Alberta Health Services v Scott, 2021 ABQB 490

Court of Queen’s Bench of Alberta Citation: Alberta Health Services v Scott, 2021 ABQB 490 Date: 20210629 Docket: 2101 05742 Registry: Calgary Between: Alberta Health Services Applicant - and - Christopher Scott, Whistle Stop

(2012) Ltd., Glen Carritt, John Doe(s), Jane Doe(

s) Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice A.W. Germain ______________________________________________________ A. Introduction [ 1 ] On May 6, 2021, Alberta Health Services (AHS) obtained a court order from Associate Chief Justice J. Rooke targeting the Respondent, Christopher Scott, and others to assist in enforcing Covid-19 community compliance. They allege the Respondent has breached this Order and in result is guilty of contempt of a court order. For the reasons outlined in this ruling, I agree with the submission

of AHS and cite Mr. Christopher Scott in contempt. AHS has not pursued, in this application, the other respondents. [ 2 ] I have also issued two other rulings involving other respondents relating to the same or similar issues. Similar legal principles apply in each case. I have purposely repeated myself throughout the rulings so each can provide transparency about my ruling without resort to the companion rulings. The companion rulings are Alberta Health Services v Street Church , 2021 ABQB 489 and Alberta Health Services v Pawlowski , 2021 ABQB 493 B.

Background [ 3 ] The World Health Organization declared the novel coronavirus (Covid-19) to be a pandemic in March 2020. By May 2021, Alberta was in what medical experts called the third wave of the pandemic. Active cases in Alberta (including cases of more dangerous variants that had developed elsewhere in the world) caused increasing numbers of Covid-19 infections. AHS took steps to reduce the impact of this third wave, as both hospitals and the intensive care wards became overcrowded.

This prompted AHS to issue revised Public Health Orders. [ 4 ] Some Albertans, including Christopher Scott, were openly flaunting the efforts of AHS to control the third wave of the virus in Alberta. AHS then obtained an injunctive order from Associate Chief Justice Rooke on May 6, 2021 (the Rooke Order). [ 5 ] Christopher Scott was specifically named in the Rooke Order as he continued to operate a restaurant in Mirror, Alberta, in open defiance of the AHS Public Health Orders.

He was not deterred by the Rooke Order and instead continued to prepare for a planned rally of support on May 8, 2021, which drew hundreds of supporters to a rally and campout. The Rooke Order restrained Mr. Scott from: (

i) Organizing an in-person gathering, including requesting, inciting or inviting others to attend an “Illegal Public Gathering”; (ii) Promoting an Illegal Public Gathering via social media or otherwise; or (iii) Attending an Illegal Public Gathering in a public or private place. [ 6 ] The Rooke Order defined an “Illegal Public Gathering” as any gathering that did not comply with the requirements of current CMOH Orders (Chief Medical Officer of Health Orders) including, but not limited to: (

a) Masking requirements; (

b) Attendance limits applicable to indoor or outdoor gatherings; and (

c) Minimum physical distancing requirements. [ 7 ] Members of the RCMP served Mr. Scott with the Rooke Order and then attended on May 8, 2021, at Mr. Scott’s widely advertised event to observe hundreds of people disobeying the AHS Public Health Orders in vocal support of Mr. Scott. The RCMP observed Mr. Scott’s participation in this event and arrested him without incident. He was released by me on Monday, May 10, 2021. On June 3, 2021, I heard this application. C.

The Position of the Parties [ 8 ] The position of AHS is that they have established, by their affidavit evidence, that the Rooke Order was breached by Mr. Scott after it was granted and served on him. They submit that this breach amounts to a contempt because the three criteria (knowledge, certainty of the terms of the order, and deliberate conduct) exist in this case to prove contempt beyond a reasonable doubt. [ 9 ] Mr. Scott insisted that AHS prove the breach, and asserts the key issue in this case is whether he had a reasonable excuse to breach the Rooke Order. Mr.

