Regina v. George [Indexed as: R. v. George]

49 O.R. (3d) 144

[2000] O.J. No. 1696

Docket No. C29482

Court of Appeal for Ontario

Osborne A.C.J.O., Weiler and Feldman JJ.A.

May 18, 2000

*Application for leave to appeal to the Supreme Court of Canada dismissed January 25, 2001 (McLachlin C.J., Iacobucci and Bastarache JJ.). S.C.C. File No. 28031. S.C.C. Bulletin, 2001, p. 137.

Criminal law -- Defences -- Defence of property -- Accused cannot claim to have acted in defence of property under s. 41(1) of Criminal Code where possession of property not peaceable -- "Peaceable" possession being possession that is not seriously challenged by others and not likely to lead to violence -- Accused and other members of Indian Band occupying provincial park -- Band's occupation of property challenged from outset -- Band members stockpiling rocks and sticks -- Band members' occupation of park not peaceable -- Criminal Code, R.S.C. 1985, c. C-46, s. 41(1).

Criminal law -- Defences -- Justification -- Accused and other members of Indian Band occupied provincial park -- Police physically restraining and arresting one Band member -- Accused driving car at police officers and hitting four of them -- Trial judge rejecting accused's claim that his purpose in driving car in that manner was to help arrested Band member -- Defence of justification not available to accused -- Criminal Code, R.S.C. 1985, c. C-46, ss. 27, 30.

The accused and other members of the Stoney Point Band (the "Band") occupied a provincial park, claiming an aboriginal treaty right. The park superintendent officially closed the park and he and a police officer attempted to serve notice on the park occupants that the park was closed and that Band members would be trespassing if they remained on park property. Band members refused to accept the notice. Members of the Band clashed with Ontario Provincial Police officers in a parking lot adjacent to the park. One Band member, G, was physically restrained and arrested by the police. A car driven by the accused approached one police officer, who had his gun drawn and pointed, then swerved into a ditch where some officers were standing, striking four of the officers and inflicting bodily harm on one of them. The accused was convicted of criminal negligence in the operation of a motor vehicle and assault with a weapon (the motor vehicle). He appealed, arguing that the trial judge misapprehended the evidence and f ailed to consider all of the evidence before rejecting the defence of accident; that the trial judge erred in characterizing the conduct of the occupiers of the park as unlawful and thus failed to apply s. 41(1) of the Criminal Code (defence of property); and that the trial judge misdirected himself on the defence of justification as provided by ss. 27 and 30 of the Code.

Held, the appeal should be dismissed.

Before making any findings the trial judge extensively instructed himself on the law as it related to reliability, credibility and the burden of proof. He went on to comprehensively detail the background evidence. He expressly stated that he had considered all of the evidence and reviewed and weighed the evidence of every witness, but that for the purposes of his judgment he had reversed the order, commenting first upon the evidence called by the defence because it was more convenient to do so. It would be inappropriate to conclude that the trial judge rejected the defence evidence before considering all of the evidence based on the order in which he gave his reasons, particularly in light of his comments. The evidence of the accused supported the trial judge's conclusion that the accused intended to threaten the police by using his car so that they would move back.

There are four elements to the defence of defence of property under s. 41(1) of the Criminal Code: the accused must be in possession of land; his possession must be peaceable; the victim of the assault must be a trespasser; and the force used to eject the trespasser must be reasonable in the circumstances. "Peaceable" is not synonymous with "peaceful". Rather, peaceable possession is possession that is not seriously challenged by others and any challenge to the possession should be unlikely to lead to violence. The Band members' possession of the park was challenged from the outset, to their knowledge. They were clearly aware that any challenge to their occupation could result in violence, as they stockpiled sticks and rocks. Some rocks were thrown at police cruisers and a gun was reportedly seen in a Band member's vehicle. The Band's occupation of the park was not peaceable. Moreover, the force used by the accused against the police was not necessary, reasonable or proportionate. Furthermore, the trial judge found that the parking lot was not part of the park. It followed that the Band members, including the accused, were not in possession (peaceable or otherwise) of the parking lot at any relevant time.

As the trial judge disbelieved the accused's evidence that his purpose in driving the car as he did was to help G, the defence of justification was not available to the accused.

APPEAL by the accused from a conviction for criminal negligence in the operation of a motor vehicle and assault with a weapon.

