Ontario Court of Justice

Date: 2023-11-17 Court File No.: Windsor 22-81100099

Between: His Majesty The King

— And —

Theodorus Deboer

Before: Justice C. Uwagboe

Heard on: November 7 – 8, 2023 Reasons for Judgment released on: November 17, 2023

Counsel: A. Telford-Keogh........................................................................ Counsel for the Crown A. Honner.......................................... Counsel for the Defendant Theodorus Deboer

Reasons for Judgment

Uwagboe J.:

[1] Trial commenced on this matter on November 7, 2023 before this Court. Evidence was led by the Crown from its first witness in-chief. At the conclusion of the Crown evidence with its first police witness, including several drone footage clips, the defendant, Mr. Deboer, elected to strike his initial plea of not guilty and enter a plea of guilty.

[2] The parties both recommend that a conditional discharge is the appropriate disposition in the matter before the Court submitting the position as a “joint submission.”

[3] The Court raised concerns in respect of the joint submission on the basis of parity, the appropriateness of the sentence in these circumstances, and for this offender, indicating to the parties that in the view of the Court the sentence is not fit. The matter was adjourned to November 8, 2023, to allow the parties time to make fulsome submissions on the joint submission. On November 8, 2023, both parties agreed that they had sufficient time to consider their positions and wished to proceed with submissions in support of the joint submission.

[4] What follows are my reasons for sentence in this matter.

Background

[5] Mr. Deboer was one of the parties involved in the effort to shut down the Ambassador Bridge in protest. He was charged with mischief contrary to subsections 430(1)(c) and subsection 127 of the Criminal Code of Canada. He ultimately entered his plea to the mischief count alone as part of the jointly recommended position of the parties.

[6] It should be noted that several concessions were made for the trial. These included both injunction orders of Chief Justice Morawetz dated February 11, 2022 and February 18, 2022 (Exhibit 1(a) and 1(b) respectively).

[7] It is important to note again that Mr. Deboer did not plead to contravention of the order. That said, the orders are part of the factual matrix in relation to the events of the day. Justice Morawetz granted the February 18, 2022 injunction on the strength of uncontroverted evidence that since the February 11, 2022 injunction things were not getting better. Protesters continued to breach the February 11 order and multiple municipal by-laws, with the number of protesters increasing to the date leading to the events before the Court. Chief Justice Morawetz set out the circumstances of the protests since his first order at paragraph 47 stating:

“ Between the February 11 Order coming into effect at 7:00 pm on February 11, 2022 and into Sunday, February 13, 2022, the protesters continued to breach multiple municipal by-laws, as is evidenced by multiple tickets issued for by-law infractions including the need to have multiple vehicles towed from the roadways approaching the Bridge. Protesters also breached the February 11 Order, as is evidenced by multiple arrests of individuals for Criminal Code charges, including disobeying the February 11 Order. Further, I note that after the February 11 Order came into effect, the number of protesters obstructing the Bridge increased over the course of the evening and into the following evening.” [1]

[8] It is clear that the participants in the protests that blocked the Ambassador Bridge were not dissuaded by the existence of the order or police efforts to clear the road.

[9] The parties agree on the significant disruption caused by the protests. The Crown filed on consent the “Ambassador Bridge Commercial Conveyance Volumes (January 15 – February 25, 2022)” as Exhibit 2 at trial. The dispruption of commercial traffic caused by the actions of those involved in the blockade was significant. Commercial traffic daily was in the thousands save for the period of the blockade where commercial traffic was reduced to single digits on two (2) of the days of protests and on four (4) of the days of protest, including February 13, 2022, (the date of the offence for Mr. Deboer) had zero vehicles cross. It is further noteworthy that February 13, 2022, was the last day that zero commercial vehicles crossed due in no small part to the actions of the police clearing out the remnants of the protesters on that day, including Mr. Deboer.

[10] The parties agree that the Court can rely on the facts at trial for the sentencing.

[11] The parties agree that Mr. Deboer was not present for the earlier obstruction efforts, nor can I infer that he was aware of the orders from Chief Justice Morawetz at the time. They suggest that this is mitigating as it relates to the attendance of Mr. Deboer on February 13. I will return to this later.

Facts

[12] The drone footage captured at the protest was marshalled through Sergeant Andrew Nicholson on consent.

[13] The drone footage captured the events as they transpired from dark to dawn on February 13, 2022, between College Street and Tecumseh Road on Huron Church. The footage was filed on consent as Exhibit 3(A – E).

