ONTARIO COURT OF JUSTICE
DATE: 2024 01 16 COURT FILE No.: Region of Niagara 21-SR1978(02)
BETWEEN:
HIS MAJESTY THE KING
— AND —
Cullen McDonald
Before: Justice J. De Filippis
Heard on: November 28 – 29, 2023 Reasons for Judgment released on: January 16, 2024
Counsel: Mr. M. Lucifora.................................................................................... counsel for the Crown The defendant............................................................................................. on his own behalf
De Filippis, J.:
INTRODUCTION
Freedom is not license but responsibility.
Bill Moyers
[1] The COVID-19 pandemic is a global pandemic of coronavirus caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). The World Health Organization declared the outbreak a public health emergency of international concern on 30 January 2020. In Spring, 2021, the government of Ontario responded to a surge in COVID-19 infections by declaring a state of emergency. This case is about a man who encouraged others to join him in asserting freedom to defy the state of emergency.
[2] Cullen McDonald was charged, along with another person, Sandor Ligetfalvy, who is not before me, on a charge that on or about the 1st day of May in the year 2021 at the City of St. Catharines in the Central West Region he committed a common nuisance by doing an unlawful act, namely by gathering and encouraging the gathering of people in groups that contravene the current Emergency Management and Civil Protection Act (EMCPA), and the Re-Opening Ontario Act (ROA), and by doing so endangered the lives, safety and health of the public, contrary to Section 180, subsection (1), clause (a) of the Criminal Code of Canada.
[3] On May 1, 2021, the defendant was part of gathering of up to 150 people in downtown St. Catharines to protest the lockdown and other measures set out in the EMCPA and ROA. The Crown alleges that by failing to abide by these measures, the defendant committed the criminal offence of common nuisance.
[4] The defendant, in oral and written submissions, appears to concede that he was present at the gathering. In any event, as I shall explain, I have no doubt that he was there. The defendant claims that his actions are protected by the Canadian Bill of Rights, including the right to lawful assembly and free speech. He claims that the police and Crown acted improperly in elevating the conduct governed by provincial legislation to a Criminal Code offence. In this regard, he also pleads that he did not commit a common nuisance because he did not have the COVID-19 virus at the time and the expert evidence at this trial confirms that the risk of infection is much reduced when people gather outdoors.
[5] These reasons explain why I find the defendant guilty. I also explain why I have come to a different conclusion than my colleague, Justice Blouin, who, in a separate trial, dismissed the same charge against the same defendant.
LEGAL FRAMEWORK
[6] The Criminal Code provides as follows:
180 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years or is guilty of an offence punishable on summary conviction who commits a common nuisance and by doing so (a) endangers the lives, safety or health of the public, or (b) causes physical injury to any person.
(2) For the purposes of this section, everyone commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby (a) endangers the lives, safety, health, property or comfort of the public; or (b) obstructs the public in the exercise or enjoyment of any right that is common to all the subjects of Her Majesty in Canada.
[7] The relevant provision of the Emergency Management and Civil Protection Act (EMCPA) is:
7.0.1 (1) Subject to subsection (3), the Lieutenant Governor in Council or the Premier, if in the Premier’s opinion the urgency of the situation requires that an order be made immediately, may by order declare that an emergency exists throughout Ontario or in any part of Ontario. 2006, c. 13, s. 1 (4).
(2) An order of the Premier that declares an emergency is terminated after 72 hours unless the order is confirmed by order of the Lieutenant Governor in Council before it terminates. 2006, c. 13, s. 1 (4).
(3) An order declaring that an emergency exists throughout Ontario or any part of it may be made under this section if, in the opinion of the Lieutenant Governor in Council or the Premier, as the case may be, the following criteria are satisfied:
There is an emergency that requires immediate action to prevent, reduce or mitigate a danger of major proportions that could result in serious harm to persons or substantial damage to property.
