SUPERIOR COURT OF JUSTICE
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Patrick King
Accused
Moiz Karimjee and Emma Loignon-Giroux, for the Crown
Natasha Calvinho for Patrick King
HEARD: May 13, 15-17, 21-24, and July 17-19, 22, 23 and 26, 2024
TABLE OF CONTENTS
REASONS FOR JUDGMENT. 3
Overview.. 3
Positions of the Crown and Defence. 4
Evidentiary overview.. 5
Points of Law Concerning Mischief, Party Liability, and Counselling. 6
Mischief. 6
Freedom Convoy Jurisprudence. 8
Crown’s Evidence. 14
Patrick King and the Freedom Convoy (the videos) 14
January 12, 2022. 15
January 20, 2022. 15
January 30, 2022. 15
January 31, 2022. 16
February 5, 2022. 16
February 7, 2022. 16
February 8, 2022. 17
February 9, 2022. 17
February 10, 2022. 17
February 13, 2022. 18
February 16, 2022. 18
February 18, 2022. 18
Other Crown evidence. 19
Officer Carmo (Mr. King’s Arrest) 19
Officer Blonde. 20
Testimony of Downtown Residents and Businesspersons. 21
Ms. Victoria De La Ronde. 21
Ms. Vivian Leir 22
Ms. Chantal Biro. 22
Ms. Nathalie Huneault 23
Defence Evidence. 23
PLT officers. 23
Mr. Daniel Bulford. 25
Ottawa Residents and Visitors. 25
Ms. Christine Generoux. 25
Mr. Dylan Dumsday. 26
Ms. Christine McPherson. 27
Mr. Kalveer Grewal 27
Mr. Dale Zuccatto. 27
Mr. Kim Ayotte. 28
Analysis. 30
Mischief: Counts 1 and 5. 30
The Intimidation Charges: Counts 2, 6 and 7. 34
Obstructing Police Counts 3 and 4. 38
Disobey Court Order - Counts 8 and 9. 40
Defence of Officially Induced Error 41
Summary and Disposition. 42
REASONS FOR JUDGMENT
Justice Charles T. Hackland
Overview
1The accused (“Patrick King” or “Mr. King”) stands charged on a nine-count indictment arising out of his involvement in what has been called the “Freedom Convoy”. The Freedom Convoy was a form of protest involving hundreds of vehicles and thousands of individuals which occupied much of downtown Ottawa for a period of approximately three weeks, from January 28, 2022 to February 20, 2022.
2The accused is charged with mischief (counts 1 and 5), obstructing police (counts 3 and 4), intimidation (counts 2, 6, and 7), and disobeying a court order (counts 8 and 9). The Crown alleges the accused committed these offences as a principal or as a party under s. 21(1)(b) and (c) of the Criminal Code, R.S.C. 1985, c. C-46, or by way of counselling pursuant to ss. 22 and 464 of the Criminal Code.
3The court heard extensive evidence about the effect of the Freedom Convoy on downtown Ottawa. The convoy consisted of several thousand individuals from across Canada, arriving in private vehicles, including many large commercial tractor-trailers and other trucks, to protest COVID-19 health mandates and other perceived government overreach. Mr. King personally led a large convoy of vehicles to Ottawa from Western Canada, and he and some of his followers were active participants during the course of the convoy activities. Downtown areas were jammed with trucks and vehicles blocking many streets, blowing truck horns, disrupting public transportation, and generally bringing the central core of the city to a standstill. Many downtown residents as well as owners and employees of small businesses and other institutions suffered significant interferences in the use and enjoyment of their property and in their daily activities.
4As Freedom Convoy participants continued to occupy Ottawa’s downtown area, they and their spokespersons told both police and the public that they would not leave until the government agreed to terminate COVID-19 mandates. Police sought to manage the situation and ensure public safety by controlling the movement of traffic and public transportation and by attempting to keep one traffic lane open on most streets to permit emergency vehicle access. As the situation escalated and grew out of control, the City of Ottawa declared a municipal state of emergency on February 6, 2022. Downtown residents, through private legal counsel, sought and obtained injunctive relief against honking of air horns and train horns (order of the Superior Court of Justice, per McLean J., dated February 7, 2022). Further injunctive relief was sought and obtained by the City of Ottawa on February 9, 2022. The Government of Ontario declared a provincial state of emergency on February 11, 2022. The situation contributed to the federal government’s invocation of the Emergencies Act, R.S.C. 1985, c. 22, and the ensuing declaration of a national state of emergency.
5On February 18, 2022, a three-day multi-jurisdictional police operation began to clear Freedom Convoy participants still within the downtown core of Ottawa. The accused was arrested mid-day on February 18, 2022, and thus had no further involvement in convoy activity from that point forward.
6The bulk of the evidence regarding Mr. King’s specific involvement in the Freedom Convoy arises from his own social media, where he recorded and often live streamed his activities in Ottawa. He had a large online following, sometimes numbering over 300,000 persons, including some Freedom Convoy participants. A series of videos were entered into evidence on consent through a police intelligence analyst who had downloaded the material from open-source postings on the internet. Video evidence shows Mr. King’s participation from the planning stages of the Freedom Convoy in mid-January 2022 to his arrival in Ottawa on January 29, and then records his ongoing participation and involvement ending with his arrest on February 18.
Positions of the Crown and Defence
7The Crown’s position is that the activities of the Freedom Convoy constituted or rapidly developed into an ongoing mischief in which Mr. King was a willing participant, a leader, and one of the principal organizers. His participation and indeed his organizational and leadership activities are extensively documented in Mr. King’s own social media in the form of videos, made exhibits in this trial. While the central charges against the accused are mischief and counselling mischief, it is alleged other offences were committed as well, as discussed below.
8Mr. King’s position is that the Freedom Convoy protestors were engaged, in good faith, in a lawful and constitutionally protected protest against government overreach, and to the extent some residents and business persons in downtown Ottawa were inconvenienced, it was said to be the fault of the police and city officials who mismanaged the situation and provided bad advice to convoy leaders and participants. Moreover, the accused argues the charges have not been proven on the evidence, to the criminal standard of proof.
Evidentiary overview
9This was a lengthy and complex trial. The Crown’s case, in addition to the extensive video evidence of Mr. King’s activities and his accompanying dialogue in these videos, consisted of testimony from a resident living with a disability in the downtown area in the “Red Zone” where many of the convoy demonstrators’ large commercial trucks were parked, and a shop owner and a church administrator, who both worked in the downtown area. As well, the Crown called evidence from a scheduling administrator from the municipal bus company, OC Transpo, and three persons employed by the Ottawa Police Service (“OPS”), being an intelligence analyst who downloaded the videos, the constable who carried out the arrest of Mr. King on February 18, and Officer Blonde from the Police Liaison Team (“PLT”).
10Notably, the Crown did not call evidence from any senior police officer or any senior municipal official. Apart from the arresting officer (Mr. King’s arrest was unremarkable), no Crown witness interacted in any substantial way with Mr. King during these events. The member of the police PLT team who was assigned to monitor and communicate with Mr. King was not called to testify.
11The defence called 13 witnesses. Mr. King did not testify. The defence called six OPS officers, all from the PLT team, three convoy participants from out of town, three Ottawa residents who observed or experienced some aspects of the convoy, and Mr. Kim Ayotte, a senior city official who was General Manager of Emergency and Protective Services at the relevant time.
12As discussed in more detail below, the general thrust of Mr. Ayotte and the six police officer’s evidence supported the fact that the Freedom Convoy had rapidly become quite out of control with the result that the central downtown Ottawa area was in a form of lockdown and extensive activities were required and continuously under way to preserve public safety and safe access to this area for residents and business people. None of the defence witnesses except Mr. Zuccatto interacted with Mr. King in any substantial way, but they generally knew of him and believed him to be one of the organizers of the Freedom Convoy.
Points of Law Concerning Mischief, Party Liability, and Counselling
Mischief
13The essence of the offence of mischief is the deliberate interference with a person’s lawful use, operation, or enjoyment of property. One can commit this offence by personal conduct, by being part of a common purpose with others who are engaging in such conduct, or by aiding and abetting others to do so. Aiding and abetting is an act or omission of assistance or encouragement which must take place with knowledge that a crime will be or is being committed and must be done for the purpose of assisting or encouraging the perpetrators.
14In addition, it is an offence to counsel others to commit mischief and this is so even if the counselled offence is not committed. Sections 22 and 464 of the Criminal Code provide the following:
Section 22(1) to (3) of the Criminal Code
Person counselling offence
22 (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.
Idem
(2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.
Definition of counsel
(3) For the purposes of this Act, counsel includes procure, solicit or incite.
Section 464(a) of the Criminal Code
Counselling offence that is not committed
464 Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel other persons to commit offences, namely,
(a) every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable
15While mere presence will not suffice to establish party liability on the basis of aiding and abetting, in the context of group mischief, presence may be sufficient to establish liability. It was held in the leading case of R. v. Mammolita (1983), 1983 3563 (ON CA), 9 C.C.C. (3d) 85 (Ont. C.A.), at para. 17 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.” In Mammolita, a large group of picketers interfered with police who were attempting to escort personnel into a workplace and the obstruction or interference was found in the human barricade that was created. It was “more than mere presence and passive acquiescence” (at para. 9).
