COURT FILE NO.: 22-15544-BR
DATE: 2022/09/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Patrick James King
Applicant
Moiz Karimjee, for the Crown
Kathleen M. Kealey and Natasha J. Calvinho, for the Applicant
HEARD: July 14, 15, 2022, oral decision given July 18, 2022
Publication is banned pursuant to s. 517(1) and 520(9) of the Criminal Code with respect to the evidence of the offences alleged against the Applicant. Counsel may circulate these reasons, use them in court, and they may be published in Westlaw and similar legal publishing services.
ruling on bail review application
Anne london-weinstein j.
[1] There is a publication ban on the evidence and the reasons for the decision in this matter. This publication ban was sought by the defence. It was granted as it is mandatory whenever the defence asks for a publication ban at a bail proceeding. The defence requested that this matter be conducted “in camera” which would exclude the public completely. This request was based on the fact that persons unknown continued to broadcast and stream the hearing, despite repeated warnings not to do so. While I understand the need to protect a future jury from hearing inadmissible evidence, in my view given the nature of this case and the open court principle, it is not in the interests of justice to close this hearing to the public. Justice must be seen to be done.
Background:
[2] Mr. King is charged with ten Criminal Code, R.S.C. 1985, c. C-46, offences related to his role as a leader of the Freedom Convoy 2022 in Ottawa.[^1]
[3] It is alleged that Mr. King, along with others, led the blockade of the downtown core of the City of Ottawa streets for a three-week period, beginning on January 28, 2022. Sheer havoc and unremitting chaos ensued as a result. Mr. Barber, one of the alleged leaders of the Freedom Convoy 2022, is on bail.
[4] Tamara Lich, one of the Freedom Convoy 2022 reputed leaders, was granted bail on review and was recently charged with breaching the terms of her release and returned to custody.
[5] Large trucks and tractor-trailers blocked the streets. Blaring truck horns caused significant harm to the people living in the downtown neighbourhoods adjacent to the Parliamentary precinct where many of the protesters were gathered.
[6] Ottawa Police reported that they received more than 600 complaints in the first week alone, including excessive noise complaints. Individuals complained of being assaulted by some protesters. Some protestors harassed individuals and threatened those wearing masks or those who asked them to wear masks when entering local businesses.
[7] The impact on the City of Ottawa was significant. Public services such as Ottawa City Hall and Service Ontario, two city library branches, and a pair of childcare centres were closed. Public schools close to the demonstration area had to switch to online learning. The Rideau Centre Shopping Centre, along with 90 other businesses, had to close their businesses as a direct result of the blockade. These businesses had already been negatively impacted by diminished profits due to the economic impact of COVID-19.
[8] Employees were unable to work. Public transit had to be rerouted to avoid the downtown core. The constant barrage of noise was terrible to endure.
[9] Despite many pleas by the city, provincial and federal governments and the Ottawa Police, the protesters dug in and refused to leave. This incident is unique in Canadian history. A state of emergency was declared twice, and the federal Emergencies Act, R.S.C. 1985, c. 22 (4th Supp.), was invoked for the first time ever in Canada.
[10] The Mayor of Ottawa declared a state of emergency on February 6, 2022 in response to the continuing impact of the occupation.
[11] On February 7, 2022, Justice McLean issued an injunction restraining any person from using air or truck horns, with certain limitations, in the area of the demonstration.
[12] Ottawa Police issued a press release advising demonstrators that they may be committing a criminal offence and to cease the unlawful activity.
[13] On February 11, 2022, the Premier of Ontario made a declaration of emergency under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9.
[14] On February 14, 2022, Prime Minister Trudeau invoked the Emergencies Act. There was evidence provided by the Crown alleging that the occupations were planned well in advance and designed to cause serious disruption of the city’s day-to-day functioning.
[15] Thousands of people were negatively impacted by the conduct of the protestors.
[16] Mr. King laughed in a video which was provided by the Crown, saying, “These people didn’t sleep for 10 days. It’s kind of funny, I’m not going to lie, it’s hilarious”.
[17] There were videos played by the Crown that depicted Mr. King encouraging persons participating in the demonstration to lie to police as to why they were entering the downtown area. There was also a video encouraging demonstrators to not leave the downtown or residential areas no matter what police or government asked them. People were encouraged to disregard court orders.
[18] Mr. King was detained on February 18, 2022 by Justice of the Peace Andrew Seymour on the secondary and tertiary grounds.
[19] Mr. King brought a bail review before Justice Graeme Mew on April 13, 2022. That bail review was aborted, and Mr. King was charged with three counts of perjury as a result of testimony provided during that bail review.
[20] Mr. King seeks bail on the perjury charges and argues that a material change of circumstances warrants that this court conduct a fresh review to determine whether he should remain in custody or be released on the charges arising from his alleged involvement in the Freedom Convoy 2022.
[21] To say that the documentation provided to the court in this matter was voluminous is an understatement. The file consisted of hundreds of pages of documentation. Audio and video files were provided by the Crown including various social media samplings of Mr. King, a lengthy statement to Sgt. Pascal Labine by Mr. King, and a lengthy interview between Mr. Martin and Mr. Karimjee with Det. Benson present. I reviewed all of the material provided by both the defence and the crown.
[22] However, I shall only refer to the evidence which is most relevant to the issues which I must decide. To refer to all of the evidence would unduly lengthen these already lengthy reasons to an unacceptable degree.
[23] The defence proposes four sureties, who all testified in these proceedings. A total social media ban is suggested as well as a curfew between 10:00 p.m. and 6:00 a.m. A condition banning any contact with others in the Freedom Convoy 2022 is also suggested. The plan contemplates Mr. King being supervised by a surety prior to his immediate departure to Alberta and by different sureties when he is in Alberta.
