R. v. Aldrich, 2023 ONCJ 536

His Majesty The King v. Erin Aldrich, 2023 ONCJ 536

ONTARIO COURT OF JUSTICE

DATE: November 30, 2023

BETWEEN:

HIS MAJESTY THE KING

— AND —

ERIN ALDRICH

Before: Justice Berg

Released on: November 30, 2023

JUDGMENT

Counsel: E. Loignon-Giroux, J. Wright.......................................................... counsel for the Crown S. Robinson............................................................................................... for the defendant

Berg J.:

1It is alleged that on April 30, 2022, Erin Aldrich committed the following Criminal Code offences in Ottawa:

1. Operate a conveyance in a manner that having regard to all the circumstances was dangerous to the public contrary to s. 320.13(1) Criminal Code of Canada;
2. Operate a motor vehicle or vessel while being pursued by a peace officer and failed to stop the motor vehicle or vessel as soon as was reasonable in the circumstances contrary to s. 320.17 Criminal Code of Canada;
3. Operate a conveyance, and at the time of operating the conveyance knew that or was reckless as to whether the conveyance was involved in an accident with a person or another conveyance and failed to stop the conveyance, give their name and address, and if any person has been injured or appears to require assistance offer assistance, contrary to Section 320.16(1) Criminal Code of Canada;
4. Resist Constable Christofilakis, a peace officer, in the execution of his duty contrary to s. 129 Criminal Code of Canada;
5. Knowing that a demand had been made, fail or refuse to comply with a demand made by a peace officer under s. 320.27 or 320.28 Criminal Code of Canada contrary to s. 320.15(1) Criminal Code of Canada;
6. Being at large on a release order, fail without lawful excuse to comply with a condition of that release order, namely, do not attend area bound by Highway 417, Booth Street, Ottawa River, Rideau River, in the City of Ottawa, and do not be within one kilometer of the Parliamentary Precinct as they are defined in Section 79.5(1) of the Parliament of Canada Act, except in the presence of or through legal counsel; when attending appointments at your lawyer’s office, you may only attend the area 10 minutes prior to the scheduled meeting and leave the area within 10 minutes, contrary to Section 145(5) clause (a) of the Criminal Code of Canada;
7. Being at large on a release order, fail without lawful excuse to comply with a condition of that release order, namely, not to participate in any event, gathering or meeting that relates to the Freedom Convoy in the City of Ottawa, contrary to Section 145(5) clause (a) of the Criminal Code of Canada.

The Crown has elected to proceed by way of indictment.

2Mr. Aldrich was also arraigned on charges laid pursuant to the Ontario Provincial Offences Act. They arise from the same incident and the parties agreed to the trial of these offences being heard at the same time as the Criminal Code matters. The POA charges are:

1. Drive a vehicle on Bank Street near Laurier Street and fail to obey the directions given by a police officer to ensure the orderly movement of traffic contrary to s. 134(1)(a) Highway Traffic Act;
2. Drive a motor vehicle that is not equipped with an approved ignition interlock device while prohibited from doing so, contrary to Section 41.2(13) of the Highway Traffic Act;
3. Being the owner of a motor vehicle, operate the said vehicle on Bank Street near Laurier Street without the motor vehicle being insured under a contract of automobile insurance, contrary to Section 2(1) clause (a) of the Compulsory Automobile Insurance Act;
4. Drive a motor vehicle while liquor was contained in it other than in a circumstance set out in Subsection (42) Clause (1) of the Liquor Licence and Control Act contrary to Section 67(1) clause (c) of the Liquor Licence and Control Act.

The Evidence

3Certain admissions were made by Mr. Aldrich at the outset of this trial. He admits date, jurisdiction, and identification. Furthermore, he admits that the release order binding him on April 30, 2022 contained the following conditions:

Do not attend at area bound by Highway 417, Booth Street, Ottawa River, Rideau River in the City of Ottawa and do not be within one kilometre of the parliamentary precinct as they are defined in s. 79.51 of the Parliament of Canada Act

Not to participate in any event, gathering or meeting that relates to the Freedom Convoy in the City of Ottawa.

4The first witness was Constable Mark Evans of the Ontario Provincial Police. This officer is normally stationed elsewhere in Ontario, however, he testified that he had been deployed on April 29, 30, and somewhat impossibly, April 31, to Ottawa to assist the Ottawa Police Service during the Rolling Thunder event. As the allegations are said to have occurred on April 30, little turns on this error for May 1. Mr. Evans told the Court that on April 30, he was assigned to a checkpoint at the intersection of Laurier and Bank in order to prevent northbound traffic from proceeding up Bank. He explained that this was a ’hard closure’ which he defined as “we were out of the cruiser, we were monitoring the traffic on our feet with safety vests, high visibility, lights on the cruiser. Little to no traffic was to go by us unless - with proven documentation, for example there’s a hotel that we knew as on Slater Street. People that came, had to have reservations either on their phone or paperwork that stipulated they were going to the hotel.” The officer described his police vehicle as being parked on Bank in the northbound lane north of Laurier facing south. Eight pylons had been set up by Mr. Evans and his partner blocking any northbound traffic approaching the police checkpoint. The roads were dry, the intersection was controlled by traffic lights, the roads leading to the intersection were straight, and the sun was out.

5Constable Evans testified that at approximately 2:38 or 2:40 p.m., he was standing at the rear of his police cruiser. He was talking to a man who had just pulled up and indicated that he had a reservation at a hotel one street to the north of the checkpoint. As he did so, he heard his partner call out something and as a result, he turned around to look south. He saw

a small purple vehicle round the corner taking out - he drove through, over top of two of our pylons, continued northbound towards my location. I believe I put my hand out and I yelled, “Police. Pull over.” The gentleman driving the vehicle was not wearing a T-shirt. He had his seatbelt on, it looked secured. … He had … long hair down to his shoulder length. He was a male Caucasian. He continued northbound towards my location, drove up onto the corner, or up onto the curb, which prevented him from colliding with the BMW that I was talking to, and proceeded northbound past my location.

The witness stated that there were pedestrians on the sidewalk. He recalled that one ran towards the purple vehicle and kicked at its passenger side. The vehicle then went back onto the roadway, continued northbound on Bank and then turned right to go eastbound on Slater. Constable Evans immediately used his radio to report the incident and request the presence of a Quick Response Team.

6The officer testified as to his recollection of what the vehicle looked like. Given that this incident was captured on video and that a car was eventually located, stopped and seized, all I will say is that I have no doubt whatsoever that the vehicle he described in court was the one driven by Mr. Aldrich. It had some fairly unique features. For example, the rear window was covered with plastic and the body displayed painted words ( e.g., “Freedom” and “Hold the Line”) in very large letters. The video recording was played for the officer who identified it as being an accurate depiction of the incident. It was then entered as an exhibit at these proceedings.

7Ms. Robinson’s cross-examination of this witness was brief. In response to her questions, the constable testified that the video appeared to accurately depict the speeds of the various motor vehicles seen in the recording. He testified that he guessed that the speed limit at that intersection was 50 k.p.h. but was not certain. He did not measure the speed of the purple vehicle during the incident.

8I will now review what I have observed in the video recording. My observations were made both during the trial and in my chambers during the preparation of this judgement. The measurements of distances are obviously estimates and, therefore, are to be taken as approximate.

9Constable Evans identified the intersection seen in the recording as that of Bank and Laurier. The camera is facing north but angled slightly to the west. As a result of this angle, the recording only captures perhaps 50-60 m. of the northbound lanes of Bank north of Laurier and perhaps 100 m. of the adjacent southbound lanes. The camera is situated on the south-east corner of the intersection and well above the roadway. One can make out moderate vehicular and pedestrian traffic.