16In Mammolita, the Court of Appeal made the following observation respecting liability as a principal (at paras. 13-14):
…a person may be guilty as a principal of committing mischief under s.387(1)(c) [now s.430(1)(c)] if he forms part of a group which constitutes a human barricade or other obstruction. The fact that he stands shoulder to shoulder with other persons even though he neither says nor does anything further may be an act which constitutes an obstruction. The presence of a person in such circumstances is a very positive act.
It may not be very difficult to infer that a person standing shoulder to shoulder with other persons in a group so as to block a roadway knows that his act will probably cause the obstruction and is reckless if he does not attempt to extricate himself from the group. This is particularly the case if the person knows of the existence of a strike and is confronting a large group of police officers who are trying to clear a passage. The 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 by-passed.
17It should be noted that counselling pursuant to s. 464 of the Criminal Code is meant to capture situations where the offence counselled is not, in fact committed. Accordingly, s. 464 is an offence unto itself and in the present case is charged against Mr. King pursuant to counts 1, 2, 3 and 8 of the indictment. Furthermore, to establish the mens rea for counselling, it must be shown that the accused intended the offence counselled to be committed or was aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct: see R. v. Hamilton, 2005 SCC 47, 255 D.L.R. (4th) 283.
18In the very recent Freedom Convoy appellate decision of R. v. Pawlowski, 2024 ABCA 342, the Alberta Court of Appeal observed at para. 18 that for political speech or communication to constitute the actus reus of counselling, “the Crown must prove beyond a reasonable doubt that it will be reasonably understood as in substance deliberately encouraging or actively inducing those with a political cause to engage in criminal activities in support of that cause, rather than as in substance expressing support for the political concerns or goals of the criminal actors.” In Pawlowski, the court upheld the trial judge’s finding that a speech inciting protestors to continue an ongoing blockade of a highway constituted an incitement to commit mischief.
Freedom Convoy Jurisprudence
19It will be of assistance to refer to several recent decisions of this court and from the Ontario Court of Justice arising from the Freedom Convoy in the context of charges of mischief. I will refer to R. v. Romlewski, 2023 ONSC 5571, 93 C.R. (7th) 146 (Doyle J.), R. v. Remley, 2024 ONSC 543, 169 O.R. (3d) 665 (Somji J.), R. v. Decaire 2024 ONSC 4713 (Somji J.), and R. v. Gandzalas, (26 June, 2023), (Prov.Ct.), (Dorval J., unreported).
20In Romlewski, the accused was found in the downtown Red Zone area on February 19, 2022, despite the multiple warnings in the days prior that Freedom Convoy participants had to leave or would face arrest. As police officers conducted enforcement to secure the area previously occupied by protestors, Romlewski verbally challenged them. Police made multiple attempts to persuade Romlewski to leave. He refused and sat on the ground in defiance. He was subsequently arrested and charged with one count of obstructing police and two counts of mischief.
21At trial, the Crown led considerable contextual evidence pertaining to the Freedom Convoy and its impact on the City of Ottawa. As in the present case, the Crown argued that Romlewski was part of the Freedom Convoy and liable as a party to the mischief that characterized the Freedom Convoy’s occupation of Ottawa. This theory was based on party liability as an alleged co-principal, an aider and abettor, and through common intention, and was said to be supported by Romlewski’s words and actions on February 19, 2022, as well as a Facebook post from January 30, 2022 wherein he expressed support for the Freedom Convoy.
22The trial judge convicted the appellant of the obstruction charge but acquitted him of the two mischief charges. The trial judge accepted that a larger mischief was occurring owing to the occupation of Ottawa by Freedom Convoy protesters, but found the accused could not be held liable as a party because he was on a “lark of his own” and was “acting on his own agenda” not connected to the protest leadership or its organization.
23The Crown appealed the acquittal on the mischief charges, and Romlewski cross-appealed his conviction on the obstruction charge. The summary conviction appeal court allowed the appeal and dismissed the cross-appeal, substituting a conviction on the mischief charges. Justice Doyle, after reviewing the case law concerning party liability in the protest and blockade context, concluded (at para. 150) that “[t]he 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.”
24Doyle J. found the trial judge had erred in his analysis of party liability by taking an overly narrow view of the circumstances. The court held that a broad approach is mandated and that all circumstances ought to be considered to determine party liability in group protests (at para. 163). Reviewing all circumstances (at paras. 176-199), including a social media post where Romlewski said “… way to stand up Canada!! Keep those horns honking and those Spirits high!!”, the court found that Romlewski’s presence, actions, and encouragement amounted to participation in the mischief occasioned by the Freedom Convoy (at para. 203).
25In Remley, the accused was found standing in the back of his pickup truck in Ottawa’s downtown core on February 12, 2022. Remley’s vehicle was parked on the road in a southeast position blocking passage on Kent Street, a northbound one-way street. At the time, Kent Street was littered with vehicles of all kinds parked bumper-to-bumper and was entirely impassable. A large container was on the back of Remley’s truck. The officer on scene advised Remley that he was committing the criminal offence of mischief. Remley disagreed. A crowd started surrounding the officer, who chose to retreat for his safety. Before departing, the officer was able to confirm Remley’s identity and his ownership of the pickup truck. Remley was arrested some time later and charged with mischief.
26At trial, the Crown argued that Remley was part of the Freedom Convoy, the activities of which constituted a broader mischief. The Crown’s theory was that the container on Remley’s truck was full of fuel and that Remley was using it to refill jerry cans to be used by other participants in the Freedom Convoy occupation, thereby aiding and abetting mischief.
27The trial judge acquitted Remley, holding that the Crown had failed to prove Remley was a party to mischief, either as an aider or abettor, by providing gasoline to the Freedom Convoy, or as co-principal by obstructing Kent Street with his vehicle. The trial judge found that Remley’s vehicle, facing the wrong way on Kent Street and parked with numerous other vehicles, was not part of a mischief because emergency vehicles could travel along Nepean Street, running perpendicular to Kent Street.
28The Crown appealed the acquittal. On the issue of party liability, the summary conviction appeal judge, Somji J., found the trial judge erred in her analysis of party liability. Reviewing the jurisprudence discussed above regarding the offence of mischief in the context of protests and blockades, the court found that the trial judge’s reasons had erroneously focused on what the Respondent had not done, rather than analyzing the evidence about what he had done and the context in which it was done (at para. 108). In so doing, the trial judge had failed to consider the inferences that could reasonably have been drawn from the accused’s conduct.
29In examining some of the circumstances in the evidence at trial, the summary conviction appeal court noted the following:
that there were other crossroads open and passable is not determinative of an absence of mischief;
there is no requirement for the Respondent to have been directed to leave or have knowledge that protesters had been directed to leave to find liability for mischief; and
there is no minimum time requirement before liability for mischief can be found (at paras. 107-112).
30The summary conviction appeal court ultimately found there was evidence before the court from which it could be reasonably inferred that the accused was not “merely present” but had acted in such a manner for the purpose of supporting the Freedom Convoy.
31In Decaire, the appellant was acquitted at trial of mischief. She had been present on Nicholas Street on the morning of February 18, 2022, in proximity to vehicles parked there in support of the Freedom Convoy at a time when police were clearing vehicles and protesters. The Crown argued this amounted to sufficient evidence to find the appellant guilty of mischief as a principal or party to the offence. The trial judge’s view was that based on his finding of facts, while the appellant was present at the scene, there was no evidence that she engaged in any overt acts of mischief or formed a common intention with others to engage in an unlawful purpose to block the streets thereby causing mischief.
32The trial judge observed that it was indisputable that the Freedom Convoy obstructed, interrupted, and interfered with the lawful enjoyment of or use of the property of thousands of residents, but he held that his task was not to decide if the Freedom Convoy resulted in a mischief at large, but whether the Crown had proven beyond a reasonable doubt that the accused committed mischief as a principal or party or obstructed police in the execution of their duties. He found that the evidence established neither. He found there was no evidence of any other civilians or protesters near the accused, nor evidence connecting the accused with any of the parked vehicles. The trial judge distinguished Mammolita on this basis. In fact, there was no evidence presented that the accused was standing near any civilians who were protesting. The trial judge also rejected the Crown’s submission that a video showing the accused emptying a coffee pot some days earlier at Coventry Road where convoy protesters had previously gathered, established that she was a convoy member. The summary conviction appeal judge accepted the trial judge’s factual findings and analysis and dismissed the appeal.
33In Gandzalas, an unreported decision of the Ontario Court of Justice, Dorval J. (June 26, 2023) the accused was found in a line of protestors during the police enforcement action of February 18, 2022 (the same day as Mr. King was arrested). The accused was arrested on the scene and charged with two counts of mischief and one count of obstructing police. He was found guilty on all counts.
