O NT A RI O C O URT O F J UST ICE

DATE: 2022 02 25
COURT FILE No.: 22-A8181

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

PATRICK JAMES KING

Before Justice of the Peace A. Seymour

Heard on Feb. 22, 2022
Reasons for Judgment released on Feb. 25, 2022

Moiz Karimjee .............................................................................counsel for the Crown

W. Calvin Rosemond....................................... counsel for the accused Patrick King

Seymour A. Justice Of Peace.:

[1] This is the bail decision for Patrick King, who is charged on information 22-A8181
with the following offences:

Mischief, namely interfering with the City of Ottawa’s lawful use and enjoyment of
property contrary to S 430 (1)(d)

Counsel an uncommitted indictable offence, namely by counselling the Freedom

Convey 2022 to commit the offence of mischief contrary to S 464 (a)

Counsel an uncommitted indictable offence, namely by counselling the Freedom

Convey 2022 to commit the indictable offence of obstruct police contrary to S 464
(a)

Counsel an uncommitted indictable offence, namely by counselling the Freedom

Convey 2022 to disobey a court order contrary S 464 (a)

[2] The offences are alleged to have occurred between Feb.9, 2022 and Feb. 17, 2022
in the City of Ottawa.

[3] This is not a trial to determine Mr. King’s guilt or innocence. Today’s decision
addresses whether Mr. King should be released from custody.
 — 2 —

[4] The Charter of Rights and Freedoms provides that any person charged with an
offence has the right to be presumed innocent.

[5] The Charter also provides that a person charged with an offence has the right not
to be denied bail without just cause. There is a narrow basis to refuse bail that must relate
to the proper functioning of the bail system. The law favours release. Detention is the
exception. The court is to apply the principle of restraint.

[6] S. 493.1 requires me to give primary consideration to the release of the accused
at the earliest reasonable opportunity and on the least onerous conditions that are
appropriate in the circumstances, including conditions that are reasonably practicable for
the accused to comply with while taking into consideration the grounds as outlined in S
515 (10).

[7] The Crown bears the onus on this bail hearing to show cause on a balance of
probabilities why Mr. King’s detention is justified.

[8] In this case, the Crown has raised concerns on the secondary and tertiary grounds.

[9] The grounds are outlined in the Criminal Code as follows:

is detention necessary for the protection and safety of the public, including the
“substantial likelihood’ the accused would commit a criminal offence or interfere
with the administration of justice, commonly called the secondary ground; and

is detention necessary to maintain confidence in the administration of justice,

commonly called the tertiary ground.

[10] Before beginning my analysis, I wish to address specific submissions by Mr. King’s
counsel. Mr. Rosemond indicated that he had “some knowledge” of Mr. King’s Indigenous
heritage. There was no evidence or submissions led on the exact nature of Mr. King’s
Indigenous background. The only evidence led to suggest he was Indigenous was a video
filed as part of the Crown’s material in which Mr. King states the following:

“Every person who was born here in Canada, in North America, you are
Indigenous. People don’t realize that, if you were born of the land, you are
Indigenous of the land.”

[11] S. 493.2 of the Criminal Code states that the court must give “particular attention”
to the circumstances of an Aboriginal accused or an accused who belongs to a vulnerable
population that is overrepresented in the criminal justice system that is disadvantaged in
obtaining release.

[12] It is not unusual for the Court in bail to rely on the statement of an accused or the
submission of their counsel as to their Indigenous heritage without subjecting them to a
prolonged legal test to prove that connection.

[13] In such instances, I am required to consider the Supreme Court of Canada’s

decision in R. v. Gladue.
 — 3 —

[14] Gladue requires the bail court pay particular attention to the circumstances of an
Indigenous person.

[15] I must and do take judicial notice of the unique systemic and background factors
which may have played a part in bringing an Indigenous accused before the court. This
includes the history of colonialism, displacement and residential schools and how that
history continues to translate into lower incomes, higher unemployment, higher rates of
substance abuse and suicide and higher levels of incarceration for Indigenous peoples.

