His Majesty the King - v. –, 2023 SKPC 37

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 37 Date: May 25, 2023 Information 991192882 Location: Regina Between: His Majesty the King - and – Tanya Apodaca, Gerald S. Ferguson, Cindy Gall, Christina Hagel, Jasmin Rayann Grandel, Erinn Knoll, Brenda L. Kriese, Tamara Lavoie, Edward Palmer Palchinski and John Slastukin Appearing: Bryan Carter For the Crown Elaine Anderson For the Accused: Apodaca, Ferguson, Grandel, Kriese and Slastukin Luke Coupal For the Accused: Gall and Palchinski Christina Hagel Self-Represented Erinn Knoll Self-Represented JUDGMENT M. HINDS, J INTRODUCTION

[ 1 ] Tanya Apodaca, Gerald S. Ferguson, Cindy Gall, Christina Hagel, Jasmin Rayann Grandel, Erinn Knoll, Brenda L. Kriese, Tamara Lavoie, Edward Palmer Palchinski and John Slastukin are charged that on or about May 15, 2021 at Regina, Saskatchewan they did fail to comply with a Public Health Order (PHO) by attending a gathering exceeding 10 people , contrary to

section 61 of The Public Health Act, 1994 , SS 1994, c P-37.1 [ The Public Health Act ]. [ 2 ] The trial of the accused took place before me on March 20, 21 and 23, 2023. Prior to the trial commencing, Jasmin Grandel entered a guilty plea to the charge before the Court. Ms. Grandel was sentenced to pay a fine and surcharge totalling $1,400.00. Tamara Lavoie did not attend court on March 20, 2021.

The Court granted the Crown’s request to enter a default judgment against Tamara Lavoie and imposed a fine and surcharge totalling $2,800.00. [ 3 ] Constables Curtis Warnar, Nolan Bespalko, Scott Douglas, Lorinda Power, Kevin Bowes, Eric Lauf, Jim Monaghan and Corporal Jason Wilkinson of the Regina Police Service (RPS) testified for the Crown at trial. Tanya Apodaca testified in her own defence. [ 4 ] Following the close of its case on March 21, 2023, the Crown stayed the charges against Gerald S. Ferguson, Brenda L.

Kriese and Edward Palmer Palchinski. [ 5 ] This judgment will consider the charges as against the following accused: Tanya Apodaca, Cindy Gall, Christina Hagel, Erinn Knoll and John Slastukin. [ 6 ] The Crown Exhibits consisted of the following: P-1 Certified Copy of a Public Health Order, dated May 6, 2021. P-2 Certified Copy of the Health Minister’s Order Delegating Powers to the Chief Medical Health Officer dated December 7, 2020. P-3 Disc containing seven photographs and one video recording taken by Cst.

Warnar. [ 7 ] Defence Exhibit D-1, consisted of an in-car video taken from police vehicle number 86. [ 8 ] For the reasons which follow, this Court finds Cindy Gall and John Slastukin guilty of the offence before the Court. In addition, this Court finds Tanya Apodaca, Erinn Knoll and Christina Hagel are not guilty of the offence before the Court. ISSUES [ 9 ] The issues to be determined are as follows: a. Has the Crown proved beyond a reasonable doubt that on May 15, 2021 a PHO was in place? b.

Has the Crown proved beyond a reasonable doubt that on May 15, 2021 , Tanya Apodaca, Cindy Gall, Christina Hagel, Erinn Knoll and John Slastukin failed to comply with a PHO by attending a gathering exceeding 10 people ?

a. Has the Crown proved beyond a reasonable doubt that on May 15, 2021 a PHO was in place? [ 10 ] A certified copy of the Health Minister’s Order delegating powers to the Chief Medical Health Officer dated December 7, 2020 was entered as Exhibit P-3 at trial. In addition, a certified copy of a PHO was entered as Exhibit P-2 at trial. It is comprised of a total of 14 pages. Pages 1 and 2 of the PHO read in part as follows: PUBLIC HEALTH ORDER PROVINCIAL ORDER May 6, 2021 (Under Subsection 45(2) of The Public Health Act, 1994 and

section 25.2(2) of The Disease Control Regulations ) WHEREAS: A. I, Dr. Saqib Shahab, an official with the Ministry of Health and the Chief Medical Health Officer for the Province of Saskatchewan, have been authorized by the Minister of Health to act under

section 45 of The Public Health Act, 1994 and under

section 25.2 of The Disease Control Regulations; B. The transmission of the infectious agent SARS-CoV-2, which has caused cases and outbreaks of a serious communicable disease known as COVID-19 among the population of the Province of Saskatchewan, is a serious health threat, as defined in The Public Health Act, 1994 ; C. COVID-19 is a category I communicable disease; D. To decrease or eliminate the risk to health presented by COVID-19, it is necessary to (

a) reduce the probability for transmission of SARS-CoV-2, and (

b) reduce the exposure to SARS-CoV-2; E. Multiple SARS-CoV-2 variants of concern have emerged worldwide and are now present in Canada and Saskatchewan. These variants of concern are more transmissible than the previously known variants, and are more likely to cause death or serious illness; F. As of May 6, 2021, the seven-day moving average of new COVID-19 cases in Regina is 19.9 cases per 100,000 people, compared to 17.6 cases per 100,000 for the rest of Saskatchewan. Regina presently accounts for just over one-quarter (27%) of Saskatchewan’s total active COVID-19 cases; G.