34The trial judge took judicial notice of a number of facts surrounding the Freedom Convoy, including that the Freedom Convoy had set up road blockades composed of thousands of vehicles in the downtown core of Ottawa to protest public health measures, affecting public transit routes and making passage on downtown streets difficult. The trial judge further took judicial notice that air horns and train horns were blared in a sustained manner, until they abated following an interlocutory injunction issued by the Superior Court on February 7, 2022. The trial judge accepted that vehicles were left running, affecting air quality, and that the Freedom Convoy participants had set up a supply chain at 302 Coventry Road. She concluded the Freedom Convoy adversely affected downtown businesses and downtown residents’ lives, and concluded it constituted a mischief.
35The trial judge dismissed Gandzalas’ application under s. 2(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11, finding that by the time of Gandzalas’ arrest, the actions of the Freedom Convoy consisted of an occupation of the downtown core of Ottawa. Accordingly, the actions of the defendant in pursuing his protest in this context were not protected by s. 2(b) as they constituted criminal activity. Put differently, since the protests had become unlawful and he remained, his arrest for mischief was not unlawful. The trial judge analyzed the legality of the Freedom Convoy’s activities in the following terms: the Freedom Convoy Protest was unlawful as soon as it interfered with the lawful use or operation of property, namely the streets and public areas of Ottawa. There is no doubt that the chaotic scene, as outlined in both the evidence and the judicially considered facts, established that the citizens of Ottawa were no longer able to attend their employment, businesses, appointments, or public parks in the downtown core. Those spaces were either occupied by vehicles, structures, or people. The noise level created by the blaring horns impeded the basic needs of sleep or the ability to focus. This clearly amounted to mischief.
36The trial judge found that Gandzalas had participated in that mischief through his actions, namely by driving participants in and out of the core, by acting as security on Coventry Road, and by urging others to protest when facing the line of officers, including by yelling “hold the line.”
37In R. v. Pawlowski, 2024 ABCA 342, the accused was charged with committing mischief contrary to s. 430(1)(c) of the Criminal Code. A truckers’ blockade of a highway occurred near Coutts, Alberta between January 28 and February 14, 2022. The accused travelled from Calgary on February 3, 2022, in order to deliver a speech at Smugglers Saloon in Coutts. He observed the blockade en route to Coutts but did not personally participate. However, he gave a speech at the Saloon which the trial judge found to be an incitement to the protesters in attendance to continue the blockade and was therefore an incitement to commit mischief. The trial judge found the statements made by the accused were delivered at a time that the accused knew the protesters were obstructing and interfering with the lawful use of the highway. The accused’s statements to the truckers were very similar to the words spoken by Mr. King to his followers in Ottawa, in the present case. The trial judge stated at paras. 48-49, and 53:
He [the accused] told the protesters that the whole world was watching them. He told the protesters that they had the momentum at the blockade, saying "Do not lose your momentum." He told the protesters that they have the power and not to give it away. On two occasions, he told the protesters not to break the line.
Sprinkled throughout the Speech, Mr. Pawlowski made a number of ad hominem attacks referring to individuals who he blamed for the current situation, Trudeau, Kenney, Hinshaw, and Tam, in derogatory terms, calling them villains.
Looking at the context of the Speech, looking at the content, and looking at the tone of the Speech I am satisfied beyond a reasonable doubt that Mr. Pawlowski intended to incite the audience to continue the blockade. Mr. Pawlowski deliberately incited the protesters to commit mischief with the intent that the protesters would continue to commit that mischief.
38On appeal, the Court rejected the appellant’s submission that he was merely expressing his political thoughts and beliefs and not specifically inciting the continuation of the blockade, stating the following at para. 32:
[w]e agree with the trial judge that there was no other logical inference than the appellant intended to incite the protestors to continue with the blockade of the highway. …the appellant “deliberately incited the protesters to commit mischief with the intent that the protesters would continue to commit that mischief”.
Crown’s Evidence
Patrick King and the Freedom Convoy (the videos)
39As stated previously, the Crown’s case against Mr. King is largely based on his own social media posts, multiple excerpts from which were downloaded from open online sources by an OPS intelligence analyst and admitted into evidence on consent in the form of videos. These videos span dates beginning before Mr. King and the convoy’s arrival in Ottawa and continue from his arrival on January 29th and throughout the three-week period ending February 18 when Mr. King was arrested and detained in custody. February 18-20 were the dates the Freedom Convoy was forcibly removed from the city in a large joint police operation.
40I agree with the Crown position that these videos (and transcripts prepared from the videos) provide considerable insight into Mr. King’s intentions as well as his role and personal conduct preceding and during the Freedom Convoy’s presence in Ottawa. The Statement of Admissions (exhibit 1) provides “the open-source videos from Pat King’s social media in disclosure are authentic and admissible evidence”.
41So far as the offence of mischief is concerned, the Crown’s position is that the Freedom Convoy, once it arrived in Ottawa, quickly grew or evolved from a lawful protest movement into an occupation or blockade of the downtown areas, having the effect of interfering with people’s use and enjoyment of public and private properties. The Crown alleges these videos depict Mr. King counselling the offence of mischief, or committing mischief himself, as well as personally engaging in or counselling the offences of intimidation, obstructing police, and disobeying a court order. He is alleged to have committed these offences as a principal or as a party (aiding and abetting) or as part of a common purpose.
42I will review a number of the more significant videos, in chronological order:
January 12, 2022
43Before Mr. King led a convoy of vehicles to Ottawa, he was describing to his on-line followers his goals and plans for the convoy:
We have threatened to put transport trucks on a standstill. And now the government wants to reverse the mandates on truck drivers. That’s just the start. This is still goin’, guys. This is still happenin’. Only we’re not just gonna stop the trucks, we’re rollin’ right to Ottawa again. We are doing another convoy across Canada with all the trucks, all the way to Ottawa….
We put the fear of God in the government and the government reversed the mandate for the truck drivers … And they’re gonna be even more scared when we roll into Ottawa with a million fuckin’ trucks.
January 20, 2022
44Mr. King tells his online followers “Let’s give history the moment that Canadians peacefully “bear hug” its capital and took it back for the people. And in taking it back, that’s by saying the mandates are being done and abolished”. He continues:
Uh, our road captains, myself, and the other group of road captains, there are a lot of us. We’re going to put in your Ottawa check-in verification. So, when you arrive in Ottawa, I’m gonna do a head count. We’re gonna have safety meetings every day … convoy does continue … we do not … not until Trudeau surrenders … we basically want the mandates lifted and then once the mandates are lifted, we’re staying there until everything else is fixed.
January 30, 2022
45Two days following Mr. King’s portion of the convoy arriving in Ottawa, and with a background of loud honking and visible fireworks as he walks around, he tells his online followers:
“I’ve been running logistics and coordinating fuel and food and stuff for everybody all day” … “It’s just a sea of horns all around here” … “We’re not moving. We’re not leaving” … “It’s all gridlocked”.
January 31, 2022
46In this video Mr. King is coordinating the honking of horns (“don’t forget, horns every half hour for 10 minutes”) and telling his followers about his involvement in secretly moving 80 trucks overnight to help jam up Kent Street. He says:
“Every half hour for ten minutes, you’re blowin’ horns” … “We have all of Ottawa gridlocked right now” … “There go the horns. Okay, I gotta go before it gets really loud” … “We moved in 80 trucks last night in the middle of the night. It was so cool. And then we got to Kent Street and went, whoosh, whoosh, and we jammed up Kent Street” … “Don’t forget, horns every half hour. For ten minutes”.
February 5, 2022
47Mr. King says, “If we have to, we will do a convoy every friggin’ year so these guys know that we mean business”. His comments show his understanding that people are looking to him for leadership and direction, and he welcomes this.
“Everybody’s comin’ up to me and sayin’, ‘Pat we love you. Pat, you’re a hero. Pat, we love you. You’re the best’ It’s you guys. It’s all you guys. Are my heroes”.
February 7, 2022
48Mr. King tells his followers that an injunction has been granted by a judge and “for 10 days, we need all horns silenced”. He comments that it is “pretty hilarious…that people haven’t been able to sleep for 10 days”:
“Break, break, break on the horns…everybody silence on the horns. This is their grounds to arrest you and pull you out of your trucks … so now we’re dead silent on the horns, OK?” … “Ottawa Municipality has just requested a federal representative to come down and negotiate with us. We are winning” … “Remember, these people haven’t been able to sleep for ten days. Okay? (laughs). “It’s kind of funny. I’m not gonna lie. It’s pretty hilarious” … “And now they put an injunction in there and, and now they’re asking for the feds to come and negotiate and get us outta their city” ... “It’s working beautiful, it’s awesome guys”.