One of the following circumstances exists: i. The resources normally available to a ministry of the Government of Ontario or an agency, board or commission or other branch of the government, including existing legislation, cannot be relied upon without the risk of serious delay. ii. The resources referred to in subparagraph i may be insufficiently effective to address the emergency. iii. It is not possible, without the risk of serious delay, to ascertain whether the resources referred to in subparagraph i can be relied upon. 2006, c. 13, s. 1 (4).
[8] Non-compliance is an offence, pursuant to section 7.0.11.
Pursuant to the EMCPA, a state of emergency was declared through Ontario Regulation 264/21 was enacted, pursuant to the EMCPA, for the period April 7 to June 8, 2021:
WHEREAS COVID-19 constitutes a danger of major proportions that could result in serious harm to persons;
AND WHEREAS the criteria set out in subsection 7.0.1 (3) of the Act have been satisfied;
NOW THEREFORE, an emergency is hereby declared pursuant to section 7.0.1 of the Act in the whole of the Province of Ontario.
[9] At the same time a stay-at-home order was issued through Regulation 265/21:
- (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…
[10] The exceptions are for work, school and child care, obtaining goods and services, assisting others, health, safety and legal purposes, multiple residences and moving, gatherings, and animals.
[11] With respect to gatherings, the Regulation provided as follows:
Attending a gathering for the purpose of a wedding, a funeral or a religious service, rite or ceremony that is permitted by law or making necessary arrangements for the purpose of such a gathering.
If the individual lives alone, gathering with the members of a single household.
[12] The relevant provision of the Reopening Ontario Act (ROA) are:
10 (1) Every person who fails to comply with subsection 9.1 (2) or (3) or with a continued section 7.0.2 order or who interferes with or obstructs any person in the exercise of a power or the performance of a duty conferred by such an order is guilty of an offence…
10.1 (1) A person is guilty of an offence if the person hosts or organizes a public event or other gathering at residential premises or other prescribed premises and the number of people in attendance exceeds the number permitted under a continued section 7.0.2 order. 2020, c. 23, Sched. 6, s. 4.
[13] The rules with respect to the shutdown zone are contained in Ontario Regulation 82/20:
- The person responsible for a business or place that is open must not permit patrons to line up inside the business or place, or to line up or congregate outside of the business or place, unless they are, (a) maintaining a physical distance of at least two metres from other groups of persons; and (b) wearing a mask or face covering in a manner that covers their mouth, nose and chin, unless they are entitled to any of the exceptions set out in subsection 2 (4).
EVIDENCE
[14] On April 29, 2021, the St. Catharines Standard published an article about a “lockdown protest” planned for May 1. The next day, PC Gordon, with other officers, was assigned to monitor the event. In preparation for her duties, PC Gordon reviewed a social media post by Sandor [Ligetfalvy] inviting people to the protest. The officer also reviewed an operational plan with Sgt. Latham and asked PC Manders to capture social media posts about the planned protest.
[15] On May 1 at 12:30 PM, PC Gordon went to the cenotaph on St. Paul Street in downtown St. Catharines [Memorial Park]. She saw a crowd, between 100 to 150 people, gathered there. The defendant was among them. The officer recognized him from a prior meeting. She testified that the crowd included men, women and children and noted that nobody wore personal protective equipment (that is, masks) and most were standing close to each other. Sgt. Latham coordinated the blocking of motor vehicle traffic. At 2 PM, the crowd walked along city streets, arriving at City Hall at 2:40 PM. PC Gordon observed that the people “were walking tightly together, with no distance between them”.
[16] At 3:12 PM, the defendant ascended the steps to the front doors of City Hall and spoke to the crowd. PC Gordan was on the perimeter of the gathering and could not hear all that was said, except that all speeches were about protesting the lockdown measures. At 3:40 PM, the officer left her position and assisted other officers in identifying members of the crowd.
