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Protest - General. R. v. King
In R. v. King (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown criminal appeal, this brought against an "acquittal on the count of intimidation contrary to s. 423(1)(g) of the Criminal Code".
The court considered the offence of 'intimidation', here where the defendant "blocks or obstructs a highway" [CCC 423(1)(g)] and where the context was one of political protest:[6] This is a Crown appeal of Mr. King’s acquittal on the count of intimidation contrary to s. 423(1)(g) of the Criminal Code, R.S.C. 1985, c. C-46. The gravamen of this form of intimidation is blocking or obstructing a highway. The trial judge acquitted Mr. King of this offence after finding that, although he encouraged and participated in blocking or obstructing highways, the Crown had not proved the offence of intimidation because, in the trial judge’s view, it cannot be committed by blocking or obstructing a highway during a political protest unless threats or acts of violence are used with the intent to intimidate, which had not occurred. He also held that blocking or obstructing a highway for the purpose of pressuring the government is not undertaken “for the purpose of compelling another person”, which is another required element of the offence. Finally, he concluded that the offence could not be committed by attempting to compel the government to change the law.
[7] As we explain below, each of these conclusions relating to the required elements of s. 423(1)(g) are wrong in law, and those errors gave rise to the acquittal. Moreover, we are of the opinion that the charged offence was readily established beyond a reasonable doubt on the factual findings made by the trial judge. We therefore allow the appeal of the acquittal, set the finding of not guilty aside, and substitute a conviction.
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[32] The Crown appeal of acquittal is confined to count 6, relating to the offence of intimidation by blocking or obstructing a highway. The Crown alleges that the trial judge erred in law by: (1) requiring the Crown to prove that Mr. King used threats or violence; (2) treating Mr. King’s ulterior motive to effect political change as a defence; and (3) holding that the government is not “a person” who can be compelled within the meaning of s. 423(1). These three alleged legal errors can most conveniently be analyzed together by addressing a single, general ground of appeal, namely, whether the trial judge erred in the identification of the elements of s. 423(1)(g). If its appeal of the acquittal on count 6 succeeds, the Crown submits that this court should substitute a conviction pursuant to s. 686(4)(b)(ii) of the Criminal Code.
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V. ANALYSIS
A. Did the trial judge err in the identification of the elements of section 423(1)(g)?
[37] We are persuaded that the trial judge erred in identifying the elements of the offence of intimidation by blocking a highway, contrary to s. 423(1)(g). This is an error of statutory interpretation. It is thus an error of law that permits the Crown to appeal an acquittal under s. 676(1)(a) of the Criminal Code: R. v. McSween, 2020 ONCA 343, 151 O.R. (3d) 38, at paras. 36-38, leave to appeal refused, [2020] S.C.C.A. No. 285.
1. The elements of intimidation by blocking a public highway
[38] As this appeal concerns a question of statutory interpretation, we are guided by the “modern approach” to interpreting legislation. It holds that the meaning of s. 423(1)(g) must be “determined by reference to its text, context and purpose”: Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15, 502 D.L.R. (4th) 59, at para. 30. Of these three indicators of legislative intent, the text of the provision must be the “anchor of the interpretive exercise”: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43, 498 D.L.R. (4th) 316, at para. 24.
