unmarked police vehicles drove towards him to intercept
him. The police drove “with speed” (as my colleague notes, at
para. 22) and “didn’t look like [they were] slowing down” (as the
trial judge found, at p. 10). Mr. Fleming testified, and the trial
judge accepted, that he left the shoulder of the road, walked into
the ditch and stepped onto the DCE to move away from the
police vehicles and reach level ground.
 The trial judge found that the evidence was “clear” that
the police intended to prevent Mr. Fleming from walking up
Argyle Street with a Canadian flag. Not only did she accept
Mr. Fleming’s testimony that he left the shoulder because of the
police vehicles, but she noted that Inspector Skinner conceded
that the O.P.P. had pre-emptively decided to limit the rights of
the flag rally participants and that, for him, public safety “[took]
priority over other rights such as the freedom of expression and
the freedom to walk down the street”.
 Whatever the intention of the O.P.P. may have been in
approaching Mr. Fleming as they did, their conduct had the
effect of preventing him from walking up Argyle Street. The trial
judge’s findings on this issue cannot be construed as a palpable
and overriding error.
 My colleague characterizes things differently than the
trial judge. Mr. Fleming, he says, chose to leave the shoulder of
Argyle Street for reasons that are unclear on the record. Nordheimer J.A. states that Mr. Fleming’s decision to leave Argyle
Street was not a consequence of the O.P.P.’s arriving on the
scene, yet he acknowledges that Mr. Fleming may have perceived danger from the arrival of the O.P.P. vehicles. He then
suggests that Mr. Fleming is the author of his own misfortune —
that he might have avoided his problems by remaining at the
side of Argyle Street.
 With respect, it is not open to this court to recharacterize
the evidence in this fashion and substitute its inferences for
those made by trial judge. The trial judge made findings that
were open to her on the evidence. It cannot be said that they
constitute palpable and overriding error.
(3) Was Mr. Fleming’s arrest lawful?
 Having concluded that the findings identified above were
tainted by palpable and overriding error, Nordheimer J.A.
frames the issue of the lawfulness of Mr. Fleming’s arrest in this
way, at para. 32:
There is no doubt that the respondent was entitled, in normal circum-
stances, to walk along a public street carrying a Canadian flag. He was also
entitled to participate in “political action” and to participate in a protest