COURT FILE NO.: 22-11400944

DATE: 2024/01/25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ALLEN REMLEY

Respondent

Dallas Mack and Emma Loignon-Giroux, for the Crown

Dimitrios (Jim) Karahalios, for the Respondent

HEARD: July 26 and August 9, 2023

DECISION RE SUMMARY CONVICTION APPEAL

ON ACQUITTAL FOR MISCHIEF

SOMJI J.

Overview

[1] The Crown appeals the acquittal of the Respondent Mr. Remley for two counts of mischief entered on February 1, 2023 following a trial before Perkins-McVey J of the Ontario Court of Justice. The charges arose during the Ottawa Freedom Convoy protests (“Convoy”) in the spring of 2022. The grounds of the appeal are that Her Honour: 1) erred in excluding the Respondent’s statements to Cst. Kenney on grounds that they were involuntarily made and violated his Charter rights; 2) misapplied the law on mischief and party liability; and 3) failed to take judicial notice of facts regarding the Convoy. The Crown seeks an order substituting a conviction on both counts or an order for a new trial.

[2] Defence argues the trial judge correctly ruled that the Respondent’s statements to the police at the scene were inadmissible. In addition, Defence argues that the trial judge correctly found that the only evidence of mischief was that the Respondent’s truck was illegally parked for ten minutes and that there were jerry cans in the area which is insufficient to establish liability for mischief either as a principal or party to the offence.

[3] For the reasons that follow, the Crown’s appeal is allowed and a new trial is ordered. All legislative references are to the Criminal Code, R.S.C. 1985, c. C-46, unless otherwise stated.

Standard of Review

[4] Defence argues that the Crown cannot appeal an unreasonable acquittal as only errors of law can be appealed. The Crown argues that on a summary conviction appeal, the Crown may appeal both errors of fact and law.

[5] In reviewing trial decisions, appellate courts must show deference to a trial judge’s findings of fact. An appeal is not a retrial but rather a determination of whether there has been an error of law or findings of facts which are unsustainable.

[6] An appellate judge should not interfere with a trial decision merely because they would have arrived at a different result, but only if the trial judge made a finding that is either unsupported by the evidence or unreasonable such that it would have affected the result: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235,

[7] The standard of review for errors of law is correctness: Housen. The application of a legal standard to the facts of a case is a question of law and subject to a standard of review for correctness: R v Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20.

[8] On 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.

[9] On questions of mixed fact and law, the standard of review is more stringent. 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. As explained in Housen at para. 36:

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.

[10] More specifically with respect to the admissibility of statements, where a trial judge “properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for some palpable and overriding error which affected the trial judge’s assessment of the facts:” R v Oickle 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 71.

Issue 1: Did the trial judge err in excluding the Respondent’s statements on grounds that they were involuntarily made?

Relevant facts

[11] The Respondent was charged on February 12, 2022, that he did:

Count 1: willfully obstruct, interrupt, or interference with the lawful use, enjoyment, or operation of a property, contrary to s. 430(1)(c);

Count 2: willfully interfere with the lawful use and enjoyment of property contrary to s. 430(1)(d); and

Count 3: willfully obstruct Cst. Kenney, a peace officer in the execution of his duty, contrary to s. 129.

[12] The Crown proceeded by summary conviction. The trial proceeded over three days. The Crown called several witnesses with respect to the Convoy: Sgt. Louis Carvalho, Cst. Nicholas Bach, and Nathalie Huneault. Officers Carvalho and Bach provided evidence that on January 28, 2022, individuals from across Canada arrived in Ottawa. They parked their trucks and vehicles on the road in the Parliamentary precinct and adjacent streets resulting in a three week occupation of downtown Ottawa. The initial purpose was to protest the COVID-19 mandates, but over time there were various factions amongst the Convoy with different protest messages.

[13] Both officers Carvalho and Bach were members of the Police Liaison Team patrolling downtown during the Convoy. They testified that the protest grew quickly and within days, many streets in the downtown core were impassable such that that patrol officers had to negotiate with the protesters to move vehicles to let emergency personnel and police pass through for emergency calls. As the Convoy grew, protesters set up food stations and stages for music and entertainment. The officers described the streets as loud with music blaring, truck horns blowing, engines idling, and the smell of fuel and exhaust permeating the air, including on Kent Street. Some honking decreased over time, but the noise continued. They testified that people brought in fuel supplies for the trucks. When fuel tankers were no longer allowed to come in, people started bringing fuel in jerry cans and some used all-terrain vehicles to navigate the streets. The fuel was needed because protesters were sleeping in their trucks to stay warm.

[14] Cst. Bach patrolled the streets daily from the start of the Convoy. She described Kent Street as a one-way street running northbound toward Parliament Hill with three lanes. It was filled with 18 wheelers and trucks parked haphazardly and in the wrong direction of traffic. It was impassable and vehicles were parked bumper to bumper. At least two vehicles on Kent Street had removed their tires and were supported by blocks. There was a tent in the corner near Nepean Street serving as a food station. There was the smell of exhaust and fuel. Over time, there was feces and urine in the snowbanks and garbage everywhere.

[15] The conditions in downtown Ottawa were such that some of the non-protesters Cst. Bach spoke to said that they did not feel safe and decided to move outside the city to live with family and friends. Police also had concerns about their own safety. Cst. Bach testified that at one point she had to bungee her doors closed as protesters were trying to get into her vehicle.

[16] Both officers testified that there was daily messaging to the protesters and it increased in its severity over time. Between February 10 and 12, patrol officers told the protesters to leave in a safe manner and that if they agreed, they would try to facilitate their exit. There was also messaging to the protesters about unlawful conduct. Within the first weekend, patrollers told the protesters when they saw open alcohol, idling vehicles, or vehicles blocking lanes that their conduct was unlawful. Patrollers communicated to protesters on a daily basis that they could not obstruct highways and intersections, and by February 11-12, were telling protesters that it was a criminal offence to block the streets with their vehicles. Enforcement of these messages escalated thereafter and in particular, after the issuance of the Federal Emergencies Act, R.S.C. 1985, c. 22 (4th Supp.).

[17] The testimony of the officers on messaging was corroborated by two exhibits filed by the Crown. The first exhibit was a tweet from the Ottawa Police Service stating “IMPORTANT: Anyone attempting to bring material supports (gas, etc.) to the demonstrators could be subject to arrest. Enforcement is underway. #ottawa #ottnews.” The second exhibit was a press release issued by the Ottawa Police Service on February 9, 2022, at 2:57 p.m. stating as follow:

FOR IMMEDIATE RELEASE: Wednesday, February 9, 2022 2:57pm

Message to Demonstrators from the Ottawa Police Service

(Ottawa)—It is a criminal offence to obstruct, interrupt or interfere with the lawful use, enjoyment, or operation of property.

The offence is known as mischief to property.

The unlawful act of blocking streets in the downtown core is resulting in people

being denied the lawful use, enjoyment and operation of their property.

We are providing you notice that anyone blocking streets or assisting others in the

blocking of streets may be committing a criminal offence.

You must immediately cease further unlawful activity or you may face charges.

You could be arrested without a warrant for this offence if you are a party to the

offence or assisting others in the direct or indirect commission in this offence.

Whether you are released on bail depends on factors contained in Part XVI of

the Criminal Code.

Offence-related property, including vehicles, may be seized as part of the offence.

The vehicles may be detained and, following a conviction, possibly forfeited.

Charges or convictions related to the unlawful activity associated with the

demonstration may lead to denial in crossing the USA border.

[18] Nathalie Huneault worked as a Special Events Coordinator for OC Transpo. She testified that the Convoy blockades impacted over a dozen bus routes in the downtown core. Regular bus services were restored about 12 to 24 hours after the end of the Convoy. She testified that non-protesters felt unsafe accessing service stations.