Also as of May 5, 2021, 7,848 cases of variants of concern have been detected in Saskatchewan. 4,168 of these cases were reported in Regina and the surrounding area. Variants of concern presently account for the majority of active COVID -19 cases in Regina; H. Household transmission is the largest known source of recent COVID-19 transmission in Saskatchewan. Evidence in other jurisdictions has shown that limiting small household gatherings has a substantial impact on reducing transmission of COVID-19; I.

A person infected with SARS-CoV-2, including a variant of concern, can infect other people with whom the infected person is in contact. The gathering of people in close contact with one another can promote the transmission of SARS-CoV-2, including variants of concern, and increase the number of people who develop COVID-19; J. I am aware of and have considered the impact that this Order and other public health measures, including the Re-Open Saskatchewan Plan, have had and will continue to have on the people of Saskatchewan; K.

I am continually evaluating and reconsidering these public health measures based upon the information and evidence available to me, including the impacts on the people of Saskatchewan previously discussed, and also including infection rates, sources of transmission, the presence of outbreaks, the number of people in hospital and in intensive care, deaths, the emergence of and risks posed by virus variants of concern, vaccine availability, immunization rates, the vulnerability of particular populations, and reports from the rest of Canada and other jurisdictions; L.

While issuing this Order, I have done my utmost to strike a proportionate balance between the public interest in holding and attending public and private gatherings against the serious risk that such gatherings pose to public health; M. I am aware of and have considered that the public interest includes constitutionally-protected interests, particularly the rights and freedoms protected by the Canadian Charter of Rights and Freedoms (“ Charter ”), including the freedom of religion, and association, and mobility rights.

I also recognize that the rights and freedoms protected by the Charter are not absolute, and are subject to reasonable limits, prescribed by law as can be demonstrably justified in a free and democratic society; N. When issuing this Order, I have considered alternative measures that are less impactful on the Charter -protected rights and freedoms of the people of Saskatchewan are appropriate and consistent with public health principles, including the precautionary principle.

I am aware of my obligations to choose measures that impact the Charter - protected rights and freedoms of the people of Saskatchewan as little as possible. To that end, this Order: a. Allows outdoor public and private gatherings up to ten people, both in and outside of the Regina Region;

b. Allows persons living alone or single parents with minor children to form household “bubbles” with one other household for social support; c. In concert with the Re-Open Saskatchewan Plan, allows 30 people to attend places of worship for ceremonial purposes; and d. Allows visitors in care homes where the rate of vaccination among the residents of the care home is high enough to substantially limit the spread of COVID -19 within the facility. O.

I consider the following measures necessary to decrease or eliminate the risk to health presented by COVID-19 and in the public interest, in order to prevent, reduce and control the transmission of SARS-CoV-2, including variants of concern; P. This Order imposes additional requirements or restrictions to those found in the Re-Open Saskatchewan Plan , as updated from time to time, and found on the Government of Saskatchewan website: Saskatchewan.ca. Where this Order conflicts with the Re-Open Saskatchewan Plan, this Order shall prevail; Q.

By virtue of the foregoing and under subsection 45(2) of The Public Health Act, 1994 and

section 25.2(2) of The Disease Control Regulations . This Order applies to all Individuals, businesses, institutions associations and other organizations within the Province of Saskatchewan and City of Lloydminster. Effective May 6, 2021 at 5:40 p.m. I rescind my April 27, 2021 “Provincial Order” and order the following 1. I hereby ORDER and DIRECT: Gathering Sizes and Restrictions . . . (

d) Subject to 4(c), public and private outdoor gatherings are permitted up to 10 persons. Persons in attendance must ensure that physical distancing of at least two metres between households are maintained. This

section does not apply to events and activities to the extent that the guidelines applicable in the Re-Open Saskatchewan Plan as amended from time to time, on the Government of Saskatchewan website (Saskatchewan.ca) explicitly permits or requires an alternative gathering size. In such case, the gathering size explicitly permitted or required shall not be exceeded and specified physical distancing shall be maintained. . . . Pages 10 and 12 of the PHO read in part as follows: 4. I hereby ORDER and DIRECT for the Regina Region: (

c) In the Regina Region, public and private outdoor gatherings are permitted up to 10 persons. Persons in attendance must ensure that physical distancing of at least 2 metres between households is maintained. This subsection does not apply to events and activities to the extent that the guidelines applicable in the Re-Open Saskatchewan Plan, as amended from time to time, on the Government of Saskatchewan website (Saskatchewan.ca) explicitly permits or requires an alternative gathering size. In such case, the gathering size explicitly permitted or required shall not be exceeded and specified physical distancing shall be maintained.

Page 13 states in part as follows: This order remains in effect until 12:01 a.m. on May 31st, 2021, or until, in the opinion of the Chief Medical Health Officer, thereis no longer a public threat, whichever shall first occur. [11] I am satisfied that the Crown has proved beyond a reasonable doubt that the PHO dated May 6, 2021 was in place on May 15,2021. [12] The PHO permits public and private outdoor gatherings up to 10 persons. I am of the view that by necessary implication, onMay 15, 2021, the PHO prohibits public and private outdoor gatherings over 10 persons.

In addition, I am of the view that the twometre distancing requirement between households applied to permissible gatherings up to 10 people, however, it did not apply togatherings over 10 persons. [13] The PHO does not define the word “gathering”. The Shorter Oxford English Dictionary defines the word gathering as follows: 3.A bringing together or coming together of people; an assembly, meeting. The Merriam-Webster Dictionary defines the word gatheringas follows: a coming together of people in a group (as for social, religious, or political purposes). Synonyms for gathering include:assembly, meeting.

