DATE: 20000518
                                                   DOCKET: C29482
                   COURT OF APPEAL FOR ONTARIO
            OSBORNE A.C.J.O., WEILER and FELDMAN JJ.A.
                                
                                
BETWEEN:                    )
                                   )
HER MAJESTY THE QUEEN              )    Michael Bernstein for the
                                   )    respondent
               Respondent          )
                                   )
-and-                              )
                                   )
WARREN ANTHONY GEORGE   	   )    Michael Code for the
                                   )    appellant
               Appellant           )
                                   )    Heard: July 7-8, 1999
On appeal from conviction by Justice Pockele dated February 12,
1998 and from sentence imposed on April 3, 1998
BY THE COURT:
[1]  On February 12, 1998, the appellant, Warren George, was
convicted of criminal negligence in the operation of a motor
vehicle pursuant to s. 221 of the Criminal Code and assault with
a weapon (a motor vehicle) pursuant to s. 267(1)(a) of the
Criminal Code. He was sentenced to six months imprisonment on
each count to be served concurrently. He now appeals his
conviction and sentence.
THE EVIDENCE
     History of the Dispute
[2]  During World War II part of the Stoney Point Reserve was
expropriated by the federal government acting under the War
Measures Act.  In May, 1993, the members of the Stoney Point Band
occupied the Canadian Forces Base, Camp Ipperwash (part of the
expropriated land) and took up residence in the barracks.  The
appellant was one of the Band members who continued to reside at
CFB Ipperwash after the Band’s occupation of the base.  On
September 4, 1995, the Band members also occupied Ipperwash
Provincial Park.  The Band members claimed an aboriginal treaty
right to both the military base and the adjacent park.  They
specifically contended that the government was desecrating a
burial ground that existed inside the park boundaries.
[3]  For ease of reference a map of the area in question is
attached to these reasons.
[4]  After the Band’s occupation of the park on September 4, 1995
the park superintendent officially closed the park.  He and a
police officer attempted to serve notice to that effect on the
park occupants.  The notice indicated that the park was closed
and that the Band members would be trespassing if they remained
on park property.  Band members refused to accept the notice.
[5]  On September 6, 1995, the O.P.P. received a complaint from a
local resident that his car had been damaged by a rock thrown as
he drove by the park on Army Camp Road. Later that evening, a
number of Band members were observed standing in the sandy
parking lot.
[6]  When the Band members occupied the park, the O.P.P.
immediately established checkpoints and set up a Tactical
Operations Centre (“TOC”) on East Parkway Drive, about one
kilometre from the park gate.  The police operation included four
emergency response teams, several tactical response units, two
canine units and a number of criminal investigators.
[7]  On September 6, 1995, the police deployed a unit of 32
officers to move the Band members off of the parking lot and into
the park. The unit was  to “maintain a presence” until another
checkpoint could be established.  At approximately 10:45 p.m.,
the unit moved toward the sandy parking lot in a multi-tiered
formation of contact units and arrest teams. The formation
marched down East Parkway Drive towards the park and proceeded
across the sandy parking lot. The officers observed a large
bonfire on the park side of the fence and a yellow bus parked
facing the fence. The unit proceeded forward until the front line
of officers was close to the wire fence separating the sandy
parking lot and the park.  Sgt. Lacroix, the unit commander,
testified that because the parking lot was then clear, he radioed
to the TOC and requested permission to withdraw.
[8]  At this point, one of the male occupants of the park, later
identified as Cecil George, proceeded out of the park and onto
the sandy parking lot. Sgt. Lacroix responded by ordering a left-
flank “punchout,” a manoeuvre in which a line-up runs full speed
at an individual to force him back. Part of the formation
proceeded with the “punch out” and engaged in “shield chatter”
(banging their sticks as they ran). As Cecil George retreated
into the park a number of the park’s occupants began to yell and
throw rocks and fire brands from behind the fence.