[14] The road was barricaded for both northbound and southbound traffic including the median. The drone was focused mostly on the south barricade as this is where most of the activity was taking place. It is also the location where Mr. Deboer chose to occupy.

[15] Mr. Deboer was easily identified as he was carrying a large sign that read “police stand down” at most points in time. He moved from the road on either side to the median and sometimes he was on the sidewalk and the hill adjacent to the University of Windsor football stadium. Most of the day at trial was spent tracking the movements of Mr. Deboer. At most points he was in the prohibited area walking, carrying his sign. I found his most notable actions to be as follows:

(1) He stopped for a period of time on the centre median at the barricade and leaned his sign up against the barricade and faced the police. Several police cruisers and officers lined the barricade. Following this, he picked up his sign and continued to occupy the road, median and sidewalk. (2) Mr. Deboer moved further north on the median toward Tecumseh Road and continued to pace with his sign. During this time, people can be seen leaving the area travelling east down a street adjacent to Mr. Deboer. There was lighter police presence there and it appeared that persons were permitted to leave Huron Church that way. This is not a choice that Mr. Deboer made. (3) Many police moved closer to the barricades and formed a line across all lanes of traffic and the median. It clearly appeared that the police were mobilizing to close in on the protesters. They held this position for some time. None of this prompted Mr. Deboer to leave the area or even put down his sign. (4) As the police moved past the barricades and approached Mr. Deboer’s location from the north and south at one point, he can be seen walking toward the approaching south line with his sign in hand and then returning north to his location on the median adjacent to the east side street. (5) As other protesters were being apprehended by the police, Mr. Deboer maintained his position with his sign held up. At one point, two (2) officers approach him and make efforts to take his sign by grabbing it. Mr. Deboer rips his sign away from them and hoists it high. An additional 4-5 officers had to attend to take control of Mr. Deboer and he was ultimately taken to the ground and arrested.

It is noteworthy, that as he was surrounded by officers, being taken to the ground, he still was in control of his sign and continued to hoist it up as police attempted to gain compliance and ground him.

Position of the Parties

[16] The parties submit a conditional discharge is appropriate in these circumstances. The parties point to the following factors in support of the recommended submission:

(1) The age of Mr Deboer. He is 70 years old; (2) His lack of a criminal record; (3) His contribution to his community through his garden project to provide food to those with food security issues facilitated by his niece; (4) His diminished blameworthiness, distinguishing his conduct from that of other protesters, including the limited time, it is submitted, that he was at the protest on February 13, 2022; and (5) His demonstration of remorse by his plea.

[17] In assessing the joint submission before the Court, it important to review the issue of parity as it relates to Mr. Deboer as well as the appropriateness of the proposed resolution and the recommendation of the joint submission.

Parity

[18] The principle of parity is codified in section 718.2 (b) of the Criminal Code of Canada; and states that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. [2]

[19] Notwithstanding the above, the Court must also consider the unique factors of each case and the unique factors of each accused. Parity does not go as far as to institute a precise sentence applicable to every case.

[20] The issue of parity was raised by the Court in reference to another protest participant, Mr. Mandalawi, that was sentenced before this Court on October 17, 2023.

[21] The plea for Mr. Mandalawi took place on the first day of his trial prior to the calling of evidence. The parties in that case agreed on a suspended sentence as the appropriate sentence but differed on range. It was also not an early plea. There were some facts read in about the protest generally and his involvement in it. The prosecutor of the day was the same prosecutor for Mr. Deboer. At that time, the prosecution acknowledged that persons had their reasons for being there at the protest but emphasized the importance of deterrence in the sentencing of these indiviuals so it “won’t happen again.” In suggesting what would be a fit sentence, the prosecution referenced resolutions, prior to that of Mr. Mandalawi, where suspended sentences of 12 months were given, adding that a suspended sentence of 18 months probation was “reflective of where we are in the process.” He went on to cite the “tremendous strain” that the protests had on the Windsor community.

[22] After hearing the submissions of the defence, a remorseful allocution was made by Mr. Mandalawi where he acknowledged the comments of the Crown and said that “the police conducted themselves honourably.” In respect of the resolution, he stated that “everything is fair and reasonable.” It is noteworthy that Mr. Mandalawi attended the Royal Millitary College and served in the Canadian Armed Forces. He resided in Windsor, had no criminal record, and worked in the United States as an electrician.