[24] The proposed sureties are Kavan Cheff-Burns, his mother Lynne Cheff, Andrew Dier, and Randy Martin.
[25] The defence argues that there has been a material change in the circumstances from those which caused Justice of the Peace Seymour to detain Mr. King at first instance. The changes include the passage of time and the fact that the convoy has been evicted from the city for five months at this point, the addition of four sureties who are more familiar with Mr. King than the original proposed surety, and the fact that the convoy is no longer occupying Ottawa.
[26] The crown takes the position that there has been no material change of circumstances and further that Mr. King cannot be counted upon to follow orders, nor can his testimony be relied upon as he is not only charged with perjury as a result of his first bail review, but also was deceptive in his evidence in the proceedings before me. The crown points to the fact that even on Canada Day, the impact of the Freedom Convoy 2022 is still being felt. The crown argues that these sureties do not know the real Pat King as they were not familiar with many of his online postings, or they glossed or excused the more offensive aspects of some of those postings.
[27] The reviewing judge does not have the power to interfere with the original decision simply because he or she would have weighed the relevant factors differently. Where new evidence is submitted by the accused, or the prosecutor as permitted by s. 520 and s. 521 of the Criminal Code, the reviewing judge may vary the initial decision if that evidence shows a material change in the circumstance of the case: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 121.
[28] The test for the introduction of new evidence in a bail context where the new evidence constitutes a material change in circumstances is set out in the case of Palmer v. The Queen, [1980] 1 S.C.R. 759.
[29] The four Palmer criteria are:
The evidence should generally not be admitted if by due diligence, it could have been adduced at trial;
The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
The evidence must be credible in the sense that it is reasonably capable of belief, and
It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[30] In the context of a bail review, this fourth Palmer criteria is modified as “the fresh evidence” must be such that it is reasonable to think, having regard to all of the circumstances, that it could have affected the balancing exercise engaged in by the justice under s. 515(10)(c) of the Criminal Code.
The Original Plan:
Secondary grounds:
[31] Justice of the Peace Seymour detained Mr. King on the secondary grounds, finding that there was a substantial likelihood that Mr. King would commit additional criminal offences or interfere with the administration of justice, endangering the public if released.
[32] Justice of the Peace Seymour’s reasons for detaining Mr. King on the secondary grounds included the unsuitability of the proposed surety. The original proposed surety did not know Mr. King well. She came with him to the convoy in Ottawa. She lacked the ability to supervise him. She had known him for only four weeks prior to his arrest.
[33] The court also found that given Mr. King’s criminal background, and because there was no evidence at that time that Mr. King would discontinue involvement in convoy-related activity, that Mr. King must be detained on the secondary grounds.
Tertiary grounds:
[34] The court also detained Mr. King on the tertiary ground. The tertiary ground mandates that an accused may be detained if the detention is necessary in order to maintain confidence in the administration of justice having regard to all the circumstances including: the apparent strength of the Crown’s case, the gravity of the offence, the circumstances of the commission of the offence, including whether a firearm was used, and the fact the accused is liable on conviction for a lengthy period of incarceration.
[35] Justice of the Peace Seymour found the Crown’s case to be overwhelming. In terms of the objective gravity of the offence, he noted the charge of mischief carries a two-year maximum sentence. The offences of counselling an uncommitted indictable offence carry the same maximum penalty as that for the offence that was allegedly counselled. To counsel mischief carries a maximum penalty of two years. Counselling obstruct police carries a maximum sentence of two years and counselling to disobey court orders carries a maximum sentence of two years. The court concluded that a two-year sentence is on the lower end of the scale of objective gravity, being on the cusp between an upper reformatory term and a penitentiary sentence, comparatively low to other offences in the Criminal Code.
[36] The court found that Mr. King may be liable to a lengthy period of incarceration if convicted given the scope of the harm caused by Freedom Convoy 2022, and Mr. King’s alleged leadership role. In terms of the circumstances of the offence, the court found the allegations to be extremely serious, involving the takeover of the downtown core of the City of Ottawa.
[37] Mr. King also made highly disturbing statements in a video regarding Prime Minister Trudeau. “Trudeau, someone is going to make you catch a bullet some day,” he said. “The only way this is going to be solved is with bullets, and yeah, I said it. That’s the only way something is going to happen. A massive revolution on a huge scale.” These comments are relevant to the public perception of the administration of justice if Mr. King were to be released.
[38] The court noted that the convoy activity was premeditated, prolonged, and involved a sophisticated and high degree of planning. Convoy protests continued despite repeated attempts to make it stop. Mr. King was an alleged organizer of the demonstration. He is accused of using his vast social media presence to release videos directing his followers to hold the line, not to leave Ottawa or the residential areas. The occupation continued even as local and provincial governments declared states of emergency and the federal government invoked the Emergencies Act for the first time. Justice of the Peace Seymour found that downtown streets descended into lawlessness. Thousands of Ottawa residents, including the vulnerable, such as the homeless, children, the elderly and individuals who depended on their employment downtown to earn an income, were all negatively impacted in a significant way. People were fearful to leave their homes. The offences were an attack on the rule of law. The court described the offences as extraordinarily serious and unprecedented.
[39] Justice of the Peace Seymour recognized that a strong plan of bail may also be relevant to public confidence in the administration of justice as a reasonable and knowledgeable member of the community may take a different view of a case in which an accused person charged with a serious offence is released into the community with no, or poor supervision compared to a situation where a strict plan has been put into place to monitor the accused: R. v. Dang, 2015 ONSC 4254, 21 C.R. (7th) 85. However, given the significant frailties in relation to the surety proposed in Mr. King’s bail plan, the court found that the proposed plan of bail did not mitigate the concerns under the tertiary ground. Further, the court was troubled by the fact that Mr. King was not proposing to put up any pledge, which placed no financial risk upon him if he were to breach his conditions of release.