[39] With that in mind, the offence of intimidation can be committed in various ways. They are described in Criminal Code, s. 423(1), which provides:423 (1) Every one is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing,
(a) uses violence or threats of violence to that person or their intimate partner or children, or injures the person’s property;
(b) intimidates or attempts to intimidate that person or a relative of that person by threats that, in Canada or elsewhere, violence or other injury will be done to or punishment inflicted on him or her or a relative of his or hers, or that the property of any of them will be damaged;
(c) persistently follows that person;
(d) hides any tools, clothes or other property owned or used by that person, or deprives him or her of them or hinders him or her in the use of them;
(e) with one or more other persons, follows that person, in a disorderly manner, on a highway;
(f) besets or watches the place where that person resides, works, carries on business or happens to be; or
(g) blocks or obstructs a highway. [40] There are three base elements material to this case that the Crown must prove to secure a conviction for the offence of intimidation. The first two are physical or actus reus elements that we will refer to as “the act requirement” and “the condition requirement”, respectively. We will refer to the third element, which describes the requisite mental state or mens rea for the offence as “the specific intent requirement”.[2]
[41] The act requirement is met if the accused personally commits, or aids or abets (or in other words, “encourages”) the conduct described in the intimidation offence charged: Criminal Code, s. 21(1). The act requirement is also met if the accused counsels (i.e., deliberately encourages or actively incites) a person to do any of the above: Criminal Code, s. 22(1); R. v. Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432, at para. 29. To commit an offence contrary to s. 423(1)(g), the act done, assisted or encouraged by the accused must be one that “blocks or obstructs a highway”: see R. v. Stockley (1977), 36 C.C.C. (3d) 387 (N.L. C.A.). Section 2 of the Criminal Code defines “highway” as “a road to which the public has the right of access”. The Ottawa roads that were gridlocked are highways within the meaning of s. 423(1)(g).
[42] The condition requirement is met only if the required act, in this case the act of blocking or obstructing the highway, is undertaken “wrongfully and without lawful authority”. It is settled law that an act will have been undertaken “wrongfully and without lawful authority” if it is done through civilly actionable conduct, such as a trespass, common nuisance, unlawful assembly, or breach of an injunction: The King v. Reners, 1926 CanLII 31 (SCC), [1926] S.C.R. 499, at pp. 505-8; R. v. Billy et al, 2004 BCSC 1474, 191 C.C.C. (3d) 410, at paras. 37, 42.[3] As the Reners decision shows, the act of blocking or obstructing a highway will readily be civilly actionable under the law of trespass or common nuisance.
[43] Indeed, it is our view that if the blocking or obstruction of the highway is undertaken by someone who does not have lawful authority to do so, even without the commission of an additional civil or criminal wrong, it is wrongful, and the condition requirement is met. For example, a police officer managing the scene of an accident or incident, or a contractor authorized to repair a road would not be acting wrongfully or without lawful authority by obstructing access. But someone who, for purposes of their own, intentionally blocks or obstructs a highway is acting wrongfully and without lawful authority, thereby satisfying the condition requirement. We agree with Levine J.A.’s observation in R. v. Manuel, 2008 BCCA 143, 231 C.C.C. (3d) 468, leave to appeal refused, [2008] S.C.C.A No. 265, that blocking highways as a self-help remedy for grievances is “not condoned anywhere in Canadian law, which includes aboriginal, common and criminal law”, because such conduct undermines the rule of law: at para. 62. We are persuaded that this is inherently wrongful conduct.
[44] Third, intimidation is a “specific intent” offence that is not committed unless it has been proved beyond a reasonable doubt that the prohibited act was undertaken for the specific purpose of “compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing”: Criminal Code, s. 423(1); R. v. Boast, 2017 ONCA 602, at paras. 5-7; R. v. Branscombe (1956), 1956 CanLII 830 (ON CA), 25 C.R. 88 (Ont. C.A.), at pp. 89-90. Put otherwise, the inherently wrongful act of blocking or obstructing a highway without lawful authority does not amount to the crime of intimidation unless done with the specific intent described. The intent to compel someone to abstain from their lawful use of a public highway is sufficient to satisfy the specific intent requirement: R. v. Orton, 2019 ONCA 334, at paras. 36-39.
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3. Analysis
[52] With respect, we are persuaded that each of these conclusions [SS: 'by the trial judge'] about the interpretation of s. 423(1) is incorrect. These errors appear to have arisen from the trial judge’s well-intentioned effort to interpret the law to accommodate political protest, but the outcome he achieved cannot be sustained as a matter of law.