[17] A video record, captured by PC Manders, was presented to this witness. PC Gordon confirmed it accurately depicted the scene in which the defendant gave his speech to the crowd at City Hall. The video and audio are of high quality. A large crowd can be seen standing close together, without wearing masks. The defendant is clearly seen wearing a hoodie with a “Maple Leaf Stand4thee” logo. He shouted to the crowd and the crowd shouted back, as follows:
Defendant: They are taking away our fundamental freedoms. I’m a free Canadian and they are trying to silence me. They are taking my rights and your rights. Fight or lose. We will fight. Join us. Rise up.
Defendant: What do we want? Crowd: Freedom!
Defendant When do we want it? Crowd: Now!
Defendant: What do we want? Crowd: Freedom!
Defendant When do we want it? Crowd: Now!
[18] On May 5, PC Gordan and PC DiFranco arrested the defendant for the present charge at his home. He was released at the scene on an undertaking that included restrictions on his use of social media and a ban on attending City Hall in St. Catharines. The defendant filmed his arrest and declined to sign the undertaking.
[19] In cross-examination, the officer agreed that the defendant was arrested because he was viewed as one of the organizers of the protest. When asked for the basis of this view, the officer referenced the prosecution summary, including her observation of the defendant giving a speech to the crowd.
[20] PC Manders is a member of the cybercrime unit. He conducted an internet open-source search for images related to the events on May 1. Open source refers to images that any member of the public can see without special privileges. The officer explained how he conducted the search and captured the images. The authenticity of the images is not controversial.
[21] PC Manders found and captured the video record of the defendant giving the speech referred to above in the evidence of PC Gordon. This video can be found on several open sources, including from a Facebook account in the name of “Cullen McDonald”. This Facebook account also contains two screen shots. One is an image of an online poster:
Covid is a HOAX!
(Gotta get it out of our systems before these psychopaths take away our Freedom of Speech)
-NO TO BILL C10-
!CALL YOUR MP!
[22] The second image is a photograph of crowd of people, with bowed heads, in front of a Canadian flag. It is accompanied by these words: “Powerful. Patriots, young and old, taking a moment of silence for the brave men and women who fought and died for our freedom. Lest we forget. Stand on guard for thee”.
[23] PC Manders also located a Facebook account in the name of “Sandor Ligetfalvy” containing an article from a media source, niagarathisweek.com. The article includes an interview with Sandor Ligetfalvy in which he states he was the organizer of the May 1 protest. The officer confirmed, in cross-examination, that he did not find any open-source information that shows the defendant as a promoter or the protest.
[24] Sgt. Jeff Latham met the defendant three weeks before the events in question. On April 10, he was in uniform operating a marked cruiser and parked at a convenience store in St. Catharines. The defendant approached him from a nearby hair salon. He explained the route to be taken during the protest and requested police assistance in closing the roads so that the protesters would be safe.
[25] The officer saw the defendant again on May 1 at the Memorial Park cenotaph in downtown St. Catharines. Once again Sgt. Latham was in uniform and operating a marked cruiser. At 1:08 PM, the officer approached “Sandor” who identified himself as one of the organizers of the protest. As he was speaking with Sandor, the defendant arrived and asked that the police block the streets to motor vehicle traffic. Sgt. Latham testified that the defendant said he was one of the organizers of the event. The officer said he would ensure the streets were blocked. Sgt. Latham followed the crowd as it made its way to City Hall. After the speeches were concluded the defendant again approached him as he stood beside his cruiser. The defendant thanked the officer for his assistance in ensuring a safe protest by blocking the streets to motor vehicle traffic and shook his hand. [1]
[26] In cross-examination, Sgt. Latham agreed the defendant may not have used the word “organizer” in their conversations. He concluded that he was an organizer because the defendant told him about the route on April 10 in asking for the roads to be blocked and repeated this information and request on May 1. In coming to this conclusion, he also noted that he heard the defendant’s speech on the steps of City Hall. The officer added that he also confirmed the route and safety procedures at the request of Sandor and a woman named Serena and that he considered all three individuals to be the organizers of the event.