[40] In St-Cloud, the court indicated at para. 88, “[i]n conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered.” Justice of the Peace Seymour found that this was the case in the original hearing. Mr. King was detained on both the secondary and tertiary ground.
Current Plan:
Is there a material change in circumstances?
[41] Justice of the Peace Seymour dealt with Mr. King in the immediate aftermath of Mr. King’s arrest. Mr. King has now been in custody for five months, since his arrest on February 18, 2022. Mr. King indicates that he will follow any and all conditions imposed by the court and will not do anything to risk going back to jail for a breach of the release order.
[42] This is the evidence of an expressed willingness to desist in Freedom Convoy 2022 type activity, which was missing at the original bail hearing. The question is whether the court can accept Mr. King’s evidence when he says he will not risk returning to jail. The crown points out, quite correctly, that past behaviour is the best predictor of future behaviour. The crown alleges that Mr. King’s evidence has been inconsistent in the past, and in this hearing before me. The crown points to several unlikely claims Mr. King has made online, which suggest a penchant for exaggeration or outright dishonesty. The Crown argues I cannot trust Mr. King’s word, and no plan of bail will address the secondary ground concerns if the subject of the plan cannot be trusted to adhere to its strictures.
[43] I accept that Mr. King’s evidence was at times inconsistent before me, I am inclined however, to accept Mr. King’s evidence that he will now follow court orders and desist from Freedom Convoy 2022 related activities absolutely if placed on judicial release. My reasons for accepting that Mr. King will desist from convoy-related activities and follow court orders while on release are as follows:
Mr. King has been separated from his children for the five months he has been in custody. He missed his son’s high school graduation. His son is leaving Canada to study aeronautics overseas. Mr. King has been unable to provide for his children while in custody. He wept in the witness box when discussing his separation from his children. I was sitting quite close to Mr. King and could observe him when he testified. I am aware that demeanour evidence can be misleading and too much weight should not be attached to demeanour evidence, but in my view, Mr. King was expressing sincere anguish at the pain of being separated from his children. Mr. Martin indicated in his statement to Mr. Karimjee that he met Mr. King and his son when Mr. King took his son, who was then about eight years old, on a motorcycle trip. This would suggest that Mr. King is close to his children. In his interview with Sgt. Labine, Mr. King referenced how much he missed his children at that point. He also made reference to missing his children in his ill-conceived interview with Pastor Pawlowski.
Mr. King has health issues, which despite the best efforts of the medical team at the Ottawa Carleton Detention Centre, have made his five months in custody more acutely painful than that same time would be for someone without his physical challenges. Mr. King has a prosthesis. Abscesses have developed on his residual limb. The abscesses have become repeatedly re-infected. Mr. King had difficulty maintaining personal hygiene until a chair could be provided to him for the shower.
In June of 2022, for example, a medical note indicates that the residual limb had reopened and was again infected due to constant friction with the prosthesis which no longer fits Mr. King. He has gained 40 pounds while in custody and requires Suboxone due to dependence on pain medication. He suffers from insomnia as a result of an accident where he also broke his back, in addition to having a prosthesis.
In one medical note from OCDC, Mr. King expresses alarm at the state of his infected residual limb and expressed fear he will need to be hospitalized.
These hardships experienced by Mr. King in custody for the last five months have, I believe, driven home to him the benefits of liberty. In my view, the hardships he has experienced in custody and the fact that he is separated from his sons, have had a salutary impact on his willingness to follow court orders and to desist from engaging in convoy-related activities which will land him immediately back in jail given the high-profile nature of his case, and the level of scrutiny he will be under.
[44] This evidence was not available at the time of his initial hearing, nor could it be, as his time in custody had not yet transpired. It could not have been admitted by due diligence. Secondly, the evidence is relevant, as Justice of the Peace Seymour found that a lack of evidence that Mr. King would desist from convoy-related activities was relevant to the secondary ground analysis. The evidence of Mr. King’s state of mind as a result of his experience in custody relates directly to those concerns expressed by the court. Despite some of the potential credibility issues with Mr. King’s evidence, I found that this evidence was reasonably capable of belief. Jail is a challenging environment, even for those without health challenges. There is medical documentation supporting the infections and struggles with his prosthesis in custody. Further, I find Mr. King’s expressed sorrow at being separated from his children to be capable of belief. The man is a father who I accept loves his children and misses them. This love for his children provides him with motivation to avoid jail by following court orders. There is credible evidence before me that he loves his sons and is close to them. The evidence is such that if believed could reasonably, when taken with the other evidence, be expected to have impacted the initial balancing engaged in by the justice of the peace.
The new sureties:
[45] Justice of the Peace Seymour also found that the proposed surety in the first bail hearing would not be someone who could properly supervise Mr. King. The new bail plan provides people who know Mr. King well and for much longer than the first surety did. I found that Ms. Lynn Cheff, was a strong surety who has known Mr. King for over three years and who also has a connection to him as her daughter is his girlfriend. Ms. Cheff is 62 years old and retired. The plan which I have found would best address the secondary ground concerns involves Mr. King living with Ms. Cheff. Mr. Randy Martin, age 54, was also proposed as a surety. He is offering employment to Mr. King. Mr. Martin allowed himself to be interviewed not only by the Crown prosecutor, but with Det. Benson present. Det. Benson is a highly experienced homicide investigator. The interview was highly probing. Mr. Martin was extremely candid. He has also known Mr. King for about three and a half years, although he admitted he did not know him intimately. Mr. Andrew Dier is willing to guarantee that he will take custody of Mr. King and get him on a plane to Alberta if he is released. I did not find that the addition of Mr. Kavan Cheff-Burns as a surety would be appropriate for reasons which I will explain.
