COURT FILE NO.: 22-15609-AP

DATE: 2023/10/24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty the King

Appellant

– and –

David Arron Romlewski

Respondent

Dallas Mack and Emma Loignon-Giroux, for the Crown

Self-represented

HEARD: August 30, 2023

DECISION

Introduction

1On January 28, 2022, individuals from across Canada came to Ottawa to protest the public health measures and vaccine mandates implemented` in response to the Covid-19 pandemic. This protest became known as the “Freedom Convoy”. The protesters established themselves in downtown Ottawa. Trucks were blocking access to Parliament Hill and vehicles were parked in the downtown core along most lanes of major roadways.

2Travelling on major arteries downtown was almost impossible. This caused disruption to regular transportation and public transit routes. Downtown residents were at times unable to access or exit their apartment parking lots and many businesses, including the Rideau Centre, were closed.

3In addition, many trucks were equipped with loud air horns that blared at all hours until a civil injunction was obtained. Other noise included idling vehicles, music, generators and people shouting.

4In addition to the downtown core, the Freedom Convoy was set up on Coventry Road. This acted as a supply chain providing essentials and supplies to the Freedom Convoy protesters in the downtown core.

5Numerous efforts were made to remove the protesters but to no avail.

6Ultimately, on February 11, 2022, Ontario declared a provincial state of emergency pursuant to the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9. On February 12, 2022, Ontario issued Critical Infrastructure and Highways, O. Reg. 71/22, prohibiting any person from impeding access to the ordinary use of any highway.

7On February 14, 2022, the federal government declared a national public order emergency and enacted the Emergencies Act, R.S.C. 1985, c.22 (4th Supp.), which gave law enforcement enhanced powers to remove the protesters. Three regulations were proclaimed the next day.

8On February 16, 2022, the Freedom Convoy demonstrators were told by the Ottawa Police Service (“OPS”) to leave the downtown core known as the “red zone”.

9The red zone extended north to the Ottawa River and Parliament Hill, south to Highway 417, east to Cumberland/Dalhousie and west to Lyon Street.

10On February 18, 2022, a major public order operation was deployed to disperse the Freedom Convoy protesters and clear the downtown core of Ottawa of protesters and secure the red zone.

11On February 19, 2022, during this large-scale police operation, the accused, David Romlewski (hereinafter referred to as “David” as per his request) challenged a group of police officers on Sparks Street by refusing to leave and sitting on the ground.

12David was on Sparks Street which was in the red zone. The law enforcement officers including the RCMP and OPS tactical officers in full uniform advanced in the red zone area to clear the protesters. The protesters, including David, were told to move out of the way and exit the area or face arrest.

13David sat on the ground and did not move.

14Rather, David spoke to the officers questioning their legitimacy and that of the Emergencies Act. He demanded their names.

15This interaction took 18 minutes. It was captured on video filmed by a body camera worn by David consisting of approximately 15 minutes of the lead up to the arrest and a few minutes following his arrest.

16The law enforcement officers gave David 20 opportunities to leave without arrest.

17According to the police, David’s sitting location on the street was a physical obstruction to the police.

18On November 3, 2022, David was acquitted of the following two counts of mischief:

Count 1: [O]n or about the 19th day of February in the year 2022 at the City of Ottawa in the East/De L’Est region did willfully interfere with the lawful use and enjoyment of property, contrary to Section 430(1)(d) of the Criminal Code of Canada.

Count 2: [O]n or about the 19th day of February in the year 2022 at the City of Ottawa in the East/De L’Est Region did wilfully obstruct, interrupts or interferes with the lawful use, enjoyment or operation of property, contrary to Section 430, subsection (1), clause (c) of the Criminal Code of Canada.

19The Crown appeals the acquittals and is requesting a substitution of a conviction or alternatively a new trial on the basis that the trial judge:

• Erred in law in his analysis of party liability as it relates to mischief;

• Erred in law by imposing a higher burden of proof on the Crown than was required; and

• Erred in mixed fact and law by misapprehending the evidence.

20The trial judge convicted David of one count of obstructing a peace officer.

21David appeals this conviction and wishes to introduce the following fresh evidence to show that the Emergencies Act was invoked in bad faith, namely:

• The testimony of Brenda Lucki, head of the RCMP at the time (“Ms. Lucki”), made during the Public Order Emergency Commission (“Commission”) on November 15, 2022, where she stated that there were other options than invoking the Emergencies Act; and

• The testimony of former Mayor Jim Watson (“Mr. Watson”) made during the Commission in October 2022 where he stated that he was not consulted or made aware of the intention to invoke the Emergencies Act but supported it.

22He submits that the trial judge erred in convicting him for a number of reasons including:

• The law enforcement did not have lawful authority on February 19, 2022 to remove the protesters;

• There was no evidence of harm to person or property as no complainant was called; and

• The trial judge lacked the jurisdiction to grant equitable relief and could not sufficiently administer justice.

23For the reasons that follow, the Crown’s appeal is allowed. David’s appeal and his fresh evidence application are dismissed.

Trial Judge’s Decision

24At the trial, the court heard from several individuals testifying regarding in the large context of the protest.

25The trial judge found that the Freedom Convoy protesters committed the offence of mischief by depriving residents of “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” at para. 27.

26In addition, the trial judge found that the Freedom Convoy interfered with property by blocking streets, creating excessive noise and harassing residents.

27Various exhibits were filed including various maps of downtown Ottawa and Coventry Road, video and transcript of the 18-minute interaction between David and the officers on the day of his arrest and a page from David’s Facebook.

28The trial judge convicted David of obstructing a peace officer as he intentionally blocked the pathway, thereby preventing the police enforcement officers from executing their lawful duties.

29At paras. 23-24, he found:

[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.

30With respect to the mischief charges, the trial judge found that David was not a trucker and that he did not bring a vehicle into Ottawa. He was not an organizer or in contact with the organizers, there was no documentary evidence linking him to the protest nor did he provide any material support to the truckers such as transporting fuel or food or providing financial support. (para. 30)

31At para. 31, the trial judge found the following:

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.

32At para. 32, he said: “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.”

33The trial judge refers to Dooley, where the Court of Appeal held that “there must be a connection between the alleged act of aiding and abetting and the actual commission of the crime by the person who is aided or abetted. The trial judge then explains “I see nothing the Accused did that furthered the actual commission of the crime of mischief by others.”

34At para. 5 of Dooley, the court wrote the following:

[W]as the non-perpetrator guilty of murder as an aider and abetter? This question turned on whether the Crown could establish that the non-perpetrator, for the purpose of assisting or abetting the perpetrator in the commission of murder, provided assistance or encouragement to the perpetrator knowing that the perpetrator intended to commit murder as defined in s. 229(a)(ii).

35Relying on Dooley, the trial judge found that there was no connection between David’s conduct and the actual mischief created by the Freedom Convoy. The trial judge found that there was nothing in the evidence that furthered the actual commission of the crime of mischief by others.

36He found that David acted on his own agenda and was a “lark of his own”: at para. 34.

37David’s mere presence in the area of the protest and the committal of his own crime (obstructing a peace officer) “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”: at para. 35.

38At para. 34 of his decision, the trial judge states that David is “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.”

Standard of Review

39The standard of review of an appeal of a judge’s order is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law, the standard is correctness.

40On questions of fact, the standard is palpable and overriding error: see R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9, where the Supreme Court stated the following:

Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm. [Citations omitted.]

41It is trite law that an appellate court must show deference to a trial judge’s findings of fact and those findings should rarely be overturned. An appeal is not a retrial but rather this court must determine if there has been an error of law or the findings of facts are unsustainable.

42On questions of mixed fact and law, the Supreme Court in Housen stated that there is a spectrum. At para. 36, the Supreme Court explained this as follows:

Where the legal principle is not readily extricable, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.