[19] The Crown’s primary witness, and the person who had direct contact with the Respondent, was Cst. Jonathan Kenney. Defence indicated prior to the start of trial that they would be challenging the admissibility of statements made by the Respondent to Cst. Kenney on the grounds that they were involuntary. Defence did not bring a Charter application until such time as the trial judge raised the issue herself during Cst. Kenney’s testimony in the voluntariness voir dire.

[20] Cst. Kenney had been a member of the Ottawa Police Service for 19 years in 2022. At that time, he had been working for four years on a patrol team that covered the downtown core. In February 2022, however, he joined the Quick Response Team and was assigned to respond to complaints in the downtown core. Members of the Quick Response Team would receive calls from the police command centre to investigate Convoy issues.

[21] On February 12, 2022, Cst. Kenney received a general briefing from the staff sergeant in the morning that an issue was arising with jerry cans of gasoline and petrol being brought to Wellington Street near Parliament Hill. During the briefing, Cst. Kenney received information about his authority to arrest for mischief and the process for seizing jerry cans. He understood from the briefing that the act of bringing jerry cans, refilling them, and taking them to the Parliament area constituted mischief.

[22] Following the briefing, Cst. Kenney proceeded to patrol a designated area of the downtown core. He travelled in a minivan with other officers along Nepean Street until he hit Kent Street which ran north/south and ended at Wellington Street in close proximity to Parliament Hill. He described Kent Street as being completely jammed with trucks of all sizes from 18 wheelers to pick-up trucks such that it was impossible to drive down it. He testified that it was very loud and noisy because vehicles were idling and generators were operating. Cst. Kenney was surprised that he was even able to cross Kent Street along Nepean Street.

[23] Around 11 a.m., Cst. Kenney received information from the command centre about a mobile gas station that was set up at Kent Street and Nepean Street. He explained that without being provided any other information, his role was to proactively patrol the area and intervene if he saw anything that required police intervention. He testified that at that point he did not know what he would be walking into. Because of the congestion along Kent Street, he parked the minivan in a parking lot on the south side of Nepean Street. He and two other officers walked back toward Kent Street to investigate the complaint. He had at the time a licence plate for the vehicle.

[24] Cst. Kenney quickly identified a F-150 pick-up truck that he believed he was there to investigate. He saw people milling about the truck and jerry cans all lined up in wagons beside it. The truck was parked in the middle of the street with the front pointing at a southeast angle and the rear end facing northwest which he found was an odd way to park a truck. Cst. Kenney initially approached the front of the truck. He could not see what was inside the bed of the truck. He then went to the rear of the truck and saw someone in the cargo bed pumping something from a large tank located in the back of the truck and a bunch of smaller yellow jerry cans. It looked to him like someone was transferring what was in the bigger tank into the smaller cans. His precise words in examination in chief were as follows:

You know, there’s, like I said, someone in the cargo bed, you know, pumping from a, there was a like a large tank in the back of the truck, and a bunch of smaller yellow jerry cans there as well, and it looked like some, a transferring of that bigger tank into the smaller cans was happening.

[25] Cst. Kenney testified that there was a smell of gas or petrol in the air. He believed this was a mobile gas station, and that the jerry cans were being filled with gas. When asked by Crown counsel if he approached the driver of the of the truck, Cst. Kenney replied, “I did. So the gentleman was in the back of the truck. You know, I did ask the gentleman what he was doing. And I learned that jerry cans were being refilled.”

[26] At this juncture, before the Crown proceeded to ask their next question, the trial judge intervened to ask Cst. Kenney whether he Chartered and cautioned the person to which Cst. Kenney replied that he did not. The trial judge then asked Cst. Kenney to leave the courtroom. The Crown indicated that it would be soliciting evidence of utterances made by the person in the back of the truck, subsequently identified as the Respondent, which formed the subject matter of the voluntariness voir dire.

[27] The trial judge then asked Defence counsel if he was going to raise a Charter issue. Defence counsel replied that they were not prepared to waive their right to do that. The trial judge indicated to the Crown that they were on notice that a Charter issue was a possibility and that if it arose, it would be included as part of the voir dire. Following a short recess requested by the Crown, the trial judge asked the parties if there was going to be blended voir dires to which the Defence replied, “Yes, and we don’t have an application at this time.” The trial judge responded by indicating, “You can raise it orally or indicate same orally, and then provide an application at a later point. I think the issue’s fairly clear. Bring in the witness.” The following day, prior to commencing the cross-examination of Cst. Kenney, Defence counsel indicated he would be bringing a ss. 10(b) and 7 Charter argument and requesting a s. 24(2) Charter remedy. The trial judge indicated that s. 10(a) of the Charter was also a possibility.

[28] Cst. Kenney provided evidence in-chief and cross-examination about his conversation with the Respondent. He described the context in which the statement was taken as follows:

• He had checked the licence plate of the pick-up based on the information given to him by the command centre by which he was also able to identify the truck;
• He was the only one who spoke to the person at the back of the truck;
• There were two other officers present at the scene at the side and front of the truck, but he does not believe they interacted with anybody;
• All three officers were in police uniform; he had his firearm in his holster; it was clear they were police officers;
• His conversation with the driver occurred about 25-30 minutes after he received the call;
• There were a lot of jerry cans in the area;
• There was at least one wagon, the kind you pull kids on, that was full with jerry cans beside and within ten feet of the truck, but he could not state precisely where;
• He observed the driver at the back of the truck, later identified as the Respondent, pumping from a large tank;
• He could smell petrol which is a distinct smell from the engine exhaust he had been smelling earlier;
• He could not remember if he spoke to the Respondent while he was still inside the truck or outside the truck but the person was a social distance away, less than six feet from him, when they had a conversation;
• He spoke to the individual in a normal tone of voice;
• The Respondent was about six foot two and 180 pounds, an older gentleman, and wearing a winter jacket with jeans; and
• The Respondent’s demeanour was cordial and polite; he would have defined him as “pleasantly defiant,” not rude or aggressive, but “steadfast in what he was doing.”

[29] Cst. Kenney testified that he asked the Respondent what he was doing, and the Respondent responded that he was refilling jerry cans. This was noted in his Investigative Action report (“IA”) but not in his duty book notes. Cst. Kenney told the Respondent he was not allowed to do that and that this was aiding and abetting mischief. The Respondent agreed that he was aiding and abetting, but disagreed that it was mischief.

[30] At this point, a crowd started to gather and Cst. Kenney realized the police were outnumbered. People started yelling that the Respondent was “a patriot” and “don’t you have anything better to do” and “why don’t you give up your badge and join us.” Cst. Kenney tried to ignore the calls because he was focused on the person who he believed was committing a crime by refilling jerry cans. However, given his experience in dealing with the Convoy, he did not want to be the “spark” that lights up the “powder keg.” He decided the investigation was not worth continuing. He feared for his safety and decided it was not prudent to proceed with an arrest at that time. He also testified, as noted in his IA, that that he would not be able to get the uniform support to properly continue the investigation either by way of arrest or seizure.

[31] Cst. Kenney then asked the Respondent if this was his truck and he said it was. He asked the Respondent for his driver’s licence which the Respondent surrendered and which Cst. Kenney returned to him after he took down his information. Cst. Kenney explained that he believed he had authority under the Highway Traffic Act, R.S.O 1990, c. H.8, to ask for his driver’s licence based on the fact that the vehicle was parked in the middle of the street and that the person had admitted he was the driver. At trial, he acknowledged he was not sure if he had such authority.

