the peace”. She found, further, that “any apprehended breach of
the peace was neither imminent, nor was the risk that the
breach would occur substantial”.
 Nordheimer J.A. concludes that she erred in so holding.
He states, at paras. 53-54:
The rushing protestors posed a risk, both to the public peace and to the
respondent individually . . . The trial judge’s conclusion that there was
no threatened breach of the peace cannot be reconciled with the evidence,
particularly with the video of the event.
. . . . .
In my view, the officers were reasonably justified in taking action to prevent
harm coming to the respondent and a corresponding breach of the peace. The
officers had reasonable grounds to effect the arrest of the respondent as a necessary step to address the situation. The officers had not only seen the rushing
protestors as a threat to the safety of the respondent, they also knew that the
respondent had refused to obey their orders to stop and to leave DCE. I would
note on this point that it is important to remember that the arrest occurred on
DCE, not on Argyle Street. The trial judge’s frequent erroneous references to
the police interfering with the respondent’s right to walk on Argyle Street may
be what led her into the wrong analysis and conclusion.
 In essence, my colleague concludes that Mr. Fleming’s
arrest was justified because the protestors rushed towards him
and threatened his safety.
 It is not clear that the police would have been justified in
arresting Mr. Fleming even assuming the events unfolded as
Nordheimer J.A. describes. After all, there were several armed
police in attendance, almost equal in number to those my col-
league says rushed towards Mr. Fleming, and additional police
were close by. But, in any event, my colleague’s description of
“rushing protestors” is at odds with the findings of the trial
judge, who stated as follows, at p. 2:
Of the approximately eight to ten male and female occupiers approaching
Mr. Fleming’s location, several were carrying cameras, some walked, some
jogged. There were no weapons. They were not known to be individuals with
a history of violence. The seven O.P.P. officers arrived at Mr. Fleming’s loca-
tion in advance of the first two or three occupiers who were moving more
quickly. The occupiers never arrived at Mr. Fleming’s location, that is, they
kept their distance.
 Nordheimer J.A. cites an extract from Mr. Fleming’s testimony in finding that there were concerns for his safety, but
that testimony does not demonstrate the requisite imminent and
substantial risk of harm. The trial judge, who heard the relevant
testimony, specifically found that ( i) “there were no threats
uttered by the occupiers” (at p. 38); ( ii) the occupiers’ “conduct
was not threatening” (at pp. 15-16); and ( iii) it was unlikely that
Mr. Fleming would have been harmed (at p. 38). It is not open to