As Nordheimer J.A. notes, at para. 7, “all parties appear to have
agreed that the level of confrontation and violence has diminished since 2006”. The trial judge was aware of the context and
cannot be said to have failed to appreciate the circumstances at
Caledonia or the history of the conflict.
(2) Did the O.P.P. prevent Mr. Fleming from walking up
Argyle Street with his flag?
 My colleague concludes that the trial judge made a palpa-
ble and overriding error in finding that the O.P.P. prevented
Mr. Fleming from walking up Argyle Street with his flag, and in
finding that the police intended to prevent him from walking
up Argyle Street. His analysis is contained in this passage,
at paras. 36-37:
There are two difficulties with these findings. First, the O.P.P. did not pre-
vent the respondent from walking up Argyle Street with his flag. There is
simply no evidence to support this finding. Nothing occurred between
the O.P.P. and the respondent until he moved away from Argyle Street
Second, there is also no evidence that the O.P.P. “intended” to prevent the
respondent from walking up Argyle Street. The respondent chose to leave
the shoulder of Argyle Street and walk some distance westward onto DCE.
Why he did that is unclear on the record, but what is clear is that it was not
a necessary consequence of the O.P.P. vehicles arriving. The respondent
could have avoided any danger that he perceived from the arrival of the
vehicles on the shoulder of Argyle Street without going either the direction
or the distance that he did. It is simply unknown what would have
transpired between the respondent and the officers had the respondent
remained at the side of Argyle Street after the officers arrived.
 With respect, the conclusion that nothing occurred
between the O.P.P. and Mr. Fleming until he left Argyle Street
and moved onto DCE does not square with the trial judge’s other
findings, supported by the evidence. The trial judge’s key finding
is that Mr. Fleming left Argyle Street and stepped onto DCE
because of the police, as she explains in this passage, at p. 42:
The court finds based on all of the evidence, including the video, that if the
defendants had not interfered with Mr. Fleming’s passage along Argyle
Street on May 24, 2009, he would simply have passed in front of DCE and
moved on to the flag raising event. It was the conduct of the defendant offic-
ers, in driving directly at Mr. Fleming’s location as he was walking along the
shoulder of Argyle Street, approximately 100 metres from the entrance to
DCE, that caused Mr. Fleming to leave the shoulder and walk a few feet on
to what may have been DCE land.
 The trial judge’s finding is amply supported by the record.
It is not contested that, once the police saw Mr. Fleming walking
to the flag rally from a direction they had not expected, two