Scott submits that he did have a reasonable excuse. D. Legal Analysis 1. The Facts [ 10 ] AHS base their case on the evidence of two RCMP officers who filed affidavits about their participation and observations. The affidavits contain exhibits of video, webpages, and social media posts. If a picture is worth a thousand words, a video, particularly those as enlightening as the exhibits contained in the RCMP affidavit, are worth a million words. [ 11 ] I need not belabour this evidence. Cmdr. Bruce Holliday is the commander of the RCMP detachment at Bashaw, Alberta.

On May 7, 2021, while a large crowd had gathered at the Whistle Stop Café, Cmdr. Holliday approached and served Christopher Scott with a copy of the Rooke Order and took the time to read it to him. Service in this manner is not denied, and in fact was confirmed on social media by Christopher Scott while advising the public that the event planned for May 8 would go ahead. Cmdr. Holliday also asserted that on May 8, 2021, he observed that crowds of between 300 and 400 people had gathered to support Mr.

Scott with very little observation of mask utilization or social distancing. [ 12 ] The second affidavit is supplied by Staff Sgt. John Spaans who worked with Cmdr. Holliday and other RCMP members in this investigation. According to Sgt. John Spaans, on May 8, 2021, Mr. Scott went up on a makeshift stage in front of the many people gathered in that area and responded in a way that continued to excite and encourage the crowd to break the AHS Public Health Orders.

Shortly after, Mr. Scott was arrested. [ 13 ] The Respondent, Christopher Scott, is under no obligation to lead evidence in this type of hearing. He elected not to lead evidence about the on-site incident at or near the Whistle Stop Café. Mr. Scott did wish me to consider evidence from an earlier sworn affidavit, but only in support of his allegation that he had a reasonable excuse. I will defer this discussion about Mr. Scott’s excuse until later in this ruling. [ 14 ] I find as a fact that Mr.

Christopher Scott was actually served with the Rooke Order on May 7, 2021, and had full knowledge about it and the prohibitions it contained. His acknowledgement of this on social media prevent any other practical factual finding. Despite this, Mr. Scott deliberately continued to organize, promote and ultimately attended a prohibited public gathering, contrary to the prohibitions contained in the Rooke Order. 2.

The Standard of Proof [ 15 ] A judge considering whether a contempt of a court order has occurred must determine the existence of three essential elements discussed below to a level of proof beyond a reasonable doubt. The Supreme Court of Canada in R v Starr , 2000 SCC 40 (at para 50 ) described proof beyond a reasonable doubt as something less than absolute certainty, but much greater than probable guilt. This is the standard that I propose to apply. 3. The Test for Contempt [ 16 ] Three elements are required for a finding of contempt:

(1) That the order alleged to have been breached must state clearly and unequivocally what should and should not be done;

(2) That the party alleged to have breached the order must have had actual knowledge of it; and

(3) The party allegedly in breach must have intentionally done the act that the order prohibited or intentionally failed to do the act that the order compelled ( Carey v Laiken , 2015 SCC 17 at paras 32-35 [ Carey ]). [ 17 ] Even if the test is made out beyond a reasonable doubt, if a respondent has taken reasonable steps to comply with the order, the Court retains the discretion to deny an application for contempt ( Carey at para 47 ). 4. Applying the Test to the Facts [ 18 ] On May 8, 2021, when Mr. Scott was arrested, the first paragraph of the Rooke Order read as follows: 1.

The named individual Respondents and any other person acting under their instructions or in concert with them or independently to like effect and with Notice of this Order, shall be restrained anywhere in Alberta from: a. Organizing an in-person gathering, including requesting, inciting or inviting others to attend an “Illegal Public Gathering”; b.

Promoting an Illegal Public Gathering via social media or otherwise; c Attending an Illegal Public Gathering of any nature in a “public place” or a “private place”, which each have the same meaning as given to them in the Public Health Act. [ 19 ] The Rooke Order also went on to define certain of the above terms. I conclude that the Rooke Order as it existed on May 8, 2021, was both clear and unequivocal, in that it told Mr. Scott that he could neither organize, promote or attend public gatherings nor incite others to do so. [ 20 ] I have already found as a fact that Mr.