R. v. Born with a Tooth (1992), 1992 ABCA 244, 4 Alta. L.R. (3d) 289, 76 C.C.C. (3d) 169 (C.A.); R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193, 38 C.R. (4th) 4 (C.A.), apld R. v. C. (N.), Ont. Prov. Div., May 26, 1997 (unreported), distd Other cases referred to R. v. Baxter (1975), 1975 1510 (ON CA), 27 C.C.C. (2d) 96 (Ont. C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46 (am. R.S.C. 1985, c. 27 (1st Supp.), s. 19; 1991, c. 43, s. 9), ss. 27, 30, 41(1) "defence of property", 221, 267(1)(a), 686(1)(a)(i), (iii) War Measures Act, R.S.C. 1927, c. 206 Authorities referred to Black's Law Dictionary, 6th ed. (St. Paul, Minn.: West Publishing Co., 1990), "peaceable"

Michael Code, for appellant. Michael Bernstein, for respondent.

[1] BY THE COURT: -- On February 12, 1998, the appellant, Warren George, was convicted of criminal negligence in the operation of a motor vehicle pursuant to s. 221 of the Criminal Code, R.S.C. 1985, c. C-46, and assault with a weapon (a motor vehicle) pursuant to s. 267(1)(a) of the Criminal Code. He was sentenced to six months' imprisonment on each count to be served concurrently. He now appeals his conviction and sentence.

THE EVIDENCE

[2] During World War II part of the Stoney Point Reserve was expropriated by the federal government acting under the War Measures Act, R.S.C. 1927, c. 206. In May 1993, the members of the Stoney Point Band (the "Band") occupied the Canadian Forces Base, Camp Ipperwash (part of the expropriated land) and took up residence in the barracks. The appellant was one of the Band members who continued to reside at CFB Ipperwash after the Band's occupation of the base. On September 4, 1995, the Band members also occupied Ipperwash Provincial Park. The Band members claimed an aboriginal treaty right to both the military base and the adjacent park. They specifically contended that the government was desecrating a burial ground that existed inside the park boundaries.

[3] For ease of reference a map of the area in question is attached to these reasons [The editors were unable to obtain a clear enough copy of the map and it could not be reproduced legibly].

[4] After the Band's occupation of the park on September 4, 1995 the park superintendent officially closed the park. He and a police officer attempted to serve notice to that effect on the park occupants. The notice indicated that the park was closed and that the Band members would be trespassing if they remained on park property. Band members refused to accept the notice.

[5] On September 6, 1995, the O.P.P. received a complaint from a local resident that his car had been damaged by a rock thrown as he drove by the park on Army Camp Road. Later that evening, a number of Band members were observed standing in the sandy parking lot.

[6] When the Band members occupied the park, the O.P.P. immediately established checkpoints and set up a Tactical Operations Centre ("TOC") on East Parkway Drive, about one kilometre from the park gate. The police operation included four emergency response teams, several tactical response units, two canine units and a number of criminal investigators.

[7] On September 6, 1995, the police deployed a unit of 32 officers to move the Band members off of the parking lot and into the park. The unit was to "maintain a presence" until another checkpoint could be established. At approximately 10:45 p.m., the unit moved toward the sandy parking lot in a multi- tiered formation of contact units and arrest teams. The formation marched down East Parkway Drive towards the park and proceeded across the sandy parking lot. The officers observed a large bonfire on the park side of the fence and a yellow bus parked facing the fence. The unit proceeded forward until the front line of officers was close to the wire fence separating the sandy parking lot and the park. Sergeant Lacroix, the unit commander, testified that because the parking lot was then clear, he radioed to the TOC and requested permission to withdraw.

[8] At this point, one of the male occupants of the park, later identified as Cecil George, proceeded out of the park and onto the sandy parking lot. Sergeant Lacroix responded by ordering a left-flank "punchout," a manoeuvre in which a line- up runs full speed at an individual to force him back. Part of the formation proceeded with the "punch out" and engaged in "shield chatter" (banging their sticks as they ran). As Cecil George retreated into the park a number of the park's occupants began to yell and throw rocks and fire brands from behind the fence.