10The southbound lanes of Bank north of Laurier are not blocked for vehicles wishing to traverse or turn onto Laurier. However, vehicles cannot travel northbound from Laurier as there is a clearly marked police SUV with flashing emergency lights parked facing south in the outer of the two northbound lanes. It is situated a little north of the line that would be described by a line drawn across Bank from the north edge of the north sidewalk on Laurier from one corner to the other. One sees two police officers near the SUV. Both are in full uniform and are also wearing high visibility vests. Moreover, in a line that would describe a continuation of the south edge of the north sidewalk on Laurier from one corner to the other, there are five orange and white traffic cones. These cones are more or less evenly spaced to block the two northbound lanes. The cones start about 1 m. to the west of the sidewalk at the northeast corner of the intersection; it is to be noted that the sidewalk actually describes a curve there and that that first cone is about 1 m. to the east of the actual northbound curb lane on Bank. The western most cone of the five is placed at approximately the point dividing the northbound and southbound lanes on Bank with one further cone placed perhaps 2 to 3 m. north of it. Due east of the police SUV is a traffic light standard for northbound traffic. This standard is situated perhaps 5 or 6 m. from the Laurier roadway and perhaps 2 m. from that of Bank. Directly to the north of this standard is a metal municipal garbage container which is located perhaps 1 m. from the Laurier roadway. In a line to the north of this receptacle are two saplings enclosed by fences, a metal bank stand, a light standard, and then another metal bike stand.

11Just prior to the alleged incident, Constable Evans can be seen talking to someone in a black automobile which is stopped perhaps one car length to the north of the police SUV. This black car is oriented northbound but at an approximately 45 degree angle. Its rear left wheel is more or less on the yellow centre line and the car is blocking all of the left northbound lane and some of the righthand one. Mr. Evans is bent over talking to a person in the black car through the front passenger window. His colleague is standing just to the front of the right side of their SUV.

12The accused’s vehicle is first seen going eastbound on Laurier slightly to the east of the intersection; he is facing an amber light. He does not stop. Rather, he turns right onto the blocked northbound curb lane of Bank. In doing so, he knocks over the two easternmost traffic cones. The car does not appear to be moving at a high rate of speed, however, neither does it appear to be moving slowly. After it makes the turn, the car could not move to the left because of the parked SUV. However, it could not go straight because of the way the black car had stopped just north of the SUV. Between that car and the accused was, as I have already described, Mr. Evans. Mr. Aldrich therefore had to make a choice: stop his car or thread it between the officer and the black car on his left and the line of standards, trees, etc. on his right; he chose the latter. He turned slightly to the right and drove up partially on the sidewalk until he had passed the black car and then turned somewhat to the left and returned to be completely on the roadway and then headed north and out of sight of the camera. A pedestrian who appears to have been walking out of sight of the camera on the sidewalk decided to walk over to the moving car as it returned to the roadway and kick it.

13When Mr. Aldrich first came around the corner, Constable Evans had his back to the intersection and was bent over in conversation with someone in the black car. As the car came around the corner, Mr. Evans looked south over his shoulder and then straightened up and turned to face the oncoming vehicle. By that point, Mr. Aldrich was approximately one car length south of him. If he had continued in a straight line, he would definitely have hit the black car and possibly Constable Evans. That is the point when Mr. Aldrich made the slight turn to the right and mounted the curb. As the car went past him, Mr. Evans took a step to his right, gestures at Mr. Aldrich, and pivoted backwards. It is unclear to me whether Mr. Aldrich’s car would have struck this officer if he, the officer had not so moved. As it is, the car passed within a metre of Mr. Evans and less than that distance from the front right of the black car.

14When the car came around the corner and began to head north, we observe Constable Evan’s partner run towards it gesticulating.

15After threading the needle, Mr. Aldrich continued northbound in the lefthand lane and then cannot be seen by the camera. Maybe 15 seconds or so after he leaves our view, we see two OPP motorcycles turn onto Bank in pursuit.

16The next Crown witness was Acting Sergeant Saeed Jama of the Ontario Provincial Police. On April 30, 2022, he was on duty in Ottawa patrolling the downtown area on a police motorcycle. He was accompanied by another police officer also on a police motorcycle

I was travelling westbound on Laurier, approaching Bank Street, I observed a few officers at the checkpoint stopping traffic, heading northbound on Bank. As I was approaching the checkpoint I observed a purple vehicle drive through that checkpoint knocking over pylons. At that moment, that’s when I followed the purple vehicle on my police motorcycle.

He continued his testimony by indicating that he immediately “activated my lights and sirens to get the driver’s attention.” He described the siren as being extremely loud and capable of making two different noises between which he toggled in order to get the driver’s attention. However, the driver did not stop and made several turns ending up turning onto Queen Street at O’Connor and heading eastbound towards Elgin (I note that Mr. Jama appears to have mistaken Metcalfe for the parallel and nearby O’Connor; he is not an Ottawa officer). There was no other traffic on the roads taken by the purple vehicle. Other police vehicles may have joined in the pursuit, however, Mr. Jama could not provide any details. During much of this pursuit, the witness was either right behind the vehicle or directly adjacent to it. He was yelling loudly at the driver to stop. At one point, Mr. Jama described getting up to the passenger side of the vehicle in an attempt to get the driver to slow down. He testified that the driver looked at him and smirked, but did not respond and continued driving. The officer then waved at Ottawa Police Service officers further east on Queen Street near Elgin to have them stop the car.

17As the OPS officers closed in on the purple vehicle from the front, Mr. Jama drove his motorcycle to its rear passenger side. Another police vehicle pulled up right in front of the purple vehicle. It was at that point that he observed the driver look over his right shoulder at him and then back into his motorcycle; the car was not moving very fast as it did so. As that occurred, the sergeant jumped off the motorcycle to avoid having his leg caught between it and the vehicle’s rear passenger side. The motorcycle then fell over as a result of the collision. He then noticed that the front passenger side window was open and so then “essentially dove in” through it to retrieve the keys so as to prevent the driver from continuing on into an area where there were many members of the public. He told the driver “Stop. Stop. Stop.” And put his left hand on the driver’s chest while using his right hand to remove the key from the ignition thereby immobilizing it. He got out of the car and handed the keys to an OPS officer. He made no further observations as he then walked away, understandably, to calm down.

18Sergeant Jama testified that his motorcycle had sustained minor damage as a result of the purple vehicle backing into it. Photographs entered as exhibits depict paint scuffs from the car on the front fender of the motorcycle. He also identified damage on the purple vehicle that occurred when it struck the motorcycle.

19I turn now to the testimony of Mr. Jama during his cross-examination. He clarified that the event that he had been brought in to police was the Rolling Thunder and not the Freedom Convoy. He agreed with Ms. Robinson that the former was “separate” from the latter. It was his evidence that he caught up to the purple vehicle before it turned off of Bank Street. He clarified that when he jumped off his motorcycle it was away from the car and then went around it to get to the car. He could not say what the other officers were doing at that point because he was focused on the driver and the keys.

20Ms. Robinson questioned Sergeant Jama in some detail about how the purple car came to hit the motorcycle.