[16] In the bail context this requires the court to consider whether:
• the sureties in the context of Aboriginal culture can control the accused's
behaviour
• detention of an Aboriginal accused has a disproportionately negative
impact on the accused; can the impact be alleviated by strict bail
conditions
• Aboriginal law and customs provide assurances of attendance in court and
protection of the public that are required for release
R. v. Brant, [2008] O.J. No. 5375 (Ont. S.C.), para. 21

[17] I am further guided by the recent Ontario Superior Court decision of R v. Young
2022 ONSC CR-22-00000022-00, released earlier this month. At para. 20, Justice
Chalmers indicates the accused is not required to draw a “straight line” between his
Aboriginal status and the offences. However, more is required than a “bare assertion” of
Aboriginal status.

[18] The accused in Young self-identified as Indigenous but did not put forward any
evidence how his Indigenous experience had affected him or caused him to be before the
court.

[19] As Justice Chalmers indicated at para. 24, the Justice of the Peace can only deal
with the material that is before them in the bail hearing.

[20] There were no submissions presented as to how the bail plan that is being
proposed by Mr. King addresses the specific requirements expressed in Brant.

[21] The allegations against Mr. King are outlined in detail in the Crown material filed
at Ex. 1. The material filed is a public exhibit; I do not intend to summarize this material
at length in these reasons, except where it relates to my analysis on the secondary or
tertiary grounds for detention.

[22] On the secondary ground, I take into consideration the nature and circumstances
of the alleged offence, the strength of the Crown’s case as well as Mr. King’s
circumstances, his criminal record, the plan that is being proposed and the relevant case
law.

[23] The test for the secondary ground was stated in R. v. Morales, 1992 CanLII 53
(SCC) at para. 39.
 — 4 —

Bail is not denied for all individuals who pose a risk of committing an offence or
interfering with the administration of justice while on bail. Bail is denied only for
those who pose a “substantial likelihood” of committing an offence or interfering
with the administration of justice, and only where this “substantial likelihood”
endangers “the protection or safety of the public.” Moreover, detention is justified
only when it is “necessary” for public safety. It is not justified where detention
would merely be convenient or advantageous.

[24] The test was further articulated in R. v. Abdel-Rahman, 2010 BCSC 189
(CanLII) at para. 23.

In my opinion, the decisions that a judge must necessarily make in order to reach
the conclusion that detention is justified on the secondary ground, are the
following:

a) First, that there is a risk that the accused will either commit an offence, or will
interfere with the administration of justice, if he is released;

b) Second, that this risk is of such magnitude that it amounts to a “substantial

likelihood;”

c) Third, that the said risk would constitute a danger to public safety (in general,
or to a specific victim or witness) if the accused is released; and

d) Fourth, that the detention of the accused is “necessary,” because the identified
danger to public safety cannot be prevented or reduced to an acceptable level by
bail conditions (such as reporting to authorities, curfew, no-contact, mobility
restrictions, sureties or cash bail).

[25] Mr. King comes before the Court accused of mischief and three counts of
counselling an uncommitted indictable offence, namely mischief, obstructing police
and disobeying a court order.

[26] It is alleged that Mr. King was one of the leaders of the Freedom Convoy 2022,
which led to the widespread blockade of downtown City of Ottawa streets for a three-
week period beginning on Jan. 28, 2022.

[27] Demonstrators blockaded streets with large trucks and tractor-trailers. They
launched an offensive of horn honking that caused significant distress to residents living
in the downtown neighbourhoods adjacent to the Parliamentary precinct where many of
the demonstrators were gathered.

[28] The Ottawa police reported that they received more than 600 complaints in the first
week alone, including excessive noise complaints, assaults by demonstrators,
harassment by demonstrators and threats by demonstrators toward those wearing
masks, or those who asked them to wear masks when entering businesses.