[27] Dr. Muller was called by the Crown to give an expert opinion on the transmission of infectious diseases, including the COVID-19 virus. Having heard from him and reviewed his curriculum vitae, I am satisfied that he is qualified to do by his education and experience.
[28] Dr. Mueller’s opinions are contained in a written report that is an exhibit in this trial. The report describes the virus, the symptoms and health concerns, who is at risk, how it is transmitted, and how transmission can be mitigated, including the use of masks and social distancing. The witness highlighted the following information: In 2021 COVID-19 was the fifth leading cause of death in Canada. That said, most people infected with the virus did not die, but the severity of symptoms and death rate increases exponentially as one gets older, beginning at age 55, and for people with other underlying health issues. Hospitals became overwhelmed with the care of infected people, and this greatly limited the number of critical beds available for those with other health problems. The doctor added that the infections and strain on hospitals peaked in May 2021. At this time Ontario experienced the first significant wave after the initial outbreak. Vaccines had recently become available but prioritized for health care workers, the elderly and vulnerable groups. Rapid transmission of the virus was a pressing public concern.
[29] Dr. Mueller explained that the virus is transmitted when an infected person breathes out particles. Accordingly, it is necessary to isolate those with COVID symptoms. However, the virus is highly transmissible before the onset of symptoms. For this reason, the best strategy is vaccination, the use of masks, and social distancing. This strategy is effective in preventing COVID free people from becoming infected and transmitting the virus to others by breathing out the particles. This strategy is especially important in indoor settings because it often mandates close contact and too often the ventilation is inadequate to meet the risk.
[30] There are good theoretical reasons why COVID-19 is unlikely to transmit outdoors as easily as it does indoors. These include the fact that outdoor spaces are usually larger and less crowded, increasing the ability to physically distance, the ventilation is good, and UV light rapidly inactivates the virus. Nevertheless, when people outdoors are less than two metres apart, masking is a reasonable protective measure.
[31] The video record of the crowd assembled at City Hall was played for Dr. Mueller. He was asked if the crowd of 100 – 150 people presented a risk of transmission. He repeated that the virus was spreading fast in May 2021 and said there is a high probability that people in the crowd were infected. Also, it is not known how they arrived. If several groups of people shared car rides, while unmasked, there would be a higher risk of infection when the larger group came together. He noted that the participants depicted in the video were standing close together and not wearing masks. This increases the risk of transmission in the outdoor setting. In addition, some of these people can be seen and heard shouting; this propels the particles and increases the risk of transmitting the virus.
[32] In cross-examination, Dr. Mueller reiterated that the risk of outdoor transmission is lower than indoors. When pressed to quantify the difference, he opined that the risk of outdoor transmission would be less than 20% of that for indoors. This risk depends on other factors, such as the size of a gathering, the physical distancing and masking. He repeated the greater risk to older people and those with underlying health conditions, if such persons are at the outdoor gathering, or subsequently meet those who were there. Dr. Mueller agreed that although there was a high probability that participants in the protest were infected with the virus he could not point to any individual, including the defendant, as being one of them.
SUBMISSIONS
[33] The Crown argues that this case is about lockdown rules being broken and encouraging others to do so that endangered the health, lives, and comfort of the public. The Crown relies on R v Thornton, [1991] O.J. No. 25 (OCA) for the proper interpretation of endangering the public in section 180 of the Code. Both provincial statutes required people to stay at home subject to exceptions that do not apply here. Counsel added that guilt is not dependant on proving the defendant was an organizer of the protest; he, like everyone at the rally is guilty of committing a common nuisance.
[34] The Crown argues that, in any event, it has been proven that the defendant was an organizer of the event. He provided information about the route of the march to the police and requested their assistance in ensuring the protesters would be safe from motor vehicles. Moreover, the defendant gave a speech exhorting the large crowd to “rise up” and oppose the lockdown measures.
[35] The Crown reviewed the evidence of Dr. Mueller about the havoc caused by COVID-19; the deaths, illness, and overwhelmed hospitals, all of which peaked at the time of the protest in question. Counsel added that the provincial legislation was enacted to prevent just what happened here – a large unsanctioned gathering that endangered the public for the reasons given by Dr. Mueller.