Mischief Acquittals

First ground of appeal: The trial judge erred in law in his analysis of party liability as it relates to mischief

Crown’s Position

43This Crown argues that the trial judge erred in law when assessing David’s liability as a party under s. 21(1) of the Criminal Code, R.S.C. 1985, c. C-46, as he failed to consider the impact of his presence in the context of an occupation. David’s presence was a positive act, and he was aiding and abetting the mischief.

44Even if David was on the fringe, by his actions he was facilitating the continuation of the mischief. The trial judge improperly focussed on the absence of certain acts. David was there in the heat of the removal of the protesters on the second day.

45Protesters were given many opportunities to leave without being charged. David was given 20 warnings. There is no need to differentiate between party or principal liability as both are present here.

46Persons who participate in a common act can be liable even if they do not participate in each act of the mischief e.g., parking trucks, blaring horns, screaming or making loud noises.

47Encouragement of the offence can be taken as abetting. On the date of this offence, the interference of the Freedom Convoy was widely known in Ottawa. Evidence indicates that David was aware of it as he was challenging the police authority and jurisdiction to remove him and the other protesters.

48The federal Emergencies Act and the provincial legislation and regulations were significant responses to the Freedom Convoy and again David was aware of these as he was contesting their validity.

49This is the backdrop to the incident with David on February 19, 2022.

50Without considering the surrounding circumstances, the trial judge found at para. 34 that he was “acting on his own”.

51At paras. 30-31, the trial judge focused on what David did not do rather than whether he was a principal or aided and abetted.

52The Crown argues that his presence on February 19, 2022 and his Facebook post dated January 30, 2022 (a few days after the commencement of the Freedom Convoy’s presence in downtown Ottawa) are evidence of his affiliation of the Freedom Convoy.

53The Facebook post reads as follows: “Hey I’m in this one … way to stand up Canada!! Keep those horns honking and those Spirits high!! So much loveee”.

54By relying solely on R. v. Dooley, 2009 ONCA 910, 249 C.C.C. (3d) 449, leave to appeal refused, [2010] S.C.C.A. No. 83, and [2010] S.C.C.A. No. 179, the trial judge unduly narrowed his analysis and did not consider binding case law addressing the offence of mischief in the context of protests and other large assemblies of persons.

David’s Position

55David characterizes the effects of the protest within Ottawa as an “event that mostly hindered the downtown core, most predominantly causing delays on Wellington Street near Parliament buildings”. Transcript of Trial of November 1, 2022 page 41.

56The Crown did not tender any evidence from civilian witnesses that could attest to the alleged interference in the downtown core.

57There was no evidence of any safety concerns as alleged by the Crown.

58David did not simply verbally challenge the laws but presented his position in writing that the laws were being contravened by police actions. David’s actions of sitting down are not acts of “defiance” but rather of “civil resistance”.

59David and the protesters were not provided opportunities to leave but rather they were given an ultimatum that they should leave or be arrested.

60The police had a duty to uphold public order while respecting the fundamental freedom to protest. The police cannot make negotiations to end the protest rather they and the convoy were in negotiations concerning what conditions the convoy could continue the protest.

61One cannot infer that the Facebook post was specific to the convoy event in Ottawa as it does not mention Ottawa and refers to Canada as a whole. David could have been referring to any one of the protests occurring in Canada.

62David submits that this post does not provide evidence of aiding or abetting, or directly encourage a principal to commit an offence. It was not reasonably foreseeable for David to know that the peaceful protest would be considered a criminal offence as the civil injunction only came into effect on February 7, 2022, eight days after the post. There is no evidence that he is connected to the Freedom Convoy.

63The Crown failed to prove that David was connected to the Freedom Convoy via communication or contact (written or verbal), contract, subscription, or any other promise to perform. (para. 11 of David’s factum).

64Unlike the R. v. Shilon (20006) 2006 CanLII 41280 (ON CA), 240 C.C.C.(3d) 401, there is no tangible, observable, demonstrable harm and damage to a victim caused by David’s actions. The Crown failed to demonstrate that David’s actions could reasonably be seen as causing the final result of the alleged mischief or that David was related to the cause in some way.

65David’s mere independent presence does not meet the elements of factual causation and there is no evidence of intent to aid or abet any unnamed principals.

66David did not have the pre-knowledge that an offence was being committed. David’s presence was a non-violent peaceful protected by the Constitution Act and he had the clear belief that the police enforcement on that day was unlawful. He did not know that his peaceful protest would be considered a criminal offence.

67There was no evidence that David committed any resources of any kind to aid the offence.

68David argues that, unlike the Tysick case, he was merely present adjacent to the overall protest event and there was no direct interference with a victim.

69Like in Dooling, David claims lawful justification for his presence on Sparks Street for the purpose of communicating information to law enforcement regarding the overstepping of the bounds of their limited delegated authority and breach of fiduciary duty under the Code. Regarding the characterization that there was a general mischief, he indicated that protests when expressed in a peaceful and passive nature are inherently lawful.

70There is colour of right and mischief is subject to proving a victim or complainant suffered harm. He is not to be convicted for his political views in his expression of sympathy to the protest movement in general.

71In his factum, he repeats that the Crown has failed to prove there was a victim, evidence of harm, damage or deprivation or that a mischief was committed as there is no proof that he interfered with the enjoyment of property either directly or indirectly, wittingly or unwittingly:

• There were no civilian witnesses to provide evidence regarding the effect of the Freedom Convoy or that businesses were affected;

• The Freedom Convoy protesters were not given an opportunity to leave as it was an ultimatum; and

• David did not aid and abet as there was no evidence that David had caused or helped cause substantial harm.

72In summary, David argues that the Crown has failed to establish a victim or complainant, that David encouraged an offence or aided or abetted the offence, had sufficient knowledge of the offence and had a material effect to the outcome of the offence beyond a reasonable doubt.

Relevant Legal Framework

Statutory provisions and leading cases on mischief and party offences

73Section 430 of the Code reads as follows:

(1) Every one commits mischief who wilfully

(a) destroys or damages property;

(b) renders property dangerous, useless, inoperative or ineffective;

(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or

(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

74Mischief is a general intent offence: see R. v. Schmidtke (1985), 1985 CanLII 3621 (ON CA), 19 C.C.C. (3d) 390 (Ont. C.A.).

75As stated in R. v. Maddeaux (1997), 1997 CanLII 1934 (ON CA), 33 O.R. (3d) 378 (C.A.), leave to appeal refused, [1997] 3 S.C.R. xi, the term “enjoyment” within the meaning of ss. 430(1)(c) and (d) is to be read plainly and includes mere enjoyment.

76The actus reus is the interference with the lawful use, enjoyment or operation of property.

77Turning now to party liability, s. 21 of the Code provides as follows:

(1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

78Regarding s. 21(2), in R. v. Gauthier, 2013 SCC 32, [2013] 2 S.C.R. 403, at para. 44, the Supreme Court stated the following:

Section 21(2) of the Criminal Code provides that a person who forms an intention to carry out an unlawful purpose in common with other persons is a party to an incidental offence committed by one of those other persons to the same extent as the person who actually committed it. This result derives from the first person’s promise to devote physical and intellectual resources to the achievement of the common unlawful purpose. The person’s liability in respect of the incidental offence therefore stems from his or her decision to participate in carrying out the unlawful purpose and to contribute resources needed to achieve it.

79Regarding the common purpose, in R. v. Patel, 2017 ONCA 702, 356 C.C.C. (3d) 187, at paras. 38-39, van Rensberg J. stated the following:

The scope of s. 21(2) is broader than s. 21(1), extending liability to persons who would not be found liable as aiders or abettors. It also extends responsibility for offences other than the offence the accused was carrying out, provided the accused had the required degree of foresight of the incidental offence.

