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UPFRONT 10 www.canadianlawyermag.com Rights in peaceful protest Q&A On Oct. 4, a unanimous Supreme Court of Canada ruled that no power exists at common law for police to arrest some- one acting lawfully in order to prevent an apprehended breach of the peace, in a decision that will affect police powers in protests. In Fleming v. Ontario, the Supreme Court found that a counter-protester's arrest at a 2009 Six Nations blockade was unlawful. It found that there was no basis for intervening in the trial judge's conclusion that the Ontario Provincial Police were liable for battery for their use of force in unlawfully arresting Randolph Fleming, who was carrying a Canadian flag to join a counter-protest against the blockade, and that, therefore, no new trial was needed on the issue of excessive force. Sean Dewart of Dewart Gleason LLP in Toronto, who acted for the intervener, the Canadian Civil Liberties Association, in the case, called the decision "a great day for civil liberties in Canada." Canadian Lawyer asked Dewart about the decision and its significance. Were your objectives met in this case? Yes, very much so. The court could not have spoken more clearly about the common law power to arrest for apprehended breach of the peace. The judgment was remarkable for its clarity in setting out [the] importance of everyone's civil liberties but particularly the rights of people engaged in legitimate political protest. Years in practice: 33 Career highlight: "It would be hard to choose between Jane Doe v. Toronto Police and Hill v. Hamilton- Wentworth Police. Jane Doe (the case and my client) shone a bright light on deeply entrenched sexism and bigotry in the Toronto Police Service. The evidence was shocking. Hill is more significant as a legal precedent, although I am still waiting for when the potential for tort liability causes police services to implement sophisticated loss prevention measures." Career lowlight: "This one is easy: Miazga v. Kvello Estate. Although there were earlier signs of liberalization, the Supreme Court made it clear in Miazga that Crown prosecutors in Canada are essentially immune from civil liability for their wrongs. With respect, the court set the bar way too high. The wrongfully convicted should be entitled to redress for prosecutorial misconduct. Instead, they are the justice system's roadkill." Sean Dewart partner DEWART GLEASON LLP OTTAWA UPDATE