[53] We begin with the use he made of the fact that the Freedom Convoy was part of a political protest. The Crown argues that the trial judge erred in finding that Mr. King did not act “wrongly” because he was participating in a lawful protest. We agree that the trial judge erred in this way. There have been multiple cases of criminal convictions arising from criminal acts committed during protests, including convictions contrary to s. 423(1)(g): see e.g., Manuel; Billy; R. v. Pascal, 2006 BCSC 1311, [2006] B.C.T.C. 1311. The jealous protection the law provides to the right of political protest applies only so long as the protest is being conducted lawfully. As Chiasson J.A. put it in R. v. De Felice, 2010 BCCA 273, 255 C.C.C. (3d) 296, at para. 4: “undertaking illegal activity as part of expressing disagreement and advocating is not lawful.” While this dictum comes from a sentence appeal, it has been cited with approval by Canadian appellate courts affirming convictions for mischief and criminal harassment associated with protests: see R. v. Pawlowski, 2024 ABCA 342, at para. 59, per de Wit and Woolley JJ.A., leave to appeal refused, [2004] S.C.C.A. No. 524 (mischief relating to a COVID-19 protest); Bertrand c. R., 2011 QCCA 1412, at para. 149 (criminal harassment relating to an animal rights protest).
[54] Indeed, we agree with Slatter J.A. when he said, in concurring reasons in Pawlowski, at para. 107, that “mass obstruction of public highways is not a form of peaceful protest. The fundamental freedoms of expression and assembly do not encompass obstructing public highways, or inciting anyone else to do so.”
[55] Put simply, criminal conduct is not less criminal because it occurs during a lawful protest. We are therefore persuaded that the trial judge erred by concluding that Mr. King did not act “wrongfully and without lawful authority” because events occurred as part of a political protest.
[56] The trial judge similarly erred in treating s. 423(1) of the Criminal Code as requiring proof of threats or violence when highways are obstructed during otherwise lawful demonstrations. He offered a policy explanation for this conclusion, explaining that otherwise, s. 423(1) would “capture a broad range of lawful protests against government actions in which there is no proven intent to intimidate individuals.” Whatever one may think of the policy choice this reasoning entails, the concern expressed by the trial judge fails to recognize the point just made, that as a matter of law, the right to peaceful protest does not include the right to engage in otherwise criminal conduct in support of protest goals. With respect, by attempting to limit the reach of s. 423(1) in this way, the trial judge moved beyond interpretation of the provision and engaged in impermissible legislating: see Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, [2015] 3 S.C.R. 300, at para. 27. There was no constitutional challenge before him to invite such reasoning, nor is there an ambiguity in the legislation that could invite the use of Charter principles into the interpretation: see R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at paras. 18-19; Piekut v. Canada (National Revenue), 2025 SCC 13, 502 D.L.R. (4th) 1, at para. 48.
[57] The approach the trial judge took was therefore in error, and so too was the conclusion he arrived at. There is no basis in the language of the enactment, interpreted in its context, for finding that an offence charged contrary to s. 423(1)(g) requires proof of “threats” or “acts of violence”.
[58] Moreover, including this additional element would contravene the “presumption against tautology”, a principle of statutory interpretation that presumes legislators avoid superfluous words and that “[e]very word in a statute … make[s] sense and has a role to play in advancing the legislative purpose”: R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225, at para. 31, citing Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at p. 211. Interpreting s. 423(1)(g) as requiring proof of threats or violence would make this mode of committing intimidation redundant, depriving it of all meaning, since s. 423(1)(a) already prohibits using violence or threats of violence as a means of compelling a person, whether this conduct is done to block or obstruct a highway or otherwise. The only times that proof of acts of violence or threats is a required element of an intimidation offence is if the charge is laid contrary to s. 423(1)(a) or s. 423(1)(b), the latter of which prohibits threats that “violence or other injury will be done”.
