that oftentimes violate the principles of free speech.17 In cases of animosity between opposing protestors, officers should ideally abide by a principle of neutrality—policing protests, regardless of political affiliation or message, in an identical manner.18 However, countless police responses to protests have been anything but neutral. As of June 4, 2020, more than ten thousand protestors—many of whom acted peacefully—have been arrested in the ongoing protests in the wake of George Floyd’s death.19 Conversely, activists protesting Michigan Governor Gretchen Whitmer’s stay-at-home order during the ongoing COVID-19 pandemic were permitted to bring assault rifles and bulletproof vests into the Michigan State Capitol with little resistance from officers.20 In a sense, the broad discretion afforded to law enforcement allows officers to unilaterally and extrajudicially choose the “victor” amongst protestors.

Justice Côté’s majority opinion in Fleming v. Ontario took a different approach: she would not yield her judgement to law enforcement’s interpretation of events. She argued that while courts should give credit to an officer’s judgement, they should not defer to an officer’s understanding of the bounds of their own powers. If police practices were to receive as high degree of deference as the appellate court previously gave them, citizens would risk losing their rights and protections under the law. Justice Côté’s opinion correctly redresses this concern by focusing on a citizen’s perspective, not police, when discussing police powers. In this way, Justice Côté was able to constrain police powers by common law and statutory interpretation.

As McGaffey puts it, “[t]he problem is complex; the solution may be oversimplified.”21 Law enforcement officers tasked with distinguishing between permissible and impermissible forms of heckling will not be aided by lists of legal tests or complex and subjective criteria.22 Nonetheless, officers and the courts alike should commit to ensuring that free expression remains the cornerstone of all functioning democracies. Professor Franklyn Haiman previously opined that the government ought to protect free speech at all costs, so as to prevent heckler’s from dismantling the rights at the backbone of any democracy.23 This, in my view, is a bit rash. However, the general principle that a fundamental right to assemble and express one’s viewpoint should not be abridged solely because an individual threatens a disruptive riot is sound.24

Conclusion

Randy Fleming’s story could have ended as a tragedy. Despite being a peaceful protestor, prior Canadian legal precedent would have punished him for simply expressing his viewpoint in an open forum. It would have allowed large groups of activists to threaten violence against the few who dare to oppose their viewpoints, only for the few to take the blame for the many. It would have allowed groups to mobilize under a flag of brutality and aggression to silence debate on salient issues of public policy. And finally, it would have granted police the unfettered discretion to choose the winner in a public confrontation of ideas under the flawed guise of protecting the peace.

Free speech can be chaotic, as was the case in Mr. Fleming’s tumultuous experience with the Canadian legal system. Allowing citizens to express controversial and adversarial viewpoints will necessarily lead to fears of violence and lawlessness. Nonetheless, it is imperative that an effective legal framework not instantaneously silence dissent under the pretext of public safety. Otherwise, aggressive protestors and law enforcement can silence debate on a myriad of pertinent issues with a single threat of violence. Clearly, striking a perfect balance between public safety and free expression is a quandary of immense consequence. But a legal system which grants officers unchecked power to silence nonviolent protestors in lieu of curtailing the violent protests themselves causes more harm than good. It allows protest to be weaponized. That result cannot stand; the Canadian Supreme Court made the proper choice to let it fall.