[36] The defendant made brief oral submissions to highlight the written ones that were subsequently filed by him with the Court and served on the Crown. He said the following:
The fundamental truth in this case is that it was a lawful peaceful assembly. The Canadian Bill of Rights has constitutional authority even after the Charter. See the cases in my factum. I was subjected to restrictive bail. The police used an order to escalate to a Criminal Code charge and thus allow for my arrest and bail order. There is no basis for a criminal charge. My participation in protest was the exercise of a fundamental right without intention to hurt others. I did not have COVID. The expert witness supports that an outdoor gathering substantially reduces risk. I was not an organizer but was there to lend my voice to a cause I hold dear to my heart. I await a decision aligns with respect and dignity and fundamental right to peaceful assembly.
[37] The following excerpts are from defendant’s written submissions:
Freedom of assembly is essential to the functioning of open government and for healthy societies. It shapes debate, public policies, and strengthens governance by allowing diverse and different ideas to be expressed and heard, including the voices of minority or opposition groups. This is most critical for groups that have historically suffered discrimination, which might not have control of broadcast media, or may be disenfranchised. Freedom of assembly serves as a means to demand accountability where people can ask questions and bring awareness to important topics.
Mr. McDonald’s rights, protected under section 1(d) freedom of speech and Section 1(e) freedom of assembly and association were violated by police. There must be a federal act of parliament that expressly states that Mr. McDonald’s rights are to be violated as per section 2 of the Canadian Bill of Rights:
In the case of Mr. McDonald no such act of parliament required by the Canadian Bill of Rights was passed that expressly states his right to free speech and assembly will be violated by regulations regarding COVID-19 much less a provision to escalate non- compliance with a COVID-19 bylaw to a criminal charge of common nuisance.
Charging McDonald with common nuisance was gravely unjustified and unlawful as it restricted Canadians’ freedoms of speech, association and peaceful assembly guaranteed under the Canadian Bill of Rights without the act of parliament required by section 2 of the Canadian Bill of Rights. Common nuisance should be narrowly interpreted so that it doesn't cover otherwise non-criminal protests. Common nuisance offence can't be interpreted as being so broad as to criminalize every provincial offence that carries an increased risk of harm with it, as that would mean that even exceeding the speed limit by 1 kmph can also attract a criminal common nuisance charge.
NOTE: There is no evidence that Mr. McDonald was infected or aware he had Covid-19
Right to Peaceful Protest
A New Brunswick judge has suggested provisions of the province's pandemic restrictions used to charge several people who took part in a protest last year may have been an overreach. "I believe the law might be over-broad," Judge Luc Labonté said Tuesday morning, referring to New Brunswick's mandatory order under the Emergency Measures Act. "And might be contrary to the charter because it captures, I believe, perhaps conduct that shouldn't be penalized.”
Dr. Muller testified that he had no knowledge as to whether or not Mr. McDonald had Covid-19 at any point in time.
Dr. Muller testified that there is a “ substantial reduction ” in risk of transmitting Covid-19 when outdoors.
The Canadian Bill of Rights has constitutional authority.
ANALYSIS
[38] The Crown carries the burden of proving guilt beyond a reasonable doubt. This means something more than probable guilt – something closer to certainty. A reasonable doubt is one based on reason and common sense which must be logically based on the evidence or lack of evidence (R. v. Villaroman, 2016 SCC 33). In applying the standard, I can accept some, part, or none of what a witness states. The testimony of a witness is assessed based on the person’s credibility and reliability.
[39] This case does not present serious issues with respect to the assessment of evidence and finding of facts. What happened is not in dispute. Much of the police testimony is confirmed by the best evidence – the video record. There is no defence evidence. The few controversies are with respect to the Sgt. Latham’s testimony about the defendant being an organizer of the event and the extent to which Dr. Mueller’s opinions applied at the date and place of the gathering. In this regard, I am confident Sgt. Latham’s conclusion about the defendant’s role is valid. Moreover, the opinions expressed by the expert are firmly based on his impressive credentials and were not undermined or contradicted. I accept this evidence.