[59] Relatedly, the trial judge erred by finding that the specific intent requirement necessitates proof of intention to intimidate individuals. The requisite specific intention is spelled out in the chapeau to s. 423(1), and nowhere does it refer to the need for an intention to intimidate. This is no doubt because it was unnecessary for Parliament to include such an element. Each of the modes of commission enumerated in s. 423 involve inherently intimidating conduct, such that the intention to do any of the enumerated acts in ss. 423(1)(a) to 423(1)(g) inherently includes the intention to intimidate.[4] As Slatter J.A. commented in Pawlowski, at para. 107, “[B]lockading a highway is an inherently aggressive and potentially violent form of conduct, designed to intimidate and impede the movement of third parties.”
[60] If the trial judge was influenced in adopting the interpretation he did by the fact that the offence appears under the heading “Intimidation” in the Criminal Code, he should not have been. While headings may be relevant in the interpretation of federal legislation, they “will never be determinative of legislative intention” and cannot “operate to change the clear and unambiguous meaning” of a particular provision: R. v. Davis, 1999 CanLII 638 (SCC), [1999] 3 S.C.R. 759, at paras. 53-54. Here, all required elements of the offence of intimidation are spelled out in the text of s. 423(1)(g) itself. It is clear and unambiguous that neither a subjective intention to intimidate individuals, nor threats or acts of violence are essential elements of s. 423(1)(g).
[61] The trial judge therefore erred in requiring proof of an act of violence or threat, and an intention to intimidate. These are not elements that have to be proved to support a conviction contrary to s. 423(1)(g).
[62] Finally, we agree that the trial judge erred in finding that the Government of Canada is not a “person” and rejecting, on this basis, the Crown’s second theory as to how the specific intent requirement was satisfied. Section 2 of the Criminal Code stipulates that the terms “every one, person and owner, and similar expressions, include Her Majesty” (emphasis added). We need not decide whether the House of Commons and the Senate, the legislative branches of the Government of Canada, are captured by the term “Her Majesty”, but certainly the Crown in Right of Canada through the executive is: see Interpretation Act, R.S.C. 1985, c. I-21, s. 35(1) (“Her Majesty”); Alberta Government Telephones v. (Canada) Canadian Radio-television and Telecommunications Commission, 1989 CanLII 78 (SCC), [1989] 2 S.C.R. 225, at p. 274.[5] Since Mr. King’s focus was on government COVID-19 policies at large, including executive initiatives, his conduct was aimed at “another person” who can be compelled, contrary to s. 423(1), “to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing”.
[63] The trial judge therefore committed layered legal errors in his interpretation of s. 423(1)(g). The acquittal ordered on count 6 must be set aside, based on the authority in R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at paras. 14-16. It is not only certain that the errors described had material bearing on Mr. King’s acquittal, but they led directly to that outcome, which cannot stand. As to re-sentencing, the court comments on it's protest and expressive context:[75] We agree that caution is warranted when sentencing individuals for conduct that could potentially fall within a constitutional zone of protection. However, the conduct in this case far exceeded the bounds of legitimate expression. This was not a peaceful protest that “unfortunately grew out of control and was allowed to go on and on and morphed into criminal activity”, as the trial judge suggested in his sentencing reasons. Rather, this was, from the outset, a coordinated, targeted attack on Ottawa residents aimed at coercing change through highly disruptive criminal conduct. As the trial judge observed in his reasons for judgment, there was “overwhelming evidence” that, even before the arrival of the Freedom Convoy in Ottawa, Mr. King planned to effect an occupation; gridlock the area; and cause acute distress to residents, merchants and workers through the continuous honking of truck horns and other disruptive activities. Mr. King not only incited these activities, he instructed his followers to resist police and ignore court-ordered injunctions.
[76] This conduct, properly characterized, was an attack on the rule of law, and the democratic principles essential to the maintenance of a just, peaceful and safe society. We have not had the benefit of complete sentencing submissions and make no comments on what a fit sentence would be. However, a fit sentence must reflect a full appreciation of the public impact of the offences, as well as the scope, duration and persistence of Mr. King’s actions.
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