[29] The impact of what can only be described as an occupation was significant and
widespread. The synopsis in Ex. 1 details the harm caused by the demonstration.
 — 5 —

[30] Public services such as Ottawa City Hall and Service Ontario, two city library
branches and a pair of childcare centres were closed. Public schools near the
demonstration area had to shift to online learning. The Rideau Centre Shopping Centre,
along with 90 other nearby businesses had to shutter their doors as a direct result of the
blockade. This caused significant economic loss to the businesses as well as their
employees, who were unable to go to work and earn an income. Public transit had to be
rerouted away from the downtown. Vulnerable individuals who rely on shelters in the
downtown core were subject to harassment and the constant barrage of noise. It left them
– and many other downtown residents – fearful to be on the streets.

[31] The occupation continued unabated despite repeated requests by the city,
provincial and federal governments and the Ottawa police for it to end. Photographs of
the size and scope of the occupation were entered as exhibits at document two of Ex. 1.

[32] The occupation of the downtown core was unprecedented in Canadian history. It
resulted in the declarations of two separate states of emergency and the invoking of the
federal Emergencies Act for the first time in Canadian history.

[33] On Feb. 6, 2022 the Mayor of Ottawa declared a state of emergency in response
to the ongoing impact of the occupation.

[34] On Feb. 7, 2022, a Superior Court injunction was issued restraining any person
from using air or train horns, with certain limitations, in the area of the demonstration.

[35] On Feb. 9, 2022 Ottawa police sent a press release directed toward the
demonstrators indicating they may be committing a criminal offence and to cease the
unlawful activity.

[36] On Feb. 11, 2022, the Premier of Ontario made a declaration of an emergency
under the Emergency Management and Civil Protection Act.

[37] And on Feb. 14, 2022, the Prime Minister invoked the Emergencies Act for the first
time in Canadian history.

[38] There was evidence filed by the Crown alleging that what happened in Ottawa was
premediated and intended to cause maximum disruption. It was not just a handful of
people that were victimized, but thousands who were held hostage by noise and
disruption.

[39] The mischief that is alleged to have occurred in Ottawa is at the highest end given
its scope and duration.

[40] It is alleged that Mr. King, who is described as a co-founder of the Freedom
Convoy, showed an indifferent attitude to the plight of Ottawans and likened his group’s
tactics to the “Art of War.”

[41] “These people didn’t sleep for 10 days. It’s kind of funny, I’m not going to lie, it’s
hilarious,” Mr. King says while laughing in the video in document 5 of exhibit 1.
 — 6 —

[42] There were video exhibits led by the Crown that showed Mr. King encouraging
individuals participating in the demonstration to mislead police as to why they were
entering the downtown core. There were also videos encouraging demonstrators to not
leave the downtown or residential areas no matter what police or government asked them
and to disobey court orders.

[43] It should be noted that Mr. King repeatedly states in the videos that he does not
want the demonstration to be violent, and frequently implores participants to refrain from
engaging with the police and to remain peaceful.

[44] Mr. King is not accused of offences of violence – the allegations here relate to
mischief and the counselling of others to commit mischief, obstruct police and disobey
court orders. Those are the offences that I am considering under the secondary ground.

[45] The strength of the Crown’s case is relevant to the secondary ground analysis. A
strong Crown case is relevant to a future dangerousness assessment.

[46] This principle is enunciated in R. v. Al-Safi at para. 36, which refers to Justice
Trotter’s explanation in his book, The Law of Bail in Canada, of R. v. Rondeau (1996) 108
C.C.C. (3d) 474.

[47] In short, although the accused person is presumed innocent, this cannot prevent
a court from considering the nature of the offence and the degree to which the evidence
foreshadows the future determination of culpability.

[48] The evidence here of Mr. King’s participation in and counselling an uncommitted
indictable offence is overwhelming. There is evidence of videos Mr. King himself posted.
They are his words, coming directly from his mouth. There is substantial evidence
supporting his participation and leadership of the Freedom Convoy.

[49] Defence counsel argues there are potentially trialable issues in relation to the
Charter, particularly as it relates to freedom of expression.