[9] Since the sandy parking lot area had been cleared, the entire police formation began to withdraw to the Army Camp Road/East Parkway junction. As the unit was moving backwards a number of the park occupants, armed with sticks and rocks, left the park and proceeded towards the officers. Sergeant Lacroix ordered the officers into a "full formation punch out." A massive "shield to stick fight" between the officers and occupants then took place. Cecil George clashed directly with Sgt. Lacroix and shattered his shield with a pole. Cecil George was hit by Sgt. Lacroix in his shoulder area and was then physically restrained by the arrest squad. The other occupants eventually retreated into the park.

[10] While Cecil George was being arrested the police again began to withdraw up East Parkway Drive. As they withdrew, a yellow school bus came through the park gate, pushed aside a garbage dumpster and moved towards the formation of police officers. Moments after the bus came out of the park, the appellant, Warren George, left the park in a car and followed the path of the bus. The police unit was ordered to "split formation" on to the right and left sides of the road. Sergeant Lacroix remained standing in the centre of the road in a "weaver" position with both hands bracing his pointed gun while he "tracked" the oncoming bus. The bus proceeded west past Sgt. Lacroix driving along the wrong side or left hand grass shoulder of East Parkway Drive.

[11] As soon as the bus passed him, Sgt. Lacroix saw the car. As the car approached him, it swerved to the right and drove into the ditch, where some of the officers were standing. The car hit at least four officers and one officer, Officer Cloes, suffered bodily harm. Sergeant Lacroix then fired a number of rounds into the driver's side of the vehicle. The car reversed back down East Parkway Drive, onto the sandy parking lot and into the park. The bus also reversed into the park and moments later the police unit returned to the TOC.

[12] At trial, the appellant testified that he had driven out of the park and across the sandy parking lot in an attempt to locate Cecil George. He testified that, as he drove onto East Parkway Drive, a police officer jumped in front of his car and pointed a gun at him. The appellant said that he ducked and veered the car to the right to avoid being shot at.

ISSUES

[13] The appellant raises the following grounds of appeal:

1. In relation to count 3, assault with a weapon (a motor vehicle), the appellant submits that the trial judge misapprehended the evidence and failed to consider all of the evidence before rejecting the defence of accident.

2. The appellant submits that the trial judge erred in characterizing the conduct of the occupiers of Ipperwash Park as unlawful and thus failed to apply s. 41(1) of the Criminal Code (defence of property).

3. The trial judge misdirected himself on the defence of justification as provided by ss. 27 and 30 of the Criminal Code.

Issue 1 -- Misapprehension of Evidence and Failure to Consider Evidence

[14] The approach to be followed by an appellate court where it is argued that the verdict is based on a misapprehension of the evidence and that the verdict is unreasonable is set forth in R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (C.A.). The court should first consider the reasonableness of the verdict under s. 686(1)(a)(i). If the appellant succeeds on this ground an acquittal will generally be entered. If the verdict is not unreasonable, then the court should determine whether the misapprehension of evidence occasioned a miscarriage of justice (s. 686(1)(a)(iii)). If the misapprehension of the evidence has rendered the trial unfair, then the conviction must be quashed and a new trial directed. Where a trial judge is mistaken as to the substance of material parts of the evidence and that error plays an essential part in the reasoning process resulting in a conviction, the accused's conviction is not based exclusively on the evidence and is not a true ver dict.

[15] The appellant does not submit that the trial judge's finding that the appellant was guilty of assault by using his motor vehicle as a weapon was unreasonable. Rather, the appellant submits that there has been a miscarriage of justice resulting from a misapprehension of the evidence and the failure to consider evidence relevant to the appellant's defence. We will deal first with the appellant's submission that the trial judge misapprehended the evidence.

[16] In R. v. Morrissey, supra, Doherty J.A. described "misapprehension of evidence" at p. 538 O.R., p. 218 C.C.C. as:

. . . a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence.

[17] In relation to the appellant's conviction for assault with a weapon, the only issue was the element of intent. The appellant admitted that he was driving the motor vehicle on East Parkway Drive and that he struck and injured Cst. Cloes with the vehicle.