Q. And you pull up and stop there along the back passenger door? A. Correct. Q. I’m gonna suggest to you that if you are stopped next to the passenger door, the back passenger door, and the vehicle starts to reverse, it’s not gonna hit you, right? A. It did hit me. Q. The vehicle - you’re beside the vehicle and not behind it? A. I was beside it on the rear passenger side in the back right door, is that what you’re saying? Q. You’re beside the vehicle closer to the back tire than the front? A. Correct. Q. But you’re not behind the car? A. I’m not behind the car. Q. Right. And so, if that vehicle goes into reverse, it’s gonna move backwards and not sideways towards where you are, right? A. That’s under the assumption if it’s going in a straight line. Q. And you’re saying it wasn’t going in a straight line? A. No. Q. How far did the back of.... THE COURT: Sorry, I didn’t understand that answer. You mean no, it wasn’t going in a straight line, or, no, you’re not saying that? I don’t know which you meant. It’s just semantics, if you just clarify your answer, that’s all. MS. ROBINSON: Q. Was the vehicle backing up in a straight line? A. No, it was not. Q. So, how was it backing up? A. There had to have been a turning movement, which is why it collided into me. Q. So, you’re saying it had to have been, but do you actually recall that it was turning? A. Yes. Q. Okay, so now you - you do recall that? A. Yes. Q. And how far did the vehicle back up? A. Perhaps two feet - two or three feet, a meter or so.

He further described the moment just before impact.

So, as I previously mentioned, I was situated on the actual motorcycle, and I came close by that door in the back passenger’s side. I did not have the opportunity to utilize my kickstand on the bike. As I wanted to do that, that vehicle backed into me, and the bike fell over. And just before that is when I jumped off the actual bike.

He disagreed with the defence suggestion that the vehicle had backed straight and not angled towards him. He also rejected the suggestion that the damage noted on the motorcycle and purple car had been sustained when he, Mr. Jama, had driven his motorcycle into the side of the car after the car had stopped.

21The next Crown witness was OPS Constable Vasilios Christofilakis. On the day in question, he had been detailed to police the Rolling Thunder demonstration. He received information over his police radio at 2:42 p.m. concerning a motor vehicle and drove towards the area where he believed the vehicle in question was headed. He and his partner were in a fully marked police SUV that had emergency lights and sirens. They arrived at the intersection of Queen and Elgin and he observed the vehicle turning right from Metcalfe Street and then coming towards them on Queen Street. He described that the vehicle came towards them and then stopped. He and his partner exited their SUV as did two officers from an unmarked van near them. As well, a white police pickup truck stationed itself behind the target vehicle. Mr. Christofilakis also observed two police motorcycles, one on either side of that car. He described the car as essentially being boxed in by the police officers and their vehicles.

22Constable Christofilakis testified that once he had gotten out of the police vehicle, he approached the driver’s side of the car. His purpose was to arrest the driver for dangerous driving and flight from police. However, the driver, Mr. Aldrich, put the car into reverse and, to use the witness’ words, “rammed the pickup truck”. He then described being behind other officers who were right at the driver’s door trying to get him out of the automobile. Those officers were yelling commands at the accused, to get out. He testified that the accused was tasered at this point by a Constable Graham. One of the car’s windows was broken at some point by an officer with a baton. He was then pulled out, placed on the ground and handcuffed. This was at 2:44 p.m. The witness noted that an OPP officer had gone into the car and seized the ignition key.

23During cross-examination, he agreed that in his notebook, the action that he described during his testimony as “rammed the pickup truck” is referred to by the phrase “the vehicle drove in reverse and struck the pickup truck.” In response to Ms. Robinson’s questions, he told the Court that he could not say whether the car hit the pickup very hard or whether it reversed in a straight line or what distance the car covered when reversing before it made contact with the truck although he did agree that he did not see the car move more than a foot. It was this officer’s evidence during cross-examination that he did not believe that the car struck either of the motorcycles that were right there at that time.

24Once the accused had been secured, Mr. Christofilakis looked inside the car and observed a bottle of alcohol on the passenger side floor. He testified that one third of the contents of the bottle were missing. It appeared to be Fireball Whiskey.

25At 2:45 p.m., Constable Christofilakis advised the accused that he was under arrest for dangerous driving, flight from police and assault with a weapon. He then began to read him his rights to counsel:

the way the situation was very chaotic, lots of officers around, lots of protesters now started to gather and started to yell at us, ‘What are you doing?’ ‘Stop it.’ This sort of thing, and it - and it was getting a very almost like volatile situation, so I read him up his - a soft caution, his rights to counsel, and a caution.

The officer testified that the only response from Mr. Aldrich was his continuous yelling of the word “Freedom”. Mr. Christofilakis could not recall if he repeated the rights and caution. However, he did remember that at that point the accused was having Taser probes removed from his body as he had been tasered by another officer during the process of removing him from his automobile. Mr. Christofilakis was holding onto the driver while this was being done. It was at this point that Mr. Christofilakis noticed a strong odour of alcohol coming from the accused’s mouth and also that he had glossy eyes.

26As a result of his observations, plus the information that had received about the accused entering the controlled zone and not stopping for the pursuing officers, he requested an approved screening device from the other officers on scene and an OPP officer brought one over almost immediately. Then, at 2:49 p.m., he made the ASD demand. Mr. Aldrich continued to scream “Freedom” over and over again. At this point in his testimony in chief, there was the following exchange:

Q. Okay. Following the response that the driver would have indicated, did you take any further action? What happened at that point? A. I - I believed there was no reasoning with him at this point, and I advised him that he further would be charged with refusing to provide a breath sample. Q. Okay. Did he - was he communicating in any other way other than yelling, “Freedom.” A. No. Just it was “Freedom, Freedom” and that’s all I would hear the whole time.

During cross-examination, there was similar testimony.

Q. And so, while he’s receiving that treatment and after you give the soft caution, it’s then that you form grounds for the ASD demand? A. That’s correct. Q. And that one you did read directly from your notebook you told us? A. That one I could open up and I could – ‘cause I know it’s just a short – that I could open it, read it, and then put it back. Q. You only read it once? A. Yes. Q. You didn’t ask him or make the demand a second time just sort of in plain language after the reading it from your notebook? A. I didn’t because it was – this – just uncooperative and screaming “Freedom” the whole time. Q. Did you attempt to demonstrate the use of the ASD for him? A. No, I would not have had a chance to do that. Q. You concluded that, you know, he’s not cooperating, and you - you rearrest him for refusal at that point? A. Yes.

27The officer testified that at this point, a large hostile crowd had began to gather around the officers and their prisoner. It was decided to place the driver in the back of a police cruiser so that they could leave the area with him. However, as they tried to put him into that vehicle, Mr. Aldrich stiffened his body. Mr. Christofilakis had to go to the other side of the cruiser and get in and pull the prisoner inside. Once inside and the doors closed, Mr. Aldrich began to kick at the windows. The officers then placed a temporary restraining device on his feet to prevent him from doing so. When the officers tried to reclose the door to the cruiser, Mr. Aldrich placed his head in such a way that they could not easily close the door. Eventually, they managed to do so and set off to the police station. Constable Christofilakis read out the rights to counsel, cautions and warnings; it was his evidence that the earlier exercise had been by way of a ‘soft caution’ and he was now reading from his notebook in a more controlled environment. He testified as well that at this point “I read him the breath demand as well, to provide - I know - I know at this point he was - I gave him another opportunity for - for the breath demand.” Mr. Aldrich did not respond. He just lay on his back and stared at the roof of the cruiser. They then arrived at the police station.

28The constable clarified that the first demand that he had read out while still at the scene had been the ASD demand. The one he read out in the police vehicle had been the demand for a sample of the accused’s breath into an approved instrument. He explained his grounds for making the second demand as follows:

I had given him the approved screening device demand. But I also gave his - generally, if somebody refuses the approved screening demand, I would just - it would just be a charge and it would be done. But in this case because of the situation, I felt like it would be, give him an opportunity to blow at the station.