In relying on s. 21(2), the Crown must prove (i) the party's participation with the principal in the original unlawful purpose (the “agreement”), (ii) the commission of the incidental crime by the principal in the course of carrying out the common unlawful purpose (the “offence”) and (iii) the required degree of foresight of the likelihood that the incidental crime would be committed (“knowledge”). [Citations omitted.]

80As stated in R. v. Cabrera, 2019 ABCA 184, 442 D.L.R. (4th) 368, aff’d 2019 SCC 56, [2019] 4 S.C.R. 136, pursuant to s. 21(1)(a), a person may be co-principal to an offence when they contribute to its commission. At para. 79, the majority explained this:

Common participation is a hallmark of most group assaults which are characterized by multiple assailants acting together in pursuit of a common object, in this case assaulting Strasser-Hird. When a person participates in an assault on a victim along with others, that person must accept the consequences which flow from this group action. Each assailant is not permitted to offer his or her individual involvement alone, ignoring for liability purposes, the effect of their collective actions. In these circumstances, each assailant advances, and encourages, the violence of the others and may also, as happened here, prevent or hinder others from coming to the victim’s aid. Thus, liability for murder/manslaughter is often grounded in the common participation of joint principals under s 21(1)(a) of the Code.

81As stated in R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 14-18, and R. v. Cowan, 2021 SCC 45, 409 C.C.C. (3d) 287, at paras. 29, 31 and 33, pursuant to ss. 21(1)(b) and (c) a person may be liable as a party to an offence as an aider or an abettor. To aid is to assist or help the actor. Abetting includes encouraging, instigating, promoting, procuring or supporting the offence.

82In a recent decision of the Court of Appeal for Ontario in R. v. I.A., 2023 ONCA 589, at para. 10, the court reiterated the principle: “In summary, there must be a factual finding that supports the conclusion that an accused is a principal, aider, or abettor. Otherwise, a mere bystander with previous knowledge of a crime could be convicted.”

Protests, blockades and picketing

83In the leading case of R. v. Mammolita (1983), 1983 CanLII 3563 (ON CA), 9 C.C.C. (3d) 85 (Ont. C.A.), the Court of Appeal for Ontario dealt with the issue of what degree of participation will result in criminal liability for the offence of mischief. In this case, in a labour dispute, the accused were alleged to have interfered with access to a company’s plant.

84At trial, the court found that not all of the named accused fell under s. 21 of the Code. The trial judge found that the mere presence and passive acquiescence of the accused did not render them liable as aid or encouragement on their part. He found no overt act or participation by the accused.

85The District Court allowed the appeal and ordered a new trial as the trial judge had erred in finding that mere presence had only been proved. Rather, as the Court of Appeal explained at p. 88, the District Court found that on the evidence as a whole, the following could be inferred:

[T]here was a concerted effort on the part of 80 to 100 strikers to prevent management and other office personnel from entering the plant premises. Furthermore, in so far as aiding and abetting was concerned, an inference could be drawn that there was more than mere presence and passive acquiescence in the light of the commotion which was going on and the large number of police officers present.

86An injunction had been granted in April 1980 restraining the union and its local from obstructing or interfering with the entrance to or exit from the company plant. It also limited the number of people who might gather, congregate or picket at the main entrance to 10 and other entrances to four.

87Despite this injunction, in August 1980 approximately 75-100 persons formed a picket line or group in front of the main gate and the general areas leading to the plant. Some were standing and watching but a good number were walking around in a circle.

88These people prevented the vehicles and personnel from entering the plant. The police announced through a loudspeaker that they were violating the injunction, but this warning was ignored. Other officers arrived and moved in to drive a wedge through the large crowd. At first, they were repulsed but eventually they regrouped and created an opening so that personnel could pass through. The incident took ½ hour.

89Thirty-three persons were charged with mischief. Some accused were convicted.

90The Crown argued that the accused, by being part of a group and congregating in such large numbers, had contributed to the obstruction. The trial judge did not deal with this contention but rather disagreed that all the named accused fell under s. 21 of the Code as aiding and abetting.

91The 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.

92The 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).

93Next, the Court of Appeal dealt with liability if a person has aided or abetted another person to commit the offence.

94At p. 90, the court stated the following:

In order to incur liability as an aider or abettor:

(i) there must be an act or omission of assistance or encouragement;

(ii) the act must be done or the omission take place with the knowledge that the crime will be or is being committed;

(iii) the act must be done or the omission take place for the purpose (i.e., with the intention) of assisting or encouraging the perpetrator in the commission of the crime.

However, the act of assistance or encouragement may be the presence of the accused at the scene of the crime during its commission, if the aider or abettor is there for that purpose. The strength of numbers may at times be an important source of encouragement. [Citations omitted.]

95In R. v. March (K.J.) et al (1993), 1993 CanLII 8328 (NL SC), 111 Nfld. & P.E.I.R. 116 (N.F.S.C. (T.D.)), the appellate court upheld the trial judge’s decision where an informational picket line in a mall went “well beyond an information picket line”: at para. 17. The police had issued warnings but to no avail.

96The trial judge found two of the accused were instigators but then went on to discuss the other two accused who were “peripherally involved”: March, at para. 18.

97The trial judge found the remaining two accused were encouraging, aiding or abetting and that although the original purpose was to communicate information, it “got out of hand”: March, at para. 19.

98In R. v. Tysick, 2011 ONSC 2192, the appellate court found that the trial judge had erred in granting a directed verdict of acquittal in relation to a mischief charge. The accused had set up blockades at two points of access to a commercial property in Pembroke. The blockades included a half ton truck that was parked crossways at an entrance, campers, a tent and a generator. In granting the directed verdict the trial judge found, among other things, that there was no direct contact between the company employees and the accused and no evidence that they were asked to leave the scene.

99The appellate court found that the judge had erred as follows:

• It was not necessary to have direct contact;

• The offence of mischief does not require the accused to have been asked to leave the scene; and

• The blockade does not have to be on the property; it can be on the adjacent property.

100In contrast, in the case of R. v. Dooling (1994), 1994 CanLII 10215 (NL CA), 124 Nfld. & P.E.I.R. 149 (N.F.S.C. (T.D.)), the accused was involved in a lawful strike. He was picketing at a Shoppers Drug Mart when the store was in a labour dispute with the United Food and Commercial Workers Union and was involved with picketers in the lobby area but customers were able to enter the store. The picketers were cooperative: Dooling, at para. 5.

101The appellate court, in overturning the conviction, held that the accused did not obstruct or impede customers from entering the store and the picketing was lawful and permissible pursuant to provincial labour legislation.

102The R. v. Pascal, 2002 CarswellBC 3838 (P.C.), aff’d 2006 BCSC 1311, case is instructive. A group of protesters, dressed in camouflage, were opposed to the development of a ski resort and set up a makeshift camp along Highway 99. They used rocks and boards to block the highway resulting in the blocking of vehicles and logging trucks.

103The accused were convicted and the court discussed the participation of various individuals on principal and party liability.

104Firstly, the court commented that blocking logging trucks is not normally the activity of one person. It is usually the concerted effort of several people.

105However, mere presence on the road is not enough to warrant a conviction. In relation to one accused, she did not operate a camera or pull spike boards on or off the road or put up stop signs, etc. However, the court noted that she wore camouflage and her presence there would “indicate that she shared a common intention with the others and by her presence offered her encouragement, if not outright assistance, by standing on the highway. Certainly, she is a party, but one could also accurately call her a principal”: at para. 49.

106The court also noted her presence earlier when vehicles were being stopped and she was wearing the Mohawk flag. The camouflage emphasized the aspect that it was a “uniform” meant to show solidarity and intimidation: at para 54.