[46] The Crown raises concerns regarding the proposed sureties. The Crown argues that none of these sureties know Mr. King sufficiently well to properly supervise him and cannot be relied on to act as jailers in the community for Mr. King.
[47] In the case of Mr. Dier, there is a concern that his own involvement as a Cornwall road boss in the Freedom Convoy 2022 and his views regarding vaccine mandates and Freedom 2022 would prevent him from acting as an appropriate surety. I considered this factor.
[48] Mr. Dier was not charged in this matter. His role will be to get Mr. King out of Ottawa when released and facilitate his attendance for trial. I asked Mr. Dier specifically if he would follow whatever terms I impose, despite his personal beliefs about vaccine mandates, and the Freedom Convoy 2022. I was concerned that Mr. Dier made a social media post depicting Ottawa Police arresting persons who refused to disperse with the caption “The new SS”. In my view, the Ottawa Police Service did an admirable job when they moved protestors from the street without anyone experiencing serious injury. Mr. Dier holds a different view of things. While I do not agree with Mr. Dier’s opinion, and I find the reference to the SS troubling, Mr. Dier is entitled to freedom of thought and expression. What is relevant to this proceeding is not what Mr. Dier thinks, or how he expresses his opinion, but whether I can be confident that he will make sure Mr. King follows the terms of bail imposed, setting aside his own feelings. He testified before this court that he would do so. His evidence on that issue was uncontradicted and I accepted his evidence that he would make sure Mr. King follows whatever terms which are imposed.
[49] This new evidence is relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial, in this case sureties who have closer ties to Mr. King than the original surety. These sureties are mature persons able to supervise him. The shortcomings in the original surety were that the proposed surety did not know him well, had not known him long, and he was unlikely to follow her dictates. I found the evidence of the new sureties is credible in the sense that it is reasonably capable of belief and if believed it could reasonably, when taken with the other evidence, be expected to have impacted the original weighing engaged in by the justice.
[50] Even with due diligence, I do not believe this evidence would have been available at the original bail hearing. Ms. Cheff has moved to Alberta. Living out of the province of Ontario is a critical part of the plan.
[51] Having found that there was a material change in circumstances, that is Mr. King’s experiences in jail and how that has impacted his state of mind, and the addition of new and improved sureties to the plan of bail, I conducted a hearing to determine whether Mr. King should remain in custody. I note that the new plan has Mr. King making a cash deposit of $25,000, which was also missing from the original plan and which was noted missing by that court. I considered not only all of the evidence which was before Justice of the Peace Seymour, but also, all of the evidence which was presented in this hearing before me.
[52] The primary grounds are not a concern. There is no issue that Mr. King will return to court when required and will not flee the jurisdiction.
Secondary ground concerns:
[53] In regard to the secondary grounds, the test is whether there is a substantial likelihood that Mr. King will commit additional criminal offences or interfere with the administration of justice if released on the proposed plan of bail thereby endangering the public.
[54] There are a number of relevant factors to consider in regard to the secondary ground concerns in this case:
Mr. King has a criminal record. However, his record is very dated. The last entry on his record is in 1999, some 23 years ago. That conviction is for possession of property obtained by crime under $5,000. Mr. King was given a sentence of a $400 fine, in default of which he would have to serve 8 days in custody.
In 1997, he was convicted of possession of property obtained by crime under $5,000, possession of property obtained by crime under $5,000, and possession of a narcotic contrary to s. 3(1) of the Narcotic Control Act. That act has since been replaced by the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Mr. King received a fine of $250, $200, and $50 respectively for these convictions.
In 1996, he was convicted of possession of property obtained by crime for which he received a sentence of 15 days in custody and seven days pre-sentence custody. He was also convicted of possession of a narcotic contrary to s. 3(1) of the Narcotic Control Act for which he served a 15-day sentence concurrent to the 15-day sentence for the possession of property obtained by crime sentence.
The remainder of the entries were incurred when he was a youth. They include an entry for possession of a narcotic contrary to s. 3(1) of the Narcotic Control Act, for which he received a fine of $150 dollars and 48 hours of community service.
In 1995, there are entries for theft of a credit card, failing to comply with a disposition contrary to s. 26 of what was then the Young Offenders Act, mischief under $1,000, and failing to appear. He received a disposition of 90 days open custody and probation of 12 months, and 90 days open custody and probation of 12 months on each charge concurrent along with 30 days open custody concurrent and probation for 12 months concurrent.
In 1994, he was found guilty of theft under $1,000 and fail to comply with disposition contrary to s. 26 of the Young Offenders Act for which he received two months open custody on each charge concurrent.
In 1994, he was found guilty of failing to comply with disposition contrary to s. 26 of the Young Offenders Act for which six months of probation as imposed.
In 1993, he was found guilty of possession of property obtained by crime and received probation of 12 months.
Criminal Record:
[55] Mr. King’s criminal record is relevant to the secondary ground concerns. The entries for failing to comply with court orders is relevant to the issue of whether he will follow court orders. However, this factor is attenuated by the fact that the failing to comply with court orders happened long ago, and Mr. King was a youth at the time. I did not attach much weight to Mr. King’s criminal record on the secondary grounds. Mr. King was also charged with uttering threats in the context of a domestic dispute with his wife after his divorce. He was married for 17 years. He was not charged with breaching the terms of the peace bond which was imposed. Those charges were withdrawn and the peace bond expired. However, there is an allegation that Mr. King did not adhere to the no weapons condition of his undertaking to an officer term by coming into possession of a firearm within days of entering into the undertaking provided to him by Cst. Alex Scarizzi. Mr. King’s evidence about this incident gave rise to charges of perjury.