[18] At p. 23 of his reasons, the trial judge rejected the appellant's evidence that he did not intentionally hit Cst. Cloes:

His evidence is not accepted that he swerved into the police involuntarily and only as a result of ducking down and swerving "to avoid being shot". His own evidence shows a lack of logic in this position. Why would he be shot if he was not endangering anyone as he testified? Wouldn't the pointing of a gun at him by a police officer be consistent with a demonstration that the police officer wanted him to stop and would potentially use force? Where is the logical nexus that gunfire would actually be used?

[19] The lack of logic in the appellant's position referred to by the trial judge is explained in part in the next sentence of his reasons:

Warren George stated he did not stop because he did not want to be a target, yet he was driving so slowly that he testified that he braked within five feet.

[20] The appellant submits that the trial judge's reasons indicate he rejected the appellant's evidence before reviewing any of the other defence evidence or any of the police evidence and that he therefore erred. We disagree.

[21] Before making any findings the trial judge extensively instructed himself on the law as it related to reliability, credibility and the burden of proof. He went on to comprehensively detail the background evidence. After considering the position of the defence and the Crown he stated that he would now make findings of fact. He expressly stated that he had considered all of the evidence and reviewed and weighed the evidence of every witness but, "[f]or the purposes of this judgment, I have reversed the order. . . . Due to the nature of the defence theory . . . it is more convenient to comment first upon the evidence called by the defence."

[22] It would be inappropriate to conclude that the trial judge rejected the defence evidence before considering all of the evidence based on the order in which the trial judge gave his reasons, particularly given his comments. The appellant's submission fails to recognize that, as Doherty J.A. put it in R. v. Morrissey, supra, at pp. 524-25 O.R., pp. 204-05 C.C.C.:

. . . it is wrong to analyze a trial judge's reasons by dissecting them into small pieces and examining each piece in isolation as if it described, or was intended to describe, a legal principle applied by the trial judge. Reasons for judgment must be read as a whole . . .

A trial judge's reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read as a verbalization of the entire process engaged in by the trial judge in reaching a verdict. . . . Appellate courts can offer that encouragement by approaching reasons for judgment, not as if they were intended to be a dissertation on the applicable law or comprehensive catalogue of the evidence, but rather as an attempt by the trial judge to articulate the conclusions reached and the bases for these conclusions. Appellate courts must resist the invitation to microscopically examine reasons for judgment, lest trial judges decide that silence is indeed golden.

[23] The trial judge was not obliged to go about his analysis in any particular order and there was nothing wrong with the approach he took in this case.

[24] The appellant's further submission is that had the trial judge considered all of the evidence, he could not have arrived at his factual conclusion that "the roadway was clear" and that "there was no reason to veer." In particular, the appellant says that the trial judge failed to consider the evidence of four police officers who were standing in the road at the critical time. The appellant submits that that evidence at least raises a reasonable doubt that these officers were blocking the appellant's path before he veered. In addition, the appellant relies on the evidence of Sgt. Lacroix that he stood in the middle of the road as the vehicle driven by the appellant approached. We do not agree that the trial judge misapprehended the evidence when he dealt with these factual issues.

[25] Most of the appellant's complaints concerning misapprehension of evidence and the failure to consider certain evidence turn on the weight to be attached to the somewhat conflicting evidence of the various police officers. We accept that there was conflicting evidence concerning whether the appellant had to swerve to avoid hitting officers on the road, whether the appellant could be seen driving and hence whether he ducked before he swerved his vehicle, and whether the appellant applied his brakes before hitting the officers.

[26] These conflicts in the evidence are not surprising given the various locations from which the officers made their observations, the fact that it was dark, that the headlights of the appellant's car were shining at the police officers and that there was a "fog of dirt" in the area. The trial judge was not obliged to accept the evidence of any particular witness. Nor was he obliged to reconcile all the conflicts in the evidence in his reasons for judgment.

[27] The appellant did not testify that he swerved in order to avoid hitting officers who were standing on the road. The trial judge chose to rely "on the observations of these witnesses [three of the police officers] that this was an intentional act." The trial judge's reasons do not indicate that he failed to grasp the importance of Sgt. Lacroix's evidence, nor did he disregard that evidence. The trial judge's reasons reveal that he was alive to the fact that Sgt. Lacroix was pointing his gun at the appellant. The issue was whether the Crown had proven beyond a reasonable doubt that the appellant intended to use his car as a weapon when he intentionally, not accidentally, swerved towards Constable Cloes.