[32] Before leaving the scene, Cst. Kenney told the Respondent that he will be facing criminal charges at a later time, he should consider stopping, and that he should leave the area. He testified in cross-examination that his last words to the Respondent were, “You came to Ottawa as a free man. You’re going to be leaving as a criminal.” Cst. Kenney testified that he felt justified in saying this because he was trying to drive home to the Respondent that it was time for the Convoy protesters to leave as they had been there for two weeks. The Respondent replied this was a legal protest and he is not leaving the area.

[33] When asked in cross-examination whether he was determined upon approaching the Respondent to charge him, Cst. Kenney replied, “No. No. No. No. I’m there to investigate to see what was going on.” It was for this reason that he asked the very first question, “What are you doing?” Cst. Kenney testified that he had not made up his mind about anything at the time he approached the Respondent.

[34] Cst. Kenney testified that he and the other officers had to go through about two or three layers of people to exit the scene. Some people were respectful, but one person stood his ground, and they knocked shoulders. He eventually got back to his car and the officers left. While he did not record the specific length of time of his interaction with the Respondent, he believes it was about ten minutes. His duty book notes were made at 11:30 a.m. and his IA was completed 37 minutes later, at 12:07 p.m. upon his return to the police station.

[35] Defence counsel asked Cst. Kenney if the situation was stressful. Cst. Kenney admitted that the Convoy in general was one of the worst times in his career and that it was not an experience the police were used to. He acknowledged his notes were not great, but the situation was different because they did not have their police car and computer with them which they would normally have to respond to such calls. Cst. Kenney testified that taking verbatim notes in that situation with the crowds is very difficult, and he could not imagine any officer doing so in such a situation.

[36] Cst. Kenney agreed he never Chartered, cautioned, or placed the Respondent under arrest. When asked if he believed the Respondent was detained, he replied that the Respondent was free to leave whenever he wanted. He viewed their interaction as a conversation.

[37] Cst. Kenney testified that at no time did he make any threats, promises or inducements to compel the Respondent to speak. He did not see the other officers interact with the Respondent.

Trial judge’s ruling

[38] In her initial ruling on voluntariness, the trial judge relied on the decision in R v Ducharme, 2004 MBCA 29, 182 C.C.C. (3d) 243, where it was found that a statement may be suspect if taken in circumstances where recording facilities exist but are not used. The trial judge also cited R v Moore-McFarlane (2001), 2001 CanLII 6363 (ON CA), 56 O.R. (3d) 737 (C.A.), stating that this case highlights that the completeness, accuracy, and reliability of the record is relevant to the inquiry into whether voluntariness has been proven beyond a reasonable doubt.

[39] In her voir dire ruling, the trial judge found that the circumstances of reliability were lacking in this case because (1) Cst. Kenney acknowledged that his notes were not verbatim; (2) he did not specify in his notes what questions he asked and what answers he gave; (3) that he was not entirely sure of the chronology of the questions and answers; (4) he admitted his notes were not great and that the situation was stressful; and (5) his independent recollection of the events was poor because he could not be sure if he saw the Respondent filling a jerry can or having a jerry can in this vehicle.

[40] Later, in her final judgment, the trial judge stated that Mr. Remley’s utterances to Cst. Kenney should be excluded because the Crown had not established beyond a reasonable doubt that the utterances were voluntarily made. Her Honour found that “given the lack of complete and accurate note taking of those utterances, and the inability to know exactly what those utterances of the Respondent were, and without further notes of the exchange, the context could not be ascertained.”

Analysis

[41] Officers are routinely called upon to investigate complaints about civilians. The law does not preclude officers from questioning civilians and making inquiries upon their arrival at the scene of an investigation. However, statements made to persons in authority, such as police officers, are presumptively inadmissible. The Crown bears the burden of proving these statements are voluntary beyond a reasonable doubt.

[42] The Supreme Court of Canada explained voluntariness at paras. 69-79 of R v Oickle. In short, an accused’s confession to a person in authority will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. A statement will be found to be involuntary where it results from threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused's right to silence. The analysis is a contextual one. Trial judges must strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession's voluntariness, taking into account all the aspects of the rule discussed.

[43] The adequacy of the interview record is generally a question of weight, not of admissibility, but there may be circumstances where there are material gaps in the voir dire evidence as to what was said or what happened during an interrogation so as to affect the voluntariness of the statement: Moore-McFarlane; see also R v Khairi, 2012 ONSC 5549, at paras. 80-81; R v Menezes (2001), 2001 CanLII 28426 (ON SC), 48 C.R. (5th) 163 (Ont. S.C.); R v Yryku, 2022 ONCJ 342. The relevant inquiry remains, however, whether the Crown has established beyond a reasonable doubt that the statements were reliable and whether the conduct of the state served in any way to deprive the accused of their free choice to speak: R v Tessier, 2022 SCC 35, 473 D.L.R. (4th) 317, at paras. 68-70.

[44] I find the trial judge erred in excluding the statements as being involuntary.

[45] First, I find the trial judge misapplied the law on the sufficiency of the record in assessing voluntariness. The trial judge did not find that the Respondent’s statements were the result of police trickery, oppression, or promises, threats, or inducements, or the lack of an operating mind. Her reasons for excluding the statement focused solely on the sufficiency of the record. In this regard, the trial judge referred to the decisions in Ducharme and Moore-McFarlane. While both these decisions address the need for a reliable record to assess voluntariness, they arose in circumstances where the police were taking statements from persons in police detention where recording facilities were readily available and not used. In Moore-McFarlane, the suspect was in custody when interviewed. Recording facilities were available, but the officer had given no thought to using them prior to interrogating the suspect. The resulting record was found to be seriously deficient so as to “militate against any reasonable finding that the statements were voluntary:” at para 79.

[46] In R v Ducharme, the Manitoba Court of Appeal found that while the trial judge was correctly troubled by the failure of the officer to use the recording facilities at the station to conduct his interview, there were no grounds to intervene with the trial judge’s ruling that the statements were nonetheless voluntary. While it may be preferable for the police to use recording devices where available, the failure to so does not automatically mean the exclusion of the evidence on a voir dire: 2004 MBCA 29 at paras 26, 46 and 48.

[47] Similarly, in Yryku, a case which Defence seeks to rely on appeal, the police interrogation also occurred at the detachment. In Yryku, the appellant was detained at the police station where the officer was able to audio or video record the statement. In addition, the statements were part of a longer interview where 50 percent of the video recording played in court ended up being inaudible. Furthermore, the officer participated in multiple exchanges with the accused and had provided inconsistent evidence about what transpired at each exchange resulting in the trial judge not having any confidence as to the entirety of what was said.

[48] The circumstances in Ducharme, Moore-McFarlane, and Yryku were not present here. One, the Respondent was not under detention at a police facility when Cst. Kenney approached and questioned him at the back of his truck. Two, Cst. Kenney did not have recording facilities available and was not in a position, as he explained, to take verbatim notes in light of the tense situation forming around him. Three, unlike in Yryku and Moore-McFarlane, the statements taken were not lengthy interviews, but involved a few questions and answers during a ten-minute conversation. In assessing whether the record was sufficiently reliable, I find the trial judge failed to take into consideration the context in which the statement was taken and erred in applying a more exacting standard expected of police interviews taken in circumstances where recording facilities are readily available.

[49] Second, I find the trial judge erred in law by finding that Cst. Kenney was required to provide a verbatim account of what the Respondent said to establish voluntariness. The cases referred to by the trial judge do not impose such a rigorous standard. The relevant inquiry, as indicated most recently in Tessier, is whether the Crown has discharged the burden of proving the statement is voluntary beyond a reasonable doubt and not that the content of the statement is proven beyond a reasonable doubt. Counsel has not filed any cases to suggest that the sufficiency of a record requires contemporaneous notetaking or recording.