[23] This Court saw fit to impose a suspended sentence and 12 months probation in respect of Mr. Mandalawi. The Court did not have the benefit of the drone footage at the plea for Mr. Mandalawi. As it turns out, both Mr. Mandalawi and Mr. Deboer are captured on the drone footage at the events of February 13, 2022. The prosecution played segments of video from the footage in an effort to distinguish the conduct of Mr. Mandalawi from that of Mr. Deboer and to convince the Court that these two offenders did not conduct themselves similarly. Specifically, that the conduct of Mr. Deboer was “less defiant” or blameworthy than that of Mr. Mandalawi.

[24] The Court observed the footage of Exhibit 3 in relation to Mr. Mandalawi at the request of the Crown and noted the following:

(1) Mr. Mandalawi was also easily identified by his coat as he was not carrying a sign like Mr. Deboer was. He was there earlier in the day than Mr. Deboer can be seen; (2) He walked up and down the barricade line at College and Huron Church at one point having brief interaction with officers. He spent more time in the northbound lanes of Huron Church; and (3) Exhibit 3(e) happened to capture the arrest of both males in the same shot of the drone. Mr. Mandalawi can be seen backing up as the police advanced. As he came to the point where the line of officers were closing in from the south, he went to his knees and extended his arms backwards and was taken into custody without incident. The footage in relation to Mr. Deboer’s arrest is captured at the same time on this exhibit.

[25] The Crown submits that the conduct of Mr. Deboer is distinguishable and mitigating as it relates to Mr. Mandalawi. Further, that he occupied the median more than the road. The defence submits that Mr. Deboer holds a lesser degree of blameworthiness because he was not responsible for the initial stoppage of traffic and his role at the end of this event is mitigating or at least diminished from that of the earlier protesters.

[26] I disagree with the submissions offered by the parties. I do not find the conduct of Mr. Deboer to be lesser than that of Mr. Mandalawi. To the contrary, I find his conduct to be aggravating as it relates to his two (2) hour travel to Windsor to participate in the lawlessness that was taking place and his defiance toward the police on his arrest. At the very least, I find him as culpable as Mr. Mandalawi and the other protesters that occupied the barricaded portion of Huron Church on February 13, 2022.

[27] Parity is important to consider where multiple offenders commit the same offence together. [3] The appearance of unfairness is present where two people that commit the same crime receive different sentences.

[28] When offenders are involved in a group or gang-like crime, “it is inappropriate to draw fine distinctions between one member of a gang carryng out a co-ordinated activity in pursuit of the aims of the gang from another member of the gang engaged at the same time in roughly the same activity carrying out the aims of the gang.” [4]

[29] The Superior Court in R. v. Romlewski [5], a 2023 Ottawa protest case, addressed the “degree of participation that will result in criminal liability for the offence of mischief” in citing the Court of Appeal decision in R. v. Mammolita: [6]

“The Court of Appeal first discussed the fact that a person may be liable as a principal if he actually does or contributes to the doing of the actus reus with the requisite mens rea. It used the example that persons may be guilty as a principal of committing mischief if he forms part of a group which constitutes a human barricade or other obstruction. If he stands shoulder to shoulder with others to obstruct, this would constitute an obstruction and the court can infer that this was a wilful or reckless act if he did not remove himself from the group.”

“The court expands this by saying if a person knows of the existence of a strike and is confronted by law enforcement who are trying to clear a passage that "[t]he same conclusion could be drawn where a person is part of a group which was walking around in a circle blocking the roadway. Those who are standing on the fringe of the group blocking the roadway may similarly be principals if they are preventing the group blocking the roadway from being bypassed". (at pp. 89-90).” [7]

[30] I find the conduct of Mr. Deboer to be the same as the other participants in blocking the roadway. He acted as part of the group. In fact, having observed the failed attempts by the police to gain control of the protest on February 12, 2022, he took it upon himself to come to Windsor to further frustrate the police efforts to clear the roadway by bringing a sign and occupying the barricaded space right up to the point that the police had to take him to the ground. I do not agree with the submission that he bears less moral culpability than the particpants that attended earlier that day or earlier on in the blockade.

[31] Both Mr. Mandalawi and Mr. Deboer had no prior criminal history. Their backgouds suggest that they are both pro-social members of society but for the decisions they made on February 13, 2022. In fact, Mr. Mandalawi works in the States and has to frequently cross the border. A criminal record for him, in this Court’s view, was even more consequential but no less appropriate in the circumstances.