Christopher Scott was actually served with the Rooke Order on May 7, 2021, and had full knowledge about it and the prohibitions it contained. At a bare minimum, he was present at a gathering after service and knowledge of the Rooke Order, although his participation and organization was much more egregious. [ 21 ] I need not dwell on the third part of the contempt test. Mr. Scott made a spectacle of his civil disobedience in relation to the restrictions imposed upon Albertans by the AHS Public Health Orders. Mr.

Scott’s defiant posturing, caught on the videos, make clear that his non-compliance with the Rooke Order was not accidental, but wilful and deliberate. I am satisfied beyond a reasonable doubt that he wilfully and deliberately did the acts that were prohibited by the Rooke Order. [ 22 ] My finding that the three-part test for contempt has been satisfied beyond a reasonable doubt means that Mr. Scott should be cited in contempt unless his defiance was the result of a reasonable excuse. 5. Did Mr. Scott have a Reasonable Excuse for Disobeying the Rooke Order? [ 23 ] Counsel for Mr.

Scott points out that although counsel was known to AHS prior to AHS obtaining the ex parte Rooke Order on May 6, 2021, AHS elected to obtain the Order without notice to them. Counsel have applied to ACJ Rooke to

schedule a hearing to set aside the Order. They assert that if the Order was set aside, it would be unjust for me to cite and possibly sanction Mr. Scott, where there is a possibility that the Order could be set aside for improper conduct on the part of AHS. They suggest the proper handling is to adjourn this contempt hearing or stay it pending the outcome of their application to Associate Chief Justice Rooke to reconsider the May 6, 2021 Order.

[24] They cite no legal authority in support of what counsel admits is a novel legal argument: a procedural irregularity as areasonable excuse. Counsel referred me to Envacon Inc v 829693 Alberta Ltd, 2018 ABCA 313 as a case which discusses the burden ofproof in contempt matters revolving around the concept of reasonable excuse; the case confirms that the list of reasonable excuses is notan exhaustive one. I have reviewed this case in some detail in Alberta Health Services v. Street Church, 2021 ABQB 489 [paras 24-27].

Their second reference is to Gunther’s Building Center Ltd v Kleinschmidt, 1975 63 DLR (3rd) 361, (Alta CA)[Gunther’s Building Centre]. Gunther’s Building Centre was a completely unrelated debt collection case where an ex parte order waslikely obtained contrary to the enabling legislation.

While the Court forcefully decried ex parte orders, it nevertheless acknowledged thatthe order stood as the appeal period had expired. [25] All Judges express concern about ex parte orders, but to suggest that such an approach gives a reasonable excuse to avoid theorder and its effect is indeed, as counsel suggest, a novel argument, that I cannot adopt. [26] To the contrary, in Carey, a solicitor breached a court order because he believed that it soon wouldn’t matter and that thefunds which had been frozen would flow to his clients anyway to satisfy their judgment.

The solicitor was afraid obedience to the orderwould disclose the existence of the funds or breach solicitor client privilege. The Supreme Court pointed out (at para 58): there were appropriate avenues open to him other than making a unilateral decision to breach the order. The unilateral approach that headopted gave no weight to the important principle that “a court order, made by a court having jurisdiction to make it, stands and isbinding and conclusive unless it is set aside on appeal or lawfully quashed”: Wilson v. The Queen, (SCC), [1983] 2S.C.R. 594, at p. 599. See also Ontario (Attorney General) v.

Paul Magder Furs Ltd. (1991), (ON CA), 6 O.R. (3d)188 (C.A.), at p. 192: “It is elementary that so long as … an order of the court remains in force it must be obeyed.” [27] Alternatives to the payment out included obtaining “a determination about whether the existence of the funds in trust wascovered by solicitor client privilege,” asking his client to waive privilege, or seeking “a variation of the order or direction from the courton an ex parte and in-camera basis” (para 59). [28] This issue also arose in United Nurses of Alberta v Alberta (Attorney General), (SCC), [1992] 1 SCR 901,(1992), 89 DLR (fourth) 609 (SCC) at 639 [United Nurses].