[50] On the contrary, the jurisprudence suggests that the use of a summary, in this case Cst. Kenney’s IA, or the absence of a verbatim report by the officer of what was said, does not affect the validity of a statement to a person in authority: Menezes, at para. 28. “Assuming the Crown can put before the court a record sufficient to establish voluntariness, for which as described above there was evidentiary support in this case, the question of the accuracy of what the police officer recorded is a matter of weight and not admissibility”: Khairi, at para. 83; Menezes, at paras. 27-28; R v Maragh (2003), 58 W.C.B. (2d) 22 (Ont. S.C.); R v Connor (2009), 202 C.R.R. (2d) 43 (Ont. S.C.), at para. 125

[51] The decision in R v Montgomery, 2011 ONSC 5331, is instructive in this regard. In that case, defence challenged the reliability of statements made by the accused on the grounds that there were inconsistencies in the officer’s evidence at the voir dire and at the preliminary hearing. The trial judge found that the burden on the Crown at the voluntariness stage is low and all that was required is that there be some evidence that the statement attributed to the accused was made: at para. 9, citing R v Gauthier (1975), 1975 CanLII 193 (SCC), [1977] 1 S.C.R. 441. Provided that the utterances were made in the presence of a testifying officer, the officer made a note of the utterances a short time afterword, the utterances were made in response to an enquiry by the testifying officer, and there was no evidence of threat of prejudice or promise of reward, the Crown had discharged its burden of establishing voluntariness beyond a reasonable doubt. See also Park v R, 1981 CanLII 56 (SCC), [1981] 2 S.C.R. 64, at p. 77; Khairi at paras 85-97; R v Ramirez-Chavira, 2021 ONSC 3603 at para 33.

[52] Similarly, in O’Connor, Molloy J recognized that it is not possible for an officer to create a verbatim transcript during an interview by writing longhand notes. While in that case she found there were shortcomings in the officer’s notes, they were not so lacking in specificity so as to be completely unreliable and ultimately, these shortcomings were an issue of weight rather than admissibility: O’Connor at paras 124 and 125; see also Sauve, 2016 ONSC 3921 at paras 38-39.

[53] Third, I find the trial judge’s finding that Cst. Kenney’s evidence of what the Respondent uttered was unreliable was not borne out in the evidence. Cst. Kenney gave evidence about a single exchange with the Respondent involving three questions and three responses. While Cst. Kenney was candid about certain details he could not remember about the encounter, these details related to his observations and not the Respondent’s statements to him. Cst. Kenney was neither confused nor did he waiver in his testimony that the first question he asked the Respondent was “what are you doing?” and that the first answer he received from the Respondent was that he was “refilling jerry cans.” Cst. Kenney reiterated on multiple occasions that this first question and response was set out in paragraph 4 of his IA which he prepared 37 minutes later upon his return to the detachment. The excerpts of Cst. Kenney’s evidence regarding this first statement are as follows:

➢ In-chief at page 88 of the transcript in-chief

Q. And did you approach the driver of the truck?

A. I did. So the gentleman was in the back of the truck. You know, I did ask the gentleman what he was doing. And I learned that jerry cans were being refilled.

➢ In chief at page 98 of the transcript, January 12, 2023

A: Well, I’ll go refer to again the 4th paragraph of my IA — my Investigative Action, I’m sorry. Just give me a sec here. I’m sorry.

...WHEREUPON THE WITNESS IS READING HIS

INVESTIGATIVE ACTION

A. Oh, right. Okay. I did ask him what he was doing. Am I allowed to say what he responded?

Q. Yes.

A. Okay. He said he was refilling....

THE COURT: Did you make verbatim notes?

A. Verbatim notes, I did not. No.

THE COURT: They weren’t made at the time, obviously.

A. Well, what I have in my notes is just kind of basic, you know, his identification information, you know. But, no, I don’t have verbatim notes, Your Honour, of what was said and what was said back to me.

THE COURT: Okay. Thanks.

A. Anyway, he said he was refilling jerry cans. So then I told him he’s not allowed to do that. I told him that this was considered mischief. He then said he.... Actually, what I said was this is, you know, considered the aiding and abetting of the offence of mischief. He agreed that he was aiding and abetting, but he disagreed that it was mischief. He believed he was in a lawful protest and what he was doing was lawful.

➢ In-chief at page 102 of the transcript, January 12, 2023

Q. And did anything that the driver said to you confirm for you the reason why you were there?

A. Well, I mean, when I had asked him what he was doing, he said he was refilling the jerry cans. For me, I think that was enough to say, hey, like, I think you’re committing.... I said, I believe you’re committing — well, I told him.... Sorry, I didn’t say, I believe. I said, I told him, you are committing mischief here. You know. He disagreed.

➢ In cross-examination at page 10 of the transcript January 13, 2023

Q: And you’d already determined upon approach that you were going to be charging this individual?

A. No. No. No. No. I’m there to investigate to see what was going on. ‘Cause again, my very first question to him is “What are you doing?” I think that’s a fair question. So my mind was definitely - certainly not made up.

Q. (PAUSE) Fairly early on in the conversation you let him know that you’d be charging him?

A. I’m just going to refer to my IA just to refresh my memory here. (PAUSE) So paragraph four I asked ‘im what he was doing. He said he was refilling jerry cans. At that moment I say hey, like, you’re not allowed to do that. I told ‘im what we had discussed yesterday that it was aiding and abetting mischief. He agreed that he was aiding and abetting but disagreed that it is mischief. So - yeah. I mean, I hadn’t really made up my mind in that moment yet. I’m still trying to get him to cooperate to stop – my ultimate goal is to get him to stop doing the thing that I believe he’s doing which, again, he was steadfast.

➢ In cross-examination at page 11 of the transcript January 13, 2023

A. In my IA though - I just read it. That he said he was refilling jerry cans. Paragraph four – just about four lines down in paragraph four. [Emphasis added.]

[54] Counsel argues that when it was suggested to Cst. Kenney in cross-examination that the Respondent never said what it was alleged he said, Cst. Kenney replied, “It’s possible he did, possible he didn’t, but I don’t have it noted and I don’t have an independent memory.” While it is correct that Cst. Kenney provided this answer, a careful examination of the transcript makes clear that this answer was not provided in relation to the Respondent’s first statement that he was refilling jerry cans, but rather, counsel’s inquiry about whether the Respondent later stated that he would neither stop refilling jerry cans nor leave which Cst. Kenney noted at paragraph 7 of his IA. The exchange between counsel and Cst. Kenney is as follows:

➢ Cst. Kenney in cross-examination at p. 13, January 13, 2023:

A. So I’m going to - paragraph seven, I said - I said “You should consider stopping and leaving.” He said this is a legal protest and he’s not leaving. Yeah.

Q. But in terms of what you just said Mr. Remley said, you said he said he was not gonna stop refilling jerry cans?

A. Oh - apologies. Okay - that’s what you mean. (PAUSE)

Q. I’m going to suggest to you that he did not say that. Is it possible he did not say that?

A. No. It’s possible he did, possible he didn’t, but I don’t have it noted and I don’t have an independent memory of it, so....

[55] By failing to consider the whole of Cst. Kenney’s evidence, I find the trial judge committed a palpable and overriding error in concluding that the record of the Respondent’s first statement was so deficient so as to undermine voluntariness beyond a reasonable doubt.