He clarified that between the two demands, nothing had changed in his mind in regards to his initial belief at the time of the first demand that Mr. Aldrich had alcohol in his body and that his grounds for making the second demand were “basically the same” as those which he had had when making the ASD demand. There was further testimony on this point during the cross-examination.

Q. So, was there a reason why you didn’t make a breathalyzer demand right away at the roadside as opposed to the ASD demand if you believed you had those grounds? A. Because again, the way the situation went down, I had a suspicion that he had alcohol in his body, so I wanted to – to get it through the ASD. I did not go a straight impaired at that point, because again, just the way the situation was, everybody’s amped up, so many people involved, I would rather have given an ASD, a roadside to confirm if he had alcohol in his system. What I did was, I gave the breath demand afterward to try to say, you know, we didn’t have the ASD, sorry, we didn’t do the ASD ‘cause he was uncooperative, to have a chance to at the station if he wanted to, to provide a breath sample.

29Once at the station, Mr. Aldrich continued to be uncooperative. Mr. Christofilakis described him refusing to walk and the police having to put him in a wheelchair to get him to the area where prisoners are searched. The officer described Mr. Aldrich as having been “uncooperative throughout the whole interaction from start to finish.” He was never taken to the Breath Tech Room due to how uncooperative he was; he was never provided with an opportunity to provide a breath sample while at the police station.

30The Crown next called Ottawa Police Constable Kevin Graham to testify. On April 30, 2022, he was assigned to a quick response team for the Rolling Thunder event. Just prior to the present incident, he and his team were near the intersection of Elgin and Sparks as there were approximately a thousand people involved in the protest in that area. Then, at 2:44 p.m., he heard a radio call about a purple vehicle. As a result, he attended at Elgin and Queen Street so that if the vehicle came that way he would be able to cut it off. He was in a police SUV with Constable Christofilakis. As they turned onto Queen Street, he observed the vehicle in question turn off of Metcalfe onto Queen and head in his direction at a high rate of speed. As it got closer to him, the car veered to the right ( i.e., towards the south sidewalk). Mr. Graham drove his SUV towards it and ended up cutting it off, nose to nose. The two vehicles were roughly five to eight feet apart. Other police vehicles came in from behind the target. There was a cement block on the sidewalk.

31Once confronted with the close proximity of Mr. Graham’s SUV, the accused stopped his car, put it into reverse, and began backing up towards the police vehicles that were boxing it in from close behind. The witness was not certain whether Mr. Aldrich’s car struck any of the police vehicles. However, it did stop moving backwards and then moved forward again. Mr. Graham moved his SUV a little closer thereby boxing Mr. Aldrich in a little tighter. The constable put his SUV in park and then got out and ran over to the driver’s window. He observed Mr. Aldrich make a motion which the officer believed was the accused reaching for the gear shifter but was also considering whether he could be reaching for a weapon. Constable Graham yelled “Show me your hands. Show me your hands”, however, Mr. Aldrich ignored him and continued making the reaching motion. Other officers were screaming the same thing and, as well, “Stop the vehicle.” There were at least five police officers involved at that point.

32Constable Graham was concerned at that point that Mr. Aldrich would get his car in motion again and so drew his Taser, fired the prongs through the open window. He observed two or three prongs land on the accused’s bare chest. Then, for lack of a better word, the constable tased him more than once. Mr. Aldrich seized up for several seconds; he could no longer reach for the gear shift or do anything else for that matter. Mr. Graham observed another officer reach in through the passenger side, put the car in park, and then remove the ignition key. At that point, Mr. Graham was able to remove the accused from the car and place him on the ground where he was able to handcuff him.

33This witness also described the actions of Mr. Aldrich after his arrest while still on Queen Street. The accused stiffened his body to avoid being placed into a police cruiser. Once in that vehicle, he kicked at the windows and hit his head on the partition.

34Constable Graham described a crowd gathering as they arrested Mr. Aldrich. He testified that they were yelling “Freedom” and becoming verbally hostile. In that vein, he described Mr. Aldrich as also yelling “Freedom” continuously as Constable Christofilakis attempted to provide his rights to counsel, etc. and would not answer any questions. He also testified to Mr. Aldrich’s attitude when brought to the police station.

Q. Okay. And is he cooperative at that point? A. No. So, we got to cells. We do have to fill out a booking sheet as well as it’s, you know, in the midst of the pandemic, so we were asking the COVID questions, and he refused to answer any of the questions. He just remained silent throughout the – that questioning period. We brought him out of the police cruiser, placed him in a wheelchair ‘cause we figured it would be easier to transport him into cells ‘cause he still had the temporary restraining device on his feet. So, we placed him in a wheelchair, rolled him into the station. We – after he was paraded, I believe, we – in terms of trying to search him again with the special constables, we had to place him on the ground because he wouldn’t stand, and it would have been just easier to search the rest of his – his person in that position. And then we were hoping that he would walk to the – the cell that he was gonna be placed in, but he didn’t, so he was carried into that cell.

Constable Graham noticed the odour of alcohol on Mr. Aldrich’s breath as he was yelling “Freedom”. He further noted that during the drive to the police station, Mr. Aldrich had his feet out of the rear passenger window.

35Constable Graham testified about the use of the wheelchair at the police station. After allowing that the temporary restraining device would have made it difficult to walk, there was this exchange.

Q. And so, you or yourself and Constable Christofilakis made the decision to keep the restraints on and bring him in using a wheelchair? A. That’s correct. It could - it could have been the decision of the cell – the cellblock, I just don’t – I don’t remember... Q. Okay. A. ...who made.... Q. Not sure who decided, but that’s what – that’s how he got inside? A. That’s correct, yes.

36The next Crown witness was Constable Quan McHenry of the Ottawa Police Service. On April 30, 2022, he was on light duties due to an injury. Specifically, he was driving around Ottawa in a black Dodge Caravan delivering supplies to officers stationed at various posts. He was driving southbound on Bank when he heard a radio call from an OPP officer about an incident. Mr. McHenry continued southbound on Bank listening to the radio transmission. As the transmission ended, he stopped for a red light at Slater when a purple car passed in front of them going eastbound on Slater at not more than the speed limit.

37Once the light for southbound traffic turned green, Mr. McHenry turned left onto Slater and came up to the purple car when it stopped for a red light at O’Connor and pulled up to the right of it; he had been 20-30 m. behind it as he drove on Slater. As he was proceeding eastbound to that intersection, he observed two motorcycles with their emergency lights activated in his rearview mirror; they were 50-100 m. behind him.

38The two motorcycles, which were from the OPP, came to the intersection and one pulled up in front of the purple car while the other stopped beside the driver’s side. At that point, the light changed to green for the purple car and it started to advance. Because there was an OPP motorcycle moving to get in front of him, the accused turned to the right to avoid him and then continued eastbound. Because Mr. McHenry’s vehicle was stopped to the right of the car, Mr. McHenry thought that the car was going to hit him as it turned right and so honked his horn. At the time, the officer did not think that the car had hit his vehicle. However, later in the day, he checked and did notice some damage to the left front corner of the bumper.

39The accused continued along Slater with the two OPP officers following. Mr. McHenry was behind them. Mr. Aldrich was travelling at approximately the speed limit of 50 kph. They all followed as the car turned northbound on Metcalfe. Mr. McHenry lost sight of the car as it turned east on Queen Street. By that point, however, there were other police vehicles that had joined in the chase. These vehicles also had their emergency lights on.