[40] As already noted, I have no doubt the defendant was present at the protest. I am entitled to make a finding about identity based on a comparison of the defendant before me and the person in the video record. The Supreme Court of Canada affirmed this in R v Nikolovski. The Supreme Court instructed triers of fact to be cautious in reaching identification based solely on video evidence. To convict on this basis, they must be satisfied beyond a reasonable doubt that it identifies the accused. I am so satisfied in this case. In any event, the video record is not the only evidence on point. Two police officers, who had previously had dealings with the defendant, identified him as participating at the rally and giving a speech.
[41] The event was organized and advertised by Sandor Ligetfalvy. A message in a Facebook account in the name of this person states this. Moreover, his interaction with the police on the date in question supports this conclusion. The latter point applies to the defendant as well. He took a leading role in the gathering by providing the police with information about the route of the planned march, requesting police assistance in securing the area, and giving a speech that included a call to “rise up” in opposition to the lockdown. It is reasonable to conclude he was one of the organizers of the event.
[42] A common nuisance is proven if a person commits an unlawful act or fails to discharge a legal duty. It must also be proven that the act or omission endangered the lives, safety, or health of the public or causes physical injury to any person.
[43] In Thornton, supra, the Court of Appeal for Ontario upheld the conviction of a man who donated blood, knowing he had tested positive for AIDS. The accused had been found guilty of committing a common nuisance. The Court noted that there was no statutory provision that imposed a legal duty not to donate blood in such circumstances. The Court held that the “legal duty” referred to in section 180 of the Code can arise by statute or common law. The common law recognizes a fundamental duty to refrain from conduct which could cause injury to another person. Donating blood for transfusion to others constitutes a breach of the common law duty. The Court in went on to hold that section 180 does not require actual injury; when the gravity of the potential harm is great, the public is endangered even where the risk of harm occurring is slight, even minimal.
[44] In the present case, the legal duty arises by the provincial legislation referred to above. The gathering that the defendant participated in was contrary to these statutes as it did not come within the exceptions to the lockdown order that accompanied the declared state of emergency. There is no controversy about this. As noted, the Defence position is that the participants had the right to peacefully assemble and protest.
[45] The participants who gathered on May 1, 2021, did not have the right to do so. There is nothing in the evidence before me to suggest the Bill of Rights protected such a right in the unique circumstances faced by Canada in Spring 2021. On the contrary, the testimony by Dr. Mueller amply supports the conclusion that the measures taken by the government, pursuant to EMCPA and ROA, was a reasonable and necessary response to an extraordinary health concern.
[46] It does not matter that the Crown cannot point to a particular person, including the defendant, as being infected with COVID. On the evidence before me, it is a fantasy to believe that not one of up to 150 people had been infected. At the time, Ontario was subject to a surge in COVID-19 cases. The virus is easily transmissible and virulent.
[47] The defendant helped organize and lead a protest to measures taken as part of a declared state of emergency. The large crowd walked and stood close together, without masks and shouting their protest. Such actions increased the otherwise diminished risk of contagion in outdoor settings. Even assuming that the risk of transmission was minimal, the potential harm was substantial. Older people and those with certain other health problems were especially at risk of serious illness or death if infected with COVID-19 by being present at the rally or subsequently encountering those participants. Hospitals were overwhelmed with infected people. People with other serious health problems had limited access to critical care beds.
[48] On January 8, 2024, while the present decision was under reserve, the defendant filed a revised factum and revised book of authorities, including a recent decision by Justice Blouin acquitting the defendant of committing a common nuisance by participating in a large protest to the lockdown measures in Niagara Falls. My colleague held that the Crown failed to prove actus reus (guilty act) and mens rea (guilty mind). I do not have the benefit of the evidence before him. On the evidence before me, I come to a different conclusion.