[50] The decision of R. v. Drainville [1992] 3 C.N.L.R 44 addresses the constitutionality

of the offence of mischief and the limits of civil disobedience.

[51] In that decision, which involved the blocking of a single road for approximately an
hour, Justice Fournier found that if an accused’s form of expression constituted an
unlawful act, it was not protected by the Charter.

[52] Mr. King can seek to present a Charter challenge at his trial; however, I cannot
conclude it is a significant trialable issue.

[53] Counsel for Mr. King also argued that Mr. King can’t be held responsible for the
acts of others and that there is scant evidence anyone acted on his alleged directives.
However, as the Crown points out, the charge is counsel an uncommitted indicatable
offence, negating the need for that evidence.
 — 7 —

[54] In terms of Mr. King’s circumstances, he is a 44-year-old man from Penhold,

Alberta.

[55] Mr. King has a criminal record with 18 convictions. It is a dated record, and most
of the convictions occurred when he was a youth. These included five convictions for
failing to comply with a disposition under S. 26 of what was then the Young Offender’s
Act. There was also a single conviction for failing to attend court as well as convictions
for minor offences of theft, mischief and possession of a narcotic.

[56] His adult record does not include any convictions for breaching court orders. The
offences are related to the possession of property obtained by crime and drug offences.
The last entry is in 1999.

[57] While the record exposes a past indifference to court orders and a propensity for
criminality, it alone does not lead the Court to a conclusion that Mr. King poses a
substantial likelihood of committing further offences should he be released.

[58] Mr. King did not testify on the bail hearing. He is not required to. Counsel submits
on Mr. King’s behalf that he would comply with any orders the court may impose.

[59] The Crown’s evidence, which is before me, suggests otherwise.

[60] That evidence paints a portrait of an individual who has clear intention to continue
his protests and is indifferent to the consequences. Some of his remarks reference
firearms and ominous allusions to the future.

[61] In a February 7, 2022 video, Mr. King describes losing family and best friends to
his cause. Mr. King described himself as “not a nice person” who had been at this “game”
for a long time.

[62] “Run scared. Awe haw awe, I got pepper sprayed. Awe haw awe, I got rubber
bulleted. Ha, ha, you have no idea what it coming. Rubber bullets and pepper spray are
fuck all. Wait until the real bullets start flying, and then we will see where you are at,” he
said.

[63] “Until you guys are ready to start swinging, I’m fucking outtie. Because I know what
I am getting prepared for.”

[64] In a February 11, 2022 Facebook Live video, Mr. King said that “he doesn’t want
to be a leader, wants to be a person on the ground.” (In the video, Mr. King is discussing
similar blockades as to those in Ottawa at international border crossings.)

[65] “If you think for one second I’m going to tell them men and women at all those
other places to back off, you’ve got another thing coming. I cannot be bought off. I cannot
be swayed. I cannot be bribed. And that’s why you hate me the most. You know I can’t
be swayed.”

[66] On Feb. 14, 2022, it’s alleged Mr. King appeared in another video where he says:
 — 8 —

“I will be the last man to leave Ottawa. We came here to do something. We have
a whole world watching us. It is our duty to continue on with that absolute
phenomenal movement that we’ve been able to successfully hold. We’ve started
a movement around the world that’s happened in only three weeks time. We’ve
healed the world in less than three weeks from the damage that’s been caused in
two years. Imagine what we can do in another two years. Hold the line, ladies and
gentlemen, do not back down. We got your backs, we got your six, and we ain’t
leaving you alone.”

[67] On another video described in the synopsis, the Crown alleges that Mr. King
indicated on Feb. 12, 2022 that the “movement” is not over even after vaccine mandates
end.

[68] In a video filed as document 8 at exhibit 1, Mr. King insists that demonstrators are
“not retreating, we are regrouping,” even as police are beginning to arrest them.

[69] “The protest is not over. You are allowed on foot to be there. Flood the fricking
streets,” King said. He also directed those who wished to leave to go to Antrim and “wait
on orders.”