40Ms. Loignon-Giroux asked this witness about the manner in which the accused was driving his vehicle.

I mean initially, it looked like it was being driven properly when I first observed it going down the road on - on Slater Street. Obviously, it was a little different when it tried to go around the OPP officer and then hit my vehicle. As it approached Metcalfe and up Metcalfe, I couldn’t really say if there was any sort of deviation in terms of the driving, I guess ability of the – the driver of the vehicle.

When the accused avoided the motorcycle at Slater and O’Connor, “it wasn’t very quick ‘cause it’s coming from a stopped position.”

41The final Crown witness was Sergeant Greg Thomson. At the material time, he was on duty, parked on Queen Street in an unmarked police white F-250 truck. He, too, heard the OPP radio transmission. As a result of that information, he started to drive towards Queen and Metcalfe. He then observed the purple car come northbound on Metcalfe followed by two police motorcycles with their lights and sirens on. The car turned right on Queen followed by the motorcycles and other vehicles. The sergeant activated his emergency lights and siren and came in behind them. It was his evidence that

While we were driving eastbound on Queen Street, I observed a white van with police lights on it coming towards us. As it was coming towards the purple vehicle, so they’re driving westbound coming from Elgin, towards the purple car, the purple car starts going towards the right, my right I should indicate. At that point there, a cruiser came up on what is my right to the white van, or the white van’s left. The purple continued to swerve towards the right, or you can say south to avoid these vehicles, and when it tried to go towards the sidewalk, because it’s by the British High Commission, there’s cement Jersey barriers that are already there, the vehicle got pinned onto that cement Jersey barrier. It couldn’t get onto the sidewalk or anything else, so it was basically stuck there. The motorcycles came in on each side. I came in behind it.

He described what happened next.

A. So, I’m directly behind it. Q. Okay. A. The two motorcycles are on each side at that time. I left my vehicle in drive in case the vehicle had then tried to escape. The lights came on. Like, I had no contact, the lights came on, it backed up. There was only about a foot between the two of us. The vehicle hit my truck, and frankly, it just hit the U-bolt at the front. Q. Okay. A. Barely any damage to his car, so it wasn’t a high impact, it was just an attempt to reverse. Once it hit the truck, I mean, there was no other motion, and the officers started trying to effect the arrest.

42Mr. Thomson had no involvement in the arrest of Mr. Aldrich. However, he did observe that there was a three-quarters full bottle of Fireball Whisky on the floor of the front passenger seat. As well, there was a can of Heineken in the rear passenger seat.

Judicial Notice

43While the Crown called no further witnesses, they did submit that I could take judicial notice of certain facts relevant to Count 7 of the Criminal Code information. I was initially provided with a list of the facts of which the Crown sought to have me take notice. During submissions, that list was altered to the following:

1. Starting on January 28, 2022, and continuing through the month of February 2022, individuals from all over Canada began to arrive in Ottawa. The catalyst for this assembly was the public health measures taken in response to the COVID-19 pandemic. Persons came to Ottawa to voice a variety of concerns which were generally anti-government in nature. This became known as the “Freedom Convoy.”
2. Members of the “Freedom Convoy” set up road blockades composed of commercial and passenger vehicles upon their arrival in Ottawa. These included hundreds of tractor trailers, semi-trucks, pickup trucks, heavy trucks, as well as passenger vehicles, camper vans, trailers and cars.
3. The blockades created by the presence of vehicles associated with the “Freedom Convoy” extended to the entirety of the parliamentary precinct and the majority of the downtown core of Ottawa, bounded by Wellington Street in the north, Laurier Avenue in the south, Lyon Street in the west and the Rideau Canal in the east. The Byward market area was also affected. The Ottawa Police Service issued a communiqué regarding the affected areas during the first weekend of the “Freedom Convoy”.
4. The “Freedom Convoy” had a significant disruptive impact on the City of Ottawa, through the blockades formed, the noise it carried, and the smells emanating therefrom.
5. Many downtown businesses, community centres and establish­ments were closed during the occupation. Employees and volunteers were unable to access sites located within the downtown core due to the blockades.
6. These institutions included the Rideau Centre, the National Arts Centre, museums, public libraries as well as the COVID-19 clinic at the University of Ottawa, which remained closed for the duration of the “Freedom Convoy.”
7. Some local residents, workers, employees and customers avoided sites in Ottawa’s downtown core due to safety concerns.
8. The “Freedom Convoy” was the subject of significant and widespread publicity, including news media and social media.
9. Shouts of “Freedom” and “Hold the Line” were rallying cries for those associated to the “Freedom Convoy.”
10. Beginning in the afternoon on Friday, April 29, 2022, hundreds of motorcycles rolled through downtown Ottawa as part of the “Rolling Thunder” rally.
11. Aspects of the “Rolling Thunder” rally espoused anti-governmental political outlooks similar to those of the “Freedom Convoy.” There was an overlap between participants in the “Rolling Thunder” rally and the “Freedom Convoy”.
12. A strong police presence was active in Ottawa on the days of the “Rolling Thunder” rally and a motor exclusion zone was designated by police with the following borders: a. Bronson Avenue to the west, along with Wellington Street starting at the Portage Bridge. b. Wellington and Murray Streets to the north. c. Waller Street and King Edward Avenue to the east. d. To the south, Laurier Avenue until Nicholas Street, where the border becomes Rideau Street.
13. The “Rolling Thunder” rally ended on May 1, 2022.

44The defence submits that I should not allow the Crown’s application. If I have understood the defence position correctly, it is submitted that as the Crown could have called witnesses to prove the above facts, they should be estopped from asking the court to take judicial notice of them. With respect, that is not the test. In The Law of Evidence, 8 th ed. at page 573, David Paciocco, Palma Paciocco, and Lee Stuesser explain that

“[j]udicial notice” is the only exception to the general rule that cases must be decided on the evidence presented by the parties in open court. Judicial notice is the acceptance by a court, without the requirement of proof, of any fact or matter that is so generally known and accepted in the community that it cannot reasonably be questioned, or any fact or matter that can readily be determined or verified by resort to sources whose accuracy cannot reasonably be questioned.

It is not unfair to consider facts that meet this test because, if those facts are generally known and accepted in the community, it will not harm the appearance of justice for the trial judge to consider them even though they have not been proved in open court. Moreover, if those facts cannot reasonably be questioned, there is no need for evidence, and the risk of error is reduced.

45The facts which I am being asked to take judicial notice of in the present case are defined by the Court of Appeal as “those that are so notorious or “accepted”, either generally or within a particular community, as to not be the subject of dispute among reasonable persons (R. v. J.M., 2021 ONCA 150 at para. 31). The Court of Appeal also noted in that same decision (at paragraph 33),

[t]he current paradigm that judges must use to determine whether they may take judicial notice locates facts along a spectrum that runs from those that are central to or dispositive of an issue, at one end, to those that “merely paint the background to a specific issue.” The closer the facts lie to the dispositive end of the spectrum, the more pressing it is to meet the [criterion of notoriety]. [citations omitted]

46I find that most of the above-enumerated potential facts reside at that end of the spectrum that describes the background to the issue of the relationship between the “Freedom Convoy” and the “Rolling Thunder” rally. Somewhat closer to the ‘dispositive’ end of the spectrum are paragraphs 9 “Shouts of “Freedom” and “Hold the Line” were rallying cries for those associated to the “Freedom Convoy” and 11 “Aspects of the “Rolling Thunder” rally espoused anti-governmental political outlooks similar to those of the ‘Freedom Convoy.’ There was an overlap between participants in the “Rolling Thunder” rally and the “Freedom Convoy”.” Yet in the case before me, neither of these facts would be entirely dispositive of the issue of whether Mr. Aldrich is guilty of Count 7.

