Ontario Court of Justice

Date: 2022-11-03 Court File No.: Ottawa 22-R15609

Between:

HIS MAJESTY THE KING

— AND —

David Arron ROMLEWSKI

Before: Justice Robert Wadden

Counsel: Tim Radcliffe & John Wright ..................................... Counsel for the Crown David Arron Romlewski ..................................................... In his own defence

Verdict

[1] David Arron Romlewski (the Accused) is charged with three offences arising out of the “Freedom Convoy” protests that took place in Ottawa earlier this year. It is alleged that on February 19, 2022, the Accused approached a number of police officers on Sparks St., demanded they provide their names, and attempted to engage them in discussion about the Emergency Act and other issues related to the enforcement against protesters. As he was speaking to the police, a line of tactical police officers approached, tasked with clearing the area. The Accused refused to leave the area, and instead sat down on the ground. He was arrested and taken away from the scene.

[2] The Accused is charged with: a. Mischief contrary to s. 430(1)(d) of the Criminal Code, to wit “did willfully interfere with the lawful use and enjoyment of property”; b. Mischief contrary to s. 430(1)(c) of the Criminal Code, to wit “did willfully obstruct, interrupts or interferes [sic] with the lawful use or operation of property”; and c. Obstruct a peace officer, contrary to s. 129(a) of the Criminal Code.

[3] The Crown elected to proceed summarily on all charges. Upon arraignment, the Accused refused to enter a plea and was deemed to have pleaded Not Guilty.

[4] At the commencement of the trial, prior to arraignment, the Accused presented an Affidavit to the Court espousing a number of beliefs arising out of the King James Version of the Bible, and including statements which I find would fit in the category of Organized Pseudolegal Commercial Arguments, as defined in the decision of Meads v. Meads 2012 ABQB 571. The Accused’s Affidavit was filed as Exhibit A on the trial. The Accused disputed, among other things, the jurisdiction of the Crown to prosecute him and the jurisdiction of this Court to try him. I summarily reject all of the Accused’s arguments about jurisdiction as having no basis in law, for reasons summarized in Meads v Meads. The alleged offences occurred in Ottawa, and the Crown has elected to proceed by summary conviction. This Court has jurisdiction to try the Accused.

[5] The trial proceeded in an orderly manner. The Accused was polite and presented himself well. The only concession that he insisted on was that I refer to him by his first name, David. As this did not interfere with the proceedings, I did so throughout the trial. The Accused seemed well prepared in his cross-examination of each witness, and aside from the occasional pseudolegal question, asked some pointed questions of the witnesses.

[6] The evidence before me consisted of seven witnesses called by the Crown, in addition to a video and some physical exhibits. The Accused did not testify in his own defence. During a lengthy discussion about the election to call evidence, after the close of the Crown’s case, I made it clear to the Accused that statements in his Affidavit would not be evidence before me unless he testified and was subject to cross-examination. After considering the matter, the Accused confirmed his election not to call evidence.

[7] The theory of the Crown is that an offence of Mischief was committed by the Freedom Convoy protesters from January 28 to February 19, 2022, and that the Accused was a party to that offence. Furthermore, in relation to the offence of Obstruct Peace Officer, that the Accused interfered with police officers who were lawfully executing their duty of clearing the downtown streets of protesters.

[8] The first Crown witnesses, Cst. Irvine and Sgt. Carvalho, testified that in January and February 2022 the Freedom Convoy protests caused gridlock in downtown Ottawa, entirely blocking main roads to the degree that no vehicles – including cars, transit or emergency vehicles – could pass. The protesters had essentially occupied this area. There was constant honking of horns until an injunction was obtained. Cst. Irvine and Sgt. Carvalho testified, however, that they had never seen the Accused as part of this protest.

[9] Cst. Edward Bastien was a uniformed RCMP officer who was assigned as part of a police Tactical Support Group on February 19, 2022. His group was assigned to clear Sparks St., starting at Elgin St. and moving westward. He and his fellow officers moved forward, ordering people to move or be arrested, and as they did so, a person, later identified as the Accused, sat down on the ground in front of them. Cst. Bastien arrested him at 1:09 p.m. Five minutes later custody was transferred to Ottawa Police Cst. Carnegie. Cst. Carnegie kept the Accused in her cruiser and completed the arrest, reading rights to counsel and bringing the Accused to a temporary processing centre, and then to the Ottawa Police headquarters.