[70] “We’ll get back to Antrim, we regroup, we drive back into Ottawa, we have a giant
party,” said Mr. King.

[71] Mr. King concludes: “We seen what they are going to do, now we know how to
react.”

[72] Mr. King also makes troubling statements in a video regarding the Prime Minister
and firearms.

[73] “Trudeau, someone is going to make you catch a bullet some day,” he said. “The
only way this is going to be solved is with bullets, and yeah, I said it. That’s the only way
something is going to happen. A massive revolution on a huge scale.”

[74] Mr. King also allegedly said “when a government is tyrannical, it is a patriot’s duty
to protect it’s citizens.”

[75] Given the nature of Mr. King’s comments regarding the continuation of the protest
prior to his arrest, coupled with a history of criminality and no evidence to the contrary as
to any change in his intentions, I am satisfied there is a substantial likelihood Mr. King
would continue committing offences similar to what he is accused of should he be
released.

[76] I am also satisfied that the substantial likelihood of Mr. King committing further
offences would endanger the safety and security of the public based on the harm caused
by the offences alleged.

[77] Despite these conclusions, the next, and final question on the secondary ground
analysis is whether the risk to the public can be reduced to a level below that of substantial
by the imposition of bail conditions.
 — 9 —

[78] The plan that is being proposed by Mr. King’s counsel is release to a residential
surety, Kerry Komix. Mr. King would reside with Ms. Komix at her home in Alliance,
Alberta.

[79] Ms. Komix is prepared to pledge $50,000, or approximately half the value of her
home, to ensure Mr. King attends court as required and follows the conditions of release.
Ms. Komix agreed that the pledge could be higher if the court deemed it necessary.

[80] It is proposed that Mr. King would immediately leave Ottawa with Ms. Komix. Ms.
Komix would drive him back to Alberta, where he would remain under house arrest with
limited exceptions to be outside the home, and only in the presence of the surety. There
would be no unsupervised access to the Internet or any websites or social media
platforms the court deemed inappropriate, and no communication with other alleged
leaders of the Freedom Convoy.

[81] Ms. Komix testified that she understands the roles and obligations of a surety,
would ensure Mr. King abides by conditions and that any breaches of the release order
will be reported to police immediately. Ms. Komix has no criminal record and has never
acted as a surety in the past. She indicated can provide around the clock supervision of
Mr. King as she doesn’t work and is at home at all times. There is a bedroom next to hers
in her home where Mr. King can stay, and she is confident he would be unable to come
or go without her knowledge.

[82] Additionally, Mr. King would be monitored by a GPS ankle monitor provided by
Recovery Science Corporation. A letter outlining Mr. King’s acceptance into the program
was filed as Exhibit 2 on the bail hearing as part of the defence materials.

[83] The release proposed is on one of the highest rungs of the release ladder as
considered in Criminal Code and the Supreme Court decision of Antic.

[84] As stated by Justice Harris in R. v. Rajan 2020 ONSC 2118 at para. 32, in some
instances electronic monitoring can be a valuable tool on bail. Electronic monitoring can
function as a specific deterrent on an individual released on bail.

An accused person subject to electronic monitoring will know not only will they be
apprehended if they violate their house arrest but that the GPS device will produce
cogent evidence to assist with their prosecution. To most, this will act as a real
deterrent.

[85] Ms. Komix herself recognized the limitations of such technology in her
examination-in-chief. It does not have eyes.

[86] As Mr. Rosemond argued, and I agree, the most substantial risks on the secondary
ground are Mr. King’s continued communication with fellow protest leaders, the use of
Mr. King’s large social media and Internet following to direct others to commit offences
and remaining or returning to Ottawa to continue committing the alleged offences.

[87] The GPS offers very little value in relation to the potential continued
communication between Mr. King and other Freedom Convoy organizers or his 354,000
 — 10 —

Facebook followers. Further, the allegations are such that Mr. King need not actually be
in the City of Ottawa to continue the offences.

[88] Justice Harris also notes there is controversy in case law as to GPS monitoring’s
effectiveness on the secondary ground.

