Josh Dehaas: Toronto police should be held to account for the arrest of Dominic Cardy

Earlier this month, former New Brunswick education minister Dominic Cardy encountered a crowd of anti-Israel protesters blocking a busy Toronto intersection. Video shows a man using an amplifier to broadcast “long live the resistance” and trampling on an Israeli flag in the middle of the street.

Cardy waded into the hostile crowd and started his own chant: “Free Palestine from Hamas! Free Palestine from Hamas!” This prompted a mild reaction.

Video shows a woman directing her fingers at Cardy in the shape of an upside-down triangle, a symbol used by Hamas in propaganda to delineate its next target. Another shows a person in a keffiyeh and sunglasses getting in Cardy’s face. In the next, Cardy can be seen handcuffed and surrounded by police.

Cardy confirmed on X that he was arrested for “disturbing the peace” and released after taking a nap in police lockup. Cardy said he won’t stop attending protests, and encouraged others to “step up against extremism” and “defend our open society.”

Cardy is not the first counter-protester to be plucked from a crowd by Toronto police during a pro-Palestinian or pro-Israel demonstration.

In March, Rebel News reporter David Menzies was arrested after he tried to interview anti-Israel protesters at a demonstration. In April, police arrested Iranian-Canadian dissident Salman Sima after he refused to stay away from an anti-Israel rally.

I doubt any of them should have been arrested. Policing protests is undoubtedly difficult, but Toronto police are too quick to arrest provocateurs for supposed “breaches of the peace,” which violates their constitutional rights.

Provocateurs have a constitutionally protected right to show up and use their voices to counter the crowds. The Supreme Court made this clear in its 2019 decision in Fleming v. Ontario, which ruled that although police officers have a duty to keep the peace and prevent violence, they can’t arrest people simply because their message might provoke others.

Randy Fleming was a resident of Caledonia, Ont., where Six Nations protesters had for years occupied the site of a housing development. On May 24, 2009, Fleming was counter-protesting outside the site carrying a Canadian flag.

When Fleming stepped onto the protest site, it prompted a handful of occupiers to head toward him. Police ordered Fleming to drop his flag. When he refused, an officer twisted Fleming’s arm, handcuffed him and put him in jail for his supposed breach of the peace.

Breach of the peace is an odd concept. Police have the authority to arrest and briefly detain people who they believe on reasonable grounds are about to commit violence, but it’s not a criminal offence and charges cannot be laid. Fleming had given police no objective reason to believe he was about to commit violence, so the province defended his Charter challenge by claiming police had a right to arrest him for his own safety.

Justice Suzanne Côté, writing for a unanimous Supreme Court, said in the decision that there is no common law power to arrest someone who has not, and is not about to, breach the peace.

The court said in exceptional cases, such as where “an angry mob is about to attack someone who is lawfully exercising his or her freedom of speech and the person refuses to voluntarily accompany a lone police officer at the scene,” police may be justified in removing that person for their own safety. But it didn’t make a firm ruling on this hypothetical, so, in general, it’s hands off for police.

The court also suggested that police can’t arrest someone just because that person is acting as a provocateur “whose lawful actions or words are feared to be prompting others to respond violently.” If they do, police may be violating that person’s Charter rights to freedom of expression, physical liberty and freedom from arbitrary detention.

This makes sense. Protesters shouldn’t have more freedom to express themselves just because they can rally a bigger crowd than counter-protesters.

So what are police to do? If anyone threatens violence with their words or actions, they should be arrested. But if someone is merely expressing himself or herself in a provocative way to a hostile crowd, police should first use their words to try to de-escalate the situation and, if necessary, use their bodies to protect the provocateurs while they lawfully exercise their freedom of speech. If they don’t, police shouldn’t be surprised to face a Charter challenge.

National Post

Josh Dehaas is counsel with the Canadian Constitution Foundation (CCF), a legal charity that defends constitutional rights and freedoms, and co-host of the Not Reserving Judgment podcast. The CCF intervened in the Fleming case.