ONTARIO COURT OF JUSTICE
DATE: 2022 01 28 COURT FILE No: 5490029Z
BETWEEN:
Durham (Regional Municipality)
— AND —
Jaelen GONSALVES-BORRICE
Before: Justice of the Peace Kevin J.A. Hunter
Heard on: January 6, 2022
Reasons for Judgment released on: January 28, 2022
Counsel: M. PELHAM, for the Prosecution J. GONSALVES-BORRICE, the Defendant
JUSTICE OF THE PEACE HUNTER:
Introduction
[1] Jaelen GONSALVES-BORRICE (the Defendant) was charged on May 6, 2021 with failing to comply with an order made during a declared emergency, pursuant to s. 7.0.11(1)(a) of the Emergency Management and Civil Protection Act.
[2] The Defendant appeared before me for a remote trial on January 6, 2022. He pleaded not guilty and represented himself. After hearing evidence and submissions, I reserved my decision and adjourned the proceeding for judgment. This matter was heard on a busy docket laden with several other case management matters. Given the significant public interest and penalties involved, the parties deserve to have this matter properly considered and to be provided with coherent reasons. I hope these reasons meet that expectation.
Facts
[3] Durham Regional Police Service constable Michael Fong was the only witness for the Prosecution. His testimony was unchallenged, and I find his evidence to be credible and reliable. Officer Fong testified that on May 6, 2021 at 9:35pm, he observed two vehicles in a parking lot at the northwest corner of Kingston Rd and Fairport Rd, in the City of Pickering, Durham Region. The vehicles were both occupied and parked beside each other in an otherwise empty lot.
[4] Officer Fong’s attention was drawn to the vehicles because the businesses serviced by the parking lot were closed. He also knew that a provincial “Stay-at-Home” order was in effect. As Officer Fong approached in a marked police cruiser, both vehicles began to drive away. He was able to stop one of the vehicles and investigated its four occupants, including the Defendant. At the conclusion of his investigation, Officer Fong issued offence notices under the EMPCA to each of the four.
[5] At trial, the Defendant chose not to question Officer Fong, nor to dispute his evidence. Instead, the Defendant testified that he and his three friends, who all live in different residences in Ajax, went to Toronto that night to get some food. On their way back to Ajax, they stopped to check Google maps to determine the fastest way to get back to their respective homes. That’s when the group was investigated by the police and issued tickets.
[6] In cross-examination, the Defendant admitted that at the time the officer approached them, he and his friends were socializing in their car. The Defendant also testified that he and his friends were all masked because of the public health mandate.
The Law
[7] The following statutes and regulations were in effect on May 6, 2021.
[Ontario Regulation 265/21: Stay-at-home-order (O. Reg. 265/21)](https://www.ontario.ca/laws/regulation/210265)
Terms of Order
- The terms of this Order are set out in Schedule 1.
Application
- This Order applies as of 12:01 a.m. on April 8, 2021.
SCHEDULE 1
Requirement to remain in residence
- (1) Every individual shall remain at the residence at which they are currently residing at all times unless leaving their residence is necessary for one or more of the following purposes:
Work, school and child care
- Working or volunteering where the nature of the work or volunteering requires the individual to leave their residence, including when the individual’s employer has determined that the nature of the individual’s work requires attendance at the workplace.
- Attending school or a post-secondary institution.
- Attending, obtaining or providing child care.
- Receiving or providing training or educational services.
Obtaining goods and services
- Obtaining food, beverages and personal care items.
- Obtaining goods or services that are necessary for the health or safety of an individual, including vaccinations, other health care services and medications.
- Obtaining goods, obtaining services, or performing such activities as are necessary for landscaping, gardening and the safe operation, maintenance and sanitation of households, businesses, means of transportation or other places.
- Purchasing or picking up goods through an alternative method of sale, such as curbside pickup, from a business or place that is permitted to provide the alternative method of sale.
- Attending an appointment at a business or place that is permitted to be open by appointment only.
- Obtaining services from a financial institution or cheque cashing service.
