M. Lucifora

A criminal trial where the defendant, Cullen McDonald, was charged with common nuisance under the Criminal Code for organizing and participating in a large public protest against COVID-19 lockdown measures.

The court found that McDonald's actions, which contravened provincial emergency legislation (EMCPA and ROA) by gathering a large unmasked crowd, endangered public health and safety.

The judge rejected the defendant's arguments based on the Canadian Bill of Rights and distinguished the case from a prior acquittal of the same defendant by another judge, emphasizing the objective standard for mens rea and the substantial potential harm despite minimal risk of transmission.

The accused, Cullen McDonald, was charged with common nuisance under Section 180(1)(a) of the Criminal Code, for gathering and encouraging gatherings in contravention of COVID-19 emergency legislation.

The Crown alleged his actions endangered public health and safety.

The court examined the actus reus and mens rea of the offence, concluding that the provincial offence of violating a Stay-At-Home Order could not be elevated to a criminal common nuisance, and that the Crown failed to prove the necessary mens rea, as there was no evidence the accused knew his outdoor protest created a risk of serious harm.

The court also discussed, though rendered moot by the acquittal, the application of the Canadian Bill of Rights and Canadian Charter of Rights and Freedoms to the provincial COVID-19 restrictions, finding the restrictions likely infringed Charter rights but declining to rule on constitutionality.