February 8, 2022
49Mr. King encourages protestors to “stand with us and honk the horns”, “let the heavens hear you”. He appears to be escalating his message, saying:
“Um, I don’t give a shit anymore. It’s game on, boys. Blow those horns. Let ‘em go. Let those horns fire as loud as you can. I don’t give a shit anymore and, uh, you know what? They want to come in with many, many, many, many police officers, they’re saying” … “Let’s encircle Ottawa” … “Ottawa City Council right now is saying 100% that they cannot get tow trucks from anywhere across Canada and pull us out of here” … “Stand with us. Stand proud. Honk those horns. Let the heavens hear you”. We’re asking everybody to get down here. Get to Ottawa now. Let’s encircle Ottawa. Let’s get Ottawa a bear hug by citizens and cars and trucks, it doesn’t matter … we need to bear hug this city 100% and this needs to be done ASAP”.
February 9, 2022
50Mr. King speaks of his leadership activities and continues to exert his followers to come to Ottawa to support the Freedom Convoy and to “hold the line”, saying:
“So, I email money transfer truck drivers money, people money, so that they can put fuel in their vehicles, they can pay for their hotel rooms, they can put food in their bellies. I have been helping everybody that I can with what I’ve got. But now our government of Canada has just now gone ahead and eliminated my bank account” … “We need everybody in Ottawa. Come on. Get down here” … “Stay strong, yeah. Hold the frickin’ line”.
February 10, 2022
51Mr. King personally leads a “slow roll” to obstruct and delay traffic to and from the Ottawa airport. The video shows the congestion he is creating. Some of his online comments:
“Share the hell outta this, guys. We are at the Ottawa International Airport and we are slow rolling the airport” … “Start jammin’ her up. This is the loop right here. You’re gonna come around, you’re gonna keep loopin’ this” … “Let those horns go” … “Jam up all lanes guys” … “Some of these people aren’t too happy, but you know what? … It’s five minutes out of your day that you were slowed down” … “Just gonna get the, get the attention, let people remember, “Hey, we’re still here. We haven’t left” We haven’t left, Ottawa, and we don’t plan on leaving anytime soon until you get these politicians, get them goin’, get them talkin’ get them understanding that, “Hey, things need to change in Canada and they need to change really fast” … “Thanks, guys. We ain’t goin’ anywhere, I promise. We’re just making sure the rest of Ottawa remembers why we’re here”.
February 13, 2022
52Becoming aware of increasing police pressure on convoy participants to leave residential areas and the city itself, Mr. King increases his ongoing admonitions to ‘hold the line’.
“Truckers, in your trucks. Do not move. Do not leave. There is no letter going out. There’s no letter going around. This was part of the counter-protestors shit. What they did, it’s all a lie. Do not leave Ottawa. Do not back your trucks out. Do not leave the residential areas. You are good to go. Stand your ground. That’s it. That’s all. Stand your ground. Hold the line, you guys …”
February 16, 2022
53Mr. King urges convoy participants to maintain the truck blockade and counsels them to link arms and resist police if they attempt to intervene.
“Where one goes, two more enter! Jam it! See that? See that? One moves, two more moved up” … “And when comes time, if need be, this message doesn’t reach the ears of those, those police officers, we link arms, we sit on the ground, we turn our back to the men and women in our law enforcement because they have already turned their backs on us”.
February 18, 2022
54In the morning hours, just prior to his arrest, Mr. King counsels his followers in the convoy to block roads to avoid being towed. Later that morning, he broadcasts a different message to his online listeners, stating that convoy leadership has a “contingency plan” by which OPS will let them leave the city and they can drive to a truck stop west of the City, regroup, and possibly return. This extraordinary online message appears to have been sent out just before his arrest.
“If we have any truckers down by Coventry, pull your truck up, stick her jackknifed on the Riverside Road, and hold that friggin’ line. Jackknife your truck on Riverside, hah, and don’t let these friggin’ tow truck drivers in …
Its crazy right now … there is a contingency plan in place … Ottawa City Police will let you leave if you want to leave under your own power. Get out because we’ve already won … we are not retreating. That is the key to this … we are regrouping.”
Other Crown evidence
55Significantly, the Crown called only two police officers to testify. Officer Carmo, who carried out the arrest of Mr. King just after noon on February 18, 2022, and Officer Blonde, who testified about his observations of the Freedom Convoy from his perspective as a member of the PTL unit. Their testimony is discussed below.
Officer Carmo (Mr. King’s Arrest)
56Officer Carmo was dispatched with another officer to arrest Mr. King. He pulled over a vehicle in the vicinity of the War Museum. Mr. King, whom he recognized, was sitting in the front passenger seat with two other men in the vehicle. Mr. King rolled down his window and the officer advised him he was under arrest and instructed him to get out of the vehicle which he did, but only after lighting a cigarette. It was the officer’s impression that Mr. King was live streaming when the vehicle was intercepted. Mr. King got out of the car, was polite and fully co-operative, and was cautioned and placed in the police vehicle. He was told he was being arrested for mischief, counselling mischief, and counselling the disobeying of a court order. Officer Carmo testified he did not believe Mr. King was obstructing him or resisting arrest.
57I find Mr. King’s arrest to have been unremarkable. Mr. King may not have exited his vehicle quite as quickly as the officer expected, but this was a polite interaction and was accomplished in a very timely, respectful, and appropriate fashion by officer Carmo, with the accused’s co-operation. Mr. King stepped out of the vehicle within a minute and a half of the officer’s instruction to do so. He did not obstruct the officer.
58The Crown abandoned their initial position after explaining in their opening remarks that evidence of Mr. King’s arrest and his actions surrounding his arrest constituted evidence of a personal obstruction of justice contemplated by count 4 of the indictment.
Officer Blonde
59The Crown also called acting Sergeant Blonde as a witness, a member of the PLT during the Freedom Convoy. Officer Blonde testified that the Freedom Convoy was by far the largest demonstration he had ever been involved with in terms of its scope and duration.
60Officer Blonde viewed his role as a PLT officer as that of a conduit of information between his chain of command and stakeholders, including persons who were demonstrating. He sought to obtain information from these stakeholders and determine their intentions. He explained that the PLT unit’s objectives were to do everything they could to ensure things remained peaceful, lawful, and safe. He further explained that PLT officers assume a role of neutrality and function in a non-enforcement capacity.
61Officer Blonde described heavy concentrations of trucks and other vehicles in the downtown core. His testimony painted a picture of a downtown area gridlocked by trucks and other vehicles. This was corroborated by a “compilation video” (exhibit 2), filed on consent, which was a disturbing collage of images of loud and disorderly behavior in the downtown area over the course of the Freedom Convoy’s occupation of the area.
62Officer Blonde explained the PLT’s actions in the latter days of the Freedom Convoy, including the use of what he described as a “measured approach.” As early as February 9, 2022, police were telling persons at the Coventry Road staging area to leave. He explained that from February 15, 2022, the PLT began disseminating more formal messaging to encourage demonstrators to leave of their own accord. A notice was distributed downtown, which advised demonstrators of the potential consequences of their remaining in Ottawa, namely the possibility of arrest. This notice was outlined in blue. The next day, the PLT distributed another notice, with firmer language, indicating that those who do not leave the area will be arrested. The outline of that notice was in the colour red. A further notice was distributed on February 17, 2022.
63Officer Blonde indicated that no protester expressed to him any willingness to leave, even after the distribution of these notices. The notices were met with expressions of hostility by protesters. Prior to the enforcement action beginning on February 18, 2022, PLT officers delivered final warnings to persons remaining at the scene of their potential arrest.
Testimony of Downtown Residents and Businesspersons
Ms. Victoria De La Ronde
64This Court first heard from Ms. De La Ronde, a legally blind lawyer and retired public servant residing near the intersection of Kent Street and Laurier Avenue. Her building has 225 units. Ms. De La Ronde had no direct dealings with Mr. King. She explained that, to maintain her independence and safety, she typically walks with a stick, relies on auditory street crossing signals, and uses tactile walking surface indicators to orient herself. She was also assisted by a Vision Loss Ontario representative, who attended at her home on a regular basis to assist her with technology.
65Ms. De La Ronde testified that never in her thirty years residing in her home had she experienced something as severe as the Freedom Convoy. She told the Court that during the presence of the Freedom Convoy, she no longer had access to taxis, OC Transpo, or Uber. Groceries, hot food, and personal items could no longer be delivered to her residence. Her mobility was also affected, as she testified that she could not go out alone on the street because of trucks that were blocking or encroaching on intersections or overhanging on sidewalks. She also indicated that she was not able to hear signals for crossing, as the idling vehicles and the horns made it unsafe for her to confidently cross intersections. She explained that the tactile walking surface indicators she relied on were covered by snow or improperly cleared.
66She testified she could hear loud, persistent noises associated with the convoy including continuously idling trucks, horns blowing, loud music, megaphones, and sometimes fireworks. She described the noise level as that of a lawnmower or motorcycle in her living room. She could not find a place in her apartment that was not noisy. This prevented her from sleeping leading to exhaustion and headaches. In cross-examination, she acknowledged that the horns were abated after the injunction on February 7 between 11p.m. and 7a.m. She testified that her exposure to the Freedom Convoy caused her to lose confidence in her ability to live independently, that she still has ringing in her ears, and that she has a visceral reaction to loud horns and the smell of gas. She had no dealings with Mr. King.