- Obtaining government services, social services and supports, mental health support services or addictions support services…
(items 12-29 omitted)
[Ontario Regulation 363/20: Stages of Reopening (O. Reg. 363/20)](https://www.ontario.ca/laws/regulation/200363)
- (1) The areas listed in Schedule 1 are in Stage 1 of reopening.
SCHEDULE 1, STAGE 1 AREAS
- The following areas are in the Shutdown Zone of Stage 1:
(1-6 omitted)
- Durham Regional Health Unit.
(8-34 omitted)
[Ontario Regulation 82/20: Rules for Areas in Stage 1 (O. Reg. 82/20)](https://www.ontario.ca/laws/regulation/200082)
Application
- (1) Subject to subsections (2) and (3), this Order applies to the areas listed in Schedule 1 to Ontario Regulation 363/20 (Stages of Reopening) made under the Act. O. Reg. 96/21, s. 2.
(2) Schedules 1 to 5 apply throughout the Shutdown Zone.
Shutdown Zone
3.1 In this Order, a reference to the Shutdown Zone is a reference to all areas listed as being in the Shutdown Zone of Stage 1 in section 1 of Schedule 1 to Ontario Regulation 363/20 (Stages of Reopening) made under the Act
SCHEDULE 4 - ORGANIZED PUBLIC EVENTS, CERTAIN GATHERINGS IN SHUTDOWN ZONE
Gatherings, Stage 1 areas
(1) Subject to sections 2 to 4, no person shall attend,
(a) an organized public event that is held indoors; (b) a social gathering that is held indoors, including a social gathering associated with a gathering described in clause (d); (c) an organized public event or social gathering that is held outdoors, including a social gathering associated with a gathering described in clause (d); or (d) a gathering, whether indoors or outdoors, for the purposes of a wedding, a funeral or a religious service, rite or ceremony of more than 10 people.
[Emergency Management and Civil Protection Act (EMPCA)](https://www.ontario.ca/laws/statute/90e09)
7.0.11 (1) Every person who fails to comply with an order under subsection 7.0.2 (4) or who interferes with or obstructs any person in the exercise of a power or the performance of a duty conferred by an order under that subsection is guilty of an offence and is liable on conviction,
(a) in the case of an individual, subject to clause (b), to a fine of not more than $100,000 and for a term of imprisonment of not more than one year; (b) in the case of an individual who is a director or officer of a corporation, to a fine of not more than $500,000 and for a term of imprisonment of not more than one year; and (c) in the case of a corporation, to a fine of not more than $10,000,000.
7.0.2 (4) In accordance with subsection (2) and subject to the limitations in subsection (3), the Lieutenant Governor in Council may make orders in respect of the following:
- Implementing any emergency plans formulated under section 3, 6, 8 or 8.1.
- Regulating or prohibiting travel or movement to, from or within any specified area.
- Evacuating individuals and animals and removing personal property from any specified area and making arrangements for the adequate care and protection of individuals and property.
- Establishing facilities for the care, welfare, safety and shelter of individuals, including emergency shelters and hospitals.
- Closing any place, whether public or private, including any business, office, school, hospital or other establishment or institution.
- To prevent, respond to or alleviate the effects of the emergency, constructing works, restoring necessary facilities and appropriating, using, destroying, removing or disposing of property.
- Collecting, transporting, storing, processing and disposing of any type of waste.
- Authorizing facilities, including electrical generating facilities, to operate as is necessary to respond to or alleviate the effects of the emergency.
- Using any necessary goods, services and resources within any part of Ontario, distributing, and making available necessary goods, services and resources and establishing centres for their distribution.
- Procuring necessary goods, services and resources.
- Fixing prices for necessary goods, services and resources and prohibiting charging unconscionable prices in respect of necessary goods, services and resources.
- Authorizing, but not requiring, any person, or any person of a class of persons, to render services of a type that that person, or a person of that class, is reasonably qualified to provide.
- Subject to subsection (7), requiring that any person collect, use or disclose information that in the opinion of the Lieutenant Governor in Council may be necessary in order to prevent, respond to or alleviate the effects of the emergency.
- Consistent with the powers authorized in this subsection, taking such other actions or implementing such other measures as the Lieutenant Governor in Council considers necessary in order to prevent, respond to or alleviate the effects of the emergency.