[49] My colleague noted that the defendant, as in the case before me, relied on the Canadian Bill of Rights. He held, as I do, that the Bill of Rights is not offended by the present charge. As is also the case before me, the defendant did not file a Charter motion or Notice of Constitutional Question before my colleague.
[50] My colleague questioned the applicability of the Criminal Code to the facts before him and held that the Crown failed to prove the actus reus. Below is the relevant portion of my colleague’s decision, with emphasis added to the portion quoted by the defendant in his revised factum:
In my view, one can easily see why Parliament would elevate Mr. Thornton’s behaviour from a common law duty to refrain from conduct which could cause injury to another person to the Criminal Code offence of Common Nuisance, given the direct and significant consequences of such behaviour. In the case before me, the “unlawful act” is covered by provincial legislation in that violating the Stay-At-Home Order is a provincial offence carrying significant penalties – both financial and custodial. The problem as I see it, is elevating provincial offences (with a reduced mens rea) to criminal offences in the case of endangerment of the health and safety of citizens. If Parliament intended those provincial offences be elevated to criminal offences where endangerment is present, then the Ontario Court of Justice would be even more overwhelmed than it now is. [emphasis added].
In my view, it cannot be that Parliament intended to allow prosecutors to treat everyday traffic offences, when a risk of harm is foreseeable, as criminal offences. All speeding offences, following too closely, and careless driving could potentially be elevated to criminal offences with a real possibility of conviction if the Crown had to prove only the unlawful act, and a foreseeable risk of serious harm.
As indicated earlier, the provincial legislation requires compliance with the Stay‑At‑Home Order and enacted significant penalties for violation. I cannot believe that Parliament meant to have the “unlawful act” under provincial legislation become the actus reus (if foreseeable harm) of the criminal charge of Common Nuisance.
In any event, I am not satisfied that the grouping of people, in an expansive outdoor setting, not being all that close to one another, constituted a real risk of communication of the disease, thereby endangering the public.
[51] I respectfully disagree with my colleague’s comments preceding his finding that the Crown had failed to prove the actus reus. A common nuisance requires the commission of an unlawful act or failure to discharge a legal duty. There is nothing in s. 180 that suggests provincial legislation cannot anchor the legal duty. In Thornton, the Court clarified that the duty could arise by statue or common law. In any event, my colleague found, on the evidence before him, that there was not a real risk of transmission, thereby endangering the public. That is not the evidence before me.
[52] The video record shows numerous people standing close together, without masks, and shouting. The evidence of Dr. Mueller is that this, in fact, did present a real risk of transmission, thereby endangering the public. Even if this risk was minimal, having regard to the substantial potential harm, Thornton means the guilty act is proven.
[53] My colleague continued his reasons as follows:
If I am wrong in the above analysis on the actus reus requirement, I am also of the view that the Crown has not proven the necessary mens rea. The offence requires proof that the defendant knew of the danger created by his actions. (See R. v. Thornton.) Here, I find no evidence that the defendant was aware that his actions in promoting and engaging in an outdoor protest created a risk to the public. In fact, if one looks at the twenty-nine delineated exceptions to the Stay-At-Home Order, one could conclude that the provincial government was allowing some dangerous indoor activities and forbidding innocuous outdoor activities. For example, an employer could determine their workplace to be “essential”, permitting employees to work indoors where the virus spreads proficiently. As well, citizens were able to attend religious services, weddings, and funerals indoors (subject to limits on numbers).
If the Legislature was tacitly approving indoor activities where there existed incontrovertible evidence of transmission (e.g., large distribution warehouses, meatpacking factories, etc.) how could the Crown establish beyond a reasonable doubt that Mr. McDonald knew he was creating a risk of serious harm by exercising his right to protest outside. It makes no sense. For the same reasons, the Crown has not established some lesser form of mens rea (recklessness, wilful blindness) beyond a reasonable doubt either.