[56] While Mr. King is presumed innocent of the perjury charge, the evidence that he may have come into possession of a firearm when prohibited from doing so in 2016 is credible and trustworthy and I considered it, along with the rest of the evidence, in determining whether there was a substantial likelihood that Mr. King would commit additional criminal offences or interfere with the administration of justice while on release.
Nature of the Offences:
[57] The persistent nature of the offences in face of the many attempts by authorities to persuade the convoy to leave tends to suggest that the secondary grounds are a strong concern for any plan of bail. I say that recognizing that Mr. King is presumed innocent. However, there were repeated calls for the convoy to leave. The evidence is overwhelming that they would not leave. Mr. King is alleged to have egged on convoy members after the first injunction on February 7.
Canada Day Interview with Pastor Artur Pawlowski:
[58] Mr. Pawlowski is currently charged with numerous offences, including his involvement with the Coutts Border Blockade in Alberta. The conversation he recorded with Mr. King was publicly broadcasted via YouTube. Shortly afterwards, protesters on Wellington Street began chanting “Free Pat King” and painted the road with the same message.
[59] Mr. King said he did not know that the Pastor Pawlowski planned to post the interview on YouTube. However, when asked by the pastor what message he had for Canada he said, and I paraphrase, “My message is stay true to your heart and who you are if you believe it and are close to almighty nothing can take you down. Always stand up for the little guy. Who bullies the bully? Got to think about that one. We have been bullied enough by federal government and was time we decided to take a stand and bully the bully back. I believe it worked wholeheartedly. Every mandate has been lifted. Of course, they make it seem like their idea when we know darn well what created this spark to drop mandates now you don’t even hear covid. All we did and my case you will see in the right place at right time in history and a mass awakening across the world when they find out what happened with my case. I firmly believe everything is going to get dropped. ’
[60] He said if you see a trucker buy him a coffee or lunch and thank them for what they did in February in Ottawa.
[61] In the interview, Mr. King complained about the price of his lawyers. He asked for prayer. He spoke of missing his children terribly.
[62] It was unfortunate that Mr. King chose to provide this interview to this pastor. I am not satisfied that he was aware the conversation was going to be broadcast on YouTube. However, he was certainly aware that he was being asked to pass on a message to others. He referred to the mandates as being in the past tense. Mr. King was not on conditions of bail at the time, prohibiting him from discussing Freedom 2022 on social media. However, granting an interview to Pastor Pawlowski on the eve of his bail review and bail hearing demonstrated poor judgment on his part. The proposed plan will have sureties to supervise Mr. King while on release. However, his failure to exercise good judgment in this instance was a factor that I considered in reference to his ability to follow court orders on release, which is a key portion of the secondary ground analysis.
Strength of proposed plan of bail:
[63] I will begin the analysis of the strength of the proposed plan of bail by indicating that I did not find that Mr. Kavan Cheff-Burns would be a suitable surety for Mr. King, even in conjunction with the other, much stronger sureties. Mr. Kavan Cheff-Burns’ hours of work and absence from home for work at times does not provide an appropriate level of supervision. Mr. Cheff-Burns is also younger than Mr. King, and was present and intoxicated, and behaving in an obnoxious manner toward police during the Freedom Convoy 2022. I found that police treated him with a professional forbearance. He was intoxicated and demanding a ride to the hotel, throwing his belongings on the ground. In fairness to Mr. Cheff-Burns, on another day he was noted as polite with police officers. However, I found in all of the circumstances that he would not be a suitable surety for Mr. King.
[64] Mr. King said he would be devastated if any of the persons who offered themselves as sureties were to lose money as a result of his actions.
Ms. Lynn Cheff:
[65] Ms. Lynn Cheff testified by Zoom in this proceeding and proposed herself as a surety. Ms. Cheff is 61 years old and retired. She has moved to Alberta from her former home in North Bay, Ontario. Ms. Cheff is home the majority of the time and has no criminal record. Ms. Cheff’s daughter is Mr. King’s girlfriend. She has known Mr. King for at least three years, and she is a person who will be able to control Mr. King while he is on release.
[66] Ms. Cheff demonstrated that she understood her responsibility in supervising Mr. King. She is willing to have Mr. King live with her on a full-time basis while he is on release, although this was not the original plan proposed by the defence. Ms. Cheff proposed a $5,000 pledge, which was a significant amount of money for her. During her evidence before me, she agreed to raise that amount to $10,000.
[67] The Crown points out that Ms. Cheff was unperturbed by Mr. King’s more troubling comments, including the reference to the Prime Minister catching a bullet. Ms. Cheff said she had no concerns that Mr. King would act on these remarks which were made in anger at missing a flight for which he could not be reimbursed due to his vaccination status. Ms. Cheff did not seem to appreciate the risk that someone else may take Mr. King’s words to heart and act on them, given his wide following on social media.
[68] Ms. Cheff was not aware of the three charges of perjury, but having heard of them, she remained willing to continue to act as a supervisor.
[69] Despite her tendency to diminish Mr. King’s conduct, and her professed lack of knowledge of some of his social media posts, I was satisfied on a balance of probabilities that Ms. Cheff would be able to supervise Mr. King appropriately. Despite only having met Mr. King in person on a handful of occasions, she is the mother of his girlfriend and therefore has a familial connection which, along with her age, will permit her to exercise control over Mr. King. Despite her tendency to gloss Mr. King’s shortcomings in her cross-examination by the Crown, Ms. Cheff is someone who did not hesitate to report her own children to police. Her grandchildren are Mr. King’s stepchildren. I have confidence that she will enforce the terms of release enforced by the court.
Mr. Andrew Dier:
[70] The proposed plan of bail would see Mr. Dier of the Town of Williamstown in the Province of Ontario have Mr. King live with him until Mr. King can take the first available flight out of Ottawa to Edmonton. Mr. Dier is retired. Mr. Dier describes himself as a very good friend of Pat King.