47The Crown closed its case after making the application for judicial notice. It was understood that I would decide that issue as part of this judgement. I will now do so. I am of the opinion that the facts in the thirteen enumerated paragraphs are generally known and accepted in the Ottawa community. They are notorious and cannot reasonably be questioned. Therefore, I will take judicial notice of them.

48The defence did not call any evidence at this trial.

Analysis of Criminal Code Counts

49I will now deal with each of the counts individually. The first count on the Criminal Code information is that of dangerous operation. The relevant section, s. 320.13(1) reads “Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.” The case law to which I am about to refer was predicated on an earlier form of this section, then s. 249(1)(a) which read “Every one commits an offence who operates a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.” It is my understanding that that caselaw is still valid law.

50The leading authority with respect dangerous driving is the Supreme Court of Canada decision in R. v. Roy, 2012 SCC 26 wherein Cromwell J. provided guidance as to how trial courts are to approach such cases. That court was dealing with the related but more serious offence of dangerous driving causing death.

1… Like all criminal offences, it consists of two components: prohibited conduct -- operating a motor vehicle in a dangerous manner resulting in death -- and a required degree of fault -- a marked departure from the standard of care that a reasonable person would observe in all the circumstances. The fault component is critical, as it ensures that criminal punishment is only imposed on those deserving the stigma of a criminal conviction. While a mere departure from the standard of care justifies imposing civil liability, only a marked departure justifies the fault requirement for this serious criminal offence.

2Defining and applying this fault element is important, but also challenging, given the inherently dangerous nature of driving. Even simple carelessness may result in tragic consequences which may tempt judges and juries to unduly extend the reach of the criminal law to those responsible. Yet, as the Court put it in R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 34, "If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy". Giving careful attention to the fault element of the offence is essential if we are to avoid making criminals out of the merely careless.

28In Beatty, the majority of the Court spoke through the reasons of Charron J. which of course are the authoritative statement of the relevant principles. In brief, the Court decided as follows. The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place (s. 249(1)(a) of the Criminal Code). The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances (Beatty, at para. 43). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48).

29It will be helpful to reiterate the main elements of the majority reasons in Beatty.

30A fundamental point in Beatty is that dangerous driving is a serious criminal offence. It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established. Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy. The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness.

51Cromwell J. went on to review the actus reus required for the offence of dangerous driving. Referring to the Supreme Court's earlier decision in R. v. Beatty, 2008 SCC 5, and as he had remarked earlier in the decision, section 249(1)(a) Criminal Code itself provides a clear definition of the prohibited conduct: driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place. He continued:

34In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused's manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty, "The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving". A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions.

52Cromwell J. in Roy then discussed the fault element of dangerous driving followed by the necessary examination of what is meant by a 'marked departure'.

36The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48). It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.

37Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal. As noted earlier, Charron J., for the majority in Beatty, put it this way: "If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy" (para. 34). The Chief Justice expressed a similar view: "Even good drivers are occasionally subject to momentary lapses of attention. These may, depending on the circumstances, give rise to civil liability, or to a conviction for careless driving. But they generally will not rise to the level of a marked departure required for a conviction for dangerous driving" (para. 71).

38The marked departure from the standard expected of a reasonable person in the same circumstances -- a modified objective standard -- is the minimum fault requirement. The modified objective standard means that, while the reasonable person is placed in the accused's circumstances, evidence of the accused's personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused's incapacity to appreciate or to avoid the risk (para. 40). Of course, proof of subjective mens rea -- that is, deliberately dangerous driving -- would support a conviction for dangerous driving, but proof of that is not required (Charron J., at para. 47; see also McLachlin C.J., at paras. 74-75, and Fish J., at para. 86).

39Determining whether the required objective fault element has been proved will generally be a matter of drawing inferences from all of the circumstances. As Charron J. put it, the trier of fact must examine all of the evidence, including any evidence about the accused's actual state of mind (para. 43).

40Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving. The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity: Beatty, at para. 37.

41In other words, the question is whether the manner of driving which is a marked departure from the norm viewed in all of the circumstances, supports the inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited.

42Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances (Charron J., at para. 49; see also McLachlin C.J., at para. 66, and Fish J., at para. 88). In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference.

53Ms. Robinson has submitted that Mr. Aldrich’s driving behaviour that day cannot be qualified as a marked departure from the norm. Rather, she takes the position that the alleged bad driving was the result of a momentary lapse or lapses of attention.

54The Crown submits that the entirety of Mr. Aldrich’s driving, from the point that he turned onto Bank Street until he was stopped on Queen, consisted of a sequential series of episodes of dangerous driving: the running of the police blockade at Bank and Laurier, the accident at O’Connor and Slater, the collision with the police truck and the police motorcycle on Queen Street. I am going to examine each episode separately.

55I will proceed in reverse order and commence my analysis with the events on Queen where Mr. Aldrich was arrested. Sergeant Jama’s evidence was that as the police closed in on Mr. Aldrich’s car from the front, he drove his motorcycle to its rear passenger side. When a police vehicle pulled up right in front of the accused, Mr. Jama observed Mr. Aldrich look over his right shoulder at him. He then backed his car slowly towards and into the sergeant’s motorcycle. The sergeant jumped off the motorcycle to avoid having his leg caught between it and the vehicle’s rear passenger side. The motorcycle then fell over as a result of a collision. I have no doubt that Mr. Jama believed that he had to jump off the motorcycle to avoid having his leg caught between it and the car. However, the evidence of the other officers present at that point does not support his belief that Mr. Aldrich had steered the car towards him; they describe the car reversing in a straight line. All the witnesses agree that the car reversed slowly and did not travel very far. Mr. Jama’s own evidence was that Mr. Aldrich did not reverse the car blindly but appears to have looked, if not first, then as the car began to go backwards. Considering all the evidence, it is unclear to me whether the motorcycle did not just fall and hit the car after Mr. Jama understandably jumped off. Finally, if the car did strike the police vehicle that had pulled up behind it, it did so after travelling a very short distance and at a very slow rate of speed. The damage sustained by either vehicle was minimal. While Mr. Aldrich’s bad driving here was certainly due to more than a momentary lapse of attention, I find that the Crown has not proven that he displayed a marked departure from the norm.

56The accident at the intersection of O’Connor and Slater. Constable McHenry caught up to Mr. Aldrich’s car at the intersection where it had stopped for a red light. When the light turned to green, it then started to advance. However, it turned slightly to the right to get around the police motorcycle that was moving to get in front and, as was discovered only later, must have struck Constable McHenry’s vehicle. Once again, I am of the view that this driving behaviour was not a marked departure from the norm but neither was it due to a momentary lapse of attention.

57Finally, I turn to the initial episode at Bank and Laurier. I find that Mr. Aldrich intentionally turned the corner at speed going over some of the traffic cones that had been set up and deliberately drove his car through a gap between the police vehicle, a civilian’s car and Constable Evans to the left, and the various items of street furniture on the sidewalk to the right. To do so, he deliberately drove partially onto the sidewalk. Mr. Aldrich would have had to see the traffic cones and the parked police vehicle if not the civilian’s car before he turned right and went north on Bank. The maneuver that I have described as threading the needle was performed deliberately by him to get by the police blockade. This is clear from the manner in which he drove at that intersection, the fact that he refused to stop for the police who pursued him after he ran the blockade, his actions at the intersection of O’Connor and Slater, and the way he interacted with the police once he had been stopped by them and then arrested. When he drove by the police blockade at Bank and Laurier, he did not do so slowly. When he turned to the right to avoid hitting the police officer he came within a metre of both the officer and the civilian’s car. The running of the police blockade in this manner was clearly a marked departure from the standard of care that a reasonably prudent person would observe in the accused’s circumstances at that intersection. Therefore, I find him guilty of Count 1.