Although both

definitions are helpful and suggest the same meaning, for the purpose of the PHO before me I adoptthe Merriam-Webster Dictionary definition for the word “gathering”. The Admissibility of Electronic Documents [14] The Crown has sought to have some electronic documents admitted into evidence. These electronic documents are found in Exhibit P-3, a disc which contains seven photographs and one video taken by Cst Warnar. Mr. Coupal on behalf of his client, Mr. Slastukin, has also sought to have Exhibit D-1, a video from PoliceVehicle – Car 86, admitted into evidence.

As a result this requires a consideration of the electronic document provisions of the CanadaEvidence Act, RSC 1985, c C-5, s. 31.1 [CEA] and the relevant case law.

The applicable statutory provisions for present purposes are ss.31.1 to 31.8 of the CEA which apply solely to electronic documents and create a framework for the admission of all forms of "electronicdocument," which is broadly defined in s. 31.8 together with several related terms. [15] In my previous written decision, R v Friesen, 2023 SKPC 21, I quoted extensively at paragraphs 12 and 13 from theSaskatchewan Court Appeal decision in R v Durocher, 2019 SKCA 97, 380 CCC (3d) 511.

In Durocher Madam Justice Schwannprovides a comprehensive guide to the admissibility of electronic documents which I use for this case as well. In addition, I note that thetrier of fact is entitled to draw its own conclusions as to identity by comparing video to the person before it: R v Nikolovski, (SCC), [1996] 3 SCR 1197; R v John, 2021 SKCA 83 at paras 23 - 25, 405 CCC (3d) 184; R v Delorme, 2017 SKCA 3 at paras 37 -41. The evidence of Cst. Warnar including the seven photographs and one video recording taken by him [16] Cst. Warnar is a forensic identification officer with the RPS.

On May 15, 2021 he was tasked with taking some photographs anda video recording of people situated on the north sidewalk of Victoria Avenue, which is adjacent to the south side of Victoria Park indowntown Regina. He testified that he parked his vehicle in front of the Saskatchewan Sports Hall of Fame on Victoria Avenue. This ison the south side of Victoria Avenue across from Victoria Park. He arrived at 2:59 p.m. and departed four minutes later. He spent twoof these minutes taking seven photographs and one video recording, which have been loaded onto a disc and entered into evidence asExhibit P-3.

He testified that the photographs and video are an accurate depiction of what he saw that day and have not been altered inany way. [17] The seven photographs and one video recording taken by Cst. Warnar depict a number of different people situated on the northsidewalk of Victoria Avenue, which is adjacent to the south side of Victoria Park on May 15, 2021. [18] Defence Exhibit D-1 is a video recording obtained from a police vehicle number 86, on May 15, 2021. This police vehicle isparked facing north on Lorne Street just south of where it intersects with Victoria Avenue.

The camera view from car 86 shows theentire intersection where Lorne Street meets Victoria Avenue. The recording begins at 4:25:52 p.m. and ends at 5:24:05 p.m. There isnothing to suggest that the video recording does not accurately depict what occurred at this intersection. Nor is there anything to suggest

the video has been altered in any way. [ 19 ] I am satisfied that the photographs and video taken by Cst. Warnar and the in-car video obtained from police car 86 are electronic documents within the meaning of the CEA . I am of the view that the testimony surrounding the taking of the photographs and video on May 15, 2021 and the in-car video from car 86, meets the threshold for authenticity supporting the conclusion that the photographs and videos are what they are claimed to be. I am also of the view that the best evidence requirement set out in s. 31.2 of the CEA has been met.

No evidence to the contrary was presented and there is no reasonable basis to doubt the integrity of the electronic document system, i.e. the camera and in-car video. There is no suggestion that the photographs or video have been altered or tampered with. I am satisfied that the presumption of integrity set out in ss. 31.3(

a) of the CEA applies. I find they are admissible in the trial before me. [ 20 ] The first photograph in Exhibit P-3 is number 174. It shows a total of 20 people situated on the north sidewalk on Victoria Avenue. These 20 people are not situated altogether in one tight group. Rather they are somewhat spread out over what I estimate to be approximately 50 feet. Two women shown in photograph number 174 are carrying protest signs which say “All Humans Are Essential” and “Enough is Enough”. A third man is carrying a sign, however, the message on the sign cannot be seen.

One sign is on the ground near some of the people which says: “No Gestapo Police”. A fourth sign is planted in the boulevard separating eastbound and westbound traffic on Victoria Avenue. It says “Facts Over Fear”. During the testimony of Cst. Warnar, respecting photograph 174, Ms. Anderson, legal counsel for Mr. Slastukin admitted that the large man, wearing a red shirt, black shorts and a ball cap is John Slastukin. Ms. Anderson made a similar admission respecting the identity of Mr. Slastukin in photographs 177 and 181. [ 21 ] The second photograph is number 175.

It shows a total of 17 people situated on the north sidewalk on Victoria Avenue. These 17 people are not situated altogether in one tight group. Rather they are somewhat spread out over what I estimate to be approximately 50 feet. The man in photograph number 174 can now be seen holding up his sign which says “Just Say No”. Two women previously seen at the far righthand edge of photograph 174 are more visible in photograph 175. One of these women is wearing a blue jean jacket and a skirt. She is carrying a pink megaphone and has blonde hair. She is carrying a red sign which says “Honk for Freedom”.