[71] Mr. Dier testified in person in this bail review. He was involved as a road captain in the convoy in Cornwall. His social media content demonstrates an affinity for the ideals of the Freedom 2022 Convoy. His Facebook post pictured police grounding an individual involved in the convoy with the comment that the police were the new SS. I found this reference troubling as I indicated, and I completely disagree with Mr. Dier’s view of how police responded.
[72] Mr. Dier posted the interview with Pastor Pawlowski and Mr. King on his social media account. In his evidence before me he expressed regret for doing so. He was aware that Mr. King was previously addicted to alcohol and opiates and had been to rehab previously.
[73] Mr. Dier said he did not blame Mr. King for some of his more intemperate comments which were spoken in anger, including his remarks about the Prime Minister catching a bullet and police being shot.
[74] However, the issue which I had to determine was whether I could be satisfied on a balance of probabilities that Mr. Dier could set aside his personal feelings and enforce the conditions the court imposed. I accepted his evidence that he would. I also am of the view that he is aware that it is in Mr. King’s current interests that he not be found in breach of any of his conditions. Mr. Dier will be responsible for supervising Mr. King when Mr. King is in Ottawa, until he leaves for Edmonton. Mr. Dier will also act as a surety for Mr. King, who will reside with him, when Mr. King is in the city for his trial.
Mr. Randy Martin:
[75] Mr. Randy Martin also testified by Zoom in this proceeding. Mr. Martin is 54 years old and is a country western singer, a concert promoter, and an industry agent. He has flexible work hours and has known Mr. King for about three years. He lives in Alberta.
[76] Mr. Martin is alleged to be a witness in the perjury charges Mr. King is facing. In the normal course, having a witness to a criminal offence act as a surety may raise issues with respect to the integrity of the trial process, which would render the potential surety/witness unsuitable. However, on the facts of this case, I do not believe that it is in the interests of justice for Mr. Martin to be precluded from acting as a surety for Mr. King as there is little risk of damage to the Crown’s case on the perjury charge.
[77] The evidence has been preserved by recording and thus safeguarded for use at trial by the Crown. Mr. Martin consented to a recorded interview with Mr. Karimjee and Det. Benson. Mr. King’s comments before Justice Mew have also been recorded under oath. Further, given that I have found Mr. Martin to be a solid potential surety, a condition prohibiting Mr. Martin and Mr. King from discussing the perjury charge will, in my view, further safeguard the integrity of the evidence for use in Mr. King’s perjury trial.
[78] In short, I found Mr. Martin to be a straight shooter. He voluntarily agreed to a lengthy Zoom interview not just with Mr. Karimjee, but with Det. Benson present. Det Benson is a highly experienced homicide detective. The interview was extremely probing. Mr. Martin answered questions about all of his businesses past and present, a bankruptcy, how much equity he has in his house, about a roommate who died tragically, and why he maintains Prince Edward Island license plates on his car. Mr. Martin introduced his roommates on Zoom. He indicated that despite Mr. King’s shortcomings as a person, Mr. Martin believed he deserved a second chance and wanted to help him. He did not know about some of the comments Mr. King has made on social media, but when confronted with them, he indicated that he would still like to try and help Mr. King, although he did not condone what he said. He noted that Mr. King would be negatively impacting Mr. Martin’s business if he were to espouse those views. He was asked if he had been provided with $10,000 by Mr. King to act as a surety and whether he would be willing to provide his banking records for review. Mr. Martin indicated he would have no issue with allowing his banking records to be reviewed.
[79] I found Mr. Martin to be an extremely open and candid individual. He admitted that he did not grow up with Mr. King, and did not know him intimately, but felt he knew him well enough to act as his surety. He also asked the Crown and Det. Benson if it was true that he could just call the police and have Mr. King step into custody if the court conditions were not being followed. That question struck me as sincere on his part. In my view, the fact that Mr. Martin runs a successful business and has a somewhat arms length relationship with Mr. King is actually a strength on the facts of this particular case. I was left with no doubt, after watching the entire interview, that Mr. Martin would be able to supervise Mr. King, and that he would not permit any breaches. Mr. Martin has offered $10,000 as a pledge and has offered employment to Mr. King.
[80] I found the proposed plan of bail to be a strong plan of bail. Mr. King will not be in the Province of Ontario. He will be living with Ms. Cheff, who I have confidence will ensure that he follows the strict terms of release which are suggested. He will be supervised by Mr. Martin, who I found to be a very strong surety. I note that Mr. Martin appeared initially on Zoom in his bathrobe. This is not appropriate attire for a Superior Court appearance, even remotely. However, it was 8:00 a.m. in Alberta and Mr. Martin was testifying from his home. I did not interpret Mr. Martin’s attire to be a signal of disrespect to the court. Mr. Martin quickly changed into more appropriate attire, and I attached no weight to this incident.
[81] As indicated, I found Mr. Martin to be forthright and credible. I was satisfied that he will be able to act as a surety for Mr. King.
[82] There were a number of concerns which were raised by the Crown in relation to the secondary grounds. In my view, Mr. King’s change of attitude due to his time in jail and his separation from his children, has markedly lessened the risk that he will reoffend while on bail and risk being returned to prison. I also found that Ms. Cheff and Mr. Martin were strong sureties who would offer appropriate supervision while Mr. King is on bail. Mr. Dier has a much more limited role to play in this plan, but given his friendship with Mr. King, I accept that he has no desire to see Mr. King returned to jail, and that he will set aside his personal beliefs to perform his role as a surety within this plan. I found that all of these sureties are people who will be able to exercise control over Mr. King while on bail, despite not knowing him intimately. Ms. Cheff called the police on her own children. Mr. Martin asked if he could call police and return Mr. King to jail if he breached the terms of his bail. They are both mature individuals who know Mr. King, and having listened to all of their evidence, I am satisfied they are appropriate sureties who Mr. King will listen to while on bail.