Ms. Vivian Leir
67The Court next heard from Ms. Leir, office administrator for St. Andrew’s Church at the intersection of Kent Street and Wellington Street. Ms. Leir testified that she typically attends work in person, five days per week. Ms. Leir had no direct dealings with King. Ms. Leir generally testified as to the impact of the convoy on the Church. The Church lost considerable rental revenue during the Freedom Convoy, and several regularly scheduled activities such as choir practice and committee meetings could not take place or had to be moved online. Ms. Leir also indicated a decline in Church service attendance during the Freedom Convoy. She testified that noise during the Freedom Convoy was very significant with the sounds of rumbling of trucks, honking, and loud music, which could be heard in the Church sanctuary.
Ms. Chantal Biro
68The Court also heard from Ms. Biro, who owns a women’s clothing boutique in the ByWard Market. Ms. Biro has been a small business owner for 27 years. She had no direct dealings with Mr. King. At the time the Freedom Convoy arrived in Ottawa, Ms. Biro had recently reopened her store following the lifting of COVID-19 restrictions. She maintained regular hours and had to lay off one of her employees during the Freedom Convoy protest.
69Ms. Biro indicated that trucks were parked on Sussex Drive in front of her business for much of the Freedom Convoy’s duration. While Ms. Biro, who was coming in from the Beechwood area, did not report difficulties accessing her parking in the ByWard Market, she testified that the disruptions associated with the Freedom Convoy resulted in delayed deliveries. This had a direct impact on her online business. Ms. Biro also testified that, on the short walk from her parking spot to her boutique (for which she wore a mask), she had “uncomfortable” interactions with Freedom Convoy participants who greeted her with “foul language.” She said her business was affected adversely by the honking and noise associated with the convoy. She was subjected to a variety of loud sounds, audible from inside her boutique, including horns, megaphones, people shouting “freedom”, and loud music.
Ms. Nathalie Huneault
70The Court heard from Ms. Huneault, business projects and special events coordinator for OC Transpo at the time of the Freedom Convoy. Ms. Huneault testified as to the impact of the Freedom Convoy on the City of Ottawa’s public transportation provider, OC Transpo. Bus transportation in downtown areas was significantly restricted for the 3-week period the Freedom Convoy was present, notwithstanding the best efforts of transportation planners. The public’s ridership was significantly impacted. As with other Crown witnesses, Ms. Huneault had no personal dealings with Mr. King.
Defence Evidence
PLT officers
71As noted, Mr. King did not testify. However, the defence called six police officers, all from the PLT. Their communications with other PLT members and their supervisors were recorded in a chat log which was the subject of lengthy questioning. The chat log was used to “maintain situational awareness” by facilitating and recording communications between PLT officers and their superiors. It is unclear what the defence hoped to establish through the testimony of these PLT officers. These officers supported the Crown’s case that the Freedom convoy was a large-scale occupation of downtown Ottawa and convoy leaders made it clear to these officers that they had no intention of leaving and would resist leaving. None of the officers had any substantial contact with Mr. King but they all said they believed him to be one of the principal organizers of the Freedom Convoy.
72The PLT officers explained that their function was to identify convoy leadership, to open lines of communication, and to keep things peaceful lawful and safe. They were not involved in enforcement activities. Significantly, each of these officers denied they were ever asked for advice in their interactions with convoy leadership and never offered advice.
73The PLT officers were all aware that one of their colleagues was assigned to monitor and communicate with Mr. King. This officer was not called to testify by the Crown and no explanation was furnished. The defence also chose not to call this officer. The defence did not ask that any negative inference be drawn from the Crown’s decision not to call this officer and indeed suggested the defence would call the officer if they chose to. In the result, the court was deprived of some potentially important evidence from the only police witness who had any personal interaction with Mr. King.
74Each of the PLT officers testified that they would have willingly contacted their superiors to assist convoy participants who wanted to leave and drive their trucks out of the city, although this would have required some coordination because many of the vehicles were blocked in by barricades or other vehicles. However, they never received any such requests.
75One PLT officer called by the defence related that she was subjected to personal abuse from convoy participants and endured noise so loud that she could not hear herself think. When delivering notices on February 16 that advised “leave or you will be charged” she and other officers were surrounded, she was subjected to having a truck driven at her, and she was “very, very uncomfortable on many occasions”.
76Another PLT officer described being surrounded and subjected to threatening conduct as he handed out notices to the protesters that they were required to leave. He also had horns honked directly at him as he stood in front of vehicles.
77The PLT officers who testified acknowledged that until the latter stages of the Freedom Convoy’s presence in the city, there was a reasonable amount of co-operation between police and protestors. One officer said, “I focused on issues I thought we could resolve”. The evidence suggests tensions escalated in the third week of the Freedom Convoy’s presence in the city as the police escalated their pressure on the demonstrators to leave. The situation was described by these police officers as becoming more tense as time went on. Mr. King had no contact with any of the PLT officers who testified. The court recognizes that Mr. King’s frequent admonitions to convoy participants to “hold the line” were usually accompanied by warnings to avoid violence.
Mr. Daniel Bulford
78Mr. Bulford was an ex-R.C.M.P. officer who was part of a group called “Mounties for Freedom”. He resigned from the R.C.M.P in December 2021 after publicly opposing federal government vaccine mandates. In January 2022, he learned from social media that a large convoy of trucks were headed to Ottawa to protest vaccine mandates and he agreed to help the “Adopt a Trucker” group which was a part of the protest. He became a liaison with the OPS and the PLT team on behalf of Ms. Lich and Mr. Barber’s leadership group. His goal was to assure police that the protestors were not going to create a “criminal problem” and to ensure the protest proceeded without major problems or violence.
79Mr. Bulford had virtually no contact with Mr. King but conceded King was viewed as a prominent figure and organizer of the convoy. He felt Ms. Lich and Ms. Barber were “the face of the convoy”. He acknowledged that streets were blocked, particularly in the area of Kent Street, and honking of truck horns was a feature of the demonstration at least until the court injunction was granted. When the police began to mobilize to remove protestors, he joined convoy leaders in a press conference urging police to disobey orders and support the protestors. He actively opposed the police clearance operation and was arrested and charged with mischief. He supported convoy leadership in their plan to continue the Freedom Convoy protest until the government agreed to the protestor’s demands. His evidence supported the view that the Freedom Convoy amounted to an occupation of downtown areas.
Ottawa Residents and Visitors
80The defence also called two Ottawa residents who testified about their experience with the Freedom Convoy. Neither resided in the downtown areas. In addition, the defence called a Freedom convoy participant from western Canada who followed Mr. King in his portion of the convoy as well as a real estate agent from Toronto who attended the convoy on four weekends. Their testimony is briefly described below.
Ms. Christine Generoux
81Ms. Generoux testified that she and her husband walked to downtown Ottawa from their home some two kilometers away and spent five or six hours with the protesters on three occasions. She described this as a “euphoric experience”, full of goodwill and friendly Canadian activities. She commented that she had never seen the downtown areas so clean, as people were clearing snow and collecting garbage. She saw no violence and felt “100% safe”. People were protesting government overreach, a concern which she also shared. She acknowledged there was a lot of loud noise and honking, which she said did not bother her as she does not mind loud noises. Also, she explained, the honking seemed to be reduced after the injunction. In any event, convoy people were giving out earplugs and she saw many children wearing them. In cross-examination she acknowledged being a convoy supporter and financial contributor and said she was there to support her “brothers and sisters”. She acknowledged participating in a podcast during which she expressed her support for the right to bear arms and her opinion that gun control could lead to a form of cultural genocide.
Mr. Dylan Dumsday
82Mr. Dumsday, age 45, resided on the outskirts of the city with his mother who had asked him not to be involved with the protest. He testified that he travelled downtown on at least two occasions during the convoy, to the “truck stage” area on Wellington Street in front of the Parliament buildings. He personally addressed protesters from the truck stage on one occasion. He was opposed to COVID-19 mandates. He was enthusiastic about his participation in the Freedom Convoy. He said, “it was the greatest thing I have ever been part of to be honest”. He was not arrested, but was pepper sprayed by police on one occasion. He heard Mr. King speak a couple of times but was not in the habit of following him on social media. He knew Mr. King to be a “right-wing sort of guy” and believed him to be a prominent figure in the Freedom Convoy whom he respected. In cross-examination he acknowledged that things got very noisy at times, but he personally liked the sound of truck horns. He acknowledged that trucks were blocking the roads in the downtown area, but he was able to see a lane that was left open, apparently for emergency vehicles. He explained “we were exercising our right of peaceful protest” and quoted Mr. King’s advice that “extreme circumstances call for extreme measures”. He felt proud of everyone who participated in the convoy and was of the view that he would not leave until he “got pushed”. However, he was not among those subsequently arrested in what he referred to as a “massive police operation”.
Ms. Christine McPherson
83Ms. McPherson worked 4 days a week in an office south of the Red Zone. She was sceptical about vaccines and believes in the right to protest. During the course of the Freedom Convoy her travels to and from her home to work were considerably longer but she put up with this, as well as some honking at night. She supported the protest.