[32] I am not persuaded by the submissions of counsel that the parity principle does not apply in this case. I am mindful that parity cannot serve to establish a particular range of sentence for a particular offence, however, I find no unique circumstances or distinguishing characteristics on the part of Mr. Deboer in his conduct or circumstances to depart from this principle or its applicability to this case.

Recommended Disposition

[33] The parties recommend that the Court consider a conditional discharge as the appropriate sentence in the case of Mr. Deboer.

[34] I find that it is certainly in his interest to receive a conditional discharge.

[35] As to whether a conditional discharge is not contrary to the public interest requires some analysis.

[36] There is no question that the blockade caused significant disruption to this community requiring the assistance of other police forces and injunction orders to gain control over the mischief that took place over several days. The resulting impact of the blockade to the citizens of Windsor was tremendous and calls for a disposition consistent with the principles of denunciation and deterrence.

[37] There is little to be addressed in the way of rehabilitation. As was the case with Mr. Mandalawi, Mr. Deboer does not have a criminal history and the parties do not recommend a reporting period for counselling as one is not called for in the circumstance of Mr. Deboer. He gives back to his community and lives a pro-social life. I have not been advised of any circumstances that would call for counselling or any other programming on his part.

[38] Counsel reminds the Court that the fundamental principle of sentencing states that “a sentence must be proportionate to the gravity of the offence and the degree of responsiblity of the offender.” [8] Here I find that the gravity of the offence is high, as well as the degree of responsibility for Mr. Deboer.

[39] In taking the exceptional step in granting the injunction order on February 18, 2022, Chief Justice Marowetz made the following findings as it related to the events following February 11, 2022 and the impact on the community:

“ I find that the City has established a strong prima facie case, on a balance of probabilities, that the protesters have breached multiple municipal by-laws and that there is a risk they will continue to do so based on the following uncontroverted evidence:

(i) Between the February 11 Order coming into effect at 7:00 pm on February 11, 2022 and into Sunday, February 13, 2022, the protesters continued to breach multiple municipal by‑laws, as is evidenced by multiple tickets issued for by-law infractions including the need to have multiple vehicles towed from the roadways approaching the Bridge. Protesters also breached the February 11 Order, as is evidenced by multiple arrests of individuals for Criminal Code charges, including disobeying the February 11 Order. Further, I note that after the February 11 Order came into effect, the number of protesters obstructing the Bridge increased over the course of the evening and into the following evening. (ii) There is evidence of the protesters' expressed intent to continue their blockade despite the February 11 Order. (iii) There is evidence that the protesters plan to continue to protest on roadways approaching the Bridge. This includes the successful interception of a convoy of several transport trucks from Ottawa with the suspected intention of heading to Windsor, as well as police monitoring of social media which identifies calls for protesters to regroup, including messages of "it's not over," "we are not done" and "Civil war time." (iv) As a result of the continued threat of a new blockade, police continue to control traffic flow onto Huron Church Road to protect access to the Bridge. In other words, traffic in the area is not flowing normally due to the threat of further blockades.” [9]

[40] The Court found that irreparable harm was being done to the public interest in order to arrive at the exceptional remedy of injunctive relief. The Court was also concerned about the risk of protesters reasserting their presence:

“ I find that the City has established a strong prima facie case, on a balance of probabilities, that there has been a deliberate and continuing breach of municipal by-laws and the February 11 Order. I also find that there is a risk that protesters will reassert a presence on the roadways, thereby impeding or blocking access to the Bridge.” [10]

[41] Mr. Deboer’s actions in coming to Windsor to continue to destabilize the control over the blockade is specifically the risk to the public interest that the Court sought to mitigate in granting the order.

[42] The defence offered, in mitigation, the submission that Mr. Deboer acted in accordance with what he believed was right. Further, that he was mostly on the median and not the roadway. I cannot agree with this submission either.

[43] This type of submission was addressed in R. v. Romlewski citing the Court of Appeal in R. v. Drainville:

“It is true that the accused sat on the road obstructing it briefly, and that he had to be physically removed, though offering but what might be termed "passive resistance"; but this Court cannot assess the impact of such activity in a vacuum without regard for the overall, collective and cumulative effect of this activity, combined with similar activity on the part of a great many others, similarly minded!” [11]

[44] In assessing the public interest in the proposed resolution, I cannot ignore the cumulative effect of the actions of Mr. Deboer.