[28] The appellant's evidence supports the trial judge's conclusion that the appellant intended to threaten the police by using his car so that they would move back. Specifically, the appellant did not testify that he swerved in order to avoid hitting the police officers. Rather, he agreed that he intended to force the police to move back because of his concern about Cecil George who was then in police custody. The appellant testified:

Q. Didn't you figure that they [the police officers] would consider that [the car going down the road behind the bus] to be a significant threat. You did it to threaten them. The threat being if you don't move back I'll run you over.

A. That was because they were threatening Slippery [Cecil George]'s life.

Q. Well again for whatever reason your purpose in using the car was to threaten the police in effect saying you move back or I'll run you over.

A. You move back but I wouldn't say the run over part.

Q. But you figured they'd be threatened, they'd want to move back because they wouldn't want to get hit by the car.

A. Yes.

[29] Furthermore, as we have said, the bus was driving on the shoulder of the road going down the wrong side of the road and the car followed the bus. The appellant testified that he was afraid if he stopped Sgt. Lacroix would shoot him. It was drawn to the appellant's attention that he veered to the right, thereby driving across the road and in front of Sgt. Lacroix and his gun before striking the officer, instead of veering to the left away from Sgt. Lacroix. When the appellant was asked why he did this he answered, "[b]ecause I would have had to drive through the bus." There is no issue that the bus had already gone past Sgt. Lacroix when he pointed his gun at the appellant's car. This also supports the trial judge's finding on the issue of the appellant's intent.

[30] Notwithstanding the able submissions of counsel for the appellant, we are not persuaded that the trial judge misapprehended the evidence or that he failed to take account of all of the sometimes conflicting evidence when he considered the essential issue of the appellant's intent to commit an assault with his car.

Issue 2 -- Defence of Property

Overview

[31] The appellant submits that the trial judge erred in characterizing the Band's occupation of Ipperwash Park as unlawful. Because of that mischaracterization, the trial judge, according to the appellant, failed to consider the appellant's s. 41(1) defence -- the defence of property.

[32] In support of his position on this issue, the appellant argues that there was no evidence to support the trial judge's finding that the occupation of the park was "illegal". He notes that the Band members had given notice of their occupation; no civil injunction was obtained; no trespass notices were issued; no unlawful assembly was declared; the CMU marched on the parking lot, not the park; and, at the time of trial, the Band members were still in possession of the park. The appellant relies on all of these factors to support his submission that the Stoney Point Band was in peaceable possession of the entire park area and had the trial judge made that finding, he would have approached the Band members' "resistance" differently and applied s. 41(1) of the Criminal Code to the appellant's advantage. Relying on s. 41(1), the appellant argues that if the aboriginals were in peaceable possession of the park and believed that the police intended to march on the park, they were entitled to use reas onable force to resist.

[33] The Crown submits that the s. 41(1) defence was never raised at trial and that it should not, therefore, be raised or considered on the appeal. The Crown contends that at trial, the appellant advanced the defence of justification, not a s. 41(1) defence. The Crown submits that the evidentiary record is insufficient to resolve this issue and, had the appellant raised a s. 41(1) defence at trial, different evidence would have been led. Because we think that s. 41(1) is not applicable to the facts of this case, as found by the trial judge, it is not necessary for us to address this aspect of the Crown's submission.

Analysis

[34] Section 41(1) of the Criminal Code provides:

41(1) Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.

[35] The Alberta Court of Appeal, in circumstances somewhat similar to those that exist here, considered the elements of a s. 41(1) defence in R. v. Born with a Tooth (1992), 1992 ABCA 244, 76 C.C.C. (3d) 169, 4 Alta. L.R. (3d) 289. In that case the trial judge had excluded certain evidence that was relevant to the appellant's s. 41(1) defence.

[36] In Born with a Tooth, certain Band members (of the Peigan Nation) camped in a right of way area where the authorities said they had no right to be. Police officers, and others, attempted to gain access to the area in question. The Band members resisted on the basis that the police were trespassers. The appellant, who was convicted by the verdict of a jury, took the position in the Court of Appeal that by excluding certain evidence the trial judge had effectively foreclosed him access to an available defence under s. 41(1) of the Criminal Code.

