Court File and Parties

COURT FILE No.: Region of Niagara – 2111-998-21-N1667-02 DATE: 2024-01-03 ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— and —

CULLEN MCDONALD

Before: Justice Richard Blouin

Heard on: October 3, October 4, and November 14, 2023 Submissions on: January 3, 2023 Reasons for Judgment released on: January 3, 2023

Counsel: Mr. M. Lucifora .................................................................................. counsel for the Crown Mr. C. McDonald ............................................................... the accused, on his own behalf

BLOUIN J.:

[1] Cullen McDonald stands charged that on April 17, 2021, at the city of Niagara Falls, 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 endanger [sic] the lives, safety and health of the public, contrary to Section 180, subsection (1), clause (a) of the Criminal Code of Canada”.

[2] In early April 2021, the provincial government brought in legislation to require Ontarians to stay at home to stem the spread of COVID-19 in order to prevent the overcrowding of hospital emergency wards. The legislation prohibited gatherings in public, with many exceptions. Shortly after, the defendant promoted and took a leading role in an outdoor protest in Niagara Falls which advocated for the removal of COVID-19 restrictions as they curtailed liberty and free movement.

[3] The Crown contends that he, among others, committed the criminal offence of Common Nuisance by engaging in an unlawful act which endangered the lives, health, and safety of the public. The defendant takes the position that he was only exercising his right to peaceful protest, and that he did not intend to endanger anyone. He contends his right to freedom of assembly and his right to association, pursuant to the Canadian Bill of Rights, were denied by the above legislation. No Charter application was filed.

[4] The Crown called four police officers that were involved in the investigation into a planned protest in downtown Niagara Falls, on Saturday, April 17, 2021, that was posted online by the group #NoMoreLockdownsNiagara. The defendant was determined to be a “moderator” of the Facebook group Stand4Thee which, among other things, promoted this outdoor protest rally. He posted “This Saturday Niagara Falls! Be there!” with a link to #NoMoreLockdownsNiagara. In addition to the Facebook posts, the police captured video of the defendant (filed as Exhibit 2) with a megaphone leading a substantial group (hundreds) of protesters stationed at the bottom of Clifton Hill and marching along the streets in downtown Niagara Falls. Very few of the protesters were masked. The defendant was arrested a few days later since the investigative approach of the police was to charge the “organizers” of the protest with Common Nuisance pursuant to s. 180 of the Criminal Code.

[5] The Crown also called an expert, Dr. Matthew Muller, Medical Director, Infection Prevention and Control, Unity Health Toronto. I found him to be an expert on how the SAR-COV2 virus that causes COVID-19 is transmitted, and what public health measures are effective in interrupting that transmission. His affidavit was made Exhibit 5, and the section related to outdoor transmission was especially relevant to this case. Outdoor settings, according to Dr. Muller, are much less likely to transmit the virus. Firstly, outdoor spaces are larger and less crowded than indoor spaces and provide opportunity to distance from one another. Secondly, the ventilation is often much better. And thirdly, UV light rapidly inactivates the virus. That all said, masking should be employed if one cannot maintain a distance of two metres when outdoors. In the final analysis, the risk of COVID spread outdoors is significantly lower than the spread indoors.

Actus Reus

[6] The police chose to charge, and the Crown chose to prosecute, the defendant, not on the provincial offence violation regarding the Stay-At-Home Order (Ontario Regulation 265/21) and the Emergency Management and Civil Protection Act, but pursuant to the Criminal Code. Section 180 of the Code contains the offence of Common Nuisance and it reads 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, every one 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 subject of Her Majesty in Canada. R.S., c. C‑34, s. 176; 2019, c. 25, s. 61.

[7] This section is one that has been engaged infrequently by our Courts. The most well-known application is the Ontario Court of Appeal decision in R. v. Thornton, [1991] O.J. No. 25. That case involved a man who knew he had twice tested positive for HIV, knew he was probably infected, knew that AIDS was transmitted through blood, yet still donated blood to the Red Cross. In Thornton, the Court concluded that the “unlawful act” was donating blood when it was reasonably foreseeable that serious harm to others could result. The common law duty to refrain from conduct that could cause serious harm results in a failure to discharge a “legal duty” under s. 180(2).