  1. ↑ 1 Fleming v. Ontario, 2018 ONCA 160, 162 (Can.). This conflict, known variously as the “Grand River Occupation” or the “Caledonia Occupation,” concerns a parcel of land in Caledonia, Ontario claimed by the Six Nations. For more context on the dispute, see James C.B. Lawson, The Caledonia Occupation, Relay: A Socialist Project Review 12, 12–14 (2006).
  2. ↑ 2
    Fleming, 2018 ONCA at 167.
  3. ↑ 3
    Freedom of Expression: Fleming v. Ontario, Canadian Const. Found. (Feb. 15, 2019), https://theccf.ca/freedom-of-expression-fleming-v-ontario/ [https://perma.cc/HX3G-YCZN].
  4. ↑ 4
    Id.
  5. ↑ 5
    Fleming v. Ontario, 2019 SCC 45 at para. 1.
  6. ↑ 6
    The ancillary powers doctrine, as first coined by Justice Côté, refers to a section of the Canadian Criminal Code which grants law enforcement “all such powers” necessary to enforce the law, even when such enforcement would infringe upon civil liberties. C.C. R.S.C. 1985 c. 1–21, s. 31(2). Specifically, the doctrine allows officers to use broad discretion when determining which actors to detain or arrest during a potentially violent protest. For background on the vast body of constitutional law interpreting and constraining the ancillary powers doctrine within the bounds of Justice Côté’s definition, see R v. Simpson, [2015] 2 S.C.R. 827 (Can.); R v. Waterfield, [1963] 3 Ali E.R. 659 (Can.); R v. Mann, [2004] 3 S.C.R. 59 (Can.); and R v. MacDonald, [2014] 1 S.C.R. 37 (Can.).
  7. ↑ 7
    Fleming v. Ontario, 2019 SCC 45 at para. 47.
  8. ↑ 8
    Id. at para. 7.
  9. ↑ 9
    See Ruth McGaffey, The Heckler’s Veto: A Reexamination, 57 Marq. L. Rev. 39, 39–40 (1973).
  10. ↑ 10
    Id.
  11. ↑ 11
    Id. at 40.
  12. ↑ 12
    See generally Beatty v. Gillbanks, [1882] 9 Q.B.D. 308; Comm. for Industrial Org. v. Hague, 25 F. Supp. 127 (D.N.J. 1938); Gregory v. Chicago, 394 U.S. 111 (1969); and Jones v. Wade, 338 F. Supp. 441 (N.D. Tex. 1972) for historical examples of these conflicts.
  13. ↑ 13
    See, e.g., Peter Holley, A Conservative Author Tried to Speak at a Liberal Arts College. He Left Fleeing an Angry Mob., Wash. Post (Mar. 4, 2017), https://www.washingtonpost.com/news/grade-point/wp/2017/03/04/a-conservative-author-tried-to-speak-at-a-liberal-college-he-left-fleeing-an-angry-mob/ [https://perma.cc/3MFV-Q66G]; Gregory P. Magarian, When Audiences Object: Free Speech and Campus Speaker Protests, 90 U. Colo. L. Rev. 551 (2019); Kenneth Lasson, The Decline of Free Speech on the Postmodern Campus: The Troubling Evolution of the Heckler’s Veto, 37 Quinnipiac L. Rev. 1 (2018).
  14. ↑ 14
    McGaffey, supra note 9, at 40 (quoting Harry Kalven, Jr., The Negro and the First Amendment 140 (1965)).
  15. ↑ 15
    Id. at 41 (citing Street v. New York, 394 U.S. 576, 592 (1969)).
  16. ↑ 16
    Id. at 42.
  17. ↑ 17
    See Alafair Burke, Policing, Protestors, and Discretion, 40 Fordham Urb. L.J. 999, 1002–03 (2012–13) (citing Sarah Kunstler, The Right to Occupy – Occupy Wall Street and the First Amendment, 39 Fordham Urb. L. J. 989 (2012) (arguing that sleeping and camping outdoors constitute speech that should be protected)); see generally Udi Ofer, Occupy the Parks: Restoring the Right to Overnight Protest in Public Parks, 39 Fordham Urb. L.J. 1155 (2012).
  18. ↑ 18
    Burke, supra note 16, at 1017.
  19. ↑ 19
    Anita Snow, AP Tally: Arrests at Widespread US Protests Hit 10,000, The Associated Press (June 4, 2020), https://apnews.com/bb2404f9b13c8b53b94c73f818f6a0b7; Interactive Map: Protests in Wake of George Floyd Killing Touch All 50 States, Ipsos (June 9, 2020), https://www.ipsos.com/en-us/knowledge/society/Protests-in-the-wake-of-George-Floyd-killing-touch-all-50-states [https://perma.cc/9R2Y-KEPH].
  20. ↑ 20
    Abigal Censky, Heavily Armed Protestors Gather Again at Michigan Capitol to Decry Stay-at-Home Order, Nat’l Pub. Radio (May 14, 2020, 10:01 AM), https://www.npr.org/2020/05/14/855918852/heavily-armed-protesters-gather-again-at-michigans-capitol-denouncing-home-order [https://perma.cc/5KJU-8YB].
  21. ↑ 21
    McGaffey, supra note 9, at 64.
  22. ↑ 22
    Id. at 64.
  23. ↑ 23
    F. Haiman, The Rhetoric of the Streets: Some Legal and Ethical Considerations, 53 Q.J. Speech 108 (1967).
  24. ↑ 24
    See McGaffey, supra note 9, at 64 (citing Sellers v. Johnson, 163 F.2d 877, 881 (8th Cir. 1947)).

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