[56] Finally, the trial judge emphasized the officer’s failure to provide a caution, but provided no reasoned analysis as to why this was dispositive of the issue. As stated by the Supreme Court of Canada in Tessier, the police caution that anything a person says may be used against them in court, is an aspect of fairness, rather than the reliability of the accused’s statement. While it is to be considered, it is not determinative of voluntariness: at para. 74. The Court explains at para. 75:

The caution is required to attenuate the informational deficit in the face of heightened risk and vulnerability. Even if one acknowledges that many encounters with the police can be daunting, fairness considerations are unlikely to arise in the same way where the person is not suspected of being involved in the crime under investigation. Fairness concerns are manifest once an individual is targeted by the state. There is nothing inherently unfair, for instance, about police questioning a person standing on the street corner without providing a caution while gathering information regarding the potential witnessing of a crime.

[57] The Supreme Court goes on to explain that the test is an objective one requiring a contextual inquiry into whether the officer views the person as a suspect. Once the trial judge concludes that the person was a suspect, the absence of a caution is prima facie evidence of an unfair denial of choice to speak but not dispositive of the matter: Tessier, at paras. 82, 89. However, the absence of a caution is but one factor to be considered and the “courts must explicitly address whether the failure created an unfairness in the circumstances”: Tessier, at paras. 82-83. In this case, even if the trial judge found Cst. Kenney viewed the Respondent as a suspect, she failed to explicitly address whether the absence of a caution was dispositive of the issue.

[58] In conclusion, I find the trial judge erred in excluding the Respondent’s statements for involuntariness. The Crown appeal on this ground is granted.

Issue 2: Were the Respondent’s ss. 7, 9, 10(a) and 10(b) Charter rights violated?

[59] Upon ruling on voluntariness, the trial judge went on to find that even if the statement had been voluntarily made, she would have excluded it because the Respondent’s rights under ss. 9, 10(a), and 10(b) of the Charter were violated.

The Charter application

[60] Defence counsel alleges on appeal that the judge’s rulings are sound and result, in part, from the Crown’s failure to call all officers present at the scene to testify at the voir dire. Therefore before addressing the substantive ruling, it is important to address the context in which the Charter application arose.

[61] The burden of proof in a voluntariness voir dire is on the Crown, while the burden of proof in a Charter application is on the accused. Rule 3.1 of the Criminal Rules of the Ontario Court of Justice, SI/2012-30, require that a Charter application must generally be brought 30 days before trial, but the court may authorize a different time period. The rule requiring notice serves to assist courts in managing trial times, but also permits the Crown to know the scope of evidence it must present to respond to alleged Charter violations.

[62] Trial judges may identify potential Charter issues during a trial, particularly where there are self-represented accused. However, should they do so, procedural fairness requires that the Crown have an opportunity to receive from counsel, where one is present, at least a rudimentary Charter notice to understand the Charter provisions at issue and the grounds for the alleged violations. This allows the Crown to determine if additional witnesses are required, and if so, whether a further adjournment is necessary to call such witnesses. In this case, when the trial judge put the Crown on notice that there would be a blended voir dire including Charter issues, there was no discussion of whether this might require the Crown to call additional witnesses. Furthermore, during the closing submissions, Defence raised Charter issues not only with respect to whether the Respondent’s statements were Charter compliant, but additionally, whether Cst. Kenney’s conduct in looking into the truck cab and smelling petrol should be excluded pursuant to ss. 8 and 24(2) of the Charter.

[63] Ultimately, the Crown decided to conclude the voir dire the following day based on Cst. Kenney’s evidence alone and did not seek a further adjournment of the trial. Nonetheless, when considering Defence’s suggestion on appeal that the trial judge’s rulings is a consequence, in part, from the failure of the Crown to call the additional officers to the scene, it is important to keep in mind that the Crown had less than 24 hours to prepare and respond to the Charter arguments raised mid-trial by the trial judge and for which the Crown had received no notice.

[64] Furthermore, there was no evidence presented at trial to suggest that the other officers had any relevant evidence to give on the voir dire. Cst. Kenney’s evidence was that the other officers were not involved in his inquiry with the Respondent. Defence would have had full disclosure of the other officer’s notes or IAs and in anticipation of the voir dire, had not made any requests that the officers be available for cross-examination.

Trial judge’s ruling on the Charter issues

[65] The trial judge found that the Respondent’s ss. 9, 10(a), and 10(b) Charter rights were violated because the Respondent was detained at the time he was spoken to. Her Honour came to this finding on the basis that Cst. Kenney was in uniform at the time, attended the scene for the purpose of conducting an investigation, and had told the Respondent he was committing mischief for which he could be charged. The sum total of Her Honour’s Charter ruling was as follows:

I agree that the accused was detained when he was questioned. He was questioned by a police officer in uniform who was conducting an investigation. He had attended at the scene for that very purpose. The accused was told that he was committing mischief and would be charged later on. I agree that at that time he should have been provided with his right to counsel and cautions, and that the accused rights were violated at that time. If the utterances of the accused had been admitted on the basis of voluntariness, I would have excluded them due to a violation of the accused’s Charter rights under Section 9, 10(a) and 10(b).

Analysis

[66] I find the trial judge erred by (1) misapplying the law with respect to the meaning of detention under s. 10 of the Charter; (2) failing to provide any reasons for a s. 9 Charter breach; and (3) failing to undergo a s. 24(2) Charter analysis as to why the statements should be excluded.

[67] Section 10 of the Charter states as follows:

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

[68] A person is detained where they are either physically or psychologically restrained at the hands of the state: R v Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R v Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R v Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460. In this case, the Respondent was not physically restrained, and the sole issue is whether he was psychologically restrained.

[69] Psychological detention may occur in two ways. One, where the person has a legal obligation to comply with an officer’s request or demand, or two, where a reasonable person would feel obligated to comply with a police direction or demand and that they are not free to leave: Grant at para 44; Suberu at para 25.

[70] A proper application of the test for psychological detention requires the trial judge to consider the factors set out in Grant at para 44, namely: i) the circumstances giving rise to the encounter as the individual would reasonably perceive them; ii) the nature of the police conduct; and iii) the particular characteristics or circumstances of the individual where relevant.

[71] As explained by the Supreme Court of Canada in Grant at para 26 and reiterated in Suberu at para 24, the meaning of detention requires a balancing between society’s interest in effective policing and protecting detainee’s Charter rights:

…the meaning of "detention" can only be determined by adopting a purposive approach that neither overshoots nor impoverishes the protection intended by the Charter right in question. It necessitates striking a balance between society's interest in effective policing and the detainee's interest in robust Charter rights. To simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter.

[72] Consequently, as reiterated in Suberu, not every police interaction with a civilian leads to a finding of detention. Where the police believe a crime has recently been committed, they may engage in preliminary questioning of bystanders without giving rise to a detention under ss. 9 or 10 of the Charter: Suberu, at para. 28; Grant, at para. 37. The line between general questioning and focused interrogation resulting in detention may be difficult to draw, and it is the trial judge’s task to assess the circumstances to determine if that line has been crossed: Suberu, at para. 29.

[73] In Suberu, an officer responded to a call about a person attempting to use a stolen credit card at the LCBO. The officer was advised there were two male suspects. He directed one of the suspects, Mr. Suberu, not to leave and questioned him from outside of his van where he was seated. The officer asked Mr. Suberu seven questions to which Mr. Suberu responded. The officer then received further information about the suspect’s van and noticed it matched Mr. Suberu’s vehicle. The officer asked for and reviewed Mr. Suberu’s ownership documents. He then looked inside the van where he saw Walmart and LCBO shopping bags. At this juncture, the officer was satisfied he had reasonable and probable grounds to arrest Mr. Suberu for fraud following which he gave Mr. Suberu his caution and Charter right to counsel.