Analysis
[8] It is an offence under s. 7.0.11(1) of the EMPCA to fail to comply with an order made under s. 7.0.2(4) of the Act. The latter section confers a broad discretion to the Province to make orders designed to promote effective emergency management.
[9] Declared a public health emergency, the COVID-19 pandemic intensified in the spring of 2021. Ontario took measures under the EMPCA to suppress the spread. One such measure was a Stay-at-Home order which came into effect on April 8, 2021. [1] This order directed individuals to remain in their residence at all times, subject to some exceptions of necessity. [2] One such exception was to allow individuals to leave their residence to get food. [3] I will address this exception later in these reasons.
[10] Eventually, Ontario adopted a three-staged approach to reopening the province. This process was regulated by issuing several orders that prescribed the rules for each stage.
[11] During stage one, Durham Region was included in the Shutdown Zone. [4] Within this area, certain types of gatherings were regulated, including a ban on attending an organized public event or social gathering that is held outdoors … (emphasis added). [5]
[12] The above emphasized phrase gave me cause for pause, and I asked the parties for submissions on its interpretation. Specifically, I queried whether the adjectives “organized” and/or “public” had any effect on the term “social gathering.” The Prosecution submitted that the term “social gathering” was a concept distinct and apart from that of an “organized public event.” The Defendant made no submissions.
[13] I agree with the Prosecution that the terms “organized public event” and “social gathering” are disjunctive. In support of this conclusion, I looked no further than a companion regulation which routinely treats them as separate concepts. [6]
[14] The combined effect of the officer’s evidence and the Defendant’s admission is that despite the Stay-at-Home order, the Defendant was outdoors with his friends socializing in a car on May 6, 2021. The Prosecution has therefore established a prima facie case against the Defendant for attending an outdoor social gathering in contravention of the order.
[15] And yet, the Defendant’s testimony left with me with the impression that he believed that he was permitted to leave his residence that night for the purpose of getting food. His testimony only makes sense in that context. The Defendant was not a sophisticated litigant. He asked no questions in cross examination and made no submissions. Even though he did not argue it, I am compelled to consider whether a potential exception works to the Defendant’s benefit.
[16] The Defendant has the onus of proving, on a balance of probabilities, that an exception operates in his favour. [7] In assessing his evidence, I am troubled by certain aspects of the Defendant’s version of events. [8] However, even if I accept his evidence at its highest, I find that the Defendant was still engaged in the very behaviour that the Stay-at-Home order sought to prohibit.
[17] The Stay-at-Home order included an exception which permitted individuals to leave their residence if it was necessary for them to obtain food. [9] In my view, the emphasized words are instructive. This exception allowed an individual, not a group, to leave home to get food which was necessary to sustain that person and/or their family. It was not an invitation for the Defendant and his buddies to grab a meal and hang out. In my view, it is far more likely that the Defendant was simply out socializing in a group, rather than an individual who left home to get food out of necessity. Consequently, I find that the Defendant has not met his onus that he was subject to an exception.
Conclusion
[18] Having concluded that the Defendant has not met his onus in establishing that he was subject to an exception, I find that the Prosecution’s prima facie case against the Defendant has been elevated to one of proof beyond a reasonable doubt and a conviction is registered.
Released: January 28, 2022 Justice of the Peace Kevin J.A. Hunter
Footnotes:
[1] O. Reg. 265/21, s. 2 [2] Ibid, Schedule 1, s. 1(1) [3] Ibid, para. 5 [4] O. Reg. 363/20, Schedule 1, s. 1 [5] O. Reg. 82/20, Schedule 4, s.1(1)(c) [6] O. Reg. 364/20, Schedule 3, not reproduced in this judgment [7] s. 47(3) Provincial Offences Act [8] It escapes me why four men had to stop the vehicle to consult Google Maps, when any of the three passengers could have done so while still moving. And why did they park directly beside another occupied vehicle, which left the scene (as did the vehicle the Defendant was in) when a marked police car approached? This story does not make sense. [9] O. Reg. 265/21, Schedule 1, s. 1(1)