[45] I find that the resolution proposed here for a conditional discharge is contrary to the public interest and as a result is not a fit sentence in these circumstances.

Joint Submission

[46] Where the Crown and defence recommend a position on sentence to the Court, the joint recommendation is often followed, though the Court is not obliged to do so. [12]

[47] In R. v. Anthony-Cook, the Supreme Court of Canada held that a judge should accept a joint submission in most cases. [13] The Supreme Court set out the practical advantages of joint submissions noting that: “ It is an accepted and entirely desirable practice for Crown and defence counsel to agree to a joint submission on sentence in exchange for a plea of guilty. Agreements of this nature are commonplace and vitally important to the well-being of our criminal justice system, as well as our justice system at large.” [14]

[48] The Supreme Court went on to acknowledge that circumstances may arise where a joint submission may not be followed, for example, if the position on sentence is unduly lenient or unduly harsh. In such circumstances, trial judges are not obliged to go along with the joint submission. [15]

[49] The Supreme Court set a high threshold for rejecting a joint submission, directing that “ a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest.” [16]

[50] Counsel for Mr. Deboer reminds the Court of this authority in submitting that Crown counsel and defence are uniquely suited to arrive at a joint submission that “reflects the interests of the public and the accused.” [17] Certainty in the result is a significant factor in an accused making the decision to give up the right to a trial and enter a plea of guilt.

[51] However, the Supreme Court also recognized that “a certainty of outcome is not the ultimate goal of the sentencing process. Certainty must yield where the harm caused by accepting the joint submission is beyond the value gained by promoting certainty of result.” [18]

[52] It is noteworty that the Supreme Court’s direction regarding joint submissions was made in the context of guilty plea and the importance of certainty in that context. Where the accused elects to proceed to trial, as is the case before this Court, the circumstances are different and courts have more latitude to depart from a joint submission. [19]

Discussion

[53] I will not repeat my earlier findings of the gravity of the circumstances before the Court except to say that I find that the gravity of this offence and the impact on this community warrants further review of the joint submission.

[54] In the circumstances of Mr. Deboer, his plea came after evidence was adduced at trial. There was limited, if any, savings to court resources as this decision comes on the final day of what would have been his trial.

[55] The drone footage was clear and caputured most if not all of his conduct at the blockade right up to and including his arrest. I find that this was a strong Crown case and little was gained to the administration of justice by the mid-trial plea of Mr. Deboer.

[56] Counsel for Mr. Deboer offers the Court of Appeal case of R. v. Harasuik [20] in support of the submission that the joint submission must be followed in this case. In that case the Crown highlighted significant factors in support of that joint submission at paragraph 15:

“The Crown also made forceful submissions in support of the joint submisson, reminding the sentencing judge of the high threshold for departing from a joint submisson, as discussed in Anthony-Cook. He stressed that the appellant’s omnibus plea dispensed with the need to conduct three separate trials. The Crown further advised the sentencing judge that the victim’s injuries in the third incident were not as serious as they may have seemed at the time of the plea, when it was implied that she had stab or puncture wounds. In fact, the victim suffered an eight centimetre abrasion. The Crown said that this was a factor that was taken into consideration in forming the joint submisson.”

[57] I find the factors in the R. v. Harasuik case are distinguishable from the case at bar for a couple of reasons:

(1) Mr. Deboer did not plea in advance of trial; (2) There were no savings of judicial resources by the collapsing of multiple other trials, or any trias for that matter; and (3) The Crown case did not diminish in seriousness or strength with the passage of time or development of new evidence.

[58] Notwithstanding that Mr. Deboer’s plea came mid-trial, it is still a statutorily recognized demonstration of remorse. However, other than the late plea I do not find that that there is any real insight on the part of Mr. Deboer into his conduct.

[59] Chief Justice Morawetz found that the protesters committed “clear breaches” of the City by-laws and was concerned with the risk of continued breaches of the by-laws and his February 11, 2022 injunction. [21]

[60] In finding that the City met their burden for permanent injunctive relief, Chief Justice Morawetz made commentary on the public interest stating: “ Indeed, it is in the public interest that a permanent injunction be granted particularly where there has been a persistent and deliberate flouting of the law.” [22]

[61] The aggravating circumstances for Mr. Deboer include a series of choices leading to a departure from his long history of otherwise lawful and pro-social conduct:

(1) He chose to drive from London on February 12, 2022, with a plan to exacerbate the difficulties that law enforcement were facing in Windsor with trying to gain control of the blockade, in order to open access to one of the largest, if not the largest, land conduit for commercial transport in this country; (2) He paraded a sign that read “police stand down” in an effort to further incite the flouting of the law that was taking place; and (3) His conduct was brazen and defiant. Even at the point where others knew it was time to yield to the authority of the police, he failed to do so.

