I was arrested in my hometown of Toronto, Canada, while covering anti-Hamas protests in a Jewish residential neighborhood. I'll show you my arrest, and give you my thoughts on why it was an illegal arrest.
00:09:57.400Let me tell you, I was sort of arguing with him.
00:09:59.380And, Olivia, can you send a note to Efron?
00:10:01.280What I'd like to do is I'd like to take the audio from my cell phone, which was recording from my earbuds, and combined it with that video.
00:10:08.800Because I think what I was saying to the cop there may be of interest to viewers.
00:10:13.780I was basically saying, on what basis are you limiting my ability to take photos and videos of a crime scene?
00:10:29.280What I mean by that is uttering a threat, mischief, vandalism, trespass, assault, all of which has happened in Toronto during the massive anti-Semitic crime wave for the last 13 months.
00:10:39.480But there is on the books a number of hate crimes.
00:10:43.460And I'm not really a fan of those because I believe in freedom of speech.
00:19:11.420I've been arrested by the police because I refused to get off the public sidewalk.
00:19:22.420They said that I cannot be on the sidewalk because that, apparently, is a disturbance.
00:19:27.420They said that by standing there, and I wasn't even interviewing anyone, they said that that was such a disturbance that I would be arrested.
00:19:34.420And I think that's a little bit cowardly because arresting me, they know I'm not going to have a riot like there was last night in Montreal.
00:19:41.420They know I'm going to go easily because I'm a law-riding Canadian.
00:19:44.420They're afraid of the Hamas activists, and they're woke.
00:19:48.420And Olivia Chow approves, and Doug Ford approves, and Justin Trudeau approves.
00:19:53.420And so I am arrested for the first time in my life in my home city, the city where I pay taxes.
00:19:59.420Because these people, and by these people I mean these police, have been instructed not to touch the hate crime.
00:20:06.420I want to film the hate crime across the city.
00:20:09.420They actually have reenacted Yahya Seymour's final moment.
00:20:14.420That would be like having a Hitler recreation.
00:20:17.420It would be like having someone dressed up as Hitler in a neighborhood where Holocaust survivors live.
00:20:24.420They say that that is not a hate crime, and that for me to report on it is a crime.
00:21:26.420My friend, Mayor Weinstein, had an excellent clip that shows me all the way to getting into the car.
00:21:31.420And I was driven away to the police station, where I was removed from the police car, brought into a processing room, searched again, my belongings put in a Ziploc bag.
00:21:41.420My shoelaces taken out of my boots and my hoodie, and I was put in a five foot by seven foot jail cell.
00:21:50.420David Menzies tells me some of the jail cells he's been put on are absolutely filthy.
00:21:55.420I'm glad to say that wasn't the case here.
00:21:57.420But it was just a plastic slab, which I guess would be a place to sit on or lie down on, and a toilet that on the top of it also had like a water fountain.
00:23:24.420I mean, when you, when you don't have anyone else to talk to you, when you don't have a cell phone or a watch or email, time, you're unaware of how much time passes.
00:23:32.420And of course, there's no interaction with anyone.
00:23:36.420I'm just saying that it was uncomfortable to be in jail for a couple hours.
00:23:42.420I can only imagine what it's like for someone like our friend Tommy Robinson, who's in prison in the United Kingdom for an 18 month sentence.
00:23:51.420He'll probably serve nine months in solitary.
00:23:53.420I can't imagine being by yourself for nine months, being locked up in a tiny cell like that for nine months.
00:30:31.420Whether police have common law power to address, to arrest someone acting lawfully in order to prevent apprehended breach of peace by others.
00:31:13.420Fleming was arrested while walking to a counter protest flag rally organized in response to Six Nations protesters occupation of a piece of crown land.
00:31:24.420There's a dispute between indigenous folks and other folks about who gets to be on the land.
00:31:29.420The police became aware of the flag rally in the months preceding it and had developed an operational plan given the contentious atmosphere in the community,
00:31:38.420which had on numerous occasions culminated in violent clashes between the two sides.