The second woman is wearing a white sleeveless top and is wearing sunglasses. She is carrying a sign which says “Say No To Vaccine Passports”. During the testimony of Cst. Warnar, respecting photograph 175, Mr. Coupal, legal counsel for Ms. Gall, admitted that the woman wearing a white shirt, black shorts and tie died pants with reddish hair is Cindy Gall. Mr. Coupal made a similar admission respecting the identity of Ms. Gall in photograph 177 and 181. [ 22 ] The third photograph is number 176. It shows a total of nine people situated on or near the north sidewalk on Victoria Avenue.

This photograph shows a man dressed in a black sleeveless shirt and black shorts standing in front of a speaker mounted on a tripod. Three individuals are situated inside the south entrance to Victoria Park. They appear to be talking to each other. Two other women are sitting at the base of a traffic light standard, situated by the south entrance to the park. The woman carrying the sign saying “All Humans Are Essential “ is situated in front of these two women. Two other women are standing on the sidewalk to the right of the woman carrying the sign. [ 23 ] The fourth photograph is number 177.

It shows a total of 17 people situated on the north sidewalk on Victoria Avenue. It is much like photograph number 174. [ 24 ] The fifth photograph is number 178. It shows a total of 11 people situated on the north sidewalk on Victoria Avenue. It is much like photograph 175. [ 25 ] The sixth photograph is number 180. It shows a total of eight people. It is much like photograph number 176. [ 26 ] The seventh photograph is number 181. It shows a total of 15 people. It is much like photograph number 175. [ 27 ] The video is number 179. It is 14 seconds long.

It pans the north sidewalk area shown in the seven photographs. It shows a total of 22 people are situated on or near the north sidewalk area of Victoria Avenue, near the south entrance to Victoria Park. Testimony of Cpl. Jason Wilkinson [ 28 ] Cpl. Jason Wilkinson is a member of the RPS. On May 15, 2021, he was working with the combined traffic unit and was assigned to assist other police officers monitoring a freedom rally taking place in Victoria Park. He arrived on scene at 2:00 p.m. He parked his unmarked vehicle facing westbound on Victoria Avenue, between Scarth Street and Cornwall Avenue.

He remained in place

until shortly after 5:00 p.m. He worked with Acting Sgt. Robinson to identify people who were at the freedom rally. He used binoculars to observe some of the people who were situated near the south entrance to Victoria Park. In preparation for this assignment he reviewed the names of people who had been involved in previous rallies, briefing notes and photographs. [ 29 ] At the start of the freedom rally, around 2:00 p.m., Cpl. Wilkinson observed between 10 and 12 people initially congregating on the north sidewalk of Victoria Avenue near the south entrance to Victoria Park.

The gathering of people grew to between 20 to 24 people at the south entrance to Victoria Park. Some of these people who had gathered near the south entrance moved from the main group and began walking what he termed a “square”. They would walk southbound at a crosswalk where Cornwall Street intersects with Victoria Avenue, then walk westbound across Cornwall Street and then walk northbound in a nearby crosswalk back to the north sidewalk of Victoria Avenue which is adjacent to Victoria Park.

A number of people congregated on the north sidewalk of Victoria Avenue and those walking the square were carrying signage respecting the Premier, the PHO itself or the Chief of Police. [ 30 ] Cpl. Wilkinson also testified that there was a small group of about four people that had broken off from the main group of people. This small group of people stood at the north corner of Victoria Avenue and Scarth Street. They were about half a block away from the main group of people. [ 31 ] The size of the group changed over the three hours Cpl. Wilkinson was there. Some people attended and left. Some people came later.

People were moving about all the time. During the majority of the afternoon, Cpl. Wilkinson estimates there were between 20 to 32 people. When Cpl. Wilkinson first got there at 2:00 p.m., the number of people gathered near the south entrance to Victoria Park was between 10 to 12 people. These people were setting up, bringing out signage, some literature, a generator and loudspeakers from which music was played. [ 32 ] Cpl. Wilkinson testified that he was involved in another rally a week prior to May 15, 2021.

As a result, he testified that he was able to identify some of the people present at the rally on May 15, 2021. He personally observed the following people: 1. Jasmin Grandel who he personally knows. Ms. Grandel was wearing a calf length black dress with flowers on it, a blue-jean jacket and was holding a megaphone. She was standing with the main group of people. She looked to be an organizer as she was going from person to person during the rally, conversing with people and shaking hands and hugging some people. 2. Cindy Gall who he knew from a rally held the previous week .

On May 15, 2021, Cindy Gall was wearing a white tank top, either yellow or green leggings. In addition, at that time Ms. Gall had distinctive bright red hair. Cpl. Wilkinson observed Cindy Gall interact with the main group of people at the entrance to the park. Cindy Gall was also holding a sign and doing a lot of dancing and trying to attract the attention of passing motorists. Ms. Gall also spent quite a bit of time standing on the centre meridian which divides Victoria Avenue at this location, waiving her sign. 3. John Slastukin, who he knew from his childhood. Cpl.

Wilkinson saw John Slastukin standing on the sidewalk with the main group of people near the entrance to the park. Mr. Slastukin was wearing a red t-shirt and a red and white ball hat. John Slastukin was in the main group for the majority of the rally. He was observed shaking hands and speaking to other people. He was ticketed at the end of the rally. 4. Nora Selzer, who he identified from his briefing notes. 5. Tamara Lavoie, who he knew from a rally held the previous week and was part of the briefing notes he obtained for May 15, 2021. [ 33 ] Cpl.