107One of the common passages cited in these cases is from Dunlop and Sylvester v. The Queen, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881, at p. 891: “Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch or enticing the victim away; or an act which tends to prevent or hinder interference with accomplishment of the criminal act”.

108In R. v. Colford (1993), 1993 CanLII 15355 (NB PC), 140 N.B.R. (2d) 161 (P.C.), at p. 177, the New Brunswick Provincial Court posed the party liability question in the context of a highway blockade as follows: “How then, to separate the criminals from the curious?” The court explained that “[t]he Court must assume that those persons who were not directly on the paved roadway, as well as those who attempted to leave the scene as soon as the police began making arrests must be given the benefit of the doubt and not considered as persons liable to be convicted.” Further, “the evidence against each accused must be weighed individually”.

109After reviewing Mammolita, the court added what it called a “personal addition and caveat” to the three requirements for liability as an aider or abettor: “The acts constituting the actus reus must be such as to lead one to the conclusion that they equate with and tend towards showing a sense of unity or ‘one-ness’ with the acts of the principals so that a definite contribution to the events complained of is proven or necessarily inferred.”

110In R. v. Snarch (1969), 1969 CanLII 904 (QC CS), 7 D.L.R. (3d) 62 (Q.C.S.C.), the Quebec Superior Court found the appellant was a party under s. 21 to mischief even though she did not help erect barricades. The appellant was part of a group of about 50 students occupying a computer centre at a university for 13 days, thereby preventing its normal use at the school. The court wrote, at p. 72, that “[w]hile it is true that mere presence of a person at the commission of an offence does not make that person a party to an offence, nevertheless if the circumstances are such as to show that by that person's presence the party who actually committed the offence was aided and abetted by that person's presence then … that person is a party to the offence.” Here, the appellant’s presence aided and assisted the students who erected the barricades largely because the occupation’s success depended on having a significant number of participants.

111More recently, in R. v. McCann, 2014 ONSC 2987, 311 C.R.R. (2d) 239, leave to appeal to Ont. C.A. refused, 2015 ONCA 451, and leave to appeal to S.C.C. refused, 36609 (March 17, 2016), the Ontario Superior Court of Justice reviewed a trial judge’s decision to convict three accused of mischief. The following passage, at para. 21, shows the importance of the purpose of the activity to the trial judge’s analysis:

In the case at bar, the trial judge found while the demonstration was peaceful and was clearly political, but the objective was not simply to express displeasure. Specifically, the trial judge found that the demonstrators and the appellants, in particular, wanted to stop the Frontenac Institution from removing their cattle from the institution. The Trial Judge correctly noted that Frontenac Institute was legally entitled to remove property from their own premises. The appellants in their own final argument at trial, argued that their actions were necessary to prevent the removal of the cattle, as the removal of the cattle would result in termination of the prison farm. The purpose of the activity in question was therefore not simply to communicate a political idea or to voice protest; it was to halt the removal of cattle.

112Justice Johnston dismissed the appeal, upholding the trial judge’s decision to convict. The objective helped distinguish the criminal mischief from a lawful protest.

113R. v. Drainville (1991), 1991 CanLII 13897 (ON CJ), 5 C.R. (4th) 38 (Ont. C.J.), is an example where the accused was found guilty of mischief under s. 430(1)(c) where the accused’s actions leading up to his arrest are seemingly comparable to those in the case at bar. The blockade in this case was part of a protest in support of the Teme-Augama Anishnabai Nation’s land claim. At para. 9, Fournier J. described the incident as follows:

Prior to the removal of people obstructing the roadway, the Staff Sgt. in charge read a prepared statement advising those concerned that there was an “injunction” prohibiting the very action complained of, that access was requested by the construction company, and that failure to remove themselves would result in their arrest accordingly … At 7:43 a.m. the accused … was removed physically by the officers directed to do so, and in the process offered no resistance other than the fact that officers had to move him.

114The blockade resulted in a delay of approximately one hour for the construction team. Still, Fournier J. said that all elements of the offence under s. 430(1)(c) were made out. There is not much discussion on this because the key issues were the “defences” that the accused put forward including “de minimis”, freedom of expression, civil disobedience, and colour of right. These all failed, but the court’s remarks on the de minimis argument, at para. 13, are relevant:

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! If that were so, conceivably, 1,000 or more ill-minded people could individually, and ever so minutely, contribute to the actual and ultimate death of an innocent victim and thereafter be acquitted of the very real murder of such victim on the basis of “de minimis”.

115Justice Fournier acknowledges that this example may be “far-fetched” but suggests that it illustrates the importance of considering the overall effect of the activity.

Freedom Convoy Cases

116There are several pertinent Freedom Convoy cases which are summarized in the chart below:

Case Name	Charge(s)	Summary of Relevance
R. v. Lich, 2022 ONSC 4390.	• Mischief and related offences.	This decision deals with an application for a review of the accused’s detention order and does not discuss what constitutes a party to mischief. However, at para. 98, this court explains that “[t]he honking of truck horns, the train horns, are another aspect to the allegations, that in my view, are aggravating to the charge of mischief but its nexus to this accused will be the challenge for trial.”
R. v. Decaire, 2023 CarswellOnt 12939 (C.J.).	• Mischief by wilfully obstructing, interrupting, or interfering with the lawful enjoyment or use of property. • Obstructing an officer in the lawful execution of his duties.	The trial judge explained that “the effect of the Freedom Convoy was to commit mischief on a massive scale … However, this is a criminal trial, and what I am required to decide is not if the Freedom Convoy had the effect of committing mischief, which it clearly did, but rather if the Crown has proven beyond a reasonable doubt that Ms. Decaire committed mischief, either as a principal or as a party”: at paras. 171, 173. The facts in Decaire are useful to compare with Romlewski and are discussed below.
R. v. Meister, 2023 CarswellOnt 12940 (C.J.).	• Wilfully obstructing an officer contrary to s. 129(1). • Mischief contrary to s. 430(1)(c).	This decision followed the accused’s pre-trial motion on other issues; there is no discussion about the mischief charge. The accused was “… alleged to have parked his truck or tractor, being the front part of a tractor-trailer, in the intersection of Rideau Street and Sussex Drive, a major transportation hub in the midst of downtown Ottawa”: at para. 19.

117In Decaire, Boxall J. described the key facts as follows:

Constable Croft was in a group of officers tasked to clear Nicholas Street. As he was walking northbound on Nicholas, he observed a person on the west side of the road. We now know that person to be Ms. Decaire. His evidence is that he told her she needed to leave or she would be arrested for mischief.

Initially, she said she would leave, then she said no. He then arrested her for mischief. All of this was very quick and she was arrested within a minute. He then walked her over to an Ottawa police unit set up to complete the arrest.

There is no evidence that Ms. Decaire was anything but cooperative and polite, apart from the fact that she did not leave. Another officer who dealt with her, processing her, described her as extremely cooperative and polite.

However, the combination of the lack of notes, the lack of recollection of what was said, if anything, by the officer that called him over, and the evidence of Constable Buller that he did not recall any conversation with Ms. Decaire before arrest, is such that I am not prepared to place any weight, any significant weight on his evidence that he told her to leave and she said no.

118On the mischief issue, Boxall J. said that “it is well established that the blocking of roads can be considered a mischief in a criminal court context”. The trial judge also accepted “that in Mamalita, it was determined that an individual who stands shoulder-to-shoulder with other persons, even though they may not say anything or do anything further, may be an act that constitutes an obstruction.” However, the accused in this case was not connected to a vehicle and there was “no evidence of any other civilians or protestors near Ms. Decaire.”

