Reasons for Decision on Summary Conviction Appeal

Court File No.: CR-22-A8382-AP
Date: 2025/03/19
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Scott Hockaday, Appellant

Appearances:
E. Loignon-Giroux, for the Crown
H. Kheir, for the Appellant

Heard: February 26, 2025

Parfett J.

Introduction

[1] The Appellant, Scott Hockaday, appeals his conviction on two counts of mischief pursuant to s. 430(1)(c) and (d) of the Criminal Code. For the reasons set out below, the appeal is dismissed.

Background

[2] On February 18, 2022, Mr. Hockaday was present on Nicholas Street in downtown Ottawa. During the three weeks prior to this date, Ottawa’s downtown core was occupied by a large group of protesters. Vehicles were parked on several streets, blocking access by other vehicles and effectively halting traffic. At the beginning of the protest, protesters honked their horns continuously. This protest came to be known as the ‘Freedom Convoy’.

[3] To bring an end to the occupation, a ‘red zone’ was created, and the protesting occupants were advised repeatedly that they were required to leave on penalty of arrest. The area on Nicholas Street where Mr. Hockaday was arrested was part of the red zone.

Evidence at Trial

[4] The parties filed an Agreed Statement of Facts that set out the timeline of the Freedom Convoy and relevant regulations and orders. Notably this statement indicated that, in the days following the Government of Canada’s declaration of a state of emergency on February 14, 2022, a media campaign advised demonstrators that their presence was unlawful and that police action would be taken. In addition, the Ottawa police issued several communiqués advising protesters to leave or face arrest.

[5] The main witness for the Crown was Cpl. David Grant. He is a member of the RCMP who had been deployed to Ottawa to help the Ottawa police clear people and vehicles from the area of the protest.

[6] Cpl. Grant testified that he understood that he had authority to arrest protesters for mischief if they refused to leave the area after being warned by an ‘advance team’ of their obligation to do so. In Cpl. Grant’s understanding, any refusal constituted ‘actively committing the act of mischief’.

[7] Cpl. Grant indicated in his testimony that there was a briefing on the morning of February 18 and that he was told that the advance team would speak to the protesters and give them a final warning to leave.

[8] Shortly after his arrival on Nicholas Street, Cpl. Grant observed an individual, identified later as the Appellant, approach the advance team along with several other people, all of whom had come from the area of several parked vehicles that blocked the street.

[9] He did not hear anything said between the Appellant and the advance team. However, he saw the Appellant turn around and put his hands behind his back. Cpl. Grant’s superior, S/Sgt. Gollob, called him over to effect an arrest. S/Sgt. Gollob did not provide Cpl. Grant with any additional information.

[10] Cpl. Grant testified that when the Appellant put his wrists together behind his back ‘as though to be handcuffed’, he took this to mean that he was either cooperating with an order to be arrested or volunteering to be arrested.

[11] Cpl. Grant indicated that he arrested the Appellant based on grounds which he formulated from his observation of the Appellant’s interaction with the advance team and his understanding of what the advance team were doing. He agreed that he received no other information from the officers on scene and that the Appellant was not wearing any clothing or gear associated with the protest.

[12] Cpl. Grant asked the Appellant for his name, which he provided, and Cpl. Grant conducted a search incident to arrest.

[13] Some months later, the Appellant’s name was used to do a social media search. The police identified a Facebook account from which they extracted posts as well as videos.

[14] At trial, the Appellant brought an application pursuant to s. 10(b) of the Canadian Charter of Rights and Freedoms ("Charter"). That application was granted. He also argued that his arrest was unlawful and a breach of s. 9 of the Charter. Additionally, he submitted that any information provided because of that arrest, specifically his name and identification, should be excluded along with any information that was derived from the identification evidence, such as the social media evidence, as it was an unlawful search and seizure contrary to s. 8 of the Charter.

Decision at Trial

[15] The trial judge dismissed the Appellant’s application to have the arrest ruled unlawful and declined to exclude the identification and social media evidence.