Wilkinson also testified that there were other people he observed at the rally on May 15, 2021, however, he did not know their names on that date. Cpl. Wilkinson was asked if he saw anyone in court on March 20, 2021, that he saw at the rally on May 15, 2021. Cpl. Wilkinson testified that he saw Tanya Apodaca and Erinn Knoll on May 15, 2021. He pointed out these two accused who were in the courtroom on March 20, 2021. [ 34 ] Cpl. Wilkinson testified that Tanya Apodaca was part of the main rally, at the entrance to Victoria Park, for the majority of the afternoon.

He could not say whether Tanya Apodaca moved during the rally. He testified that she was “lingering about” throughout the rally. He testified that on May 15, 2021, Tanya Apodaca was wearing a black hoodie and her hair was in long black dreadlocks.

[ 35 ] At the end of the rally two officers were dealing with John Slastukin. Other ralliers started to gather around them. This particular incident took place near the intersection of Lorne Street and Victoria Avenue. Cpl. Wilkinson became concerned for the safety of the two officers who were dealing with Mr. Slastukin and he advised the rest of the officers who were present to converge at this location. Cpl. Wilkinson went to this location himself. He observed a group of people who were yelling at the officers dealing with Mr. Slastukin. One of the people within this group was Tanya Apodaca. He advised Cst.

Lauf to deal with Ms. Apodaca. [ 36 ] Cpl. Wilkinson testified there were probably more than 10 people in the group of people that gathered around the two officers and John Slastukin. He testified that others in the group included Erinn Knoll, Cindy Gall, Gerald Ferguson and Tamara Lavoie. He added, this group was around the 10 mark. This group of people moved about and did not seem concerned about social distancing. They used their cell phones to take videos of what was happening. [ 37 ] Cpl.

Wilkinson thought Tanya Apodaca and Erinn Knoll were hanging out together and conversing near the main entrance to Victoria Park on May 15, 2021. Ms. Knoll was wearing a black hoodie and a ball cap. Erinn Knoll was also with the group that tried to surround the officers near the intersection of Lorne Street and Victoria Avenue. As a result, he singled Erinn Knoll out and had Cst. Power deal with her. [ 38 ] Cpl. Wilkinson testified that he observed that Cindy Gall was present at the beginning of the rally, near the main entrance to Victoria Park. She was dancing, waiving signage and yelling at traffic. Ms.

Gall was observed on the meridian on Victoria Avenue for the majority of the rally. She was also present at the end of the rally as described in paragraph 36. Ms. Gall received a ticket from Cst. Bowes that day and then returned to the rally. He observed that Ms. Gall was interacting with Tamara Lavoie, Jasmine Grandel and John Slastukin at the rally. She was holding a sign which said: “Chief Bray Head of Regina Gestapo”. [ 39 ] Cpl. Wilkinson testified that like Cindy Gall, John Slastukin was present during the entire rally.

He observed John Slastukin interacting and speaking with others in the group, including Jasmine Grandel and Tamara Lavoie. Near 5:00 p.m., he saw John Slastukin shaking hands with and hugging Tamara Lavoie. Mr. Slastukin departed the rally and then encountered police. [ 40 ] Cpl. Wilkinson testified that he did not know who Tanya Apodaca was during the rally. Cpl. Wilkinson did not know when Tanya Apodaca arrived at the rally. However, she was present for a large portion of the rally and until it ended. Cpl.

Wilkinson recalls that she was standing near the entrance to the park interacting with others in the group. [ 41 ] Cpl. Wilkinson testified that he observed Erinn Knoll over the same time as Ms. Apodaca. She was part of the main group. Ms. Knoll and Ms. Apodaca stood together, interacted with each other and other people on the sidewalk adjacent to the south entrance to the park. The main group were spaced out over approximately 50 feet near the south entrance to Victoria Park.

Some members of this group broke off and walked in a square by crossing back and forth between the north and south sidewalk of Victoria Avenue. Other people broke away from the main group and went to the intersection of Victoria Avenue and Lorne Street, about a half block away. The people in the main group were not maintaining physical distancing. They were within six feet of each other, conversing, shaking hands, hugging and dancing with each other. [ 42 ] On cross-examination by Ms. Anderson, Cpl. Wilkinson testified that the number of people in the main group changed over time.

The main group was approximately 50 feet in length and was located on the north sidewalk of Victoria Avenue, near the south entry to Victoria Park. This group was fluid. He cannot say for certain who came and left, exactly at what points in time. There were more people at certain points in time and less people at certain points in time. The main group of people were moving around on the sidewalk and talking to each other. He also testified that it’s difficult to nail down a specific number of people. “That wasn’t really our focus, as to at each moment in time, tell how many people are in what area.

Their focus was how to identify the people gathered as a group.” [ 43 ] Cpl. Wilkinson testified that he is absolutely certain that he saw Tanya Apodaca in the main group. However, he cannot say exactly when Tanya Apodaca arrived. In addition, he does not recall what time that he saw Tanya Apodaca in the main group. [ 44 ] On cross-examination by Mr. Coupal, Cpl Wilkinson testified that the maximum number of people he observed that afternoon was between 20 to 32. This would be the group of people at the rally in their entirety.

This would include: (1) the people in the main group on the north sidewalk of Victoria Avenue near the south entry to Victoria Park (2) some people who broke off from the main group for a time and walked and danced on the Victoria Avenue meridian (3) the people who broke off from the main group for a time and walked the square, back and forth across Victoria Avenue in the crosswalk area, and (4) a group of four people that had broken off from the main group of people and stood at the corner of Victoria Avenue and Scarth Street.

[ 45 ] Cpl. Wilkson further testified that no more than five people on average were on the Victoria Avenue meridian at any given time. He estimated the distance between the outside edge of the sidewalk and the meridian was three traffic lanes, a distance of 20 to 25 feet. He admitted that he did not know the household members of Cindy Gall or Tanya Apodaca. [ 46 ] It was a fluid event, people were coming and going from the event.