[10] At the time of his arrest, the Accused was wearing a body camera that recorded his dealings with the police up to arrest. The camera was seized by the police and a video showing the Accused’s interactions with the police was extracted when the camera was forensically examined pursuant to a warrant.

[11] The footage from the Accused’s camera shows the Accused approached a number of officers standing on Sparks St., demanding they identify themselves to him and insisting he has a right to walk past them, as a “sovereign citizen”. During an 18-minute interaction, the Accused tried to engage a number of officers in debate about the legitimacy of their role, and of the Emergencies Act. The officers on the front line were patient and tolerant of him, although resolute in not letting him pass. One officer in particular, Sgt. Chantal Arsenault, showed all the best qualities of an officer in a crowd control situation – she identified herself to the Accused, engaged him in conversation and tried, unsuccessfully, to persuade him to leave the scene. As the video progresses, one can see the approach of Cst. Bastien and his fellow tactical officers, who are forming a line as they move ahead. The patrol officers move aside, and the tactical officers move forward, telling the Accused to “move back”. The officers waited while the Accused took the time to put away his papers. Then, instead of moving back, the Accused sat on the ground and blessed himself. One of the officers said “Get up, buddy. You’re going to get arrested, get up.” He did not get up and was arrested by Cst. Bastien.

Issues of Evidence

Identification

[12] The first issue I will deal with is identification. I am satisfied the Crown has proven that the Accused is the person arrested on Sparks St., in the City of Ottawa, on February 19, 2022. Cst. Bastien and Cst. Carnegie viewed the video footage in court and were able to identify themselves in it, and Cst. Carnegie identified her police cruiser as well. Cst. Carnegie testified that the person she arrested in that incident was identified by her as David Arron Romlewski through a mugshot on her police computer. Det. Dawn Neilly took over the investigation at the police station and dealt with the Accused under that name, and positively identified him in court.

Authenticity of the Video

[13] I am satisfied the Crown has proven that the camera taken from the Accused on arrest contained the video entered as Exhibit 5 in this trial. The camera was seized and secured by Cst. Carnegie and given to Det Neilly, who then assigned it a property tag and stored it in the exhibits’ locker. Cst. Hack Taing later examined the camera identified by the same property tag and extracted the video using forensic software. Cst. Carnegie and Cst. Bastien testified that the video accurately records their participation in the events of that day.

Issues of Law

Obstruction

[14] In dealing with the legal issues, I will deal with the last count first – Count 3, the allegation of Obstruct a Peace Officer, contrary to s. 129(a) of the Code.

[15] Section 129(a) states:

“Everyone who (a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty … is guilty of ... an offence …”

[16] In R v Tortolano (1975), 28 C.C.C.(2d) 562, the definition of “obstruct” adopted by the Ontario Court of Appeal was “making it more difficult for the police to carry out their duties”, and the elements of the offence as set out by the Court were as follows:

(1) that there was an obstructing of an officer, (2) that the obstructing affected the officer in the execution of a duty that they were then executing, and (3) that the person obstructing did so wilfully

[17] In R v Yussuf, 2014 ONCJ 143, [2014] OJ No 1487 (OCJ), Justice Paciocco, as he then was, held that “the offence is only committed by those who act intentionally and do so intending to make it more difficult for the police to execute their duty.” The R v Tortolano Court held that it is not necessary to show that the conduct completely frustrated the officer in accomplishing his duty. In R v Khan, [2014] OJ No 5437 it was held that “… there is no requirement that the interference with the police duty in question go on for a long time in order to establish obstruction.” In R v Nasser, [2020] OJ No 6073 Justice Parfett held that “The act or omission constituting the offence must obstruct the officers in the execution of their duties in an "appreciable way" and not in a fleeting fashion. It need not amount to a "major inconvenience" of the officers. All that is required is that the obstruction extend beyond the de minimis range.”

[18] As applied to the case before me, it is not necessary to show that the Accused’s actions actually prevented the tactical officers from progressing. Cst. Bastien described the Accused’s actions of sitting on the ground as passive resistance. The Accused raised, through his cross-examination, the question of whether the officers were actually impeded in their duty, noting that the police would be able to walk around him even though he was sitting on the ground. The fact that they could go around him as he sat on the ground is not a defence. The Accused was specifically told to leave and was given plenty of opportunity to do so. His action of sitting down was a direct and defiant signal to the officers that he would not leave and would not get out of their way.