[54] I respectfully disagree with my colleague that the policy choices reflected in the statutory exceptions to the lockdown measures is relevant to mens rea. In Thornton, the Court dealt with the issue of mens rea, as follows:
I now turn to consider his argument that the appellant did not have the mens rea necessary to have found a conviction. It was contended that the offence requires proof that the appellant actually knew of the danger created by his action and that the trial judge erroneously applied an objective standard when he decided that the appellant had mens rea.
I am not convinced that Flanigan J. applied an objective test in this case. His finding respecting mens rea is as follows:
In my view, by his actions, the accused has shown a rash want of care for the lives of others. He did this knowing the full consequences of his blood being passed, in any form, to others.
……It follows that he knew that, by giving his blood to the Red Cross, he was endangering the lives and health of other members of the public. It therefore becomes unnecessary to decide whether some lesser form of mens rea could satisfy the requirements of s. 180. [Emphasis added]
[55] With respect to the “lesser form of mens rea”, I note the decision by the Supreme Court of Canada in R v Sansegret SCC:
22 Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry.
[56] The issue of mens rea with respect the offence of common nuisance was considered by Justice Durno in R v Koebel et al:
(lxx) The offenders have been found guilty of committing a common nuisance by failing to discharge a legal duty which resulted in the lives, safety or health of the public being endangered between May 3 and 23, 2000. The legal duty requires, at a minimum, that everyone refrain from conduct which, it is reasonably foreseeable, could cause serious harm to other persons. R. v. Thornton (1991), 3 C.R. (4th) 381 at 389 affirmed , [1993] 2 S.C.R. 445. The concept of a duty indicates a societal minimum which has been established for conduct. The failure to perform a “duty” implies that the accused’s conduct is to be measured against an objective, societal standard to give effect to the concept of “duty”. Accordingly, objective fault is an appropriate basis upon which to base a conviction. The standard is that of a reasonable person engaging in the activity of the accused in the specific circumstances that prevailed. Naglick v. The Queen (1993), 83 C.C.C. (3d) 526 (S.C.C.) To “endanger” is to expose someone to danger, harm, or risk but does not connote actual injury or damage. Thornton, supra
[57] At the time of these events, it was a notorious fact that COVID-19 is a highly transmissible virulent disease that resulted in serious illness, death, and overwhelmed hospitals. Dr. Mueller’s evidence confirms that the defendant’s assertion that the pandemic is a hoax is complete nonsense; it ignores overwhelming scientific evidence, accepted by health organizations and governments throughout the world. The defendant did not care about the truth. He deliberately looked away. The centre of his attention was personal and political. His guilty mind is proven.
CONCLUSION
[58] In Spring 2021 the government of Ontario declared a state of emergency. With limited exceptions, the public was locked down. Almost all Ontarians chose to accept this unprecedented action. They understood that when it comes to easily transmissible and virulent diseases, we are interdependent. A few, like the defendant, and others at the protest, made a different choice. They chose to shut their eyes to reality. They were focussed on personal freedom. The freedom, that the defendant posted, was being taken away by “psychopaths”, presumably including the provincial legislature. The freedom he urged them to “rise up” and defend. What the defendant and fellow protesters ignored is personal responsibility. Freedom is not absolute; One person’s right to swing their arms ends where another person’s nose begins. [2]
[59] The defendant’s failure to discharge legal duties imposed as part of the state of emergency endangered the lives, safety, and health of the public. He is guilty of committing a common nuisance.
Released: January 16, 2024 Signed: Justice J. De Filippis
[1] The Crown advised me at the start of the trial that he would be leading evidence of statements by the defendant to police on two occasions. I explained the admissibility voir dire to the defendant and that it would be a blended hearing. The Crown asked the officer questions to establish that the statement was not obtained by inducement or threats. There is no controversy about the voluntariness of the statements. They were unsolicited utterances, by the defendant, and admissible. The defendant did not argue that his statements were not admissible but, rather, that he never said he was an organizer.
[2] Taken from a statement attributed to Oliver Wendall Holmes, Jr.