He was focused on a number of things during the rally including (1) the interactions between people (2) whether there was masking or physical distancing and (3) whether more than 10 people were present. Testimony of Cst. Bowes [ 47 ] Cst. Bowes issued a public health ticket to Cindy Gall on May 15, 2021. This occurred on the southside of Victoria Avenue near Scarth Street. Testimony of Cst. Douglas [ 48 ] Cst. Douglas stopped a blue Ram truck which he was advised was leaving the rally at Victoria Park on May 15, 2021. This traffic stop occurred near the intersection of Victoria Avenue and Smith Street in Regina.

Christina Hagel was driving the Ram truck. She gave her driver’s licence to Cst. Douglas. He gave her a public health ticket at 4:40 p.m. Cst. Douglas could not recall what Ms. Hagel was wearing that day. Testimony of Cst. Bespalko [ 49 ] On May 15, 2021, Cst. Bespalko was tasked with being on the perimeter of a protest occurring in Victoria Park. He was parked on Cornwall Street. Around 5:00 p.m he was specifically tasked with issuing and serving a ticket on John Slastukin. Mr. Slastukin was identified as wearing a red shirt and a red baseball cap. It appears Cst.

Bespalko drove his vehicle a short distance and stopped his police vehicle on Lorne Street. He got out of his vehicle in search of Mr. Slastukin. He saw Mr. Slastukin was walking away from him. Cst. Bespalko called out to John Slastukin a number of times. After catching up to Mr. Slastukin around 5:05 p.m. Cst. Bespalko put his hand on Mr. Slastukin’s shoulder and identified himself. He told Mr. Slastukin that he needed to interact with him with respect to a PHO contravention. Cst. Bespalko asked Mr. Slastukin to come with him to his police vehicle so that he could issue him a ticket. Mr.

Slastukin indicated he wanted other people around him to come with him. [ 50 ] Initially, Mr. Slastukin was not cooperative with Cst. Bespalko. He was not prepared to provide his name to the officer. Cst. Bespako esorted Mr. Slatukin to Lorne Street. At 5:07 p.m., Cst. Bespalko arrested Mr. Slastukin for obstruction and placed him in his police vehicle parked on Lorne Street near the intersection of Victoria Avenue. Cst. Bespalko dealt with Mr. Slastukin until 5:25 p.m. During that time he confirmed Mr. Slastukin’s identity and read Mr. Slastukin his rights to counsel. Mr.

Slastukin was given a ticket for participating in a gathering exceeding 10 people. Mr. Slastukin was not charged with obstruction. [ 51 ] During the first interaction between Cst. Bespalko and Mr. Slastukin, on the sidewalk of Victoria Avenue, a couple of people stood nearby them. Cst. Bespalko testified that soon thereafter the number of people standing nearby them grew to a group of at least seven or eight people, at the time he arrested Mr. Slastukin for obstruction. Some of these people yelled some things at him. [ 52 ] On cross-examination by Ms. Anderson, Cst.

Bespalko admitted that he personally did not see John Slastukin in a group of more than 10 people. Cst. Bespalko estimates that after Mr. Slastukin asked other people to join him, there were seven or eight people in total. On cross-examination by Mr. Coupal, Cst. Bespalko admitted that he does not know who lives with John Slastukin. Testimony of Cst. Power [ 53 ] Cst. Power was also working on May 15, 2021, monitoring a rally in Victoria Park. Cst. Power testified that she assisted Cst. Bespalko when he escorted Mr.

Slastukin along the north sidewalk of Victoria Avenue from Cornwall Street to Lorne Street where Cst. Bespalko’s patrol vehicle was parked. She estimates that about 10 to 12 protestors followed Cst. Bespalko and herself. There were males and females in this group. Most of them were carrying protest signs. After Cst. Bespalko got Mr. Slastukin into his patrol car, she observed that Erinn Knoll was amongst the 10 to 12 protestors that had followed them. She interacted with Ms. Knoll. Ms. Knoll said that she did not have any identification on her. Cst. Power obtained a photograph and compared it to Ms. Knoll.

It was a match. In addition, Ms. Knoll told Cst. Power her name was Erinn Knoll.

[ 54 ] On cross-examination by Ms. Anderson , Cst. Power could not say exactly whether she saw 10 or 12 protestors. On cross- examination by Mr. Coupal, Cst. Power testified that she did not count an exact number of protestors. Testimony of Cst. Lauf [ 55 ] Cst. Lauf was assigned to the traffic safety unit and was working on May 15, 2021. He was dispatched to Victoria Park to monitor a rally. He was positioned on Lorne Street near the intersection of Victoria Avenue. Cst. Lauf testified that Cst. Bespalko and Cst. Power were arresting a male wearing a red hat. They were approaching his location.

At that time he also observed 10 to 12 people were also approaching his location. He got out of his vehicle, walked forward and tried to keep these people away from Cst. Bespalko as he made his arrest. After Cst. Bespalko put the male in his patrol car, Cpl. Wilkinson advised Cst. Lauf to issue a ticket to Tanya Apodaca. Cst. Lauf saw Tanya Apodaca within this group of 10 to 12 people. Cst. Lauf testified that he has known Tanya Apodaca for over twenty years and recognized her. [ 56 ] Cst.