58I turn next to Count 2: fail to stop motor vehicle while being pursued by police, s. 320.17 Criminal Code. That section stipulates that “Everyone commits an offence who operates a motor vehicle or vessel while being pursued by a peace officer and who fails, without reasonable excuse, to stop the motor vehicle or vessel as soon as is reasonable in the circumstances.” On the basis of the evidence before me, I find that Mr. Aldrich knew that he was being pursued by at least Sergeant Jama and the other motorcycle officer over a distance of several city blocks after he ran the police blockade. Sergeant Jama testified that he had his emergency lights and siren activated. He was toggling the latter; it was very loud. During much of the pursuit he was in close proximity to the purple car and was also yelling at Mr. Aldrich to stop. At one point, Mr. Jama drove up to the passenger window and the accused looked at him, smirked, but did not stop. I also take into account here the maneuver performed by Mr. Aldrich at the intersection of O’Connor and Slater where he turned slightly to the right to avoid being blocked by one of the police motorcycles. The evidence shows that Mr. Aldrich was being pursued by the police, that he knew of that pursuit, and that he did not stop as soon as was reasonable in the circumstances. He is guilty of this count.

59The third count on the information is pursuant to s. 320.16: It is alleged that Mr. Aldrich was operating a conveyance, and at the time of operating that conveyance knew that or was reckless as to whether it was involved in an accident with another conveyance and failed to stop the conveyance. For this count, the Crown relies on the evidence of Constable McHenry. He described Mr. Aldrich turning his vehicle slightly to the right to get around the police motorcycle that was attempting to block him at the intersection of O’Connor and Slater. Fearing that the purple car would hit his vehicle, Mr. McHenry honked his horn. Mr. Aldrich then drove away. Mr. McHenry was not aware that the purple car had struck his van and only realized this later in the day when he saw some damage to the left front corner of the van’s bumper. Given that Mr. McHenry was unaware at the time of the accident that it had occurred, I can infer the possibility that Mr. Aldrich was equally unaware that there had been a collision. Given that there is no evidence before me that Mr. McHenry even suspected at the intersection that there had been a collision, it would be difficult for me to find that Mr. Aldrich had been reckless about whether one had occurred. I find that the Crown has not proven this charge beyond a reasonable doubt and I find the accused not guilty of Count 3.

60Count 4 alleges that Mr. Aldrich resisted Constable Christofilakis in the execution of his duty contrary to s. 129. The evidence is that Mr. Christofilakis was attempting to place the accused in a police vehicle after his arrest. Mr. Aldrich stiffened his body thereby preventing the police from putting him into the scout car. Constable Christofilakis had to get into the vehicle from the other side and then pull the accused into it. During submissions, the defence described Mr. Aldrich’s actions as passive resistance and submitted that s. 129 required the Crown to prove active resistance. The Crown submits that Mr. Aldrich’s actions qualify as active resistance. Both parties rely on the decision of the Ontario Court of Appeal in R. v. Kennedy, 2016 ONCA 879.

61Kennedy indeed does stand for the proposition that “the offence of resisting a peace officer requires more than being uncooperative: it requires active physical resistance” (at paragraph 36). Benotto J.A came to that conclusion for the unanimous panel after citing earlier caselaw with favour (see paragraphs 31-35). One of those cases, R. v. Bentley, [2003] Q.J. No. 16091 (C.S.), is instructive in the present matter. As summarized at paragraph 33 of Kennedy,

the accused was unresponsive when directed to remove the keys from the ignition of his car and exit the vehicle. After repeating the request and gaining no compliance, police forcefully removed the accused from his vehicle. During his removal, he placed his hands firmly on his steering wheel as an indication that he had no intention of leaving the car. At para. 33, the court interpreted “passive resistance” as the “absence of any degree of physical resistance” and held that it did not constitute resistance for the purposes of s. 129 of the Criminal Code. However, the court held that the accused’s acts did not constitute passive resistance as “he use[d] physical force to prevent his removal”: para. 51. In the result, the accused was acquitted as he had been charged with obstruction, not with resisting.

62Mr. Aldrich was charged with resisting a peace officer. His action of stiffening his body is comparable to the gripping of the steering wheel by Bentley. Mr. Aldrich used physical force to stiffen his body to prevent his placement in the police car. There is no requirement that active resistance include the application of force to another person or to an object. I find Mr. Aldrich guilty of Count 4.

63Count 5 alleges that knowing that a demand had been made by a peace officer under s. 320.27 or 320.28 Criminal Code, Mr. Aldrich failed or refused to comply with that demand pursuant to 320.15(1). Upon Mr. Aldrich being arrested, Constable Christofilakis looked into the car and noticed a bottle of partially filled alcohol on the passenger side floor. He then turned his attention to the accused who was having Taser prongs removed. The officer advised Mr. Aldrich that he was under arrest and provided him with a soft caution and his rights to counsel. During this process, the accused continued to yell the word “Freedom” over and over. Mr. Christofilakis was holding on to him and noticed the smell of alcohol coming from his mouth and also observed that Mr. Aldrich’s eyes were glossy. As a result, he then made an approved screening device demand. Mr. Aldrich continued to yell the word “Freedom” continuously. The officer informed him that he would be charged with refusing to provide a sample of his breath. Due to the crowd forming, the police decided to transport Mr. Aldrich immediately to the police station. To do so, they had to put him into a police vehicle. Mr. Aldrich held himself rigid so as to prevent that. Constable Christofilakis had to enter the vehicle himself and pull the accused into it. Once inside, the accused began to kick at the windows and had to be restrained. They started the drive to the station. Mr. Christofilakis read out the breath demand in transit. This was in reference to the taking of samples by a qualified breath technician and not the roadside screening device. Leaving aside whether the officer had the grounds to make that particular demand, it is noteworthy that Mr. Aldrich made no response. He lay on his back and stared at the roof of the police car. Once at the police station, Mr. Aldrich continued to be uncooperative with the police. He refused to walk and had to be moved in a wheelchair. Constable Christofilakis believed that Mr. Aldrich was not going to cooperate and thus did not make any further breath demand of him.

64The defence takes the position that a demand should have been put to him again while he was at the police station. As well, Mr. Aldrich submits that there is some evidence to suggest that as a result of having been tasered, he would not have understood the demand put to him at the scene.

65In a case such as this, where it is alleged that there has been a refusal or willful failure to provide a breath sample, “the court must look at all of the circumstances of the entire transaction between the police officer and the accused” (see, for example, the Summary Conviction Appeal Court decision in R. v. Butler, 2013 ONSC 2403 at para. 77 quoting with favour the decision of Kenkel J. in R. v. Tavangari (2002), 28 M.V.R. (4 th ) 104 (Ont. C.J.)). Based on the totality of the evidence, it is clear to me that Mr. Aldrich had decided not to cooperate in any manner with the police officers at the time of his arrest, during his transportation to the station, and while being processed there. The totality of the evidence before me does not support the contention that that he did not understand the demand or demands when they were put to him. His decision to not provide a breath sample was, I find, volitional. While he had indeed been tasered just prior to 2:44 p.m., the ASD demand was made five minutes later. Moreover, within another very short period of time, Mr. Aldrich had decided to stiffen his body so as to prevent his being placed in the scout car. This and his continued shouting of the word “Freedom” during this interaction are clearly indicative of his state of mind at that time, one of defiance.