[19] In the case before me, the Accused would take issue with whether the police who arrested him were in the lawful execution of their duties, which is a requirement for this offence. In the video, the Accused challenged the officers at the scene about the legitimacy of their policing on Sparks St. on February 19. He clearly took issue with the validity of the federal Emergency Act.

[20] The evidence of Cst. Irvine and Sgt. Carvalho is that the ongoing Freedom Convoy occupation was, by February 19, illegal and the police were engaged in operations to remove the protesters and their vehicles. Cst. Bastien testified that he was on duty as part of a tactical support group working with, and in support of, other officers to clear the streets of protesters.

[21] Whether the Accused subjectively accepts the legitimacy of this policing action is irrelevant. I find on the evidence that there was a legitimate police operation underway to end the illegal occupation of the downtown streets. I find that Cst. Bastien and his fellow officers were acting in the execution of their lawful duties that afternoon. It is irrelevant whether the Emergency Act had been declared or not; the police were entitled to clear the streets of disruptive people, just as they would be entitled to do so on any day that a crowd had gathered that was so disruptive that it was breaching the peace. At that moment, the Accused was not part of the crowd they were approaching, but he interfered with the police as they moved toward it. My finding of the legitimacy of the police action is reinforced by the fact that this was not a round-up of protesters, or a “kettling” as has sometimes been seen in crowd control. There is no evidence that mass arrest was the objective. At each stage the police gave the Accused every opportunity to leave the area without arrest. On the evidence before me it is clear that the police were acting to secure the area to restore order.

[22] In this case, the video recording, and the testimony of the witnesses, clearly establish that the officers involved were in full uniform and unequivocally appeared to be police. There can be no doubt that the Accused knew he was dealing with the police. He had, in fact, approached the first officers because they were clearly dressed as police. That was his whole reason for speaking to them.

[23] The police action was high profile and well known, but even if one was not aware of the context, it was clear to anyone present at the scene what the police were doing at the point they approached the Accused – marching down the street in a line, clearing the area, issuing clear commands that those in front of them were to move away. The action of the Accused in sitting on the street was intentional – it was done after he took the time to carefully and deliberately put his documents back into his satchel. It was done immediately after he was told to move by the police. He continued to do it after he was told to get up and leave.

[24] The Accused’s action in sitting on the street was a willful obstruction of a lawful police action – a literal physical obstruction of the police. The Accused willfully obstructed Cst. Bastien and his fellow officers in the lawful execution of their duties.

[25] On the information before me, Count 3, Obstruct Peace Officer, has been proven beyond a reasonable doubt.

Mischief

[26] In relation to the offences of mischief, the question is whether the Crown has proven that the Accused was a party to the mischief wrought by the Freedom Convoy protesters.

[27] There is, in my mind, no doubt that the Freedom Convoy protesters committed the offence of mischief by way of interfering with the use and enjoyment of property of the residents of downtown Ottawa. It seems to be a misconception of those from outside this city that Ottawa only consists of federal institutions. In reality, the downtown is a thriving area occupied by countless middle-class and working-class people, who at that time were deprived of even the most basic use and enjoyment of their property – the right to a peaceful night’s sleep and the right to move freely in their own neighbourhood.

[28] According to the evidence before me, the Freedom Convoy mischief – the interference with property by blocking the streets, creating excessive noise and harassing residents – began on January 28. By February 19 police were regaining control of the streets.

[29] The Crown theory is that the Accused is a party to the whole offence of the Freedom Convoy occupation. This has not been proven on the evidence before me.

[30] The Accused was not a trucker and there is no evidence he brought a vehicle of any kind to Ottawa. No one is alleging he was an organizer of the protest or was in any contact with the organizers. There is no documentary evidence linking him to the protest or its organization. There is no evidence he provided any material support to the truckers, such as transporting fuel or food to them. There is no evidence he provided financial support to the movement.