Mr. Kalveer Grewal
84Another defence witness was Mr. Grewal, a Toronto based real estate agent who sympathized with the protestors and came to Ottawa to join the protest on four weekends, returning home each time. He found the convoy to be one of “the best and most loving experiences of my life”. He stayed overnight in hotels and B&B’s well outside the city centre. He helped with cooking and food distribution in the Wellington Street area, and he cleaned up garbage and “loved” the whole experience. He explained that after the Emergency Declaration, things were turning “very ugly”, but insisted everyone was peaceful. Nevertheless, he asserted he was “assaulted” by police, who pushed him with their batons and sticks. In cross examination, Mr. Grewal acknowledged personally posting bail for Mr. King, including a $25,000 cash deposit. He resisted the suggestion that he was a follower of Mr. King or that Mr. King was advising or counselling him, explaining, “I feel love for King…with love you do not need a leader”. He knew Mr. King was saying “hold the line” but says all the convoy leaders were saying that. He also acknowledged that while there were a lot of large trucks on the streets, many with engines running, the streets were not fully blocked, and the honking fell off considerably after dark.
Mr. Dale Zuccatto
85The defence also called Mr. Zuccatto, a 63-year-old, retired oil patch worker from Alberta who, along with his wife, were part of Mr. King’s convoy of 500-700 trucks coming to Ottawa from Alberta. He explained that on the convoy to Ottawa, Mr. King provided instructions regarding road etiquette and appropriate routes to follow, among other things. He clearly acknowledged Mr. King’s leadership of his portion of the convoy. He explained he was concerned with “government overreach”, such as requiring the wearing of masks. He and his wife slept in their truck or used hotel points. They parked away from the downtown area. They drove to parking lots on the outskirts and walked to downtown areas. They monitored convoy leaders online, particularly Ms. Tamara Lich, Mr. Chris Barber, and Mr. King. He spoke to Mr. King personally two or three times while in Ottawa.
86Mr. Zuccatto acknowledged participating in the slow roll to the Ottawa Airport which was personally organized and led by Mr. King on February 10, 2022. He observed that Mr. King was video recording what was going on at the airport. This slow roll lasted for about two hours and circled the loop between the arrivals and departures levels at the airport terminal. He said there were 30 to 40 vehicles in the convoy in total. He said there were a few large trucks but were mostly light vehicles like his. The convoy vehicles were honking and were decorated with Canadian flags and stickers. He said the airport traffic was fairly light at the time.
Mr. Kim Ayotte
87Mr. Ayotte was called by the defence and was the only senior City of Ottawa employee to testify. During the Freedom Convoy, he was General Manager of Emergency and Protective Services, in charge of the fire department, paramedic services, by-law officers, corporate security, and other functions consisting of some 2800 people. Mr. Ayotte reported to the City Manager. However, he explained it was the Ottawa Police Service who were responsible for keeping the peace, maintaining public order, and dealing with the Freedom Convoy, with Emergency and Protective Services providing an important backup role. Mr. Ayotte outlined in considerable detail the various protocols in place and the inter-departmental groups who did their best to manage the presence of the convoy. He had been told by the OPS that the convoy was expected to leave the city after two or three days, which did not occur and instead turned into an occupation of downtown areas.
88Mr. Ayotte agreed the convoy had quickly gridlocked the downtown core of the city, and said he agreed with Mr. King’s online remarks on January 31 that “We have all of Ottawa gridlocked now”. He explained the placement and use of barriers to prevent the blocking of emergency lanes and the ability to move them if truckers wished to leave the area. He explained the use and operation of the “Red Zone” in the downtown area to try and control the movement of the convoy and the protestors. He explained the role of the Traffic Incident Management Group in maintaining the flow of traffic. He explained his by-law officers, on the advice of police did not give out tickets or tow vehicles in the Red Zone for safety reasons, such as being surrounded by protesters.
89Mr. Ayotte did not meet Mr. King and had no interactions with him. He said his staff believed Mr. King to be one of the principal convoy organizers and sometimes monitored Mr. King’s online activities.
90He discussed the circumstances surrounding the civic state of emergency declared by the Mayor on February 6: “the convoy did not leave in the two days we were hoping that they would leave. The weekends were getting very large with regards to numbers of people, it was becoming very difficult to manage with regards to controlling things. The police were asking for resources that they weren’t getting. From outside agencies as well. So, I think, collectively, when we looked at everything we were faced with, we believed that this was a greater emergency than we’ve seen of this nature in the recent past, from a protest perspective […] we didn’t believe we were in control”. He also voiced some concerns about decisions made by the police that stood in the way of effectively controlling this protest, such as initially telling city officials they could plan for what would likely be a weekend protest, allowing the parking of trucks on Wellington Street and the downtown area and a lack of consultation and communications with his group.
91Mr. Ayotte, whose office was in City Hall and not far from the Red Zone where convoy vehicles were concentrated, took several walks around the Red Zone observing, as he put it, ”it was loud and it was stinky, there was diesel fumes and there was a lot of things that were concerning…but with regard to people’s activities, none of them were threatening at all”. As to the honking, he observed “the honking while I was in my office in the early days of the convoy was constant. It was non-stop constant. Following, I believe, the citizen’s injunction…I found it more sporadic…it was a lot less”.
92He testified that the primary operational objective of his department was to avoid serious injury, rioting, as well as property damage. He added that getting the convoy in and out of the city as soon as possible was “a primary objective”. He explained that ultimately the cost of the Freedom Convoy to the City of Ottawa was just under $8 million dollars, and including police costs was over $30 million.
Analysis
Mischief: Counts 1 and 5
93Section 430(1) of the Criminal Code provides:
Mischief
430 (1) Every one commits mischief who wilfully
(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.
94Mischief is a general intent offence such that where the Crown has proven the accused voluntarily committed the actus reus of mischief, the mens rea will be satisfied by proof of an intentional, deliberate, or reckless obstruction, interruption or interference with the lawful use, enjoyment, or operation of property.
95The term “enjoyment” of property has been interpreted expansively as “an action of obtaining from property the satisfaction that the property can provide.” Accordingly, enjoyment of property within the meaning of ss. 430(1)(d) is to be read plainly and includes mere enjoyment – there is no need for interference with property rights. The offence also captures interference with commercial properties: see R. v. Maddeaux (1997), 1997 1934 (ON CA), 33 O.R. (3d) 378 (C.A.) and R. v. Tysick, 2011 ONSC 2192.
96To state the obvious perhaps, the ongoing honking of air horns and train horns, an activity enthusiastically counselled by Mr. King during his presence with the Freedom Convoy, would have the inevitable effect of interfering with a person’s enjoyment of their property, thereby constituting mischief. Indeed, it would make living in proximity to the honking very unpleasant. It would prevent residents from sleeping: adults, children, the elderly, and the unwell. The frequent honking of air horns was malicious conduct intended to disturb people in their homes and workplaces.
97The Crown and defence filed on consent, an informative study of noise levels from the persistent honking of horns during the first two weeks of the Freedom Convoy’s presence in the downtown area of the city. According to this study decibel levels of approximately 150 can be emitted from large commercial truck air horns (compared to a 100-decibel level that is typically emitted from a lawn mower). The purpose of the horns on these types of trucks is to forewarn other vehicles and people on the road that the truck is approaching and to shoo wildlife from the highway. In the loudest and most concentrated area of the protest, the noise reached 120 decibels. As the noise moved outwards, the lower range of the noise reached 80 decibels. The study found the highest level of noise normally encountered was in a category of sound similar to the noise of a lawn mower.
98I draw from this study the conclusion that in parts of the downtown areas the noise level from the honking of air horns was very significant and disturbing, particularly when experienced on a continuing basis.
99In the court’s view, there is overwhelming evidence that Mr. King planned, from before the arrival of the Freedom Convoy in Ottawa and following its arrival, to effect an occupation of downtown Ottawa by hundreds of large trucks and other vehicles; to gridlock the area; and to cause acute distress to residents, merchants, and workers by continuous honking of truck horns and other disruptive activities and to extend this occupation and this conduct for a lengthy and indefinite period. This conduct was designed to, and had the effect of, interfering with and obstructing the use and enjoyment of property of downtown residents and workers. The ultimate purpose of the Freedom Convoy was to pressure the Prime Minister and the government to change COVID-19 mandate policies to which the convoy protesters objected. The evidence is overwhelming that Mr. King incited and encouraged these activities, both initially and on an ongoing basis, for a period of three weeks.
100The details of Mr. King’s activities and the activities he counselled his followers to engage in are set out above, but I will provide a summary here, much of which is drawn from Mr. King’s own social media:
He organized and led a convoy of vehicles from western Canada to Ottawa, telling his followers they were going to peacefully “bear hug” the capital and take it back for the people and later explained “we need to bear hug this city 100%.”
After arriving in Ottawa, he comments approvingly on the state of the downtown, noting “Its just a sea of horns all around here…she’s locked down…we have all of Ottawa gridlocked right now”.