[89] There is a common theme in case law that GPS monitoring is only really effective
if paired with effective surety supervision.

[90] For example, Justice Akhtar in the decision of R v Osman, 2020 ONSC 965, stated
in para. 35 that “Electronic monitoring is only useful if it supplements what is already a
strong supervisory surety plan.”

[91] And in R v. Syed, 2020 ONSC 2195, Justice Harris indicates at para. 48 that
electronic monitoring can be a “major safeguard” in a bail order but “cannot alleviate
severe problems with the applicant and his proposed surety.”

[92] Is Ms. Komix a surety who can provide effective supervision?

[93] On cross-examination, Ms. Komix acknowledged she has only known Mr. King for
approximately four weeks. According to Ms. Komix, she has only known him since joining
him on the Freedom Convoy.

[94] Ms. Komix said she travelled to Ottawa with Mr. King. Once here, she
acknowledged participating in the blockades that form the basis of the mischief charge
Mr. King now stands of accused of committing.

[95] She also acknowledged potentially being present when he filmed a video that is in
evidence on the bail hearing where Mr. King laughed at Ottawa residents who were
unable to sleep because of the honking horns.

[96] Ms. Komix testified she knew that government officials wanted the occupation to
end. She equivocated when asked whether she understood if what the demonstrators
were doing was considered mischief and was somewhat evasive when questioned on her
views of the police and her social media posts.

[97] There was some evidence Ms. Komix holds an organizer role in the Freedom
Convoy.

[98] Ms. Komix’s name and photograph appeared in an online post alongside Mr. King,
Owen Swiderski and George Billings as an organizer for a crypto token designed to raise
money for truckers.

[99] Ms. Komix explained that she was made a partner in the venture, although she
struggled to explain what exactly the funds were being raised for and seemed to have
little understanding of how it worked.

[100] There are two available inferences I can draw from this, and neither of them are
positive for a person being proposed to supervise Mr. King in the community. The first is
 — 11 —

that Ms. Komix is firmly entrenched among the leaders of the Freedom Convoy. The
second is that she is easily manipulated by those who are.

[101] Ms. Komix also acknowledged that she shared the strongly held beliefs of Mr. King.
Mr. King’s beliefs on the evidence before the court seem to include that laws he deems
unjust don’t apply.

[102] The Court cannot be left questioning whether Mr. King or his surety will arbitrarily
decide on their own as to which conditions are just and worthy of following and which are
not.

[103] Ms. Komix testified her commitment now was to the administration of justice,
however I am left questioning the credibility of that commitment given her own
participation in the occupation and activity on social media.

[104] While Ms. Komix was willing to pledge half the value of her home to secure Mr.
King’s release, I note the plan as proposed does not involve any pledge or cash deposit
on behalf of Mr. King.

[105] There are other concerns with the proposed plan.

[106] I heard no submissions as to what or any type of pledge that Mr. King was
proposing to put up to satisfy the court he would comply with terms of release.

[107] As it stands, Mr. King is accepting no financial risk if he were to breach his
conditions of release. Ms. Komix, on the other hand, is accepting all the risk. This is for a
person she didn’t even know a month ago. Ms. Komix testified Mr. King is not even paying
the cost of the proposed electronic monitoring.

[108] There were also serious questions raised as to how well Ms. Komix actually knows
Mr. King. She testified that she was unaware Mr. King had released racist videos where
he mocks Asians and Hebrews and suggests that Caucasians have the strongest blood
lines.

[109] In my view, there is nothing in evidence to suggest that Mr. King would be
sufficiently deterred by the prospect of a person who was a stranger to him four weeks
ago losing the large sum of money she has pledged.

[110] In his seminal text on bail, The Law of Bail in Canada, Justice Trotter outlines a
guideline of qualities that are desirable in a surety at chapter 7:10 (Third Edition).

a) A person of good character to whom the duties of a surety may be entrusted;

b) A person with meaningful links to the accused person;

c) A person with the ability and authority to discharge the obligations of a surety;
and

d) A person with the financial resources sufficient to meet any monetary

conditions in a release order
 — 12 —

[111] I am not satisfied that Ms. Komix meets the criteria of having meaningful links to
Mr. King or the ability or authority to discharge her obligations.

