First Nations vs Property Rights: Free Speech, Justice

"In my view, this [decision of the appeal court] understates the importance of both the common law liberty to proceed unimpeded along a public highway and the right to engage in political protest -- the heart and soul of freedom of expression in a democracy."
"...Mr. Fleming was entitled to attend and participate in the Flag Rally regardless of its effect on the government's political goals at Caledonia or anywhere else, and in particular, regardless of whether the Flag Rally was considered provocative by the government or protesters."
Judge Grant Huscroft, dissenting judgement, Ontario Court of Appeal

Randy Fleming is arrested - purportedly to prevent trouble - by OPP officers for carrying a Canadian flag in Caledonia, Ont., in an image taken from a video shown in court.   numberswatchdog.com

Justice Huscroft, the third member of the appeal court in the case of retired steelworker, 57-year-old Randy Fleming who had planned to attend a "flag event" in Caledonia, Ontario at the Douglas Creek Estates subdivision -- still under construction but halted when Six Nations 'warrior' protesters violently occupied the area in 2006 in protest against building on land they claimed to be traditionally theirs and for which no treaty had been signed -- but was stopped and seriously manhandled by a group of Ontario Provincial Police officers felt that the appeal court of which he was part, erred in not upholding the finding of the original judge.

Residents of Caledonia, Ontario, and families that had bought homes from the home builders at Douglas Creek Estates were put through years of intimidation and threats from the Six Nations/Haudenosonee occupiers. Their occupation of the site was illegal, their behaviour was criminal, and police did little to apprehend the First Nations men whose occupation of the subdivision and the mostly unfinished houses represented a state of chaotic criminality. The occupiers resorted to raging violence, vandalizing a Hydro One station, burning bridges and cars, issuing "passports" to residents living near the site, demanding to see them before permitting the passport-holders to access their homes.

Six Nations protesters in Caledonia in 2006

The reaction of the Ontario government was to warn the provincial police force not to interfere and to ensure that the First Nations warriors and the non-native residents were kept apart. But the larger purpose was to ensure that the First Nations people were not 'provoked' to further violence, leaving non-aboriginals to live with the intimidation of threats that terrorized the population. Over the occupied site, the flag of the Mohawk Warriors was flown in defiance of law and order. Ontario Superior Court Judge David Marshall issued orders that the barricades the warriors had put in place to exclude non-natives were to be removed; orders that were ignored.


In May 2009, three years following the original 'occupation' and ruination of the housing estate, non-native locals had arranged for a "Flag rally". Randy Fleming set out to join them. He had with him a Canadian flag mounted on a pole as he headed toward the rally. For his troubles a half-dozen OPP officers tackled him to the ground, injuring him physically, and adding another injury to his dignity as a free citizen of Canada and resident of Ontario, charging him with obstructing police as officers arrested him to "prevent a breach of the peace". Despite that he was charged with this malfeasance, the Crown ultimately withdrew the criminal charge.

Mr. Fleming responded by suing the OPP, and he won his suit. Ontario Superior Court Judge Kim Carpenter-Gunn ruled his arrest to have been unlawful, the police used undue force and in so doing breached his Charter and common-law rights. He was awarded close to $300,000 in damages along with legal costs. The OPP appealed and tasked three lawyers from the Ontario Attorney General's office to pursue the appeal. The appeal court saw fit to overturn Justice Carpenter'Gunn's decision on the basis of the judge having made "palpable and overriding error"; that the OPP meant "to prevent harm" coming to Mr. Fleming as well as preventing a peace breach.

The court turned Mr. Fleming's award into a fine of $25,000 representing fifty percent of the legal costs to the government of the appeal. Here's strange logic: the government with its unlimited financial resources depends on taxation, including Mr. Fleming's share, to fund those unlimited resources. Mr. Fleming also, quite incidentally, funded the decision depriving him of justice. And in ordering him to pay for half the government's legal appeal costs, he has been doubly financially tasked, in a most peculiar show of justice denied.

As for the 'error' cited having been attributed to the original trial judge finding in Mr. Fleming's favour? She erred, it would seem, when she made the determination that the OPP had prevented Mr. Fleming from "exercising his lawful rights of walking up Argyle Street (Caledon's main street)" which turns out not quite to have been the case, since it wasn't on Argyle Street but another Caledon street where the confrontation had taken place. The decision of a Mad Hatter, straight out of a confused Wonderland.

Randy Fleming’s arrest on May 24, 2009. Supplied

No justice for Mr. Fleming, no justice for the people who had bought the houses constructed and to-be-constructed in that ill-fated subdivision, because the Government of Ontario bought the land from the home builder,  Henco Industries Ltd. and turned the 40 hectares of land which had been purchased by them originally from the Crown which held that the Six Nations of the Grand River had historically relinquished it to the Crown -- over to the dissenting, aggrieved and violent protesters, to be handed over to the administration of the Six Nations.