[37] The Alberta Court of Appeal directed that there be a new trial and to assist the new trial judge, the court considered the elements of s. 41(1). The court stated, at p. 177:

The defence contains four elements. This means that, before an accused can benefit from it, the jury must have at least a reasonable doubt about all four. If a jury is convinced beyond any reasonable doubt that any one element is missing, the defence must fail. The four elements are these: the accused must be in possession of land; his possession must be peaceable; the victim of the assault must be a trespasser, and the force used to eject the trespasser must be reasonable in the circumstances.

(Emphasis added)

[38] We think that in the above passage, the Alberta Court of Appeal correctly set out the elements of s. 41(1). For purposes of this case, we think it is necessary to comment only on the requirement of "peaceable" possession and the further requirement that the force used to eject the alleged trespasser must be reasonable in the circumstances.

[39] In our opinion, for reasons that follow, given the circumstances of this case, the defence must fail. There was no peaceable possession of either the park or the sandy parking lot area on which the conflict in question occurred and the amount of force used was not reasonable in the circumstances. Nor is there evidence that the appellant honestly, but mistakenly believed he was in peaceable possession of the park.

(i) Peaceable possession

[40] Peaceable is defined in Black's Law Dictionary, 6th ed. (1990), as:

. . . such as is acquiesced in by all other persons, including rival claimants, and not disturbed by any forcible attempt at ouster nor by adverse suits to recover the possession of the estate.

[41] In Born with a Tooth, supra, the Alberta Court of Appeal elaborated on this definition by stating (at p. 178) that the word "peaceable" is not synonymous with "peaceful". Instead, the court stated that "peaceable" means possession that is "not seriously challenged by others" and any challenge to the possession should be "unlikely to lead to violence."

[42] We agree that peaceable and peaceful are not synonymous and with the Alberta Court of Appeal's definition of "peaceable".

[43] The Band members' occupation of the park was challenged from the outset. Expecting the occupation, the O.P.P. had increased police presence in the area and immediately after the occupation, the police established checkpoints on roads leading into the park. There is no evidence to support a rational conclusion that the occupation of the park by the Band members would not be challenged.

[44] Although the entire conflict with the Band members was plagued by poor communication between them and the authorities, there were clearly some attempts by the police to communicate a challenge to the Band members' occupation of the park. Inspector Carson testified that on September 4, 1995 the superintendent of the park and a police officer attempted to deliver a notice to the Band members. The notice stated that the park was closed and that the Band members would be trespassing if they remained on the park property. The Band members refused to accept the notice. Inspector Carson testified that on the next day, two police officers returned to the park in an attempt to discuss the occupation with Band members; however, no meaningful dialogue developed. The police presence and their effort to communicate with the occupants before the conflict on September 6, 1995 made it clear that the occupation of the park was not accepted and would be challenged.

[45] The Band members' actions before the conflict also made it clear that any challenge to their occupation could result in violence. When the Band members first occupied the park, they were seen stockpiling rocks and sticks. In the early hours of September 6, 1995, the park occupants threw rocks at police cruisers situated on the adjacent sandy parking lot. Police cruiser windows were broken. Later the same day, the incident commander received information about gunfire in the park and a gun was reportedly seen in a Band member's vehicle. Also on September 6, a bystander reported to the police that a rock had been thrown at his car as he drove by the park. A number of Band members were observed with sticks and bats standing on the sandy parking lot.

[46] There is no evidence that the appellant had an honest but mistaken belief in the nature of the Band members' possession of the park. In his testimony, the appellant acknowledged that he knew that the park occupation was without the Ministry of National Resources' consent. He also testified that the park occupants were prepared to resist any police interference with their occupation and that the occupants had stockpiled sticks and rocks for resistance purposes. There is also evidence that when the Band members first entered the park there were clashes with patrolling police officers.

[47] The trial judge did not deal directly with the issue of peaceable possession since, as we have said, the appellant did not raise a s. 41(1) defence at trial. He did, however, characterize the Band members' occupation of the park in this way:

The activities of the occupiers were not peaceful, were not respectful and were not dignified. There was vandalism to vehicles and other personal property, weapons had been brandished, threats were made to police officers, citizens made complaints to the police.

[48] In our view, the Band members' occupation of the park was not peaceable.