[16] The trial judge made the following findings of fact in relation to the issue of whether Cpl. Grant had reasonable and probable grounds to arrest the Appellant:

• The officer knew from his own experience and observations the situation that had developed in the weeks leading up to the day of the arrest. This information included what he saw in the media and the chief of police’s media release.
• He also received information at the briefing that occurred the morning of February 18. He learned that ‘advance teams were going to go through to create a first contact with the protestors for a final appeal to vacate the area in question, and failure to do so would engage police action, as their presence was … creating a mischief to the lawful enjoyment of property by the citizens of Ottawa’.
• Cpl. Grant ‘saw people approaching the police on Nicholas Street. The team commander liaised the initial contact with the demonstrators. He saw the officers moving up where the vehicles were parked on Nicholas Street. He saw an individual approaching, but he was not sure where exactly that person was coming from…. He was then directed … to come up, as he and a fellow officer were likely needed for an arrest. He then observed … Mr. Hockaday, started interacting with the police where the members of the advance team were, and then he observed Mr. Hockaday turn around and put his back to the officers and place his hands behind his back.’
• Cpl. Grant testified Mr. Hockaday had been ‘provided with the opportunity to leave of his own volition, and after the person was advised by the police to do so, he failed to leave … and … this person was committing the offence of mischief.’

[17] Based on these findings, the trial judge concluded as follows:

[Cpl.] Grant had the requisite reasonable grounds to arrest Mr. Hockaday under the totality of these circumstances. The officer could rely on the process he understood had been put in place for the advance team to initiate this first contact with anyone present in the identified area, and ask them to leave, or the reason for their presence. The officer could properly rely on this process and these officers doing this first screening for this very purpose, that is, to either have the individual present there leave, or else be arrested.

In the context of the operation and the process or procedure [Cpl.] Grant understood was put in place, when [S/Sgt.] Gollob motioned for him to approach or come up as they were likely needed for an arrest, he could properly rely on the advance team to have done their job. Also, based on his own observation, it was completely reasonable for him to believe that the person was refusing to leave, and was cooperating with the police and submitting to his arrest under these circumstances.

Therefore, since the arrest was lawful, the identification that followed and was confirmed incident to arrest, was also lawfully obtained, and Mr. Hockaday’s rights pursuant to s. 9 and 8 of the Canadian Charter of Rights and Freedoms were not infringed.

[18] After hearing submissions from counsel concerning the charges of mischief, the trial judge outlined the issues to be determined as ‘where does the law draw the line between a lawful protest and a mischief?’ and ‘whether the Crown [has] proved the factual basis upon which the Court could conclude beyond a reasonable doubt that Mr. Hockaday was committing as principal or a party to the offence of mischief.’

Issues on Appeal

[19] The Appellant argues that the trial judge erred in finding that there was no breach of s. 8 and 9 of the Charter, and that the evidence of identification and the content of the social media posts should be excluded pursuant to s. 24(2) of the Charter.

[20] Alternatively, the Appellant states that the trial judge erred in her conclusion that the Appellant had the necessary intent such that his presence on Nicholas Street on February 18 amounted to a mischief.

Analysis

[21] The standard of review in relation to the Charter argument is correctness.

Charter Argument

[22] The Appellant argues that Cpl. Grant only had two pieces of information on which to rely to formulate his grounds for arrest. First, the information concerning what the advance team was going to do and second, his observations of the Appellant’s behaviour.

[23] The thrust of the argument is that firstly, Cpl. Grant assumed that the advance team had done what they were supposed to do in their interaction with Mr. Hockaday and, secondly, in the absence of knowing what the interaction between the advance team and the Appellant was, the Appellant’s actions were open to interpretation. In these circumstances, there were insufficient grounds for the arrest.

[24] The Crown in her argument notes that the findings of fact that underpin the legal finding must be given deference. In the present case, the Crown submits that Cpl. Grant’s subjective belief is not the issue. Rather, it is whether that belief was objectively reasonable given the totality of the circumstances.

[25] The Crown points out that the Appellant is ignoring the larger context of the interaction between the Appellant and the police and that Cpl. Grant had more than just two pieces of data on which to rely.

[26] The Crown states that Cpl. Grant had been in Ottawa since late January 2022 and had made many personal observations of the protest. The Appellant was in the red zone. Cpl. Grant was aware that there had been several posts and media reports that the Freedom Convoy was considered an illegal protest and that police wanted the protestors to leave or face arrest.