[9]  Since the sandy parking lot area had been cleared, the
entire police formation began to withdraw to the Army Camp
Road/East Parkway junction. As the unit was moving backwards a
number of the park occupants, armed with sticks and rocks, left
the park and proceeded towards the officers.  Sgt. Lacroix
ordered the officers into a “full formation punch out.”  A
massive “shield to stick fight” between the officers and
occupants then took place. Cecil George clashed directly with
Sgt. Lacroix and shattered his shield with a pole. Cecil George
was hit by Sgt. Lacroix in his shoulder area and was then
physically restrained by the arrest squad. The other occupants
eventually retreated into the park.
[10] While Cecil George was being arrested the police again began
to withdraw up East Parkway Drive. As they withdrew, a yellow
school bus came through the park gate, pushed aside a garbage
dumpster and moved towards the formation of police officers.
Moments after the bus came out of the park, the appellant, Warren
George, left the park in a car and followed the path of the bus.
The police unit was ordered to “split formation” on to the right
and left sides of the road. Sgt. Lacroix remained standing in the
centre of the road in a “weaver” position with both hands bracing
his pointed gun while he “tracked” the oncoming bus. The bus
proceeded west past Sgt. Lacroix driving along the wrong side or
left hand grass shoulder of East Parkway Drive.
[11] As soon as the bus passed him, Sgt. Lacroix saw the car. As
the car approached him, it swerved to the right and drove into
the ditch, where some of the officers were standing. The car hit
at least 4 officers and one officer, Officer Cloes, suffered
bodily harm.  Sgt. Lacroix then fired a number of rounds into the
driver’s side of the vehicle. The car reversed back down East
Parkway Drive, onto the sandy parking lot and into the park. The
bus also reversed into the park and moments later the police unit
returned to the TOC.
[12] At trial, the appellant testified that he had driven out of
the park and across the sandy parking lot in an attempt to locate
Cecil George. He testified that, as he drove onto East Parkway
Drive, a police officer jumped in front of his car and pointed a
gun at him. The appellant said that he ducked and veered the car
to the right to avoid being shot at.
ISSUES
[13] The appellant raises the following grounds of appeal:
     1)   In relation to count 3, assault with a weapon, (a motor
          vehicle), the  appellant submits that the trial judge
          misapprehended the evidence and failed to consider all 
	  of the evidence before rejecting the defence of accident.

     2)   The appellant submits that the trial judge erred in
          characterizing the conduct of the occupiers of Ipperwash
	  Park as unlawful and thus failed to apply s. 41 (1) of the
	  Criminal Code(defence of property).

     3)   The trial judge misdirected himself on the defence of
          justification as provided by ss. 27 and 30 of the Criminal
	  Code.
Issue 1 - Misapprehension of Evidence and Failure to Consider 
	  Evidence
[14] The approach to be followed by an appellate court where it
is argued that the verdict is based on a misapprehension of the
evidence and that the verdict is unreasonable is set forth in R.
v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.).  The court
should first consider the reasonableness of the verdict under s.
686(1)(a)(i).  If the appellant succeeds on this ground an
acquittal will generally be entered.  If the verdict is not
unreasonable, then the court should determine whether the
misapprehension of evidence occasioned a miscarriage of justice
(s. 686(1)(a)(iii)).  If the misapprehension of the evidence has
rendered the trial unfair, then the conviction must be quashed
and a new trial directed.  Where a trial judge is mistaken as to
the substance of material parts of the evidence and that error
plays an essential part in the reasoning process resulting in a
conviction, the accused’s conviction is not based exclusively on
the evidence and is not a true verdict.
[15] The appellant does not submit that the trial judge’s finding
that the appellant was guilty of assault by using his motor
vehicle as a weapon was unreasonable.  Rather, the appellant
submits that there has been a miscarriage of justice resulting
from a misapprehension of the evidence and the failure to
consider evidence relevant to the appellant’s defence.  We will
deal first with the appellant’s submission that the trial judge
misapprehended the evidence.