(ii) Reasonable force

[49] Another element of a successful defence under s. 41(1) is that the amount of force used must be reasonable in the circumstances. In R. v. Baxter (1975), 1975 1510 (ON CA), 27 C.C.C. (2d) 96 (Ont. C.A.) at p. 113, Martin J.A. stated that:

The sections of the Code authorizing the use of force in defence of a person or property, to prevent crime, and to apprehend offenders, in general, express in greater detail the great principle of the common law that the use of force in such circumstances is subject to the restriction that the force used is necessary; that is, that the harm sought to be prevented could not be prevented by less violent means and that the injury or harm done by, or which might reasonably be anticipated from the force used is not disproportionate to the injury or harm it is intended to prevent . . .

[50] The appellant drove his car out of the parking lot and onto the grass shoulder of East Parkway Drive in such a manner that he struck a number of officers, seriously injuring one of them. At this time, the police were retreating from the park area. Their actions could not be construed as trespassing. The force used against the police was not necessary, reasonable or proportionate.

[51] Furthermore, the trial judge found that the sandy parking lot was not part of the park, that is to say it was a discrete area proximate to, but separate from, the park. There is ample evidence to support this finding. It follows that the Band members, including the appellant, were not in possession (peaceable or otherwise) of the sandy parking lot area at any relevant time.

[52] The trial judge did not examine the Band members' "resistance" within the framework of s. 41(1) for two reasons. First, a s. 41(1) defence was not raised at trial as a discrete defence and second, s. 41(1) was clearly inapplicable in the circumstances of this case. The trial judge made findings that the occupation of the park was unlawful and the Band members' actions towards the police were unlawful. In our view, these findings were supported by the evidence. Our interference with them is thus not warranted.

[53] We see no merit in this ground of appeal.

Issue 3 -- The Defence of Justification

[54] The appellant submits that the trial judge erred by failing to find that the appellant's actions were justified within the meaning of ss. 27 and 30 of the Criminal Code, [See Note 1 at end of document] on the basis that the appellant's intent was to use reasonable force to prevent the commission or continuation of an assault by the police on Cecil George.

[55] The appellant's position that the defence of justification applies is based on the cumulative effect of two propositions: (1) the trial judge essentially found that he had a reasonable doubt as to whether the police used excessive force in arresting Cecil George; (2) although the appellant was not able to see all of what the police did to Cecil George, he saw one punch and one kick.

[56] The difficulty with the appellant's submission is that the trial judge disbelieved the appellant's evidence that his purpose in driving the car out behind the school bus was to "help Slippery" (Cecil George) "maybe force the police away and get him into the car." He found that the appellant's purpose was to "resist, obstruct and confront any attempts by the police to enforce compliance with the law. This was his intention before Cecil George was arrested and, adopting the Crown's theory, it was his intention after Cecil George was arrested." The trial judge concluded that the defence of justification resulted from a retrospective reconstruction of events.

[57] The appellant relied on the case of R. v. C. (N.), released May 26, 1997 (Ont. Prov. Div.), the driver of the school bus that evening. He was acquitted of similar offences in a separate trial. However in his case, the trial judge found that "the only logical conclusion is that C. then entered the bus for the purposes of attempting to rescue Bernard George [Cecil George] from the officers as futile as that action may well have, in hind sight, seem to have been."

[58] As we have already concluded that the trial judge did not misapprehend the evidence, his finding that the appellant's purpose in driving the car in the way he did was not to assist Cecil George, distinguishes the C. (N.) case and makes the defence of justification unavailable in this case on the facts.

[59] The appellant, recognizing the deference we must accord the trial judge on the issue of sentence, did not press his sentence appeal, which, in the circumstances, is dismissed.

CONCLUSION

[60] The appeal as to conviction and sentence are therefore dismissed.

Appeal dismissed.

Notes

Note 1: 27. Every one is justified in using as much force as is reasonably necessary

(a) to prevent the commission of an offence

(i) for which, if it were committed, the person who committed it might be arrested without warrant, and

(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or

(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).

30. Every one who witnesses a breach of the peace is justified in interfering to prevent the continuance or renewal thereof and may detain any person who commits or is about to join in or to renew the breach of the peace, for the purpose of giving him into the custody of a peace officer, if he uses no more force than is reasonably necessary to prevent the continuance or renewal of the breach of the peace or than is reasonably proportioned to the danger to be apprehended from the continuance or renewal of the breach of the peace.