The issue there was that the UNA viewed the order of an administrativetribunal to be invalid, but despite this, it was entered as a valid order of the Court of Queen’s Bench and a decision concerning contemptwas made. A discussion arose about sub-facial validity of the order, and the Court responded as follows (at 935): the question is whether the inability of the judge to inquire into the validity of the order on the contempt proceeding deprives the judgeof a responsibility which should rest with a s. 96 court.

One way of approaching the problem is to ask whether a judge entertaining amotion for contempt of an order made by a judge of the court, as opposed to an inferior tribunal, would have the power to go behind theorder. It would seem not. The validity of the order is not an issue on the contempt hearing.

Unless the order has been set aside for wantof jurisdiction, the judge hearing the motion on criminal contempt must accept it as valid. [29] Justice McLachlin later noted (at 936 ): I note that the judge hearing the motion for contempt can decline to deal with the matter until the review proceedings are completed,thereby avoiding the danger of a finding of criminal contempt based on an invalid order.

In this case, the judge refused the motion toadjourn pending judicial review of the Board’s order, but nothing was made of this on appeal. [30] Likewise, I too will neither stay or adjourn these proceedings at this time pending counsel’s intention to review theappropriateness of the Rooke Order with Associate Chief Justice Rooke. Counsel may have leave to re-argue this point to determinewhether a stay of enforcement of any sanction I impose may be warranted based on the circumstances of this review. There is simply nojustification in my mind to entertain either an adjournment or a stay.

It is important that allegations of contempt be dealt withexpeditiously or the public will come to disregard the effect of court orders. At the present time, the Rooke Order is in full force andeffect and as Justice McLachlin in United Nurses pointed out, a contempt hearing is not the place to look behind a valid court orderunless and until it has been successfully appealed or revoked. Even that, may not temper the effect of a contempt while the order was ineffect. [31] After this matter was argued, Mr.

Scott’s counsel actually filed with the Alberta Court of Appeal an application for a stay anda review of the Rooke Order. This was brought to my attention and in response, counsel for AHS again reiterated their view that evendefective orders still remain in effect until they are successfully reversed or set aside.

Counsel provided me with Canada (Human RightsCommission) v Taylor, [1990] 3 SCR 892, [Taylor], a case in which the appellants sought to set aside a prior finding ofcontempt. [32] In Taylor, McLachlin J indicated: In my opinion, the 1979 order of the Tribunal, entered in the judgment and order book of the Federal Court in this case, continues tostand unaffected by the Charter violation until set aside. This result is as it should be. If people are free to ignore court orders becausethey believe that their foundation is unconstitutional, anarchy cannot be far behind.

The citizens’ safeguard is in seeking to have illegalorders set aside through the legal process, not in disobeying them. … For the purposes of the contempt proceedings, [the order] must be considered to be valid until set aside by legal process. Thus, theultimate invalidity of the order is no defence to the contempt citation. (Page 974) [33] I felt it appropriate to allow counsel for Mr. Scott to respond. Counsel attempted to distinguish the Taylor case by its facts.Despite the courage of this response it must fail.

As expressed by Justice McLachlin and many other authorities, there is nocircumventing an order merely because it may later be established to be defective.

E. Conclusion [ 34 ] My conclusion anchors upon the common-sense reality that Mr. Scott breached the Rooke Order. I have found beyond a reasonable doubt that he was served with the Rooke Order and had actual knowledge of the conduct the Order prohibited. Despite this, Mr. Scott persisted in a public and defiant manner in disobeying the Order. The three essential elements of the test for contempt have been established beyond a reasonable doubt.

Christopher Scott was in contempt of the May 6, 2021 Order of Associate Chief Justice Rooke, when he organized, promoted and attended a public gathering in Mirror, Alberta on May 8, 2021. He did not have a reasonable excuse for breaching the Rooke Order. He is guilty of contempt of the Rooke Order. [ 35 ] A future date will be set for the sanction phase of this case. Heard on the 3 rd day of June, 2021. Dated at Edmonton Alberta this 28 th day of June, 2021 A.W. Germain J. J.C.Q.B.A. Appearances: Ms. A. McClelland, & J. Siddons for Alberta Health Services the Applicant Mr. C. Williamson, and Mr.

Ken Johnston, for the Respondent, Christopher Scott