119The Crown in Decaire also tried to establish liability under s. 21(2). However, this argument failed on the first element because the trial judge found no participation in an unlawful purpose: “On the facts of this case, which has Ms. Decaire observed standing in the street for a matter of minutes, on one particular day with no other persons about, on the street that was blocked by vehicles of which there is no evidence she is connected, I am not satisfied beyond a reasonable doubt that her purpose in attending was to block the street.” The court concluded that the accused was not a principal or party to mischief on the facts.

120Decaire is also interesting for its discussion of the Romlewski trial decision. The court agreed with defence counsel that, on the obstruction charge, the facts in Romlewski were “very different” from Decaire. The main differences were that David’s interactions with the police before his arrest lasted 18 minutes while Ms. Decaire’s were only one minute long, and the lack of “obstructive” action on Ms. Decaire’s part. Later in the decision, Boxall J. wrote that “[t]his case is not comparable to Romlewski, as there he was argumentative and aggressive with the officers for 18 minutes before he was arrested. Mr. Romlewski was told numerous times to leave. Mr. Romlewski took active steps to sit down in front of the officers.” However, when analyzing the mischief charge, the court in Decaire makes no reference to Romlewski.

121Apart from these decisions, there is also R. v. David Gandzalas (26 June 2023), Ottawa (Ont. C.J.), which is unreported. In Gandzalas, the trial judge found that the defendant’s actions “amounted to participation in the offence of mischief.” First, the trial judge determined that the Freedom Convoy protest itself “clearly amounted to mischief.” Second, he determined that the accused participated in that mischief. The accused in Gandzalas was arguably more involved in the protest than David: “He chose to drive protestors in and out of the downtown core, to act as security at their resupply location at Coventry. He chose to continue to urge others to protest when on February 18th he faced the line of officers tasked with clearing the streets.” The trial judge found that the accused was yelling to “hold the line”, which “is manifestly an expression of participation in the overall mischief.”

122Justice Dorval proceeded to explain, at pp. 15-16, how the mens rea for the offence of mischief was satisfied:

The overall scene, which [the defendant] himself videotaped, showed that the streets of Ottawa could not be used as streets. This was not momentary, but was prolonged. When Mr. Gandzalas chose to add his voice to the protest, he also added his actions, which supported the group in its activities of blocking the streets and resupplying. He intended to assist in that endeavour, and that constitutes the mens rea for the offence.

123The trial judge ultimately granted a discharge and placed the accused on probation. He concluded that a discharge was appropriate because the accused’s conduct on the day of his arrest and during the trial showed that he “genuinely believed that [his] actions were a contribution to this democracy” and was not egregious.

124In R. v. Allen Remley (1 February 2023), Ottawa (Ont. C.J.), Justice Perkins-McVey was dealing with two counts of mischief contrary to ss. 430(c) and (d) and obstructing a peace officer contrary to s. 129(a) of the Criminal Code.

125The court dismissed the charges and made the following findings of facts.

126Mr. Remley was seen at approximately 11 a.m. on February 12, 2022, with his truck running parked nose forward in a southeast direction on Kent Street. The cross street where Mr. Remley was located was open.

127This could be considered legitimate and peaceful.

128There was no evidence that he ever abandoned his truck or honked his horn, making any noise or interacting with those around him who were milling about.

129He was not an organizer nor was there evidence that he was in contact with the organizers.

130There was no documentary evidence directly linking him to the protest or its organization.

131There was no evidence that he communicated with any of the protesters or provided financial support.

132There was no evidence that one could draw an inference that he formed an intention in common with any protesters or any persons.

133It was not enough for Mr. Remley to park illegally for 10 minutes with interaction with an officer.

134Mr. Remley was not seen holding the jerry cans which allegedly were used for fueling the trucks in the Freedom Convoy protest.

135The fact of his presence was not enough to make a finding of mischief.

136There was no evidence that he shared the same political views as the protesters or about his purpose.

137The court did not find that he did or omitted to do anything that furthered the actual commission of mischief by others.

138In dismissing the obstruction charge, the court found that there was no evidence that the accused made it more difficult for the officer to carry out his duty. There was no evidence of him inciting the crowd or asking for their assistance to intimidate and surround the officer.

139He was told to consider leaving but was not expressly told to leave.

140This incident occurred on February 12, 2022, before the invoking of the Emergencies Act and before the clearing of the red zone by the united police forces.

141It was admitted by one of the officers at the trial that “there were mixed messages from the executive and that any orders to leave the area came after February 12th”: at p. 20.

142On February 12, 2022, the messaging from the authorities was to tell people not to block the streets and asking people to consider leaving. They were not ordered to do so until after the Emergencies Act.

Analysis

Introduction

143Was David a “lark of his own”? Was he demonstrating a “peaceful non-violent protest” which questioned the legitimacy of recently invoked unprecedented legislation granting police-wide and broad powers? Or was he a party to the offence of mischief as defined in the Code?

144The court must determine party liability in this large group protest known as the Freedom Convoy.

145Since the Crown’s case rests on party liability of aiding and abetting, the surrounding circumstances are relevant.

146This backdrop must not detract from the court’s analysis as to whether the trial judge erred in finding that David’s conduct does not attract criminal activity in mischief and failing to consider the surrounding circumstances.

147The court will be guided by the legal principles from the leading cases dealing with protests and blockades.

148The blockade in downtown Ottawa was a unique situation but this reality should not monopolize the discussion. The issue in the Freedom Convoy cases involving mischief charges is about the nexus between the protest itself and David.

149The cases arising from the Freedom Convoy dealing with the mischief charges on their merits are limited, but the applicable principles can be gleaned from the pre-Convoy case law.

150The bottom line is that while “mere presence” at a protest is not enough to ground party liability for mischief, presence coupled with purpose may suffice depending on the facts.

151As will be explained in further detail below, the court finds that the trial judge’s finding of fact that the Freedom Convoy protest was a mischief is owed deference. However, the trial judge erred in law in not finding that David was an aider and abetter as David was not a mere bystander. Rather, his conduct and actions and words demonstrated that he was standing with those Freedom Convoy protesters and he was aiding and abetting the mischief.

Discussion

152Firstly, the trial judge’s finding of fact that there was a public mischief is owed deference on an appeal.

153Although there were no civilian witnesses, there were two police witnesses who provided extensive evidence with respect to the closing down of the downtown Ottawa core commencing January 28, 2022.

154Constable Stephen Irvine detailed the early days:

[T]here [was] sort of bumper-to-bumper vehicles in almost every lane of traffic or lane on the roadway that’s designed as a live lane of traffic. Towards the beginning of that period of time, there was a pretty incessant amount of honking coming from those vehicles, whether they be from regular passenger cars, pickup trucks, bob tails, which … [are] like the front part of a transport [truck], so not necessarily the giant transport trailer, but the front part.

155Constable Irvine later describes further “bumper-to-bumper demonstration” in the Parliament Hill area extending to Bay Street and Rideau Street from January 28 to February 19, 2022.

156He described the area as a mixture of residential and business and until the injunction there was ‘pretty overwhelming amount of noise”.

157Rideau Street was completely blocked from of Sussex Street to near King Edward Street. All of Wellington Street was blocked, as well as Confederation Park. Constable Irvine said “you could not- you had to walk, there’s no- you couldn’t drive anywhere.”

158This situation would not allow emergency vehicles to pass through and residents could not drive out.

159In this case, the Crown argued at trial that David is the party and his participation is to dissuade, distract and interfere with the police. The principals are those individuals more substantially involved in parking vehicles and blocking streets in downtown Ottawa. The incidental crime is the mischief and original unlawful purpose, the blocking of the streets.

160Common sense would find that the required degree of foresight of the likelihood that the incidental crime would be committed is present.

161David acknowledged in his discussion with the police that the mischief was occurring and his conduct that day can reach the level of criminality.