[16] In R. v. Morrissey, supra, Doherty J.A. described
“misapprehension of evidence” at p. 218 as:
	…a failure to consider evidence relevant to a 
	material issue, a mistake as to the substance 
	of the evidence, or a failure to give proper 
	effect to evidence.
[17] In relation to the appellant’s conviction for assault with a
weapon, the only issue was the element of intent.  The appellant
admitted that he was driving the motor vehicle on East Parkway
Drive and that he struck and injured Constable Cloes with the
vehicle.
[18] At p. 23 of his reasons, the trial judge rejected the
appellant’s evidence that he did not intentionally hit Constable
Cloes:
His evidence is not accepted that he swerved into 
the police involuntarily and only as a result of 
ducking down and swerving  “to avoid being shot”.  
His own evidence shows a lack of logic in this 
position.  Why would he be shot if he was not 
endangering anyone as he testified? Wouldn’t the 
pointing of a gun at him by a police officer be 
consistent with a demonstration that the police 
officer wanted him to stop and would potentially 
use force? Where is the logical nexus that gunfire 
would actually be used.
[19] The lack of logic in the appellant’s position referred to by
the trial judge is explained in part in the next sentence of his
reasons:
Warren George stated he did not stop because he 
did not want to be a target, yet he was driving so 
slowly that he testified that he braked within five 
feet.
[20] The appellant submits that the trial judge’s reasons
indicate he rejected the appellant’s evidence before reviewing
any of the other defence evidence or any of the police evidence
and that he therefore erred.  We disagree.
[21] Before making any findings the trial judge extensively
instructed himself on the law as it related to reliability,
credibility and the burden of proof.  He went on to
comprehensively detail the background evidence.  After
considering the position of the defence and the Crown he stated
that he would now make findings of fact.  He expressly stated
that he had considered all of the evidence and reviewed and
weighed the evidence of every witness but, “[f]or the purposes of
this judgment, I have reversed the order.  … Due to the nature of
the defence theory … it is more convenient to comment first upon
the evidence called by the defence.”
[22] It would be inappropriate to conclude that the trial judge
rejected the defence evidence before considering all of the
evidence based on the order in which the trial judge gave his
reasons, particularly given his comments. The appellant’s
submission fails to recognize that, as Doherty J.A. put it in  R.
v. Morrissey, supra, at pp. 204-205:
It is wrong to analyze a trial judge’s reasons by 
dissecting them into small pieces and examining 
each piece in isolation as if it described, or was 
intended to describe, a legal principle applied by 
the trial judge.  Reasons for judgment must be read 
as a whole … A trial judge’s reasons cannot be read 
or analyzed as if they were an instruction to a jury.  
Instructions provide a road-map to direct lay jurors 
on their journey towards a verdict.  Reasons for 
judgment are given after a trial judge has reached
the end of that journey and explain why he or she 
arrived at a particular conclusion.  They are not 
intended to be, and should not be read as a 
verbalization of the entire process engaged in by
the trial judge in reaching a verdict … Appellate 
courts can offer that encouragement by approaching 
reasons for judgment, not as if they were intended to 
be a dissertation on the applicable law or 
comprehensive catalogue of the evidence, but rather 
as an attempt by the trial judge to articulate the 
conclusions reached and the bases for these 
conclusions.  Appellate courts must resist the 
invitation to microscopically examine reasons for
judgment, lest trial judges decide that silence is 
indeed golden.
[23] The trial judge was not obliged to go about his analysis in
any particular order and there was nothing wrong with the
approach he took in this case.
[24] The appellant’s further submission is that had the trial
judge considered all of the evidence, he could not have arrived
at his factual conclusion that “the roadway was clear” and that
“there was no reason to veer.”  In particular, the appellant says
that the trial judge failed to consider the evidence of four
police officers who were standing in the road at the critical
time.  The appellant submits that that evidence at least raises a
reasonable doubt that these officers were blocking the
appellant’s path before he veered.  In addition, the appellant
relies on the evidence of Sgt. Lacroix that he stood in the
middle of the road as the vehicle driven by the appellant
approached.  We do not agree that the trial judge misapprehended
the evidence when he dealt with these factual issues.