[62] Counsel submits to this Court that Mr. Deboer was protesting “something that he felt was wrong and that his actions fell on the wrong side of the law.” Chief Justice Morawetz addressed freedom of expression in this protest as it relates to the impact on the affected community:

"Simply put, freedom of expression does not extend to the point that the protesters' activities can result in the denial of fundamental rights and freedoms to all those detrimentally affected by the blockade." [23]

[63] For the foregoing reasons, I find that the joint submission proposed is contrary to the public interest and that the sentence proposed would bring the administration of justice into disrepute.

Conclusion

[64] In rejecting the conditional discharge, this Court is mindful of the fact that there would be little for Mr. Deboer to do to earn the discharge. This is not a matter where counselling is either sought or appropriate.

[65] Clearly the focus of the sentencing here is to denounce the conduct of Mr. Deboer and deter like-minded individuals from engaging in such conduct.

[66] I agree with counsel that this is one of those circumstances where little would be gained by a lengthy reporting probation order. The terms sought by the parties serve to ensure the public peace is kept and are appropriate in the context of this case.

Mr. Deboer Please Stand

[67] I will suspend the passage of sentence and place you on probation for a period of 12 months with the following terms:

(1) Keep the peace and be of good behaviour: (2) Appear before the Court when required to do so by the Court: (3) Notify the Court or probation officer in advance of any change of name or address and promptly notify the Court or the probation officer of any change in employment or occupation; (4) Report to your probation officer within 2 working days or today’s date and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision; (5) Your reporting requirement ends when you have satisfied your probation officer that you have completed all of your community service hours; (6) Perform 20 hours of community service work at a rate and schedule to be directed by the probation officer but must be completed within 12 months of the start date to this order; and (7) Do not impede or block access to any international border crossing in Canada or any direct or indirect approaching roadways and access points.

[68] I invite counsel to make submissons on any additional terms or ancillary orders.

Released: November 17, 2023 (Original Signed by Justice C. Uwagboe) Signed: Justice C. Uwagboe

[1] Windsor (City) v. Persons Unknown, [2022] O.J. No. 864 at para 47 [2] Criminal Code of Canada, R.S.C. 1985, C-46. Section 718.2(b) [3] R. v. Mahoney, 2018 NLCA 16 at para 26, citing R. v. Terry, 2015 NLCA 23 at para 7 [4] R. v. Miloszewski (appeals by LEN and Synderek), [2001] BCJ No 2765, 2001 BCCA 745, 52 WCB (2d) 315, 162 BCAC 57, [2001] BCJ No 2765 at para 19 [5] R. v. Romlewski, [2023] OJ No 4774 [6] R. v. Mammolita (1983), 9 C.C.C. (3d) 85 (Ont. C.A.) at paras 89-90 [7] R. v. Romlewski, [2023] OJ No 4774 at paras 91-92 [8] Criminal Code of Canada, R.S.C. 1985, C-46. Section 718.1 [9] Windsor (City) v. Persons Unknown, [2022] O.J. No. 864 at para 47 [10] Ibid, at paras 49 and 52 [11] R. v. Romlewski, [2023] OJ No 4774. at para 114. citing R. v. Drainville (1991), 5 C.R. (4th) 38 (Ont. C.J.) at para 13 [12] Criminal Code of Canada, R.S.C. 1985, C-46. Section 606(1.1)(b)(iii) [13] R. v. Anthony-Cook, 2016 SCC 43 [14] Ibid, at para 25 [15] Ibid [16] Ibid, at para 32 [17] Ibid, at para 44 [18] Ibid, at para 43 citing R. v. DeSousa, 2012 ONCA 254, 109 O.R. (3d) 792, per Doherty J.A., at para. 22 [19] R. v. Nelson, 2018 BCCA 161 at para 9 R. v. O'Quinn, 2017 NLCA 10 at para 68 [20] R. v. Harasuik, 2023 ONCA 594 [21] Windsor (City) v. Persons Unknown, [2022] O.J. No. 864 at para 65 [22] Ibid, at para 66 [23] Ibid, at para 68