00:31:43.420There's some similarities here, aren't there?
00:31:45.420The plan, including keeping protesters and counter protesters apart and flag rally counter protesters were informed that they were not allowed on the occupied property.
00:31:55.420When the police spotted Fleming walking on the road, running along the occupied property, they headed toward him with the intentions of placing themselves between him and the entrance to the property to avoid the police vehicles.
00:32:07.420Fleming stepped onto the occupied property, which appeared to cause a reaction in the group of protesters, some of whom began moving toward him.
00:32:14.420An officer then approached Fleming and told him he was under arrest to prevent a breach of the peace.
00:32:19.420When Fleming refused to drop the flag he was carrying, he was forced to the ground, handcuffed, placed in an offenders transport unit van, moved to a jail cell and released two and a half hours later.
00:32:28.420Sounds familiar, although they didn't slam me on the ground.
00:32:31.420The Crown eventually withdrew the charge of instructing a police officer, which had been laid against Fleming for resisting his arrest.
00:32:38.420Fleming subsequently filed a statement of claims, so he sued the province and the police officers who had been involved in his arrest.
00:32:45.420He claimed general damages for assault and battery, wrongful arrest and false imprisonment, as well as aggravated or punitive damages and damages for the violation of his rights.
00:32:54.420This is the most important part here. Section 2B, that's freedom of the press, freedom of expression, freedom of speech.
00:33:01.420Section 7, 9, and 15. That 7 is, I think, due process 15 is equality. I forget section 9.
00:33:08.420Fleming was successful at trial, but a majority of the Court of Appeals set aside the award of damages on the basis that the police had the authority at common law to arrest him.
00:33:16.420The Court of Appeals ordered a new trial solely on the issue of excessive force.
00:33:20.420Fleming appeals to the court on the issue of whether the police acted lawfully in arresting him and on whether a new trial should have been ordered on the question of excessive force.
00:33:29.420Okay, so that's the head note, but just give me the next paragraph.
00:33:36.420The appeal should be allowed and the trial judge orders restored.
00:33:40.420Here's the takeaway. The following sentence is the summary of the entire case.
00:33:44.420Fleming's arrest was not authorized by law, and there is no basis for intervening in the trial judge's conclusion that the province and the police were liable for battery for their use of force in unlawfully arresting him.
00:34:03.420As a result, no new trial is needed on the issue of excessive force.
00:34:10.420And I'm going to scroll down. There is a lot in the head notes, aren't there?
00:34:13.420And again, this isn't actually written by the judges. These are summaries, so you don't have to read the whole huge thing.
00:34:19.420Can you skip ahead to the words, as there is no common law power to arrest someone?
00:35:49.420The trial judge specifically found that Fleming had not done anything unlawful before being arrested.
00:35:59.420There was no evidence before her that he had committed any offense in walking along the street, entering the occupied property or standing there with his Canadian flag.
00:36:08.420Imagine arresting a guy for a Canadian flag.
00:36:13.420Nor was there evidence that he had himself been about to commit an indictable offense or a breach of the peace.
00:36:19.420The province and the police have not sought to challenge that finding on appeal.
00:36:23.420Nor have they cited or relied on any statutory power to arrest Fleming.
00:36:27.420They rely entirely on a common law power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace by other persons.
00:36:43.420And it sounds like you need a judge to tell you that.
00:36:47.420In light of this conclusion, a new trial on the issue of excessive force is not necessary.
00:36:51.420As the police were not authorized the common law to arrest Fleming, no amount of force would have been justified for the purpose of accomplishing the task.
00:37:00.420You know, in law school, they use Latin and they would say QED Quo De Erat Demonstrandum.
00:37:07.420Just demonstrated the whole point there.
00:37:10.420I know we spent a lot of time on that, but do you feel smarter?
00:37:13.420Olivia, do you feel smarter about the law?