[25] Most of the appellant’s complaints concerning
misapprehension of evidence and the failure to consider certain
evidence turn on the weight to be attached to the somewhat
conflicting evidence of the various police officers.  We accept
that there was conflicting evidence concerning whether the
appellant had to swerve to avoid hitting officers on the road,
whether the appellant could be seen driving and hence whether he
ducked before he swerved his vehicle, and whether the appellant
applied his brakes before hitting the officers.
[26] These conflicts in the evidence are not surprising given the
various locations from which the officers made their
observations, the fact that it was dark, that the headlights of
the appellant’s car were shining at the police officers and that
there was a “fog of dirt” in the area.  The trial judge was not
obliged to accept the evidence of any particular witness. Nor was
he obliged to reconcile all the conflicts in the evidence in his
reasons for judgment.
[27] The appellant did not testify that he swerved in order to
avoid hitting officers who were standing on the road. The trial
judge chose to rely “on the observations of these witnesses
(three of the police officers) that this was an intentional act.”
The trial judge’s reasons do not indicate that he failed to grasp
the importance of Sgt. Lacroix’s evidence; nor did he disregard
that evidence. The trial judge’s reasons reveal that he was alive
to the fact that Sgt. Lacroix was pointing his gun at the
appellant. The issue was whether the Crown had proven beyond a
reasonable doubt that the appellant intended to use his car as a
weapon when he intentionally, not accidentally, swerved towards
Constable Cloes.
[28] The appellant’s evidence supports the trial judge’s
conclusion that the appellant intended to threaten the police by
using his car so that they would move back.  Specifically, the
appellant did not testify that he swerved in order to avoid
hitting the police officers.  Rather, he agreed that he intended
to force the police to move back because of his concern about
Cecil George who was then in police custody.  The appellant
testified:
Q. Didn’t you figure that they (the police officers) 
would consider that (the car going down the road 
behind the bus) to be a significant threat.  You did 
it to threaten them.  The threat being if you don’t 
move back I’ll run you over.

A. That was because they were threatening Slippery 
(Cecil George)’s life.

Q. Well again for whatever reason your purpose in 
using the car was to threaten the police in effect 
saying you move back or I’ll run you over.

A. You move back but I wouldn’t say the run over part.

Q. But you figured they’d be threatened, they’d want 
to move back because they wouldn’t want to get hit 
by the car.

A. Yes.
[29] Furthermore, as we have said, the bus was driving on the
shoulder of the road going down the wrong side of the road and
the car followed the bus.  The appellant testified that he was
afraid if he stopped Sgt. Lacroix would shoot him.  It was drawn
to the appellant’s attention that he veered to the right, thereby
driving across the road and in front of  Sgt. Lacroix and his gun
before striking the officer, instead of veering to the left away
from Sgt. Lacroix.  When the appellant was asked why he did this
he answered, “[b]ecause I would have had to drive through the
bus.”  There is no issue that the bus had already gone past Sgt.
Lacroix when he pointed his gun at the appellant’s car.  This
also supports the trial judge’s finding on the issue of the
appellant’s intent.
[30] Notwithstanding the able submissions of counsel for the
appellant, we are not persuaded that the trial judge
misapprehended the evidence or that he failed to take account of
all of the sometimes conflicting evidence when he considered the
essential issue of the appellant’s intent to commit an assault
with his car.
Issue 2 – Defence of Property
          Overview
[31] The appellant submits that the trial judge erred in
characterizing the Band’s occupation of Ipperwash Park as
unlawful.  Because of that mischaracterization, the trial judge,
according to the appellant, failed to consider the appellant’s s.
41(1) defence – the defence of property.