162General mischief of the protesters was a finding of fact that the trial judge was entitled to make based on the evidence before him.

163Next, the case law shows that the court should take a broad approach and consider all the circumstances to determine party liability in large group protests.

164A review of the case law dealing with protests provides a fuller picture of the applicable principles for party liability to mischief. The principles can be summarized as follows:

• Mere presence alone at a protest is not sufficient to ground party liability;

• If the protest gains strength by numbers and depends on the participation of a large group, presence may be interpreted as encouragement; and

• Showing a sense of unity or solidarity with the actions of the principals sheds light on the purpose behind being at the protest.

165Looking specifically at the Freedom Convoy cases, David’s actions are somewhere between the accused’s actions in Decaire and Gandzalas.

166Even where it is “quite possible” that the accused committed mischief or was a party to the mischief, it must be proven beyond a reasonable doubt.

167The court will review the surrounding circumstances as they existed on the day of David’s arrest on February 19, 2022. The police had authority to arrest in common law, pursuant to the Code and the federal/provincial emergency legislation.

168On that day at around 12:30 p.m., Constable Edward Bastien of the RCMP was assisting the Ottawa Provincial Police (“OPP”) who had been handling the intersection along Sparks Street at Bank Street.

169The RCMP had been asked to clear a path from Elgin Street and Sparks Street west to Bank Street and Sparks Street. They were asked to create a safe corridor with a two by two officer configurement team proceeding down Sparks Street. They then met other police officers on Sparks Street and the signal was made to form a line. Starting at O’Connor Street there were 40 officers forming a wall of about 10 officers side by side with another 10 behind for 4 rows. They were all in police uniform.

170As explained by Constable Kimberley Carnegie, the purpose was to “fill that hole”, that is, ensure that people did not come back into the area after it was cleared. They were trying to stop the offence of mischief and the interference with lawful enjoyment of the people who lived in that area that had occurred for several weeks.

171Therefore, it was intent of the police action that day to secure the area including the intersection from any bystanders. Police warned individuals to disperse and the individuals were free to leave without arrest.

172David was sitting on the ground on Sparks Street. He was impeding the police officers’ ability to perform their duties and there was evidence that the police wanted to also ensure that the space was free of any weapons or anything that could impede the police operation so it could go freely and smoothly.

173In Decaire, the accused’s interaction with the officers was momentary and there was no group of protests in the vicinity. Here, there were 18 minutes of vociferous interaction between David and the police officers who were trying to clear the red zone that day. There were protesters in the vicinity and one unnamed individual who interacted with David; they both showed support for each other and the Convoy.

174David faces 2 counts on different subsections of s. 430:

(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or

(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

175It is a general intent office; no specific intent is required. There is evidence on both counts from the observations of the officers.

176One can infer from his actions that day and to a lesser extent from his early social media post what his reasons were for being there that day. The inference is that he was there to assist individuals in the blockading of the road and interfering with the police in clearing the roads.

177His party participation include his attempts to distract, dissuade and interfere with the police officers that day as they are trying to clear the red zone. Most importantly, David exhibited an overt act by entering into the red zone.

178He was adding to the ongoing mischief and abetting the ongoing mischief. He was participating in the blocking of the specific streets in the red zone which had been highly publicized was being cleared.

179The mischief of the blockage included litter and messiness in the street and the honking. The trial judge found that there was disruption in downtown Ottawa and that there was mischief but David was not himself part of this general mischief

180As detailed below, David’s specific actions should have been considered in determining whether David was guilty on the counts of mischief. The trial judge erred in law in failing to consider these actions in light of the circumstances that existed that day.

181David was assisting those individuals who continued to commit the mischief by preventing the police from intervening so that the mischief could be ongoing.

182Although there is no evidence of David honking his horn, blocking the streets with a vehicle, littering or causing damage which were the hallmarks of the Freedom Convoy protest, with respect, the trial judge took a narrow view of the circumstances on that day.

183David was aiding and abetting the general mischief as follows: interfering with the police and attempting to challenge them to desist in what they were doing, that is clearing the streets. He had knowledge of what was going on as there was a specific discussion with the police officer about the general mischief, the colour of right and how he thought his presence was justified.

184He also encouraged using his Facebook post, to encourage and continue honking their horns but the link was deleted or unavailable. He is posting as if he is part of something. The post is aimed at abetting the mischief that was going on at the time. As in the Pascal case, the Crown argues that the honking was the hallmark of the Freedom Convoy and David refers to this in his Facebook post. It is their rallying cry.

185The social media post, although not illegal, is another indicium of his specific encouragement to the Freedom Convoy to keep the horns honking which is a public mischief as it is interference within the meaning of s. 430.

186It is another piece of the evidence but not determinative. It does show support for the general movement of the Freedom Convoy: with its principles and objectives and views.

187David’s interactions with others clearly show his intentions that day.

188David was facing off with the police directly on Sparks Street in the red zone, the designated area for clearing by multiple police forces. This constitutes encouraging others in committing the greater mischief.

189His body camera video shows David interacting with an unidentified man (labelled as UM in the transcript filed at the trial) who is also accosting the police for their actions.

190In addition, there were a number of individuals who are directly in front of the police, including UM. Some are waving flags and appear to be at the ongoing protests perhaps 20 or 30 metres away.

191David tells UM that the Emergencies Act is not consistent with the Canadian Charter of Rights and Freedoms. David can be seen questioning why are the police blocking off streets when “there’s nobody there? What are they protecting people from?”

192UM begins engaging with the law enforcement questioning the clearing of the streets of Canada and asks “I’ll get back (inaudible) fucking (inaudible) my country right now?”

193UM then speaks to David and says that he knows David from Instagram.

194David says “hey, give me a hug brother”, to which UM says “yeah, yeah”. David says “thanks for coming out”. David’s discussion with UM is an encouragement of the other individual who tells officers to “stand down”.

195David is arguing with the police about how people talked to him in a rude manner and that some of the children have issues from wearing masks every day and dealing with the bullying.

196UM says the children have been banned from school for two years. David spoke about the colour of right.

197He was given 20 opportunities to leave.

198His expressed concerns line up with the purpose of the public mischief generally and should have been considered by the trial judge in the determination of whether David was a party to the offence.

199David is clearly sympathetic to the protesters. He is demanding names of the officers and videotaping the events. With all of the circumstances and context, he is attempting to interfere with the officers and supporting the convoy in preventing the streets from being cleared.

200David’s argument of “colour of right” must fail. Although the “honest belief” for the purposes of this defence does not have to be reasonable, the reasonableness of the belief is a factor to consider when assessing whether the belief was honest: R. v. Manuel, 2008 BCCA 143, 293 D.L.R. (4th) 713, leave to appeal refused, [2008] S.C.C.A. No. 265. It cannot be said that David had an honest belief that he was entitled to be in the red zone on February 19, 2022, in the face of several officers telling him to leave to avoid arrest.

201In R. v. Roche (1990), 90 Nfld. & P.E.I.R. 199 (N.F.P.C.), the Newfoundland Provincial Court wrote the following:

For the accused to show an honest belief in a mistaken set of facts or law which if true would have afforded a legal justification or excuse, they must satisfy the court that they felt their acts were lawful. Thus I agree with the principle asserted by Crown counsel in his brief filed with this court that the last thing an accused person would expect acting under color of right in law is to be arrested as a result of his or her acts.” [Emphasis added.]

David was warned of the risk of being arrested, given many opportunities to leave, and yet chose to stay in the red zone.

202Sections 2(b) and (c) of the Charter provide the rights to citizens to freedom of expression and assembly. As stated in Gandzalas, at p. 11, these expressions are protected but there are limits. In the context of this case, these rights were circumscribed due to the actions of the protesters in breaking by-laws by blocking roads, interfering with the use of public property and affecting private citizens’ ability to peaceful enjoyment of their private property. This created a mischief in downtown Ottawa. The Freedom Convoy was not a peaceful assembly protected by s. 2 of the Charter.