[74] The trial judge found, and the Supreme Court of Canada agreed, that no detention had occurred during the officer’s questioning of Mr. Suberu. The trial judge correctly found that the initial interview outside the van was preliminary or exploratory in nature and did not constitute detention within the meaning of s. 10 of the Charter: Suberu, at para. 31. The Supreme Court noted that “it would also be unreasonable to require that the right to counsel be given the moment the police approach any suspect in the process of sorting out the situation”: Suberu, at para. 32. It was only after the officer had sufficient information linking Mr. Suberu, the van, and its contents to an offence that he believed had been committed that detention could be found. The Court concluded the following at para. 32:

As a whole, the circumstances of the encounter support a reasonable perception that Constable Roughley was orienting himself to the situation rather than intending to deprive Mr. Suberu of his liberty. Further, as noted, Mr. Suberu did not testify or call evidence on that matter. In summary, the circumstances, as revealed by the evidence, do not suggest detention.

[75] In this case, I find the trial judge misapplied the law on detention by finding that because Cst. Kenney was called upon to investigate a matter, namely the presence of a mobile gas unit at Kent Street and Nepean Street, his entire encounter with the Respondent resulted in a psychological detention.

[76] First, Cst. Kenney was clear that after he received the call and headed toward Kent Street and Nepean Street to investigate a mobile gas unit, he had no idea what he was getting into.

[77] Second, the only information Cst. Kenney had upon arrival at the scene was the licence plate of the truck. He had no confirmation that someone was operating a mobile gas unit from this vehicle, and if so, who was operating that unit – the driver, a passenger, or another protester.

[78] Third, when counsel suggested to Cst. Kenney that he had in mind to arrest the Respondent when he approached him at the back of the truck, Cst. Kenney clearly stated that this was not the case. He was there to investigate to see what was going on. This was corroborated by the fact that the very first question he asked the Respondent is “what are you doing?”

[79] Fourth, at no point did Cst. Kenney issue a directive such as hold on or wait and the Respondent was free to leave.

[80] Finally, the Respondent did not testify that he felt any psychological restraint. While the failure of a person to testify as to his or her perception of the encounter is not fatal to the Charter application, a person’s contention that the police by their conduct effected a significant deprivation of their liberty must find support in the evidence before the court: Suberu, at para. 28. Here, there was no evidence that the Respondent felt “no choice but to comply”. On the contrary, the Respondent freely responded to Cst. Kenney’s questions and expressed by both his actions and words that he would not leave.

[81] The trial judge was correct that Cst. Kenney told the Respondent he could be charged with mischief. At that point, I would agree that that Cst. Kenney’s encounter with the Respondent had likely crystallized into a detention: Suberu, at para. 5. However, this crystallization occurred after the Respondent had confirmed to Cst. Kenney that he was refilling jerry cans and agreed that he was aiding and abetting, but disagreed his conduct constituted mischief. At this juncture, it could be argued that Cst. Kenney would have been obliged to caution the Respondent about anything further he said and to provide him his Charter rights, and therefore, any statements made thereafter by the Respondent should be excluded. However, this determination would also require a contextual analysis given Cst. Kenney’s evidence of the volatility of the situation.

[82] For example, in R v Gandzalas, (June 26, 2023), Ottawa, 22-15605 (S.C.), another mischief case arising during the Convoy, the court considered whether the officer’s delay in reading the Respondent his rights was justified. In that case, the officer testified he did not feel safe pulling out his notebook to read the accused his rights at the time of arrest given the volatility of the situation, and his rights were read to him only once he was secured in the police cruiser. Dorval J., found that the ten-minute delay was reasonable and did not result in the breach of the Respondent’s 10(b) Charter rights.

[83] In sum, I find the trial judge failed to apply the legal test set out in Grant and Suberu to determine whether any portion of Cst. Kenney’s encounter with the Respondent was preliminary or exploratory and to identify at what point Cst. Kenney would have been satisfied that the Respondent was directly involved in the incident under investigation, i.e., namely that he was the suspect operating a mobile gas unit out of a truck in support of the protest: Suberu, at paras. 5-6.

[84] Section 9 of the Charter states: “Everyone has the right not to be arbitrarily detained or imprisoned.” The trial judge failed to provide any reasons for why s. 9 of the Charter was breached not allowing for any effective appellate review of this issue.

[85] Finally, upon finding both s. 9 and 10 Charter violations, the trial judge did not undergo a s. 24(2) Charter analysis under the three-part test set out in Grant as to whether the Respondent’s statements should be excluded, a necessary aspect of any Charter application and one that was argued before her: Grant at paras 85, 89 to 98. The failure to provide sufficient reasons so as to allow for affective appellate review constitutes an error in law: R v R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 11, 25; R v Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 46.

[86] The Crown appeal on this ground is granted.

Issue 3: Did the trial judge misapprehend the facts resulting in an acquittal of mischief?

[87] Even if I am incorrect with respect to the voluntariness and Charter rulings and the statements were correctly excluded, I find the trial judge misapprehended the evidence and erred in her application of the law on mischief as it applies in the context of protests.

The position of the parties

[88] The Crown argues that the trial judge erred in finding the Respondent not guilty of mischief, contrary to s. 430(1)(c) or s. 430(1)(d). Specifically, the Crown argues that the trial judge erred in her analysis of the elements of mischief and party liability and relied on innocent explanations for the Respondent’s conduct that were not grounded in evidence. The Crown argues that by illegally parking his vehicle on the road and refilling the jerry cans with fuel to support the Convoy, the Respondent either committed mischief or was aiding or abetting the mischief.

[89] Defence argues that the trial judge was correct to find that an illegally parked truck and the presence of jerry cans within the vicinity is insufficient evidence to find the Respondent liable for mischief as principal or party. Defence argues that the trial judge’s findings are entitled to deference, and provided they are reasonable, should not be interfered with.

Trial judge’s findings on mischief

[90] The trial judge found that the Crown’s case was based on circumstantial evidence. Citing the decisions of R v Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 100, and R v Jahangiri and Jahangiri, 2018 ONSC 3037, the trial judge indicated that in order to find the Respondent guilty on the basis of circumstantial evidence, she had to be satisfied that the only reasonable inference that can be drawn from the evidence as a whole must be one of guilt. Where there are alternative reasonable explanations for the Respondent’s conduct, the Respondent is entitled to an acquittal. She then proceeded to apply these principles to the offences charged.

[91] With respect to the offences of mischief, the trial judge found that the issue was whether the Crown had proven the Respondent was a party to the mischief carried out by the Convoy protesters. The trial judge referred to the evidence of officers Carvalho and Bach relating to the Convoy generally including the traffic congestion, noise and smell pollution from the blockade, as well as police directives to protesters both before and after the “court injunction.” However, she did not find, as suggested by the Crown, that the protest itself was a mischief nor did she draw any inferences with respect to the Respondent’s conduct based on the general evidence of the Convoy.

[92] The trial judge then went on to consider what aspects of the Convoy Mr. Remley was not involved in. She found that there was no evidence that (1) the Respondent was one of the leaders or organizers of the protest or that he financed the protest; (2) that the Respondent had not been honking his horn; (3) that he was not interacting or inciting persons involved in the protest; and (4) that he was not involved in any subgroup of the protest or social media conversations. The trial judge also found that while the Respondent’s vehicle was illegally parked and running on Kent Street at 11 a.m., there was a crossroad open to first offenders, the Respondent had not abandoned his vehicle, and it was unclear how long it had been there. Consequently, there was no evidence that the Respondent formed an intention in common with any of the protesters or that his illegally parked vehicle and ten-minute encounter with Cst. Kenney was sufficient to establish that he committed mischief or was a party to it.