[32] In support of his position on this issue, the appellant
argues that there was no evidence to support the trial judge’s
finding that the occupation of the park was “illegal.”  He notes
that the Band members had given notice of their occupation;  no
civil injunction was obtained;  no trespass notices were issued;
no unlawful assembly was declared;  the CMU marched on the
parking lot, not the park; and at the time of trial, the Band
members were still in possession of the park.  The appellant
relies on all of these factors to support his submission that the
Stoney Point Band was in peaceable possession of the entire park
area and had the trial judge made that finding, he would have
approached the Band members’ “resistance” differently and applied
s. 41(1) of the Criminal Code to the appellant’s advantage.
Relying on s. 41(1), the appellant argues that if the aboriginals
were in peaceable possession of the park and believed that the
police intended to march on the park, they were entitled to use
reasonable force to resist.
[33] The Crown submits that the s. 41(1) defence was never raised
at trial and that it should not, therefore, be raised or
considered on the appeal.  The Crown contends that at trial, the
appellant advanced the defence of justification, not a s. 41(1)
defence.  The Crown submits that the evidentiary record is
insufficient to resolve this issue and, had the appellant raised
a s. 41(1) defence at trial, different evidence would have been
led.  Because we think that s. 41(1) is not applicable to the
facts of this case, as found by the trial judge, it is not
necessary for us to address this aspect of the Crown’s
submission.
          Analysis
[34] Section 41(1) of the Criminal Code provides:
Every one who is in peaceable possession of a 
dwelling-house or real property, and every one 
lawfully assisting him or acting under his 
authority, is justified in using force to prevent 
any person from trespassing on the dwelling-house 
or real property, or to remove a trespasser 
therefrom, if he uses no more force than is 
necessary.
[35] The Alberta Court of Appeal, in circumstances somewhat
similar to those that exist here, considered the elements of a s.
41(1) defence in R. v. Born with a Tooth (1992), 76 C.C.C. (3d)
169.  In that case the trial judge had excluded certain evidence
that was relevant to the appellant’s s. 41(1) defence.
[36] In Born with a Tooth, certain Band members (of the Peigan
Nation) camped in a right of way area where the authorities said
they had no right to be.  Police officers, and others, attempted
to gain access to the area in question.  The Band members
resisted on the basis that the police were trespassers.  The
appellant, who was convicted by the verdict of a jury, took the
position in the Court of Appeal that by excluding certain
evidence the trial judge had effectively foreclosed him access to
an available defence under s. 41(1) of the Criminal Code.
[37] The Alberta Court of Appeal directed that there be a new
trial and to assist the new trial judge, the court considered the
elements of s. 41(1).  The court stated, at p. 177:
The defence contains four elements.  This means 
that, before an accused can benefit from it, the 
jury must have at least a reasonable doubt about 
all four.  If a jury is convinced beyond any 
reasonable doubt that any one element is missing, 
the defence must fail.  The four elements are 
these: the accused must be in possession of land;  
his possession must be peaceable;  the victim of 
the assault must be a trespasser;  and the force 
used to eject the trespasser must be reasonable 
in the circumstances.  [Emphasis added.]
[38] We think that in the above passage, the Alberta Court of
Appeal correctly set out the elements of s. 41(1).  For purposes
of this case, we think it is necessary to comment only on the
requirement of “peaceable” possession and the further requirement
that the force used to eject the alleged trespasser must be
reasonable in the circumstances.
[39] In our opinion, for reasons that follow, given the
circumstances of this case, the defence must fail.  There was no
peaceable possession of either the park or the sandy parking lot
area on which the conflict in question occurred and the amount of
force used was not reasonable in the circumstances.  Nor is there
evidence that the appellant honestly, but mistakenly believed he
was in peaceable possession of the park.
     (i)  Peaceable Possession
[40] Peaceable is defined in Black, Black’s Law Dictionary, 6th
ed. (1990), as:
…such as is acquiesced in by all other persons, 
including rival claimants, and not disturbed by 
any forcible attempt at ouster nor by adverse 
suits to recover the possession of the estate.
[41] In Born with a Tooth, supra, the Alberta Court of Appeal
elaborated on this definition by stating (at p. 178) that the
word “peaceable” is not synonymous with “peaceful.”  Instead, the
court stated that “peaceable” means possession that is “not
seriously challenged by others” and any challenge to the
possession should be “unlikely to lead to violence.”