[31] The evidence of the Accused’s first involvement is that he came onto Sparks St. at mid-day on February 19 and engaged some patrol officers in obnoxious conversation. On the evidence before me he appears to have been acting entirely on his own. The only appearance of anyone else on the video is a chance encounter with someone who is also approaching the police – the Accused appears to know this man but there is no indication they are acting together or that it is anything other than coincidence they see each other there. There appear to be protesters in the distance, but the Accused does not seem to be having any communication with them. At no point does the Accused seem to be acting in concert with anyone. When he sits on the ground there is no evidence that he is acting on anyone’s instruction, nor does he try to get others to join him in his action – he does not shout at the nearby protesters or do anything to alter their actions. The protesters seem to be separate from him, and he from them.

[32] It is not enough to say that the accused was present at the scene and shared the same political views as the protesters. Something more is required.

[33] In R v Dooley 2009 ONCA 910, the Court of Appeal held that “there must be a connection between the alleged act of aiding or abetting and the actual commission of the crime by the person who is aided or abetted.” I see nothing on the evidence before me that meets that criterion. I see nothing the Accused did that furthered the actual commission of the crime of mischief by others.

[34] On the evidence as I see it, the Accused was acting on his own, with his own agenda – to harass the officers and argue his “sovereign citizen” rights, to film the officers and try to provoke them. His views likely coincided with the protesters, but I don’t see anything other than he is on a lark of his own – spouting pseudolegal nonsense to the officers, trying to provoke a reaction. When that doesn’t work, he seeks to provoke the tactical officers by sitting down and obstructing them. I see no evidence of others supporting him or acting with him; I see no evidence that he is coordinating his actions with anyone else. I see no evidence that he is assisting anyone in their acts of mischief.

[35] The fact that someone has come into the area of the protest and committed his own crime does not necessarily make him a party to the entirety of the mischief caused by the convoy, even if he shares the same political views of the protesters.

[36] The Crown alleges that the Accused’s Facebook post of January 30 is evidence of his encouragement of the Freedom Convoy, and that in itself would constitute sufficient evidence that he was party to the offence. There are problems with that theory. Firstly, the post falls outside the date alleged in the information, so it in itself could not ground a conviction for an offence on February 19. Secondly, the Crown asks me to draw an inference that the post relates specifically to the Ottawa occupation. While that is an available inference, it is not the only one, since there were other protest actions taking place in the country around this time. The post does confirm the Accused’s sympathy to the protest movement in general, but he is not to be convicted because of his political views – only criminal acts he committed. I find the post itself does not constitute a criminal act of being a party to mischief. This post would be similar to an act described in R v Dooley: “an individual who shouts encouragement to another to commit a crime from a distance where the other person could not possibly hear the shouts of encouragement could not be said to have encouraged the commission of that crime. As such, that person could not be liable as an abettor should the other person commit the crime.” Applying this to the case before me, the evidence is that the Facebook post appeared on the Accused’s own Facebook page, updating his status. It was a January 30 post. Taken at its highest, assuming it was referring to the Ottawa protests (which is not certain), it seemed to be supportive, even encouraging, of the honking and protests. But as I understand Facebook, this post would be available to his contacts or friends or visible to those who would seek out his Facebook page. But there is no evidence before me that anyone who would be likely to see this post was actually at the Ottawa protests. There is no evidence that the Accused made any attempt to bring his post to the attention of the protest leaders, or anyone involved in the Ottawa occupation. In the absence of such evidence, the post of January 30, at its highest, amounts to nothing more than an encouraging shout that is not heard.

[37] I am even less persuaded by the Crown’s reliance on common intention under s. 21(2) of the Code. There is no evidence before me that the Accused formed an intention in common with anyone. The Crown could not articulate who the other person might be, other than unnamed protesters. There is no evidence of the Accused being in contact with protest organizers, or other protesters; there is no evidence of him being part of any group taking part in the protest; there is no evidence of any social media conversations the Accused had before or after February 19 (aside from his single post). There is no evidence from which I could draw the inference that any other person formed an intention with the Accused, nor he with them. To do so would be speculation.

[38] There are two counts of mischief before me, both arising from February 19, and the evidence on both is the same. I find that the Crown has not proven either count beyond a reasonable doubt.

Conclusion

[39] In conclusion, I am satisfied that the Crown has proven the offence of Obstruct, Count 3, beyond a reasonable doubt. A finding of Guilty will be made.

[40] I am not satisfied that the Crown has proven Count 1 or 2, Mischief, and findings of Not Guilty will be made.

Released: November 3, 2022 Justice Robert Wadden