Fleming v Ontario

Document Type

Response or Comment

Publication Date



Torts, Malicious Prosecution and False Imprisonment, Establishing Elements


The willingness of courts to create new common law powers has ebbed and flowed over time. Whether to do so at all was a matter of some debate in R. v. Dedman (1985), 46 C.R. (3d) 193 (S.C.C.), and even after that case set the precedent of doing so, it was another fifteen years before the Court did so again, in R. v. Godoy (1998), 21 C.R. (5th) 205 (S.C.C.). However, Godoy was a bit of a tipping point, leading courts to become quite open to the creation of such powers through the early 2000s. This was so to the extent that in R. v. Kang-Brown (2008), 55 C.R. (6th) 240 (S.C.C.), four of the nine judges - the largest cohort in the case, but the minority on the particular issues of whether to create a power in that instance - expressed discomfort with how frequently this was occurring, observing at para. 6 that "[t]hese precedents do not mean that the Court should always expand common law rules, in order to address perceived gaps in police powers or apprehended inaction by Parliament, especially when rights and interests as fundamental as personal privacy and autonomy are at stake."