He participated in moving 80 trucks in the middle of the night to “jam” up Kent Street, which became a three-lane parking lot. He encouraged and counselled the jamming up of certain downtown streets.
He was active in fuel distribution and encouraged distribution of jerry cans of fuel, in opposition to police efforts to stop this activity. In doing so, he aided and abetted mischief by helping to sustain the truck blockade in the downtown area of the city.
Prior to the injunction, he personally orchestrated the almost continual honking of truck horns, creating an intolerable situation for residents and expressing his delight online about creating this misery: “remember, these people haven’t been able to sleep for 10 days. Okay? It’s kind of funny, I’m not gonna lie. Its pretty hilarious.” The day after the injunction, he proclaimed, “Stand proud. Honk those horns. Let the heavens hear you”.
Throughout the Freedom Convoy’s time in Ottawa, he distributed cash as needed to the truckers who requested this support. He clearly carried out an organizational and leadership role in the Freedom Convoy and was seen as both an organizer and leader by the police and city officials as well as by convoy participants and by his own online followers.
As the days wore on he adopted more aggressive rhetoric, telling his followers to “hold the frickin line” […] its our duty. When our government is tyrannical, it is a patriot’s duty to protect its citizens from its government […] and that’s what we’re doing, baby”. And It is our duty to make sure that when tyranny becomes just […] rebellion becomes needed and we can do rebellion.” During one of his walk arounds he encounters a journalist and photographer and says “Oh, this is CBC […] lets go harass […] you guys are scum man.”
On February 10, Mr. King personally organized and led a slow roll to jam up traffic at the Ottawa airport and later on Highway 417, a major traffic artery in Ottawa. The airport slow roll was a serious public mischief aimed at a major transportation hub with the intent of disrupting passenger arrivals and departures. This disrupted the operations of the airport authority for several hours. Mr. King encouraged honking and laughed at people who were left “scramblin”. This event had great potential for harm to the public. The police stood by observing and remarkably declined to intervene.
When the police finally became focused on applying some pressure on convoy participants to leave the city and began handing out notices threatening arrest if they did not leave, Mr. King responded on February 16 and 17 by actively participating in the blocking of streets, encouraging honking, warning of expected enforcement action, and telling protesters to hold the line. He pleaded with law enforcement not to obey their orders, insisted the police were acting unlawfully, and counselled his followers to lock themselves in their trucks and resist police attempts to get them to leave. He counselled passive resistance and advised people how to mislead police in order to get into the Red Zone to continue the protest.
101In the court’s view, Mr. King’s continuing online presence throughout the Freedom Convoy and his comments prior to arriving in Ottawa, justify a finding that he was an organizer and a leader of at least a major component of the Freedom Convoy. It is also obvious that he personally encouraged and counselled conduct by convoy participants that was calculated to interfere with, and did interfere with, the use and enjoyment of property of downtown residents and workers by the parking of large trucks and other vehicles and obstructing of streets, aggravated by continual blowing of truck horns, both before and on frequent occasions after an injunction was granted by the Superior Court on February 7, 2022.
102Mr. King sought to encourage his followers to use their vehicles to blockade the downtown area. He took delight in creating as much distress as possible to downtown Ottawa residents, both in terms of honking of truck horns and maintaining a blockade on at least several major streets, (such as Kent and Wellington streets) and counselling his followers to “hold the line” in the face of efforts by the police to encourage protesters to withdraw from the city. In doing so, he incited the continuation of mischief. As in Pawlowski, Mr. King was not merely engaging in political speech, rather he was inciting Freedom Convoy protestors to continue their ongoing blockade of downtown Ottawa. That is to say, he was inciting a criminal mischief.
103I am satisfied the Crown has proven beyond a reasonable doubt that Mr. King personally committed mischief and was a leader, organizer, and online influencer of the Freedom Convoy, and in that capacity aided and abetted and was part of a joint purpose of the Freedom Convoy to commit mischief in the downtown area of Ottawa. Moreover, he incited his followers to continue that activity on an ongoing basis until the government agreed to their demands. There will be a finding of guilty on counts 1 and 5 of the indictment.
The Intimidation Charges: Counts 2, 6 and 7
104The court is of the view that the intimidation charges are not made out in the circumstances of this case, for reasons I will explain.
105Count 2 charges Mr. King with counselling intimidation: that he “did counsel to commit the indictable offence of intimidation” Count 7 charges that he “did wrongfully and without lawful authority, for the purpose of compelling one or more persons to abstain from doing anything that the person(s) had a lawful right to do, or to do anything that the person(s) had a lawful right to abstain from doing, intimidate or attempt to intimidate by threat that other injury will be done, contrary to section 423 subsection (1) clause (b) of the Criminal Code (underlining added). Count 6 charges that he blocked one or more highways for the purpose of intimidation.
106The offence of intimidation is defined in section 423 of the Criminal Code, as follows:
Intimidation
423 (1) Every one is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing,
(a) uses violence or threats of violence to that person or their intimate partner or children, or injures the person’s property;
(b) intimidates or attempts to intimidate that person or a relative of that person by threats that, in Canada or elsewhere, violence or other injury will be done to or punishment inflicted on him or her or a relative of his or hers, or that the property of any of them will be damaged;
(c) persistently follows that person;
(d) hides any tools, clothes or other property owned or used by that person, or deprives him or her of them or hinders him or her in the use of them;
(e) with one or more other persons, follows that person, in a disorderly manner, on a highway;
(f) besets or watches the place where that person resides, works, carries on business or happens to be; or
(g) blocks or obstructs a highway.
Exception
(2) A person who attends at or near or approaches a dwelling-house or place, for the purpose only of obtaining or communicating information, does not watch or beset within the meaning of this section.
107Count 7, in relevant part, requires the Crown to prove that Mr. King wrongfully intimidated or attempted to intimidate persons by engaging in conduct proscribed in s. 423(1). Other than subsection (1)(g) which deals with blocking or obstructing a highway, none of the other types of conduct listed in s.423(1)(a)-(f) are implicated in the present case. Mr. King did not make threats of violence or threats of property damage to anyone, nor did he engage in following or watching and besetting anyone. Moreover, he did not counsel any such activity. Neither did other participants in the Freedom Convoy engage in such conduct, so far as disclosed in evidence before the court.
108In R. v. Boast, 2017 ONCA 602, the appellant appealed his conviction for intimidation under s. 423(1)(b) of the Criminal Code. The Court of Appeal held “the accused’s purpose in attempting to intimidate the complainant is one of the essential ingredients of the offence created by s. 423(1)(b) of the Criminal Code and the onus rests upon the Crown to prove the accused’s purpose beyond a reasonable doubt: see Regina v. Branscombe (1956), 1956 830 (ON CA), 25 C.R. 88, (Ont. C.A.). In Boast there was evidence the appellant had sent aggressive text messages to the complainant but there was a lack of evidence with respect to the appellant’s purpose in sending the texts, and the complainant was not put in fear of her safety. The court found a possible purpose of the messages was to “vex, disquiet or annoy” the complainant, rather than to cause her to abstain from doing something she was entitled to do out of fear, and accordingly the offence of attempting to intimidate was not made out.
109Applying Boast to the present case, I have a reasonable doubt the Freedom Convoy protesters were attempting to intimidate downtown residents and business people to have them abstain from doing anything they had a lawful right to do. Rather, the protesters were attempting, as Mr. King explained in several of his online statements, to pressure, inconvenience, and annoy these downtown residents and workers, as a way of pressuring the government to alter its COVID-19 policies.
110However, as noted, count 6 alleges Mr. King “did wrongfully and without lawful authority” block or obstruct one or more highways”. Again, the Crown argued the Freedom Convoy attempted to pressure and intimidate the government to withdraw its COVID-19 mandates. The method of achieving this, it was argued, was to disrupt and occupy downtown Ottawa, in part by blocking highways and thereby pressuring residents and business people in that area.
111Respectfully, this conduct would not fall within section 423 of the Criminal Code. The conduct directed at downtown Ottawa residents and workers was not intended to intimidate them by violence or otherwise, it was intended to persuade the government to change its policies. The Government of Canada is not a person within section 423 of the Criminal Code. While downtown residents are persons within section 423, neither Mr. King nor the Freedom Convoy intended to intimidate these residents. The object or focus of Mr. King’s and the Freedom Convoy’s pressure tactics was the Government of Canada. I would find that counts 2 and 7 are not made out in the circumstances of the present case.
112Further, with reference to count 6, the offence of intimidation under section 423.1(g) requires proof beyond a reasonable doubt that Mr. King personally or by aiding and abetting the Freedom Convoy or as part of a common purpose, blocked or obstructed a highway. Intimidation under s.423(1)(g) of the Criminal Code requires the Crown to prove beyond a reasonable doubt that Mr. King:
personally, or as a party;
acted wrongly and without lawful authority;
to block or obstruct a highway;
for a purpose (being to compel “another person” to do or abstain from doing anything “he” or “she” had a lawful right to do).