[8] 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.

[9] 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.

[10] 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.

[11] 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.

Mens Rea

[12] 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).

[13] 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.

[14] Accordingly, the defendant will be found not guilty of the Common Nuisance offence. Although his Bill of Rights challenge is now rendered moot by reason of the acquittal on the merits, I nonetheless will address it.

Canadian Bill of Rights

[15] For reasons that are not entirely clear to me, the defendant brought application pursuant to the Canadian Bill of Rights, 1960. He submitted that on April 17, 2021, he was exercising his rights of freedom of speech (s. 1(d)) and freedom of assembly and association (s. 1(e)). Although the Charter of Rights guarantees these same rights, he did not bring a Charter challenge.

[16] Section 2 of the Bill of Rights requires that every “law of Canada” avoid infringing the rights contained in s. 1, except if declared by an Act of Parliament of Canada to operate notwithstanding the Bill of Rights. It is accepted law in this country that the Bill of Rights still has legal force, but it applies only to the laws of Canada. As a result, the Bill of Rights would apply to any offence in the Criminal Code including the charge before the Court.

[17] In my view, the Common Nuisance section does not offend the Bill of Rights. There is nothing in the concept of criminalizing an unlawful act which endangers the community that offends the Bill of Rights. It did not in this case. The defendant may have constitutional quarrel with the provincial legislation and its regulations, but not with the Criminal Code offence.

Canadian Charter of Rights

[18] The Charter of Rights contains the same protections for speech and assembly as does the Bill of Rights. Unlike the Bill of Rights, those protections apply to all legislation, including provincial legislation. However, unlike the Bill of Rights, the Charter has contained within it limitations to those rights. Section 1 of the Charter reads:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[19] As indicated above, the defendant did not bring a Charter application. Again, given my findings on the merits, it is not necessary to rule on the Charter. It is also true that if a judge determines that a self-represented defendant has obvious Charter rights issues that arose during a trial, the judge has a professional obligation to advert to them in order to ensure a fair trial.

[20] In my view, it is abundantly obvious that the provincial legislation allowing for the government to order citizens to stay at home and not come together in public, infringes at least two of the fundamental freedoms listed in s. 2: freedom of peaceful assembly and freedom of association. However, the law will still be constitutional if the government is able to show, under s. 1, that the law is demonstrably justified in a free and democratic society. That test was articulated by the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 102.

The Oakes Test

[21] 1. The infringing measure must be in furtherance of a pressing and substantial objective.

2. The infringing measure must be rationally connected to the government’s objective in enacting it.

3. The law must impair the right as little as reasonably possible in order to achieve the legislative objective (minimal impairment).

4. The deleterious effects of the law on the claimant’s Charter rights must not be disproportionate to the law’s salutary effects (overall proportionality).

[22] It is without question that limiting the spread of a highly communicable virus which was killing tens of thousands of citizens was a pressing and substantial objective. But in my view, the infringing measure was not rationally connected to the objective. Prohibiting outdoor activities such as golf, tennis and basketball and allowing indoor weddings, religious services and other ceremonies (limitation of 10), was not rationally connected to the objective. Allowing an employer to declare their workplace essential, so as to allow many people to congregate indoors, was connected to an increased spread of the disease, not a limiting of it. I respectfully disagree with other cases, notably Trinity Bible and Hillier, that find a rational connection between the legislation that infringes Charter rights and the objective of reducing COVID spread.

[23] Let me say at this point that my views should not be taken as support for the Nomorelockdowns movement. I categorically reject their argument. In my view, the province was right to bring in restrictions to deal with the spread of COVID. However, if the state is intent on doing so, it must comply with the Charter.

[24] In my view, the provincial legislation failed the rational connection test. I have no power to declare it unconstitutional. An application to do so must be brought with proper notice and before the appropriate Court. I need not deal with any possible remedies in this case, since I have already found in the defendant’s favour.

Released: January 3, 2024 Signed: Justice R. Blouin