[93] The trial judge found that although Cst. Kenney was an honest witness, she was not satisfied his evidence established that the Respondent “knowingly engaged in the act of refilling jerry cans, knowing the Convoy’s nature and its purpose.” In this regard, she highlighted that Cst. Kenney was not certain that he observed the Respondent actually filling the jerry cans. Given her earlier rulings on the Respondent’s statements, she did not consider the Respondent’s own admission in doing so. The trial judge concluded as follows:

Based on the evidence before me, the best we have is jerry cans in a wagon 10 feet away with dozens of people milling about. Without being able to put the Respondent engaged in the act of filling them up, loading the wagon, or finding jerry cans in his truck, without evidence of him ever holding one, the offence is not made out beyond a reasonable doubt. Constable Kenney, although credible, could not give reliable evidence and the exchange set out indicates same. It is not enough to say the accused was present at the scene. We have no evidence that he shared the same political views as the protesters or what his purpose was. Something more is required to found a criminal conviction.

If he had been charged with parking on a one-way street in the wrong direction, so-be-it. But this is a Criminal Code offence. I do not see on the evidence before me that the accused, anything the accused did furthered the actual commission of mischief by others nor are his own acts proven beyond a reasonable doubt.

Analysis

[94] Sections 430(1)(c) and (d) read as follows:

(1) Every one commits mischief who willfully

(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.

[95] Mischief is a general intent offence. The offence is intended to capture persons who engage in conduct that interferes with the lawful use, enjoyment, or operation of property (actus reus) where that conduct is engaged in willfully (mens rea): R v Schmidtke (1985), 1985 CanLII 3621 (ON CA), 19 C.C.C. (3d) 390 (Ont. C.A.).

[96] In the context of public protests and blockades, persons may be found criminally liable for mischief by their own actions or in aiding or abetting other protesters. Section 21 of the Criminal Code addresses party liability and reads 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.

[97] To aid is to assist or help the actor. Abetting includes encouraging, instigating, promoting, procuring or supporting the offence: R v Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 14-18; R v Cowan, 2021 SCC 45, 409 C.C.C. (3d) 287, at paras. 29, 31, and 33.

[98] It is well established that “mere presence at the scene of a crime will not be sufficient to ground culpability for a criminal offence. 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:” Dunlop and Sylvester v the Queen, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881, at p. 891. As explained by the Court of Appeal for Ontario more recently in R v IA, 2023 ONCA 589, at para. 10, “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.”

[99] These principles apply equally to persons who participate in a public protest. The challenge, of course, is ascertaining when a person’s conduct at a protest goes beyond mere presence at the scene. The case of R v Mammolita (1983), 1983 CanLII 3563 (ON CA), 9 C.C.C. (3d) 85 (Ont. C.A.) is instructive on this issue.

[100] In Mammolita, over 75 protesters joined hands in front of a plant during a labour protest that prevented management and staff from accessing the plant. The police used a loudspeaker informing the protesters that they were in violation of an injunction. Thirty-three people were charged for committing mischief by willfully obstructing and interfering with the use and operation of the business property. The trial judge dismissed the mischief charges on the grounds that the picketers were merely present at the scene and had not engaged in any overt act by way of aiding or encouraging others at the protest. On appeal, the District Court overturned the decision on the grounds that the trial judge had erred in considering the inferences that could be drawn from the evidence as a whole which was that there was a concerted effort by the group through their conduct in preventing staff from accessing the plant. The Court of Appeal agreed.

[101] The Court of Appeal explained 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: at p. 89. The Court of Appeal found that the act of standing shoulder to shoulder with other persons to form a human barricade constitutes an obstruction and then went on to consider whether the obstruction was willfully done. In this regard, the Court of Appeal considered the context in which the acts occurred which included the facts of an ongoing labour strike and police trying to clear a passage on a roadway blocked by the protesters. From these circumstances, the Court of Appeal found it was reasonable to infer that the persons standing in the manner that they did were aware that their conduct in linking hands would obstruct the roadway and their failure to extricate themselves from the group was reckless activity. The Court of Appeal went on to find that even those standing on the fringe of the core group blocking the roadway could be liable for mischief as principals if their presence prevented others from bypassing the core group.

[102] The court then went on to consider the liability of the protesters as aiders and abettors of mischief and indicated at para. 17 the following criteria that had to be met:

a. There must be an act or omission of assistance or encouragement;

b. The act must be done or the omission take place with the knowledge the crime will be or is being committed;

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

[103] The court added that 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 and that strength of numbers may be an important source of encouragement: Mammolita at para 17.

[104] Courts across the country have found liability in mischief for minimal forms of conduct that exceeded mere presence at the protest. In R v Pascal, the BC Supreme Court found that the presence of a group of protesters dressed in camouflage and who had set up a makeshift camp along Highway 99 that blockaded vehicles and logging trucks were liable for mischief: 2002 CarswellBC 3838, aff’d 2006 BCSC 1311 at paras. 52-61. In R v Snarch the Quebec Superior Court found that the accused’s participation with a group of 50 students occupying a university computer centre for 13 days and restricting access by others to the school facilities made her a party to mischief. The accused’s mere presence aided and assisted the students who erected the actual barricades because the occupation’s success depended on having a significant number of participants: (1969), 1969 CanLII 904 (QC CS), 7 D.L.R. (3d) 62 (QC. S.C.), at p. 72. In R v Colford, (1993), 1993 CanLII 15355 (NB PC), 140 N.B.R. (2d) 161 (Prov. Ct.), protesters erected roadblocks on highways in what was described as a peaceful protest against legislative amendments imposing sales taxes on Indigenous persons residing on reserves. Although the decision is not a binding authority, the New Brunswick Provincial Court added a "personal addition and caveat" to the three requirements of mischief set out in Mammolita which is that: "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:” at para. 30. Applying the Mammolita framework and additional caveat, the trial judge found four of the six accused who were present and drumming with protestors guilty of mischief.

[105] Courts have also found that the use of vehicles to form a blockade will result in liability for mischief as principle or party. In R v Tysick the Superior Court of Justice found that the accused’s conduct in parking a truck at one entrance and setting up an encampment with tents, generators, campers, and food at a second entrance as part of a blockade during a labour protest that prevented access to a commercial property constituted mischief: R v Tysick 2011 ONSC 2192, 290 O.A.C. 336.

[106] Defence counsel relies on the trial judge’s finding that the truck was only illegally parked for ten minutes as a sufficient basis to acquit for mischief. However, while Cst. Kenney only interacted with the Respondent for ten minutes, there was evidence that the Respondent’s vehicle had been there for at least 30 minutes prior to his arrival because Cst. Kenney received a dispatch at 11 a.m. concerning a vehicle with the same licence plate, a fact not considered by the trial judge.

[107] Furthermore, neither the statutory elements of mischief nor the supporting jurisprudence requires that obstruction or interference with the enjoyment of property must occur for a minimum amount of time before liability for mischief can be found. What is significant is not the duration of the conduct but the context in which it arose. For example, in R v Drainville (1991), 1991 CanLII 13897 (ON CJ), 5 C.R. (4th) 38 (Ont. C.J.), the accused argued that his participation in a road blockade only accounted for a 3-minute delay. In analyzing the "de minimis" argument, the court stated at para. 13, that even where the obstruction is brief, it must be considered in the overall context of the protest:

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.