66With respect to the defence position that the accused should have been allowed another opportunity to provide a breath sample while at the police station, I note that Mr. Aldrich did not ask for any such opportunity. As well, there is no mandatory requirement, when faced with a refusal, for a police officer to offer the accused one last opportunity to provide a sample of their breath (see, for example, R. v. Gentile, 2012 ONSC 4898 at para. 48; R. v. Kitchener, 2012 ONSC 4754 at paras. 23ff.).

67Mr. Aldrich’s refusal to provide a breath sample was in keeping with his demonstrated course of defiant conduct that day. His shouts of “Freedom” were not specific refusals to the breath demand. They were, however, an expression of a broader libertarian worldview that in the present context could only be taken as a refusal to comply with the officer’s lawful demand. “Freedom” as used on the day in question by Mr. Aldrich had the meaning ‘You are oppressing me and I will not cooperate with you.” and this is corroborated by his actions as the police arrested and processed him. His absolute refusal to do as the police instructed him leads inescapably to the conclusion that Mr. Aldrich intentionally refused to provide a sample of his breath. I find him guilty of this count.

68The sixth count on the information is pursuant to s. 145(5)(a). It is alleged that the accused breached a condition of a release order that was in effect on April 30, 2022 and did not have a lawful excuse for doing so nor was within any stipulated exception to that condition. The condition in question was “Do not attend area bound by Highway 417, Booth Street, Ottawa River, Rideau River, in the City of Ottawa, and do not be within one kilometer of the Parliamentary Precinct as they are defined in Section 79.5(1) of the Parliament of Canada Act”. During submissions on August 4, Mr. Aldrich conceded this count and I made a finding of guilt.

69The final count on the Criminal Code information, Count 7, is also pursuant to s. 145(5)(a). It is alleged that Mr. Aldrich breached the following condition of his release order: “Not to participate in any event, gathering or meeting that relates to the Freedom Convoy in the City of Ottawa.”

70One might agree with the Crown that the presence of the words “Freedom”, etc. painted on Mr. Aldrich’s car is good evidence that his presence at the Rolling Thunder Rally was activity related to the Freedom Convoy. However, one must also consider that there is an absence of evidence as to when the words were painted on the body of the vehicle. There is no evidence before me that they were put there for the Rally. Thus, this evidence does not resolve the issue of guilt in the context of Count 7.

71During submissions, I indicated that I was struggling with the meaning of the term “relates to” in this context. With the luxury of time to consider the issue, I am now better able to articulate what I see as the problem. It is still one of ‘relationship’. There is no evidence before me, even including the facts of which I have taken notice judicially, that the “Freedom Convoy” existed as something that could be participated in on April 30, 2022. As there is no evidence before me that the “Freedom Convoy” was still in existence at the time of “Rolling Thunder”, how could Mr. Aldrich “participate in any event, gathering or meeting that relates to [it] in the City of Ottawa”? This condition did not ban Mr. Aldrich from participating in any event similar to the “Freedom Convoy” in the City of Ottawa; the condition banned direct and indirect participation in the Convoy itself. To find, as the Crown asks me to, that given the political similarities and overlap in participants, “Rolling Thunder’ was related to the “Freedom Convoy” is tantamount to finding that the condition in question banned Mr. Aldrich from participation in any political activism in Ottawa. I am of the view that this condition cannot be so interpreted. It is to be remembered that he was bound by another condition which did limit the manner in which he could express his political views in Ottawa: he was banned from being near the parliamentary precinct.

72On the evidence before me, the “Rolling Thunder Rally” was a different event than the “Freedom Convoy” despite the fact that there were some people who were present for both events and that both events espoused, generally speaking, views against the current government. For the foregoing reasons, I find that the Crown has not proven this count beyond a reasonable doubt and I dismiss the charge.

Analysis of Provincial Offences Counts

73I turn now to the law governing those counts on the Provincial Offences information. The first count alleges that Mr. Aldrich failed to obey the directions given by a police officer to ensure the orderly movement of traffic contrary to s. 134(1)(a) Highway Traffic Act. That sub-section reads,

134 (1) Where a police officer or an officer appointed for carrying out the provisions of this Act considers it reasonably necessary,

(a) to ensure orderly movement of traffic;

he or she may direct traffic according to his or her discretion, despite the provisions of this Part, and every person shall obey his or her directions.

74The evidence before me is that Constable Evans and his colleague were set up at the checkpoint to control northbound traffic on Bank Street. Their cruiser was parked to block traffic and traffic cones had been set in place for the same purpose. It was Mr. Evans evidence that when Mr. Aldrich drove around the corner, “I believe I put my hand out and I yelled “Police! Pull over!” The video recording of the incident shows the officer making a gesture with one arm. The recording also shows the other officer gesturing as he runs towards Mr. Aldrich’s moving vehicle. Therefore, the police did direct Mr. Aldrich at the time he drove around the corner and through the checkpoint and he did not obey their direction.

75On August 4, the Crown conceded that there was no evidence in support of Counts 2 and 3 of this information. As a result, I dismissed those provincial offences.

76The final count on this information, Count 4, states that Mr. Aldrich drove a motor vehicle while liquor was contained in it other than in a circumstance set out in Subsection (42) Clause (1) of the Liquor Licence and Control Act contrary to Section 67(1) clause (c) of the Liquor Licence and Control Act. The evidence of Constable Christofilakis was that once Mr. Aldrich had been secured, the officer looked inside the car and observed a bottle of partially consumed alcohol on the floor of the front passenger side of the cabin. Relevant here is the evidence of the strong odour of alcohol observed by this officer on the breath of Mr. Aldrich and his glossy eyes. Based on the totality of the evidence, I find that the Crown has proven this count beyond a reasonable doubt.

Conclusion

77In conclusion, I will here summarize the outcomes. The criminal matters:

1. Dangerous operation contrary to s. 320.13(1) Criminal Code of Canada: guilty;
2. Fail to stop while pursued contrary to s. 320.17 Criminal Code of Canada: guilty;
3. Fail to stop after an accident contrary to Section 320.16(1) Criminal Code of Canada: not guilty;
4. Resist a peace officer contrary to s. 129 Criminal Code of Canada; guilty;
5. Fail or refuse to comply with a demand contrary to s. 320.15(1) Criminal Code of Canada: guilty;
6. Fail to comply with a release order without lawful excuse to comply with a condition of that release order namely, the boundary restriction contrary to Section 145(5) clause (a) of the Criminal Code of Canada: guilty;
7. Fail to comply with a release order without lawful excuse to comply with a condition of that release order namely, not to participate in any event, gathering or meeting that relates to the Freedom Convoy in the City of Ottawa, contrary to Section 145(5) clause (a) of the Criminal Code of Canada: not guilty.

The provincial offences:

1. Fail to obey the directions given by a police officer contrary to s. 134(1)(a) Highway Traffic Act: guilty;
2. Drive a motor vehicle that is not equipped with an approved ignition interlock device while prohibited from doing so, contrary to Section 41.2(13) of the Highway Traffic Act: not guilty;
3. Operate a motor without insurance, contrary to Section 2(1) clause (a) of the Compulsory Automobile Insurance Act: not guilty;
4. Drive a motor vehicle while liquor was contained contrary to Section 67(1) clause (c) of the Liquor Licence and Control Act: guilty.