Tertiary Grounds:
Strength of the Crown’s case:
[83] The Crown’s case is very strong. Much of the evidence against Mr. King he created himself online. To cite but one example out of many, Mr. King gave an interview where he said that “we are taking this to the senate to make sure it is all done and we are not leaving not just driving there and turning around and saying rah rah rah. No No No If Ottawa wants to shut down Ottawa with their huge overreach, shut down Ottawa. Want to get to work? Good luck, walk.” This factor favours detention.
[84] In a Draft Report on Chris Barber’s phone, there are text conversations between Mr. Barber and Ms. Lich. The messages sometimes include Mr. King.
[85] One of the text messages confirmed the group raised $1.3 million in one week, which speaks to the size and organization of the convoy. The texts also confirm that Chris Barber and Pat King were in regular contact with one another, and that Mr. King was involved in the protest planning.
Gravity of the Offences:
[86] In terms of the gravity of the offences, I agree with the analysis of Justice of the Peace Seymour regarding the maximum sentences for these ten offences.
Circumstances of the Offences:
[87] In terms of the circumstances of the offence, while charges of mischief are traditionally considered to be a less serious criminal offence on the spectrum of all criminal offences, the circumstances of this case distinguish this case from other, less serious cases of mischief. Businesses which had already been damaged by COVID were forced to shut their doors, thus suffering further economic harm.
[88] The turmoil which was inflicted on the downtown core is unprecedented. The harm caused to the residents of the downtown core was serious and persistent. One estimate of the cost of the protest to the City of Ottawa is $30 million according to CTV News. There was a deliberate breach of a court order for no honking.
[89] Further, police in riot gear had to be engaged to dislodge the convoy. Fortunately, no one was seriously injured, but that is due to the professional conduct of the OPS, along with police from other jurisdictions brought in to assist in clearing out the convoy members and not due to the conduct of the Freedom Convoy 2022 members. In my view, the circumstances of the offence favour detention.
[90] In terms of whether Mr. King may be liable for a lengthy period of incarceration, in my view, based on the particular facts of this case, he may be. While mischief is traditionally not an offence which attracts a lengthy period of incarceration, there are several aggravating factors present in this case which may elevate the sentence. The financial cost is estimated to be $30 million dollars. The incident has also had a lasting impact on the citizens of Ottawa.
[91] I accepted the evidence of Det. Chris Benson that 2022 was the smallest Canada Day crowd he had observed in over 20 years with the highest number of police in position to react to any possible occupation or unlawful protest/gathering that could have occurred. Det. Benson has worked almost every Canada Day in various capacities.
[92] Det. Benson observed some protesters on Canada Day who remained in the downtown area from an earlier protest march that had occurred earlier in that day. Det. Benson interacted with several individuals who were in the downtown area to celebrate Canada Day, who voiced displeasure at the small crowds and increased police presence due to the threat of illegal occupations and protests.
[93] Det. Benson observed that the crowd was significantly reduced both in the downtown area and the LeBreton Flats area. There was a significant increase in police presence in the downtown area and the LeBreton Flats area. Det. Benson indicated there was a significant increase in police presence in the downtown area to deal with possible issues from Freedom Fighter protestors. There were over 120 vehicles towed from the downtown area that had been parked in the no parking area (red zone).
[94] Mr. King also made several comments online which in my view are relevant to the public perception of the administration of justice if Mr. King is released. Social media posts by Mr. King stated variously:
Trudeau someone is going to make you catch a bullet one day. And the rest of this government, someone gonna fuckin’ do you in you sons of bitches. The only way this is going to be solved is with bullets.
It’s a massive revolution on a huge scale.
Mr. King also made an anti-Semitic comment, racist comments, and said that he was going to have a big gathering at his house and film it and cops will get shot.
When will a trial date be set?
[95] The Crown indicates that it has been ready for months to conduct a judicial pretrial so that a trial date can be set. A judicial pretrial scheduled for May 2022 was cancelled due to defence counsel’s unavailability. Defence counsel has indicated that they are unable to conduct a judicial pretrial until August 31, 2022. With respect to the perjury and obstruction of justice charges the parties had a judicial pretrial on June 17, 2022. The Crown is prepared to set dates.
Interview of Mr. King:
[96] Mr. King was interviewed on February 18, 2022 by Sgt. Labine and provided an inculpatory statement. He explained that he had fallen at work and broken his back and his leg at one point. Mr. King indicated that the end of the mandates was the greatest thing he has accomplished. Ending the mandates was the point of Freedom Convoy 2022. He denied the goal was to overthrow the government. He indicated he missed his children and wanted to be out of Ottawa.
[97] Mr. King pointed out that since the mandates were enacted in the last two years, suicide rates have gone through the roof, families have broken down, and businesses have been lost. He denied being an advocate for violence.
[98] The tertiary grounds favour detention. However, even where all four grounds favour detention, it is not automatic: see St-Cloud. As Justice of the Peace Seymour did, I have also considered the strength of this plan of bail in relation to public perception of the administration of justice on the tertiary ground.
[99] This is a strong plan of bail with a strict plan of supervision. I have also considered that while there are still pockets of resistance and protest which have arisen, in the main, the ongoing impact of Freedom Convoy 2022 has been greatly reduced. This is not to say that there do not remain residual impacts on Ottawa. However, the fevered resentment which some members of the public felt toward the Freedom Convoy 2022 participants has abated with the absence of the trucks, the passage of time, and the cooling of emotion.