[42] We agree that peaceable and peaceful are not synonymous and
with the Alberta Court of Appeal’s definition of “peaceable.”
[43] The Band members’ occupation of the park was challenged from
the outset.  Expecting the occupation, the O.P.P. had increased
police presence in the area and immediately after the occupation,
the police established checkpoints on roads leading into the
park.  There is no evidence to support a rational conclusion that
the occupation of the park by the Band members would not be
challenged.
[44] Although the entire conflict with the Band members was
plagued by poor communication between them and the authorities,
there were clearly some attempts by the police to communicate a
challenge to the Band members’ occupation of the park.  Inspector
Carson testified that on September 4, 1995 the superintendent of
the park and a police officer attempted to deliver a notice to
the Band members.  The notice stated that the park was closed and
that the Band members would be trespassing if they remained on
the park property.  The Band members refused to accept the
notice.  Inspector Carson testified that on the next day, two
police officers returned to the park in an attempt to discuss the
occupation with Band members, however, no meaningful dialogue
developed.  The police presence and their effort to communicate
with the occupants before the conflict on September 6, 1995 made
it clear that the occupation of the park was not accepted and
would be challenged.
[45] The Band members’ actions before the conflict also made it
clear that any challenge to their occupation could result in
violence.  When the Band members first occupied the park, they
were seen stockpiling rocks and sticks.  In the early hours of
September 6, 1995, the park occupants threw rocks at police
cruisers situated on the adjacent sandy parking lot.  Police
cruiser windows were broken.  Later the same day, the incident
commander received information about gunfire in the park and a
gun was reportedly seen in a Band member’s vehicle.  Also on
September 6th, a bystander reported to the police that a rock had
been thrown at his car as he drove by the park.  A number of Band
members were observed with sticks and bats standing on the sandy
parking lot.
[46] There is no evidence that the appellant had an honest but
mistaken belief in the nature of the Band members’ possession of
the park.  In his testimony, the appellant acknowledged that he
knew that the park occupation was without the Ministry of
National Resources’ consent.  He also testified that the park
occupants were prepared to resist any police interference with
their occupation and that the occupants had stockpiled sticks and
rocks for resistance purposes.  There is also evidence that when
the Band members first entered the park there were clashes with
patrolling police officers.
[47] The trial judge did not deal directly with the issue of
peaceable possession since, as we have said, the appellant did
not raise a s. 41(1) defence at trial.  He did, however,
characterize the Band members’ occupation of the park in this
way:
The activities of the occupiers were not peaceful, 
were not respectful and were not dignified.  There 
was vandalism to vehicles and other personal 
property, weapons had been brandished, threats were 
made to police officers, citizens made complaints 
to the police.
[48] In our view, the Band members’ occupation of the park was
not peaceable.
     (ii)  Reasonable Force
[49] Another element of a successful defence under s. 41(1) is
that the amount of force used must be reasonable in the
circumstances.  In R. v. Baxter (1975), 27 C.C.C. (2d) 96 at 113
(Ont. C.A.), Martin J.A. stated that:
The sections of the Code authorizing the use of force
in defence of a person or property, to prevent crime, 
and to apprehend offenders, in general, express in 
greater detail the great principle of the common law 
that the use of force in such circumstances is subject 
to the restriction that the force used is necessary;  
that is, that the harm sought to be prevented could 
not be prevented by less violent means and that the 
injury or harm done by, or which might reasonably be 
anticipated from the force used, is not 
disproportionate to the injury or harm it is intended 
to prevent.
[50] The appellant drove his car out of the parking lot and onto
the grass shoulder of East Parkway Drive in such a manner that he
struck a number of officers, seriously injuring one of them.  At
this time, the police were retreating from the park area.  Their
actions could not be construed as trespassing.  The force used
against the police was not necessary, reasonable or
proportionate.