[112] The Court would be taking an unacceptable risk entrusting the supervision of Mr.
King to Ms. Komix.

[113] The Crown has met their onus on the secondary ground and Mr. King will be
detained on this ground.

[114] With respect to the Crown’s concerns under the tertiary ground that Mr. King
must be detained to maintain confidence in the administration of justice, I must
engage in a balancing exercise of four factors listed in Section 515 (10) (c).

1. Apparent strength of the prosecution’s case: At this stage the Crown does
not have to prove the offence beyond a reasonable doubt and I must be careful
not to play the role of the trial judge.

2. The objective gravity of the offence

3. Circumstances surrounding the commission of the offence, including

whether a firearm was used

4. Whether the accused is liable for a potentially lengthy term of imprisonment

[115] I have to consider the combined effect of all the circumstances of this case to
determine whether detention is justified.

[116] The Supreme Court of Canada in the decision of R. v. St. Cloud 2015 SCC 27 has
provided guidance on how to apply the tertiary ground analysis.

[117] I must adopt the perspective of a reasonable person who is properly informed
about the philosophy of the legislative provisions, the Charter values and the right to
reasonable bail and the actual circumstances of the case.

[118] This is a thoughtful person, not one who is prone to emotional reactions, whose
knowledge of the circumstances of a case is inaccurate or who disagrees with our
society’s fundamental values.

[119] Further, this ground for detention is not limited to exceptional circumstances or
certain categories of offences. It must not be interpreted narrowly.

[120] The four listed factors are not exhaustive. The court must consider all relevant
circumstances in its determination. Other circumstances may include the impact and
prevalence of the offence in the community, the age, criminal record, or mental health of
the accused, or membership in a criminal organization.

[121] No single circumstance is determinative. A reasonable person’s confidence in the

administration of justice may be undermined not only if a court orders detention where
detention is justified, but also if it orders detention when detention is not justified.
 — 13 —

[122] I have dealt with the strength of the Crown’s case in the review of the secondary
ground. My analysis there also applies to the tertiary ground.

[123] In short, it is an overwhelming case. There is significant evidence linking Mr. King
to the organization of the occupation, participation in the occupation, and directing others
via his social media videos to commit the alleged offences.

[124] In terms of the objective gravity of the offence, the charge of mischief carries a
two-year maximum sentence.

[125] The offences of counselling an uncommitted indictable offence carry the same
maximum penalty as that for offence that was allegedly counselled.

[126] In the case of counselling mischief, the maximum penalty would be two years.
Counselling obstruct police would carry a maximum sentence of two years, and
counselling to disobey a court order would carry a maximum sentence of two years.

[127] A two-year sentence is on the lower end of the scale of objective gravity. It is on
the cusp between an upper reformatory term and a penitentiary sentence. It is
comparatively low to other offences in the Criminal Code.

[128] In terms of whether Mr. King is liable for a lengthy term of imprisonment, the Crown
submits that in the circumstances of this case they will seek a lengthy penitentiary term
for Mr. King by virtue of consecutive sentences.

[129] Mr. King’s counsel submits that the four days in jail he had already served at the
time of the bail hearing is a more reasonable sentence.

[130] The reality is the potential sentence if Mr. King were to be convicted is likely at
neither end of the broad spectrum argued by counsel. However, given the scope of the
harm caused by the Freedom Convoy occupation and Mr. King’s alleged role in it, I accept
the Crown’s submission that Mr. King could be liable for a lengthy term of imprisonment
should he be convicted.

[131] In terms of the circumstances of the offence, the allegations here are extremely
serious. It involved the takeover of the downtown core of the City of Ottawa.

[132] It was premediated, prolonged, involved a sophisticated and high degree of

planning and continued despite repeated attempts and warnings to cease.