[27] From the morning briefing, Cpl. Grant knew that persons who refused to leave the area were to be arrested for mischief. He was aware that the process would be that the advance team would ask people to leave the area. Those that did not were to be arrested.

[28] In her argument, the Crown points out that Cpl. Grant’s observations of the Appellant were that the Appellant was initially one of a group of people who approached the police. The Appellant had an interaction with police, at the end of which he turned around and presented his wrists behind his back. Cpl. Grant interpreted that action as cooperation with an arrest.

[29] In his argument, Defence counsel relies on the case of R. v. Puddy, 2011 ONCJ 399 to support his position. The facts of Puddy are relevant to the present case.

[30] In Puddy, Mr. Puddy argued that his arrest was unlawful. He was a member of a large crowd of demonstrators at a G20 summit in Toronto. The large crowd was made up of people who were either there to cause trouble, legitimate demonstrators, or people who were in the wrong place at the wrong time.

[31] There were police on the front line whose job it was to move the crowd in a specific direction. They were also tasked with arresting people who resisted, breached the peace, or engaged in criminal conduct. There was also an extraction team who were to move those people arrested to nearby paddy-wagons to be taken elsewhere.

[32] Two officers who were members of the extraction team testified for the Crown. When they first saw Mr. Puddy, he was on the ground with his wrists bound by police-issued flex cuffs. These officers did not see Mr. Puddy do anything that was consistent with criminal behaviour and were never informed why he had been detained. They assumed he had been arrested for breaching the peace.

[33] As with the case at bar, in Puddy, the key issue was whether the officers’ belief that they had grounds for arrest was objectively established. The trial judge found that there were no grounds ‘to believe that the defendant … had been “a party to a breach of the peace”. There [was] simply nothing more than the defendant’s cuffed presence on the ground to support such founded belief and, … that is insufficient.’

[34] Later in the decision, the trial judge pointed out that while an officer could rely on information received from another officer concerning the arrest, there had to be a meaningful connection between whoever arrested the defendant and the officers who took custody of Mr. Puddy.

[35] Defence counsel argued that the facts in Puddy are indistinguishable from those in the present case. I disagree.

[36] In Puddy, the demonstration was legal and indeed, most of the people present were there to demonstrate peacefully. The frontline police team’s primary function was to move the crowd along. If necessary, they might arrest people they believed were committing a breach of the peace or engaging in criminal conduct. The officers who testified about Mr. Puddy’s arrest made no observations of his behaviour prior to seeing him on the ground already handcuffed. They had no idea why he had been arrested and could only speculate that it was for a breach of the peace, which was one of a multitude of options.

[37] In the present case, the Freedom Convoy had been deemed to be illegal and it had been made abundantly clear to the remaining protesters that they were engaging in criminal behaviour if they remained within the red zone. Cpl. Grant was aware of this situation. The advance team had one job to do – give the protesters a last chance to leave. The location where the arrest took place was within the red zone. Cpl. Grant observed the Appellant interact with the advance team and then turn around, so his back was to the officers while he presented his wrists. The inference that Cpl. Grant drew from this observation was that the Appellant was cooperating in his arrest. That inference was a reasonable one in the circumstances.

[38] The trial judge found as a fact that Cpl. Grant could rely on the advance team doing its job to found his belief that he had grounds to arrest. That finding is reasonable and based in the evidence. She also took into consideration all the information that Cpl. Grant had at his disposal. She was entitled, and indeed required, to do so. When looked at objectively, the totality of the evidence establishes that it was reasonable for Cpl. Grant to conclude that the Appellant had refused to leave and was submitting to arrest.

[39] Consequently, I find that the trial judge did not err in finding that the arrest was lawful and that there was no breach of s. 9 of the Charter. It follows that if the arrest was lawful, then the search incident to arrest was also lawful, and the use of that information to find Mr. Hockaday’s Facebook posts was equally lawful. Therefore, there is also no breach of s. 8 of the Charter.

[40] Even if I had found that there had been a breach, for the following reasons, I would not have excluded the evidence pursuant to s. 24(2) of the Charter.