Lauf interacted with Tanya Apodaca at 5:10 p.m. at the south corner of Victoria Park near the intersection of Lorne Street and Victoria Avenue. He asked Ms. Apodaca for her name. She did not provide it to him. He searched her name on the SGI Autofund database. Her profile was obtained. It showed a photograph which matched her. He also obtained Ms. Apodaca’s full name and address from the database. He issued a ticket to Tanya Apodaca at 5:18 p.m. [ 57 ] On cross-examination by Ms. Anderson, Cst. Lauf admitted that he did not see where these 10 to 12 people came from. Cst.

Lauf also testified that the time on the ticket is 3:30 p.m., which he explained was the occurrence time, as opposed to the time he issued the ticket to Ms. Apodaca. [ 58 ] Mr. Coupal also cross-examined Cst. Lauf. Mr. Coupal showed Cst. Lauf a video which was marked at Exhibit D-1. Cst. Lauf testified that the RPS has a traffic vehicle number 86. This police vehicle has audio/visual recording equipment. Exhibit D-1 shows a video recorded by RPS vehicle 86 on May 15, 2021 between 4:25:52 p.m. and ends at 5:24:05 p.m. Vehicle 86 is parked on Lorne Street facing north across Victoria Avenue.

The southwest corner of Victoria Park and the sidewalks on Lorne Street and Victoria Avenue can be seen in the video recording. Cst. Lauf’s black coloured Ram Charger can be seen parked on the west side of Lorne Street facing east. Exhibit D-1 provides a visual recording of Csts. Bespalko and Power escorting Mr. Slastukin westbound on the north sidewalk of Victoria Avenue to Cst. Bespalko’s patrol car, which is parked on the east side of Lorne Avenue. This recording is taken from a considerable distance away from the incident itself. This makes it difficult to clearly see the players involved. [ 59 ] Cst.

Lauf testified that at 5:02:16 p.m., the video recording shows two people situated on the meridian of Victoria Avenue, waving some signs to oncoming traffic. At approximately 5:04:38 the video recording shows two police vehicles pulling onto and stopping in the east side parking lane of Lorne Street, just north of Victoria Avenue. Two officers, which I infer are Cst. Bespalko and Cst. Power, exit these police vehicles and walk in an easterly direction on the north sidewalk of Victoria Avenue towards the south entrance to Victoria Park. Cst. Lauf testified that at 5:06:13 p.m., Cst. Bespalko and Cst.

Power are seen to be escorting a male (Mr. Slastukin), in a westerly direction on the north sidewalk of Victoria to their police vehicles. Some other people are following them. Cst. Lauf further testified that at 5:07:57 police vehicle number 86 moves northward just past Victoria Avenue and comes to a stop on Lorne Street. At this point in time Cst. Bespalko, Cst. Power, Mr. Slastukin and other people who are following them cannot be seen. [ 60 ] I have reviewed Exhibit D-1 many times, particularly the four minute segment of the video between 5:04:00 p.m. and 5:08:00 p.m.

I note there are buffering problems with the video during this time. As a result the viewing of the video is interrupted and does not play continuously for several multi-second segments of time. In addition, the clarity of the video is lacking. With these caveats, I am of the view that at 5:04:25 p.m., one marked and one unmarked police vehicles have parked on the east side of Lorne Street, just north of Victoria Avenue. Two uniformed officers (Bespalko and Power) get out of their vehicles at 5:04:42 and walk westbound on the north sidewalk of Victoria Avenue towards the south entry to Victoria Park.

At 5:06:06 p.m. the video shows about four or possibly five people are walking westbound, following Cst. Bespalko, Cst. Power and Mr. Slastukin, to the east sidewalk on Lorne Street, near the officers’ police vehicles. At 5:06:23 it appears that three other people, including a man wearing a red hat and a green shirt came towards the group of four or five people who were situated near Mr. Slastukin and the two police officers. At approximately 5:06:26 it appears that Cst. Bespalko (the larger of the two officers) separates Mr.

Slastukin from the rest of the people and leads him to his police vehicle, where he is placed. During this time, two people with protest signs are situated on the Victoria Avenue meridian. These two people are approximately distanced 30 feet from the group of people who were situated around Mr. Slastukin. Testimony of Tanya Apodaca [ 61 ] Tanya Apodaca testified that on May 15, 2021, she was working at a Naturopathic business named Head to Toe Family Wellness. She closed up the business at 4:00 p.m. that day. She changed her clothing and decided to walk over to a protest in Victoria Park.

She thinks she left her place of work between 4:15 and 4:20 p.m. and arrived at the protest between 4:40 or 4:45 p.m. She testified that by that time, the protest had pretty much ended. Ms. Apodaca testified there was only a handful of people left. She was in a group of between seven and eight people, including herself, that witnessed the arrest of John Slastukin. There were other people around and

within Victoria Park that day. There were also other people, unknown to her on the sidewalks next to Victoria Park that day. [ 62 ] Exhibit D-1 was played for Ms. Apodaca. She testified that at 5:06:12 p.m. the video shows the time when “Johnny” (John Slastukin) was being arrested. She further testified that John Slastukin asked [the police] if he could bring other people with him. At that time there were four or five of “us” with John Slastukin. Ms. Apodaca testified, that the number of people she was with grew to a small group of between seven and eight with John Slastukin.

She further testified that at this time a person in a red hat and two other people were nearby. She stated these people were not part of her group. She does not know who these three people are. Nor does she know the two people who are standing on the centre meridian on Victoria Avenue. [ 63 ] Tanya Apodaca was present in court, when Cpl. Wilkinson testified that she was part of the main rally at the entrance to Victoria Park, for the majority of the afternoon.