[133] Mr. King was an alleged organizer of the demonstration. He is accused of using
his vast social media presence to release videos directing his followers to hold the line,
not leave Ottawa or the residential areas.

[134] The occupation continued even as local and provincial governments declared
states of emergency and the federal government invoked the Emergency Act for the first
time.

[135] Downtown streets descended into lawlessness. Thousands of Ottawa residents,

including the vulnerable, such as the homeless, children, the elderly and individuals who
 — 14 —

depended on their employment downtown to earn an income, were all negatively

impacted in a significant way. People were fearful to leave their homes.

[136] The offences were an attack on the rule of law. It shook Ottawans and Canadians
faith in institutions such as government and the police to protect them. The alleged
offences are extraordinarily serious and unprecedented.

[137] Counsel for Mr. King further argued that detention on the tertiary ground should
not be considered given the potential for Mr. King to serve a lengthier sentence awaiting
trial than he would receive should he be found guilty.

[138] Mr. Rosemond cites the cases of R. v Whyte 119 O.R. 3d 305 and R. v White 2010
O.J. No. 2269. In both cases, the accused had already spent significant periods of time
in pre-sentence custody when their matters were considered on bail review.

[139] I cannot conclude on the evidence before me here that Mr. King would find himself
in a similar situation given my finding that a potentially lengthy term of imprisonment is a
possibility.

[140] Mr. Rosemond also made arguments about the impacts of Covid-19 on the time to
trial. Several cases were filed as part of his material in relation to Covid-19 and its
consideration in relation to the tertiary ground.

[141] In the decision of R. v. King 2020 ONSC 1935 at para. 74, Justice Goodman
acknowledges the courts must consider the impact of Covid-19 on those who are
detained.

Even in these very challenging times, the court must fully recognize the potential
harmful health impact on detained persons in various institutions while at the same
time exercising the balancing required to sustain its fundamental role in the
administration of justice and the protection of the public.

[142] Mr. Rosemond argues that Covid could result in delay to time to trial. I can take
judicial notice of the significant overall impact Covid-19 has had on court operations, yet
no evidence was presented as to what that actual delay that may be. Judicial notice can
not extend to guessing how much additional time he may spend in custody, if any at all.

[143] I have also heard absolutely no evidence that Mr. King suffers from any sort of
medical condition that could put him at higher risk of contracting Covid-19 in jail as the
Court indicated is required in decisions such as R. v. Nelson 2020 ONSC 1728 and R. v.
Budlakotti [2020] O.J. No. 1352 (ONSC).

[144] It is somewhat ironic that an individual whose raison d’etre is to protest vehemently
against public health measures that are designed to reduce the spread of Covid would
now suggest that delay or the potential for being infected at a detention centre should
impact the Court’s consideration on the tertiary ground. I put little weight on the
submission.
 — 15 —

[145] In arriving at my conclusion, I also considered Mr. King’s circumstances and his
proposed plan of release.

[146] The Superior Court decision of R. v. Dang, 2015 ONSC 4254 states: “An accused
person’s plan may be relevant to whether public confidence in the administration of justice
is capable of being maintained … A reasonable and knowledgeable member of the
community may take a different view of a case in which an accused person charged with
a violent offence is released into the community with virtually no supervision, compared
to a situation where a strict plan has been put into place to monitor the accused.”

[147] Given the significant frailties in relation to the surety proposed in Mr. King’s bail
plan, I do not find that it mitigates the concerns under the tertiary ground.

[148] In St. Cloud, the Supreme Court of Canada indicated at para. 88: “In conclusion, if
the crime is serious or very violent, if there is overwhelming evidence against the accused
and if the victim or victims were vulnerable, pre-trial detention will usually be ordered.”

[149] I find that to be the case here. A reasonable person, properly informed, would lose
confidence in the administration of justice should Mr. King be released. The Crown has
met their onus on the tertiary ground and Mr. King will be detained.

Released: February 25, 2022

Signed: Justice of the Peace A. Seymour