[41] In the very recent case of R. v. Elawad, 2025 ONSC 1298, the court outlined a summary of the approach to be taken in determining whether evidence should be excluded pursuant to s. 24(2) of the Charter as set out in R. v. Grant, 2009 SCC 32.

[42] In that decision, the court noted that overall, “[t]he onus is on the applicant to establish on a balance of probabilities that the admission of the evidence seized would bring the administration of justice into disrepute.”

[43] The court goes on to say:

In R. v. Grant, the Supreme Court held that the purpose of s. 24(2) is to maintain the good repute of the administration of justice. It is an objective inquiry, and it asks whether a reasonable person informed of all relevant circumstances and the values underlying the Charter would conclude that the admission of the evidence would bring the administration of justice into disrepute.

At para. 71 of Grant, the Supreme Court outlined the following three lines of inquiry to consider when determining whether the admission of the evidence brings the administration of justice into disrepute:

i. The seriousness of the Charter-infringing state conduct;

ii. The impact of the breach on the Charter-protected interests of the accused; and

iii. Society’s interest in the adjudication of the case on its merits.

[44] With respect to the first line of inquiry, I take into account that it is necessary to consider the seriousness of the police conduct that infringed the Charter and whether the conduct involved ‘misconduct from which the court should be concerned to dissociate itself.’ This conduct must be situated on a spectrum of culpability.

[45] In the present case, Cpl. Grant acted in accordance with his instructions and demonstrated bona fides in his interaction with the Appellant. The arrest certainly involved a detention and that is, in and of itself, serious conduct. However, on a scale of such conduct, it was at the low end. In addition, the search incident to arrest amounted to a pat-down and request for verbal identification. This conduct was minimally intrusive. In the circumstances, this conduct militated in favour of including the evidence.

[46] As noted in Elawad,

The second line of inquiry considers the impact of the breach on the Charter-protected interests of the accused. It asks whether the breach actually undermined the interests protected by the right infringed. The court identifies the interests protected by the infringed right and evaluates the extent to which the breach affected or undermined those interests. Like the first line of inquiry, the second line envisions a sliding scale of conduct, from fleeting, transient or technical to profoundly intrusive or which seriously compromises the interests underlying the right.

[47] In the case at bar, assuming the conduct breached the Charter, it could not have been described as ‘fleeting, transient or technical’, but it also was not ‘profoundly intrusive’. In my view, in the context of the present case, this line of inquiry could best be described as neutral.

[48] Elawad analyses the third line of inquiry as follows:

The third line of the Grant inquiry, which considers society’s interest in the adjudication of the case on its merits, asks whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence. While disrepute may result from the exclusion of relevant and reliable evidence, it may also result from admitting evidence that deprives the accused of a fair hearing or amounts to “judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies”.

Under this third line of inquiry, courts should consider such factors as the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the alleged offence. The last factor can cut both ways. While the public has a heightened interest in a determination on the merits where the offence is serious, it also has a vital interest in maintaining a justice system that is above reproach.

[49] Having determined that the conduct in question falls into the low end of the scale pursuant to the first line of inquiry and is neutral when viewed through the lens of the second line of inquiry, it is my view that the evidence would be better served by its admission.

Decision on the Merits

[50] The standard of review on appeal from a trial judge’s decision is set out in Housen v. Nikolaisen, 2002 SCC 33. On questions of fact, the standard of review is palpable and overriding error and, as noted earlier, on questions of law the standard of review is correctness.

[51] Where the issue is a question of fact, the Supreme Court of Canada in R. v. Clark, 2005 SCC 2 stated,

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

[52] In the present case, the Appellant argues that the trial judge incorrectly applied the legal principle of party liability to the facts as she found them to be. Consequently, the standard of review is correctness.

[53] Defence counsel noted that the trial judge did not specifically indicate that she found the Appellant guilty as a principal or a party. Nor did the trial judge outline the legal principles she applied as she was relying on counsel’s submissions. Both counsel focused their submissions on whether the evidence established the necessary intent for a finding that the Appellant’s presence was sufficient for the conclusion he was committing mischief.