203In short, as the trial judge found, “the Freedom Convoy protestors committed the offence of mischief by way of interfering with the use and enjoyment of property of the residents of downtown Ottawa.” David’s presence, actions and encouragement on February 19, 2022 amounted to participation in that offence of mischief.

204For those reasons, I would allow the appeal. Given the findings of fact on record, the court enters a conviction on both counts.

205R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, may apply where the sentence may only be applied on one count.

206Given my decision on the first ground of appeal, that the trial judge erred in his analysis of party liability, this court will not to deal with the other grounds of appeal.

Conviction of Obstruction of a Peace Officer

Fresh Evidence Application

207David requests that the court consider fresh evidence.

208In accordance with the Supreme Court of Canada’s decision in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, an application to adduce fresh evidence must meet the four criteria discussed below.

The evidence must not have existed or been discoverable at the time of trial

209Mr. Watson’s statement was made to the Commission on October 18, 2022 and therefore was available with due diligence before the trial in early November 2022. In contrast, Ms. Lucki’s comments were made on November 15, 2022 and were not available at the time of his trial.

The evidence must be relevant in that it bears on a decisive issue

210The court does not find the proposed fresh evidence relevant. The evidence given at the Commission does not have any bearing on the constitutionality of the Emergencies Act. The objective of the Commission was to determine whether the Act should have been invoked. The Commission’s ultimate conclusion was that the threshold for the Act’s invocation was met.

The evidence must be credible

211The court finds that the evidence is credible.

The evidence must be such that it could have reasonably affected the result

212The court finds that the admission of the proposed fresh evidence would have not changed the result of the trial. The police had other sources for the authority to arrest David.

213Regarding the fresh evidence, I accept that it would not have been available at the trial as the comments made by Ms. Lucki were made after David’s trial. However, this evidence does not meet the Palmer criterion that it would have had a bearing on the final decision in this case. The testimony of these two individuals would not impact on the constitutional validity of the Emergencies Act and does not undermine the police authority on February 19, 2022 to clear the streets of downtown Ottawa.

214Regardless of the comments by these individuals who may have indicated that they were not consulted (Mr. Watson) or there could have been other options available (Ms. Lucki), the officers on February 19, 2022 were exercising lawful authority to remove the protesters in the red zone and therefore their removal of David who was impeding their ability to fulfil their role and remove the protesters pursuant to the legislation was lawful. The offence of obstructing a peace officer was properly made out by the Crown and that conviction will stand.

215As stated in Dooley, “[a]n appellate court must determine whether the proffered evidence raises a concern over the validity of the trial verdict sufficient to justify a new trial, by examining the proffered evidence in the context of the trial record and deciding whether ‘if believed it could reasonably ... be expected to have affected the result.’”

216However, evidence that meets this level of cogency, contemplated in Palmer, will not always be admitted. An appellate court must still address other factors relevant to the interests of justice, including the fact that a trial should be final and determinative and fresh evidence should not be readily admitted as it could diminish the validity of the final verdicts in a trial.

217After the proper balance of the above criterion, the court finds that the evidence ought not to be admitted on appeal.

David’s Position

218In his factum David also requests the following:

• An order in equity granting a vesting order (Courts of Justice Act, R.S.O. 1990, c. C.43, s. 100) and by virtue correcting the status of David Arron Romlewski. David says equity will not allow a trust to fail for want of a trustee and equity regards the beneficiary as the true owner; and

• Any other order and any such further relief this Honourable Court may deem just and equitable. Equity delights to do justice, and not by halves.

219David argues that the trial judge found the officers had a duty which David defines as a requirement by law, custom, morality or personal commitment.

220There were no witnesses that provided first-hand knowledge that there was a disturbance of the peace. No citizen from Ottawa testified.

221Officers on scene provided contradictory statements as to what jurisdiction they were operating under on February 19, 2022: i.e. whether it was the federal or the provincial legislation.

222With respect to the authority of the federal Emergencies Act, it is a form of absolute last resort remedy and is not to be applied loosely.

223In addition, David says the provincial government cannot encroach on the area of criminal law which is in the jurisdiction of the federal government and therefore the provincial legislation is ultra vires.

224He indicates that the trial judge found that there was no objective to mass arrest. Yet RCMP Constable Edward Bastien said he was to arrest individuals who “needed to be placed under arrest”.

225He also refers to the OPS website where freedom of expression is permitted so long as there is no violence and that an arrest for breach of peace does not result in a charge.

226Since the goal of law enforcement was to restore order, by removing individuals, criminal charges were not necessary.

227As found in the fresh evidence he wishes the court to consider, there was no transparency in the invoking of the Emergencies Act and hence it is null and void and of no force and effect.

228The police did not have the authority to charge individuals with a crime if they were peaceful and caused no harm or property damage.

229Individuals are only permitted to be detained for a maximum of 24 hours; otherwise, it constitutes arbitrary detention.

Crown’s position

230The Crown argues that the police officers had the requisite authority to act independent of the Emergencies Act. The trial judge found that they had the authority to act under the common law authority to clear the streets an end the disturbance.

231Both federal and provincial legislation are presumptively valid and were not struck down.

Analysis

Introduction

232Count 3 on the information reads as follows: “[O]n or about the 19th day of February in the year 2022 at the City of Ottawa in the East/De L’Est Region did wilfully obstruct a peace officer in the execution of their duty, contrary to Section 129, clause (a) of the Criminal Code of Canada.”

233David was asked approximately 20 times to leave as a line of police officers approached him from behind. Instead of leaving and following the direction of the officers, he chose to sit.

234For the reasons that follow, the court dismisses David’s appeal of the obstruction of a peace officer conviction.

Legal Framework

235In R. v. Yussuf, 2014 ONCJ 143, Paciocco J. (as he then was) described the necessary elements of the offence of obstruction of a peace officer in the execution of his duty:

Element 1 - There must be a peace officer who is in the execution of a lawful duty as a peace officer;

Element 2- The accused person must know or be wilfully blind to the fact that this person is a peace officer and must know or be wilfully blind to the act the officer is executing;

Element 3- The alleged obstructive conduct must be an intentional act by the accused person, or an intentional omission by the accused person constituting a failure by the accused to comply with a legal duty;

Element 4- That act or omission must make it more difficult for a peace officer to carry out their duties; and

Element 5 - The accused person must intend to make it more difficult for the police to execute their duty. [Emphasis in original.]

Discussion

236The trial judge properly self-instructed himself regarding the legal principles of obstruction, at paras. 14-17, and referred to the Court of Appeal for Ontario’s decision of R. v. Tortolano (1975), 1975 CanLII 1248 (ON CA), 28 C.C.C. (2d) 562 (Ont. C.A.), setting out the elements of the offence:

• That there was an obstruction of an officer;

• That the obstructing affected the officer in the execution of a duty that they were then executing; and

• That the person obstructing did so wilfully.

237In addition to referring to other cases, he referred to the comments of Parfett J. in R. v. Nasser, [2002] O.J. NO. 6073, where she 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.

238At para. 18, the trial judge found the fact that the officers “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.”

239In convicting David of obstruction, the trial judge properly concluded at para. 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.”

240At para. 18, the trial judge was entitled to find that it was not necessary to show that his actions actually prevented the officers from progressing. As the trial judge stated at para. 18: “The fact that they could go around him as he sat on the ground is not a defence”.

241The trial judge properly found on the evidence before him that David refused to move from the sidewalk, sat down in defiance of the officer’s orders to move, was given many opportunities to remove himself without being arrested and continued to obstruct the officers in their lawful authority to clear the streets. The court finds that the Crown had proven that the officers involved were lawfully executing their duties.