113I find that Mr. King did not act wrongly by participating in the Freedom Convoy’s protest against the Government of Canada’s COVID-19 mandates. A lawful protest is a Charter protected activity. When Mr. King committed acts of mischief, as occurred in the present case, he will be convicted of mischief, which is a crime of general intent. When he obstructs a highway in the course of an otherwise lawful demonstration intended to protest government policy and not to intimidate individuals, in the absence of threats and acts of violence listed in s.423(1) of the Criminal Code, he should not be convicted of the offence of intimidation.
114Obstructing a highway in the context of an otherwise lawful protest against government policy should not be interpreted as intimidation, even if, as in the present case, it constitutes or involves mischief. To do so would be an unduly broad interpretation of section 423 as it would capture a broad range of lawful protests against government actions in which there is no proven intent to intimidate individuals. Stated otherwise, the specific intent offence of intimidation is not made out in the circumstances of this case, notwithstanding mischief may have occurred, when a highway is obstructed in the course of a protest against government action.
115There will be a finding of not guilty on the intimidation charges, counts 2, 6, and 7.
Obstructing Police Counts 3 and 4
116The evidence in this trial does not support a finding that Mr. King ever personally obstructed police, being Count 4 of the indictment. The police witnesses had no interactions with him. As noted previously, the Crown’s case is largely based on a series of Mr. King’s own videos and with one exception, none of the videos show him interacting with police. The exception is his interaction with the police officer who arrested him on February 18, during which, as explained previously, he was co-operative. Importantly, Mr. King was arrested as he was being driven into Ottawa. This was before he had any opportunity to personally participate in, or discuss online, the confrontations between police and Freedom Convoy protesters that occurred over the February 18-20 period as police forcibly removed protesters and ended the occupation of downtown Ottawa. I am satisfied beyond a reasonable doubt that police were obstructed by demonstrators during this clearance operation, but I find that Mr. King did not participate as he was in custody.
117The issue is therefore whether Mr. King counselled obstruction of police, as charged in count 3. This would have to relate to online statements he made to his followers during the period of the Freedom Convoy’s presence in the city and before his arrest. To amount to obstruction, the statements would have had to have the effect of “making it more difficult for the police to carry out their duties”: see Regina v. Tortolano, Kelly and Cadwell (1975) 1975 1248 (ON CA), 28 C.C.C. (2d) 562 (Ont. C.A.).
118Count 3 of the Indictment alleges Mr. King “did counsel to commit the indictable offence of Obstruct Police, which offence was not committed by one or more persons, contrary to section 464, clause (a) of the Criminal Code.” In R. v. Hamilton, at para. 29, the Supreme Court of Canada held that the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence.
119The accused submits, following Hamilton, the mens rea for counselling consists of either an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct. As noted previously, I agree with this interpretation of Hamilton and would apply it to the present case.
120The videos reveal Mr. King had many opinions and a great deal of advice to impart to his online followers, not all of it particularly coherent or consistent. However, two themes or messages were consistent in his remarks. One, to his credit, was that there must be no violence. Another was to “hold the line”. What did “hold the line” mean? At the least it was an admonition to continue the protest, to keep their vehicles in place, and to resist efforts by the city and police to encourage Freedom Convoy participants to leave the city. More broadly, it seems to have become an identifying slogan or greeting used by Freedom Convoy supporters. Depending on the context in which it was used, it did create an unjustified risk that police efforts to encourage protestors to leave the city would be resisted, and indeed I find this was Mr. King’s specific intention.
121Viewing the evidence as a whole, the court is satisfied beyond a reasonable doubt that Mr. King intended his online followers, at least some of whom were among the Freedom Convoy protestors present in downtown Ottawa, to obstruct police in several instances, including in the several days leading to his arrest. This is particularly evident in his rhetoric employed in many of his videos quoted above, and in particular, his video of February 16: “we link arms…we sit on the ground, we turn our backs on the men and women in our law enforcement because they have already turned their backs on us.” Mr. King’s status as a recognized Freedom Convoy organizer and leader increased the risk that he would be listened to and some of his followers would obstruct police actions.
122Mr. King will be found guilty of counselling the obstruction of police, being count 3 of the indictment. He is found not guilty of personally obstructing police, count 4, because I have found he was fully cooperative at the time of his arrest.
Disobey Court Order - Counts 8 and 9
123Mr. King is charged pursuant to section 464(a) of the Criminal Code with counselling to disobey a court order (count 8) and disobeying a court order contrary to s. 127 of the Criminal Code (count 9).
124The court order in question is the interlocutory injunction granted by MacLean J. on February 7, 2022, and subsequently continued on February 16, 2022. The order was granted in a civil proceeding commenced by residents of downtown Ottawa. Patrick King is one of the named defendants. The order prohibits any person having notice of the order “from using air horns or train horns” in the vicinity of downtown Ottawa. It also requires Mr. King and three other named Freedom Convoy leaders to communicate this order through their social media channels. The order further provides that, “provided the terms of this order are complied with, the defendants and other persons remain at liberty to engage in a peaceful, lawful, and safe protest.”
125Mr. King had initially urged his online followers to honk their horns at regular intervals for 10 minutes every half hour to upset downtown residents and interfere with their use and enjoyment of their property. He took considerable delight in the havoc this was causing. This constituted a mischief, as previously discussed.
126When the court issued an injunction on February 7, 2022, Mr. King at first insisted his followers desist in their honking, in accordance with the court order. Unfortunately, he subsequently began again to counsel his followers to begin honking. In videos dated February 8, 2022 he broadcasts the following;
We offered them the opportunity to shut the horns down, um, let them, you know, basically have a night of rest so you don’t have to hear all the horns, but now we’re asking everybody out there get to Ottawa right now. Stand proud. Honk those horns. Let the heavens hear you.
127Again, in a video recorded on February 16, 2022, Mr. King can be heard directing his followers to “go get those horns honkin’ up there.” On February 17 when Freedom Convoy leaders Ms. Lich and Mr. Barber were arrested, Mr. King addresses his online followers to use their horns:
I hear, Tamara just got arrested … give them their justice, guys. And if you're out there in the trucks, five minutes. Give five minutes solid horns, guys Chris has been arrested. I think you deserve a five-minute shout out from everybody down there. Everybody down there, go! Fire ‘em off five minutes long in honor of Chris goin’ down … I’m asking each and everyone of you, I have been asked by uh, by everybody else, fire ‘em off guys. Fire ‘em off for five minutes long, five minutes, five minutes, you guys, five minutes. I want to hear ‘em … I wanna open my windows and see if I can hear yous (sic). I can hear you guys …
128I find that Mr. King deliberately counselled his followers to violate the injunction granted by the Superior Court on February 7 and renewed on February 16. He personally joined in this activity as he counselled his followers to honk their horns. He is accordingly found guilty on counts 8 and 9 of the indictment.
Defence of Officially Induced Error
129In defence counsel’s opening statement, it was suggested the accused may rely on a defence of officially induced error. The accused states in his written submissions (at paras. 13-14, and 16):
They knew that the convoy and protestors were coming; they knew what the protest was about; and they knew it would last for an unknown length of time. The protestors were only going to and doing what they were told to by the City of Ottawa and the police.
Protest by its very nature is meant to cause some level of disruption. If protesting was not disruptive it would not be effective.
OPS and the City of Ottawa knew the protesters were coming and they knew how many. Despite this knowledge, instead of preventing them from protesting or entering the downtown core they handed protesters coloured and detailed maps of where to drive, where to park, where to stage, and where to stay (exhibit 26).
130There could have been some merit to this submission if the mischief charges were based on Freedom Convoy trucks blocking Wellington Street and several other areas where the police initially directed the protesters to park. However, after the first weekend when the Freedom Convoy arrived, they steadfastly refused to leave until forced to do so by a large police operation which took place on February 18-20, some three weeks after the Freedom Convoy arrived. The Convoy vehicles parked throughout the downtown areas, far beyond the locations the police directed them to park. The concentration of large trucks and the barriers put in place by the city to prevent obstruction of emergency lanes required police co-operation to allow certain trucks to leave their original parking locations, but the evidence is that the police were never asked to provide this assistance and the protestors intended to stay in place until the government agreed to their demands. Further, the PLT officers all testified they were not asked for advice by Freedom Convoy members or their leaders and did not provide advice. The evidence is clear that the protesters and their leadership had no intention of voluntarily leaving the city and, while in Ottawa, conducted their activities to deliberately interfere with the lawful use and enjoyment of property by downtown residents and workers.
131The court finds there is no air of reality to the defence of officially induced error in the circumstances of this case.
Summary and Disposition
132For the reasons set out above, the court finds the accused Patrick King guilty on counts 1, 3, 5, 8 and 9. Mr. King is not guilty on counts 2, 4, 6 and 7.
Justice Charles T. Hackland
Released: November 22, 2024
COURT FILE NO.: 22-R15544
DATE: 2024/11/22
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Patrick King
Accused
REASONS FOR JUDGMENT
Justice Charles T. Hackland
Released: November 22, 2024