[54] The leading case in party liability in the context of protests, blockades, or picketing is R. v. Mammolita. In that case, the accused was part of an illegal picket line and was one of a group of people who stood shoulder to shoulder blocking access to the employer’s premises. In discussing party liability, the Court noted,

In order to incur liability as an aider or abettor:

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

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

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

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

[55] In R. v. Romlewski, 2023 ONSC 5571, the summary conviction appeal judge engaged in a comprehensive review of the law of party liability, particularly as it relates to protests or blockades. From that analysis the following principles respecting party liability in this context can be derived:

• there must be an act or omission that constitutes assistance or encouragement and is done with knowledge that the assistance or encouragement is for the purpose of aiding a criminal offence;
• an essential aspect of the analysis is whether the protest, blockade, or picket line is lawful. If so, then acts in aid of the event may not be criminal depending on the acts themselves;
• if the purpose of presence is to assist the principals in carrying out their objective and if that objective is unlawful, then presence may be sufficient. There are situations where ‘strength in numbers’ is important to the unlawful objective. In that case, presence also may be sufficient to establish party liability.
• As noted in R. v. Colford (L.G.) et al., “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”.

[56] In the present case, Defence argued at trial that the Crown had failed to prove that the Appellant had the necessary mens rea for the offence of mischief. In rejecting that submission, the trial judge noted that,

[The social media posts] are quite clear as to Mr Hockaday’s state of mind and intention at the relevant time … February 18.

His Facebook postings on his account must be considered as a whole and not in a piecemeal fashion. These posts demonstrate a constant intention to participate in, to associate himself to this group of protestors for the very purpose of flooding this place by calling onto others to come, and to “flood this place”.

His intention is also made clear in his posts of February 18 at 9:21 p.m., so this one is after his arrest and release, indicating he is heading home to lick his wounds, resupply, then heading back. His later post that day – so that is at 11:24 p.m. – is also indicative of his firm intention to stay until arrested, as he posted that all the police would have had to do was ask the 30 people they arrested to get on a bus.

His intention and participation in this larger mischief event is also made clear in his February 19 post at 1:30 p.m.. It is a bit of a longer post, but the third line in, for example, he says … “We hammered 17 cubes of diesel and did what we came to do.”

When I consider the totality of the posts and the evidence available on this record, it is clear Mr. Hockaday was present in … the red zone, on February 18 for the purpose, or with the intent, the mens rea, to participate, to take part in this activity, which was of obstructing the enjoyment of property that amounted to criminal mischief.

[57] Defence on appeal observed that the evidence of participation and intent is based exclusively on the Facebook posts and argues that this evidence was both circumstantial and ambiguous. He states that in these circumstances, alternative reasonable explanations must be negatived, and that there is room in this case for a finding that Mr. Hockaday’s purpose was legitimate. Defence counsel pointed to R. v. Decaire in arguing for the court to consider alternative explanations for the Appellant’s posts.

[58] Additionally, Defence argues that the statement ‘flood the place’ does not cross the line into criminal intent and even when viewed in their entirety, the Facebook posts do not establish criminal intent.

[59] The Crown stated that in essence, the Appellant is asking the court to review the trial judge’s findings of fact. In that case, the standard of review is palpable and overriding error.

[60] The Crown notes that the facts in Decaire were substantially different than those in the present case, in that the trial judge found that there was no evidence connecting Ms. Decaire to the protest and furthermore, she could easily have been present for legitimate reasons. This conclusion was upheld on appeal and the appeal judge deferred to the findings of fact made by the trial judge.

[61] In the case at bar, the social media posts were found by the trial judge to establish an intent to participate in the protest. She determined that there was no ambiguity in the posts. The trial judge concluded that there was no other reasonable inference available given the social media posts, that Mr. Hockaday intended to remain in the red zone until arrested by police and was participating in an activity that amounted to criminal mischief. It was common ground that Mr. Hockaday was in the red zone – the area where it is agreed the ongoing criminal offence of mischief was occurring. In addition, the trial judge determined that Cpl. Grant reasonably concluded that Mr. Hockaday had refused to leave and was cooperating with his arrest.

[62] There is ample evidence to support these findings and I cannot find that the trial judge committed a palpable and overriding error.

[63] Accordingly, the appeal is dismissed.

Parfett J.
Released: March 19, 2025