[100] Further, when considering the views of the public regarding Mr. King’s release, it must be acknowledged that while the alleged criminal acts of the Freedom Convoy 2022 participants can never be approved of, Mr. King’s views of the pandemic mandates are views which are held by other Canadians.
[101] I wish to be clear that displeasure with government mandates does not in any way condone or excuse the criminal acts for which Mr. King is charged.
[102] However, when determining whether the public would lose confidence in the administration of justice if Mr. King is released, the court had to consider that there are many ordinary, reasonable, fair-minded members of society who did not agree with vaccine mandates and who greatly resented the imposition of rules regarding masking, vaccines, and family bubble protocols. Mr. King was not incorrect when he said in his interview with Sgt. Labine that people have committed suicide as a result of isolation due to the pandemic.
[103] The loneliness and isolation of the pandemic had a major negative impact on seniors in our community. High school students in the first year of the pandemic missed high school graduation entirely. The first important year at university was spent for some locked down in residence, or Zooming from home, with no chance to meet friends.
[104] Parents of young children had to somehow manage working from home while caring for their children at the same time with little outside support.
[105] Further, persons who suffer from addiction and rely on the fellowship of other addicts were unable to benefit from the fellowship of meeting physically together. Businesses went bankrupt and some families lost their entire livelihood.
[106] One does not have to have a wide circle of friends to encounter someone, an acquaintance, a friend, or a family member, who disagreed with vaccine mandates or who claim that the cure was worse than the virus, blaming government for the suffering brought on by the pandemic.
[107] It may be many years before the final toll is tallied in relation to what the pandemic measures cost us as a society. While criminal conduct must not be condoned, it is important that as a society we do not quash voices of dissent, or summarily dismiss those with whom we do not agree. That is why, while I disagree with Mr. Dier’s views completely regarding the conduct of the police, I did not dismiss him as a potential surety when he testified that he would set aside his beliefs for the purpose of acting as a surety.
[108] In assessing public perception of whether Mr. King’s release would cause a reasonable person to lose confidence in the administration of justice, I did not assume that the reasonable person was necessarily someone who favoured the mandates implemented by government. In my view, the public view of these issues is somewhat divided. However, a reasonable person could not approve of the Freedom Convoy 2022 participants breaking the law. And no reasonable, fair-minded person could approve of the human suffering which was inflicted on the residents of Ottawa by the presence of the Freedom 2022 Convoy and the blaring of truck horns.
[109] In relation to the Freedom Convoy 2022 charges, I find that for all of the factors discussed, Mr. King does not pose a substantial risk of reoffending if released on this plan of bail. Further, while the tertiary grounds do favour detention, this is one of those cases where detention is not warranted, despite the tertiary ground concerns. The strength of the bail plan, in my view, would also serve to inspire confidence in the reasonable person’s perception of the administration of justice should Mr. King be released: see Dang.
[110] In relation to the perjury charges, I find that this plan of bail also satisfactorily addresses the secondary ground concerns. In relation to the tertiary grounds, the strength of the Crown’s case on the perjury counts related to the acquisition of the firearm is strong with the caveat that there may be defences. Mr. King refers to a serious head injury at one point. The incident happened six years ago, raising the possibility of a memory lapse as opposed to a deliberate intention to mislead. In relation to the charge involving Mr. Martin, the Crown’s case on this count is, in my respectful view, based on an interpretation of the evidence which will have to be determined by the trial judge. I am not acting as a trial judge here. I am merely noting potential defences, which I am required to do in the tertiary ground analysis.
[111] In my view, the strength of the Crown’s case in relation to the perjury charges is not as strong in relation to one count involving Mr. Martin, and moderately strong in relation to the other counts. I have considered that Mr. King has had a serious head injury at one point, which might have impacted his memory, and that the passage of time may make the case more difficult for the Crown to prove. However, looked at objectively, there is cogent evidence that Mr. King was not accurately relating the facts when he gave evidence regarding the prohibited firearm which appears to have been signed for by him within days of agreeing not to possess firearms. In my view, this aspect of the Crown’s case favours detention.
[112] The objective gravity of the offence involves a maximum sentence of 14 years if convicted. This factor favours detention. The circumstances of the offence involve Mr. King allegedly misleading the court during a hearing to determine his release on already serious charges. The offence is one against the administration of justice. This factor favours detention. In terms of receiving a long sentence upon conviction, this is possible and this factor favours detention. However, in my view, detention is not required on the tertiary grounds in relation to these charges. In my view, a reasonable and fair-minded member of the public, well versed in our systems of bail, including the Charter right to reasonable bail and to be presumed innocent, would not lose regard for the administration of justice if Mr. King is released on bail. Mr. King is to be released on bail on the terms which are reflective of the seriousness of the charges and the need to protect the public from harm.
Anne London-Weinstein J.
Released: September 8, 2022
COURT FILE NO.: 22-15544-BR
DATE: 2022/09/08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
Patrick James King
Applicant
ruling on bail review application
Anne. London-Weinstein J.
Released: September 8, 2022
[^1]: The offences include: counselling to commit the offence of mischief, counselling to commit intimidation, counselling to commit obstruct police, resist or obstructing a peace officer in the execution of his duty, mischief, interfering with the City of Ottawa’s lawful use of property, wrongfully and without lawful authority, for the purpose of compelling one or more persons to abstain from doing anything that the person had a lawful right to do, or do anything that the person has a lawful right to abstain from doing, block or obstruct one or more highways, counsel to commit the indictable offence of obstruct police, wrongfully and without lawful authority, for the persons of compelling one or more persons, to abstain from doing anything that the person had a lawful right to do, or do anything that the person had a lawful right to abstain from doing, intimidate or attempt to intimidate by threat that other injury will be done, counsel to commit the indictable offence of disobey court order, disobey a lawful order made by a court of justice without lawful excuse.