242Next, in response to David’s argument that the policing action was illegitimate, at para. 21, the court properly found “that there was a legitimate police operation underway to end the illegal occupation of the downtown streets.”

243David submits that the Crown has failed to prove that the police were acting in their lawful authority as there were multiple officers not willing to identify themselves and some who would not give a straight answer as to what authority they were working under.

244The police say they were clearing out the mischief but David argues that he did not understand how the mischief was justified in this case. He said he was there to understand what police authority is in light of the Charter and Canadian Bill of Rights, S.C. 1960, c. 44. David says the Crown did not establish that the police had lawful authority to do what they were doing.

245David’s argument must fail. The police were acting in the execution of their duties pursuant to federal and provincial emergency legislation, s. 495 of the Code, the Police Services Act, and at common law to preserve the peace, prevent crime and protect life and property.

246There had been 24 hours of arrests with notices distributed containing unequivocal messages to leave the area or face charges. Constables Bastien and Carnegie were trying to control the mischief.

247David was in the middle of the red zone, the main area of the mischief created by the Freedom Convoy.

248The trial judge found that on February 19, 2022, the officers were acting pursuant to their common law authority to clear the streets when confronted by David. In addition, the officers had the authority under the federal Emergencies Act to clear the streets. The legislation is presumptively valid and has not been struck down. There was no constitutional challenge to the legislation. It was in full force and effect on February 19, 2022 when David was arrested.

249The trial judge noted, at para. 19, that David was taking issue with whether the police were in the lawful execution of their duties when they arrested him. In the video, he challenged the legitimacy of the policing and the validity of the Emergencies Act.

250This court finds no error in the trial judge’s finding that the police officers involved in the arrest of David were part of a “legitimate police operation”. They were acting in the execution of their duties at common law to preserve the peace, prevent crime and protect life and property. In addition, this court finds that they were acting in execution of their duties as set out in the Police Services Act, R.S.O. 1990, c. P.15: see Dedman v. The Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2.

251The trial judge did not err when he found at para. 21:

[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.

252David also relies on Fleming v. Ontario, 2019 SCC 45, [2019] 3 S.C.R. 519. The facts are distinguishable from the case at bar where the police had authority to act to arrest.

253On May 24, 2009, officers of the OPP arrested Mr. Fleming, in Caledonia, Ontario. He had committed no crime. He had broken no law. He was not about to commit any offence, harm anyone, or breach the peace. In essence, the OPP officers claimed to have arrested Mr. Fleming for his own protection. The question before the Supreme Court was whether Mr. Fleming’s arrest was lawful.

254The police argued that Mr. Fleming’s arrest was effective in preventing violence but the trial judge found that there was not a real risk of such violence.

255The Supreme Court held that “[a]n intrusion upon liberty should be a measure of last resort, not a first option. To conclude otherwise would be generally to sanction actions that infringe the freedom of individuals significantly as long as they are effective. That is a recipe for a police state, not a free and democratic society.”

256The respondents in that case, the Province of Ontario and seven named OPP officers, do not rely on any statute to justify the lawfulness of their arrest of Mr. Fleming. Instead, they argued that their actions were authorized at common law by application of the ancillary powers doctrine that was originally laid down by the United Kingdom Court of Criminal Appeal in R. v. Waterfield, [1963] 3 All E.R. 659, at pp. 660-62. They claimed that, according to that doctrine, there is a common law police power to arrest an individual in Mr. Fleming’s circumstances in order to prevent an apprehended breach of the peace. In essence, the respondents proposed a common law power to arrest individuals who have not committed any offence, who are not about to commit any offence, who have not already breached the peace and who are not about to breach the peace themselves.

257The Supreme Court found no such power existed at common law. The ancillary powers doctrine does not give the police a power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace. A drastic power such as this that involves substantial interference with the liberty of law-abiding individuals would not be reasonably necessary for the fulfillment of the police duties of preserving the peace, preventing crime, and protecting life and property. This is particularly so given that less intrusive powers are already available to the police to prevent breaches of the peace from occurring.

258At para. 8, the court concluded that Mr. Fleming’s arrest was not authorized by law. The OPP officers had no power of arrest in the circumstances on May 24, 2009. As a result, Mr. Fleming’s arrest was unlawful.

259Mr. Fleming’s arrest was not authorized by law, and there was no basis for intervening in the trial judge’s conclusion that the Province and the police were liable for battery for their use of force in unlawfully arresting him. As a result, no new trial was needed on the issue of excessive force.

260Following the principles set out in Fleming, this court finds that in this case, to determine whether a particular police action that interferes with individual liberty is authorized at common law, the ancillary powers doctrine must be applied. At the preliminary step of the analysis, the police power that is being asserted and the liberty interests that are at stake must be clearly defined. The analysis then proceeds in two stages. First, the court must ask whether the police conduct at issue falls within the general scope of a statutory or common law police duty.

261I find in this case the police were acting within the scope of the federal and provincial legislation, s. 495 of the Code and the common law police duty.

262Second, the court must determine whether the conduct involves a justifiable exercise of police powers associated with that duty. At the second stage, the court must ask whether the police action is reasonably necessary for the fulfillment of the duty.

263In this case, considering the objectives of police enforcement, they gave David multiple opportunities to leave and cease blocking their path to other protesters.

264The court has considered the three factors to be weighed in answering that question. Regarding factor (1), the importance of the performance of the duty to the public good, the Freedom Convoy had placed downtown Ottawa in a standstill affecting private citizens and businesses.

265Regarding factor (2), the necessity of the interference with individual liberty for the performance of the duty, this court finds that pursuant to the legislation, the Code and common law, the police were required to interfere with individual liberty. Again, I note that there is no constitutional challenge brought to the validity of the legislation. The proper application with notice to the appropriate stakeholders has not been brought.

266Factor (3) is the extent of the interference with individual liberty. Again, the police were tasked with clearing the red zone which had been occupied for weeks, bringing the downtown core to a standstill which was pursuant to emergency legislation that was never declared invalid.

267In Fleming, the Supreme Court found that Mr. Fleming was not breaking any law or initiating any violence.

268The court stated the following:

There is already a statutory power of arrest that can be exercised should an individual resist or obstruct an officer taking other, less intrusive measures. In addition, the mere fact that a police action was effective cannot be relied upon to justify its being taken if it interfered with an individual’s liberty. If the police can reasonably attain the same result by taking an action that intrudes less on liberty, a more intrusive measure will not be reasonably necessary no matter how effective it may be. An intrusion upon liberty should be a measure of last resort.

David was given many opportunities and his arrest was in this case as a last resort.

269In addition, David seeks restitution as he argues that his detention was arbitrary and prolonged. He argues that he was detained for more than 24 hours, he did not raise this at trial nor did he testify or adduce any evidence regarding this allegation. David did not bring a Charter application at the trial and hence cannot raise this new issue on appeal. The court notes that there was evidence at trial that David could have been released on the day of the arrest but he was not prepared to sign an undertaking and refused to abide by the conditions and hence he was transported to central cells causing some delay.

270This court as an appellate court cannot intervene on this record.

271Also, this court does not find any merit with respect to the ground of appeal that this court should grant equitable relief.

272With respect to the request of a vesting order pursuant to the Courts of Justice Act, this is a criminal court and not a civil court. Also, s. 100 vests real property or personal property in a person and is not an available remedy here.

273David has not provided the court with any authority for this court to grant a vesting order pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 100 correcting the status of David Arron Romlewski.

274Accordingly, David’s appeal is dismissed.

275The matter will be remitted to the Ontario Court of Justice for sentencing on the mischief convictions.