[51] Furthermore, the trial judge found that the sandy parking
lot was not part of the park, that is to say it was a discrete
area proximate to, but separate from, the park.  There is ample
evidence to support this finding.  It follows that the Band
members, including the appellant, were not in possession
(peaceable or otherwise) of the sandy parking lot area at any
relevant time.
[52] The trial judge did not examine the Band members’
“resistance” within the framework of s. 41(1) for two reasons.
First, a s. 41(1) defence was not raised at trial as a discrete
defence and second, s. 41(1) was clearly inapplicable in the
circumstances of this case.  The trial judge made findings that
the occupation of the park was unlawful and the Band members’
actions towards the police were unlawful.  In our view, these
findings were supported by the evidence.  Our interference with
them is thus not warranted.
[53] We see no merit in this ground of appeal.
Issue 3 – The Defence of Justification
[54] The appellant submits that the trial judge erred by failing
to find that the appellant’s actions were justified within the
meaning of ss. 27 and 30 of the Criminal Code1, on the basis that
the appellant’s intent was to use reasonable force to prevent the
commission or continuation of an assault by the police on Cecil
George.
[55] The appellant’s position that the defence of justification
applies is based on the cumulative effect of two propositions; 1)
The trial judge essentially found that he had a reasonable doubt
as to whether the police used excessive force in arresting Cecil
George. 2) Although the appellant was not able to see all of what
the police did to Cecil George, he saw one punch and one kick.
[56] The difficulty with the appellant’s submission is that the
trial judge disbelieved the appellant’s evidence that his purpose
in driving the car out behind the school bus was to “help
Slippery” (Cecil George) “maybe force the police away and get him
into the car.” He found that the appellant’s purpose was to
“resist, obstruct and confront any attempts by the police to
enforce compliance with the law. This was his intention before
Cecil George was arrested and, adopting the Crown’s theory, it
was his intention after Cecil George was arrested.” The trial
judge concluded that the defence of justification resulted from a
retrospective reconstruction of events.
[57] The appellant relied on the case of R. v Nicholas C.
released May 26, 1997, (Ont. Ct. Prov. Div.), the driver of the
school bus that evening. He was acquitted of similar offences in
a separate trial. However in his case, the trial judge found that
“the only logical conclusion is that C. then entered the bus for
the purposes of attempting to rescue Bernard George [Cecil
George] from the officers as futile as that action may well have,
in hind sight, seem to have been.”
[58] As we have already concluded that the trial judge did not
misapprehend the evidence, his finding that the appellant’s
purpose in driving the car in the way he did was not to assist
Cecil George, distinguishes the Nicholas C. case and makes the
defence of justification unavailable in this case on the facts.
[59] The appellant, recognizing the deference we must accord the
trial judge on the issue of sentence, did not press his sentence
appeal, which, in the circumstances, is dismissed.
CONCLUSION
[60] The appeal as to conviction and sentence are therefore
dismissed.
                                          “C.A. Osborne A.C.J.O.”
                                          “Karen M. Weiler J.A.”
                                          “K. Feldman J.A.”

Released:  18/5/00 (CAO)

 

Map of East Parkway Drive where it intersects with Army Camp Road
                                
             (Not reproduced in electronic version)
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1  S.  27.  Every one is justified in using as much force  as  is
reasonably necessary
  a)   to prevent the commission of an offence
       i)  for which, if it were committed, the person who committed
           it might be arrested without warrant, and
       ii) that would be likely to cause immediate and serious
           injury to the person or property of anyone; or
  b)   to prevent anything being done that, on reasonable grounds,
       he believes would if it were done, be an offence mentioned in
       paragraph (a).
S. 30. Every one who witnesses a breach of the peace is justified
in  interfering to prevent the continuance or renewal thereof and
may  detain any person who commits or is about to join in  or  to
renew the breach of the peace, for the purpose of giving him into
the custody of a peace officer, if he uses no more force than  is
reasonably necessary to prevent the continuance or renewal of the
breach  of  the peace or than is reasonably proportioned  to  the
danger  to be apprehended from the continuance or renewal of  the
breach of the peace.