[108] In this case, the trial judge’s reasons focused on what the Respondent had not done rather than analyzing the evidence before her as to what he had done and the context in which it was done. As was the case in Mammolita and Drainville, the trial judge failed to consider the inferences that could reasonably be drawn from the evidence as a whole, including evidence of the ongoing protest. That body of evidence from Cst. Kenney alone consisted of the following:

a. On the offence date, the Convoy protest had been ongoing for two weeks;

b. Cst. Kenney had received a briefing in the morning that mobile gas units were operating in support of the Convoy and the operation of these units could constitute mischief and also received instructions on how to seize jerry cans in such circumstances;

c. Cst. Kenney received a further dispatch from the command centre at 11 a.m. that a mobile gas unit was possibly operating at Kent Street and Nepean Street and was provided the licence plate for a pick-up truck;

d. The Respondent’s truck was illegally parked in the middle of Kent Street where there was a blockade of vehicles supporting the Convoy;

e. That the vehicles were parked bumper to bumper and Kent Street was impassable;

f. On that particular day, there was both noise and the smell of exhaust from vehicles running their engines and the operation of generators;

g. The Respondent had in the back of his truck a large tank and smaller jerry cans;

h. Cst. Kenney observed the Respondent in the back of the truck pouring something from a large tank and surmised that he may have been transferring fuel from the larger tank into smaller jerry cans;

i. Cst. Kenney could smell petrol which was a distinct smell from the exhaust he smelled earlier;

j. There were jerry cans around the truck including in a wagon that was likely being used to transport the jerry cans; and

k. The Respondent made no effort to extricate himself from his conduct, even after being told by Cst. Kenney he was aiding and abetting a mischief and should leave.

[109] In this case, the Respondent did not offer any explanation for why his truck was parked in the opposite direction of traffic in the middle of Kent Street which is a major downtown roadway. While the failure of the Respondent to testify and provide an explanation does not justify an inference of guilt, it may result in a body of evidence before the court that does not allow the judge to conclude otherwise: R v Lepage, 1995 CanLII 123 (SCC), [1995] 1 S.C.R. 654, at para. 29, citing R v Johnson (1993), 1993 CanLII 3376 (ON CA), 12 OR (3d) 340 (Ont. C.A.), at pp. 347-48; see also R v Carroo, 2010 ONCA 143 at para 33.

[110] The fact that there were other crossroads open and passable is not determinative: Gandzalas, at p. 15. The fact remained, as Cst. Kenney pointed out, and as corroborated by officers Carvalho and Bach, that Kent Street was completely impassable because of the vehicles parked bumper to bumper, including 18 wheelers and pick-up trucks, thereby obstructing and interfering with the lawful use of that roadway.

[111] There is also no requirement as established in Tysick, at para. 38, that the Respondent had to be directed to leave or have knowledge that protesters had been directed to leave to find liability for mischief. Moreover, there was evidence before the court, and which the trial judge referred to, that a court injunction had been issued days earlier on February 9, 2022. This court injunction had been imposed because of the noise pollution caused by the vehicles blockading downtown in support of the Convoy. There was also evidence before the trial judge that on February 9, 2022, the police issued a “Message to Demonstrators” indicating that blocking streets was unlawful and may result in criminal charges.

[112] In short, even without consideration of the Respondent’s statements at the scene, there was evidence before the court from which one could reasonably infer that the Respondent was not merely present at the scene, but had parked his vehicle in the manner that he did as part of a larger procession of vehicles blockading Kent Street for the purpose of supporting the Convoy protestors. I find that the trial judge’s misapprehension of the evidence with respect to the duration for which the Respondent’s vehicle had been parked as well the failure to consider the whole of the evidence in determining what reasonable inferences could be drawn from the presence of that vehicle on Kent Street on the morning of February 12, 2022, resulted in a palpable and overriding error.

[113] The Crown appeal on this ground is granted.

Issue 4: Did the trial judge fail in taking judicial notice of certain facts?

Position of the parties

[114] The Crown argues that the trial judge erred in failing to take judicial notice of certain facts which had they been accepted would have resulted in a different outcome. The Crown proposed at the outset of trial that the trial judge take judicial notice of 11 paragraphs of information concerning the development and events of the Convoy along with a timeline of various responses to the Convoy. The timeline made references to class action suits and injunctions filed with the courts, police messages issued to protesters, and municipal, provincial, and federal emergency measures passed during the Convoy.

[115] Defence argues the Crown never filed a judicial notice application in advance of trial. Their request on the first day of trial that the judge take judicial notice of a list of facts related to the Convoy was properly dismissed because the list contained controvertible facts many of which were germane to whether the Respondent was guilty of mischief. Furthermore, even if the trial judge had taken judicial notice of some of the proposed facts, it would not have impacted her findings that there was insufficient evidence of mischief. Moreover, the Crown had an opportunity to call much of this evidence through several police offers and therefore suffered no resulting prejudice.

Trial Judge’s ruling on judicial notice

[116] Upon reviewing the Crown’s proposed facts for judicial notice, the trial judge found that many of the facts were highly nuanced, including references to happenings on particular streets. How those events could be interpreted was subjective and controvertible and not something one commonly takes judicial notice of. The trial judge found that the Federal Emergency Act was not relevant as it was issued after February 12th, but that the Ontario emergency measures might be relevant. With respect to press releases, messages, and tweets to protesters, she was not satisfied that they were “so notorious” or that this information was publicly disseminated. She concluded that all the facts proposed, including those in the timeline, would have to be led in evidence.

Analysis

[117] Trial judges may take judicial notice of certain facts so as to avoid the need for leading the evidence at trial: R v J.M. 2021 ONCA 150 at paras. 31 and 51. There are two routes to judicial notice: a court may take judicial notice of facts that are i) either so notorious or generally accepted as not to be the subject of debate among reasonable persons” or ii) “capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy:” R v Spence, 2005 SCC 71 at para. 53. The assessment of notoriety is objective and context dependent. Where notoriety relies on common knowledge, the question is whether it is common knowledge in the locale where the case is tried: R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128 at para. 13; R. v. Potts (1982), 1982 CanLII 1751 (ON CA), 26 C.R. (3d) 252 at 262 (Ont. C.A.), leave to appeal ref’d [1982] 1 S.C.R. xi [WL].

[118] I find the trial judge did not err in dismissing the application for judicial notice. While it is common knowledge that the Convoy involved a three week blockade in the streets of downtown Ottawa in February 2022 and resulted in disruption to residents and interference with property, the specific details of what streets the blockades occurred on, the various forms the blockades took, the types of conduct and activities that 100s of protesters engaged in, and the myriad of responses by municipal, provincial, and federal police and government agencies involved controvertible facts that are not readily known to all people within the community.

[119] The Crown’s list of proposed facts included details of which streets were blocked, that certain streets and highways exits were closed or entirely impassable, that there was noise pollution at all hours, and that protesters engaged in various disruptive activities. Moreover, many of the claims were generalized to span the entire 3-week period which is not necessarily accurate. For example, even the Crown’s own officers who testified about the Convoy confirmed that there were different phases to the Convoy and that both the protest activity and police responses escalated over time. In this regard, the trial judge was correct to find that many of the facts proposed were subject to different interpretations and therefore, could not meet the test for judicial notice. Furthermore, the trial judge did not find that the municipal or Ontario emergency measures could not be relied on, but appeared to suggest that they be properly introduced and filed as legislative acts pursuant to the Evidence Act.

[120] While I agree with the Crown that the decision to invoke the Federal Emergency Act a few days later could be relevant to demonstrate the dire situation in Ottawa and the extent of the Convoy’s impact on the city on February 12, 2022, I do not find the Crown was prejudiced by the trial judge’s failure to take judicial notice of this fact. Ultimately, most of the facts relating to the Convoy for which the Crown sought judicial notice, including the messages to protesters, were introduced in evidence through the police and civilian witnesses and as discussed above, were available for the trial judge to consider in determining whether a mischief had occurred. This ground of appeal is accordingly dismissed.

[121] In conclusion, the Crown appeal is granted and a new trial is ordered.

Justice Somji

Released: January 25, 2024