She testified that she was not present at the event at this time. [ 64 ] On cross-examination, Tanya Apodaca admitted that on February 7, 2021, she was convicted of a public gathering offence and received a fine of $2,100.00. She also admitted that she was not in favour of gathering restrictions imposed by the government. She also admitted that she was aware a protest was going to take place in Victoria Park on May 15, 2021. When she went to Victoria Park she was intending to participate in the protest. [ 65 ] On cross-examination, Tanya Apodaca admitted that she knows Christina Hagel from going to protests.

She indicated that she has met Ms. Hagel more than a dozen times. Ms. Apodaca identified Ms. Hagel as being present in the courtroom on March 21, 2023. Ms. Hagel has blonde hair. The Crown showed Ms. Apodaca Exhibit P-3, photograph 175. She was asked if the woman holding a pink sign which says “Say No to Vaccine Passports” in photograph 175 is Christina Hagel. Ms. Apodaca testified that this was possibly Christina Hagel. Ms. Apodaca noted the blonde haired woman in the photograph is wearing sunglasses and there is a tree in front of her. She added that she did not see Christina Hagel on May 15, 2021.

I cannot find fault with Ms. Apodaca’s testimony on this point. I have seen Christina Hagel in my Court more than five times. As the trier of fact, having reviewed photograph 175, I am unable to conclude beyond a reasonable doubt that the woman holding a pink sign in Exhibit P-3, photograph 175 is Christina Hagel. The woman’s face in photograph 175 is partially obstructed by a tree. She is wearing sunglasses. In addition, the image of this woman in photograph 175 is quite small. b.

Has the Crown proved beyond a reasonable doubt that on May 15, 2021, Tanya Apodaca, Cindy Gall, Christina Hagel, Erinn Knoll and John Slastukin failed to comply with a PHO by attending a gathering exceeding 10 people ?

ANALYSIS John Slastukin and Cindy Gall [ 66 ] When I consider the seven photographs and video in Exhibit P-3 as a whole, they reveal that on May 15, 2021, between approximately 3:00 p.m. and 3:02 p.m., 22 people came together along the north sidewalk of Victoria Avenue, near and just inside the south entrance to Victoria Park, to protest against the actions and restrictions put in place by the government as a result of COVID-19. Legal counsel have admitted that John Slastukin and Cindy Gall were amongst this group of people at that time, which I find exceeded 10 people. The evidence of Cpl.

Wilkinson, respecting John Slastukin and Cindy Gall, being at the rally and being part of it and interacting with the main group of people gathered near the south entry to Victoria Park that day, reinforces my conclusion. Hence, I find that the Crown has proved beyond a reasonable doubt that on May 15, 2021, Cindy Gall and John Slastukin failed to comply with a PHO by attending a gathering exceeding 10 people . Tanya Apodaca and Erinn Knoll [ 67 ] There is conflicting evidence respecting Tanya Apodaca, which also in my view affects the Crown’s case against Erinn Knoll. On the one hand, Cpl.

Wilkinson testified that on May 15, 2021, he saw Tanya Apodaca and Erinn Knoll in the main group of protestors, which exceeded 10 people, near the south entrance to Victoria Park. According to Cpl. Wilkinson, Ms. Apodaca and Erinn Knoll were there for the majority of the afternoon between 2:00 p.m. and 5:00 p.m. On the other hand, Tanya Apodaca testified that on May 15, 2021, she was working until 4:00 p.m. She changed her clothing and decided to walk to Victoria Park. She arrived between 4:40 and 4:45 p.m. Initially she was in a group of between four to five people, including Mr.

Slastukin, near the south entry to Victoria Park. Very soon thereafter she was in a group of between seven and eight people with John Slastukin when he was arrested and placed in a police vehicle on Lorne Street. I find the police encounter with Mr. Slastukin which I have described above, occurred between approximately 5:05 and 5:08 p.m.

[ 68 ] A trier of fact can accept all, part or none of the evidence provided by a witness. In addition, the credibility and reliability of the witnesses testifying before the Court is always important for a judge to consider. On this point, I am reminded of the words of Mr. Justice Kalmakoff in R v Wolff , 2019 SKCA 103 at para 38 : [38] It is clear that there are two important aspects for a trier of fact to consider in assessing the testimony of witnesses: (

i) credibility, and (ii) reliability. Credibility has to do with the veracity of witness's testimony; reliability has to do with its accuracy. A witness who is credible may provide unreliable evidence, because honest witnesses can misperceive events, have poor memory, or just be wrong. [ 69 ] In this case, I found that both Cpl. Wilkinson and Tanya Apodaca were credible witnesses. However, I do have concerns about the reliability (accuracy) of Cpl. Wilkinson’s evidence with respect to Tanya Apodaca and Erinn Knoll.

On May 15, 2021, he was using binoculars to observe protestors, some of which he was previously familiar with. Despite having no previous knowledge of or experience with Tanya Apodaca or Erinn Knoll, Cpl. Wilkinson is certain that he saw them hanging out together in the main group of protestors near the south entry to Victoria Park, during the majority of the afternoon of May 15, 2021. However, on cross-examination it was revealed that he could not say exactly when Tanya Apodaca arrived. Nor, more importantly, could Cpl.

Wilkinson recall what time he actually saw Tanya Apodaca in the main group. [ 70 ] For those reasons, I am left with a reasonable doubt as to whether Tanya Apodaca and Erinn Knoll were in the main group of protestors near the south entry of Victoria Park during the majority of the afternoon of May 15, 2021. However, I do find that Tanya Apodaca was at Victoria Park around 4:45 p.m. By that time, the protest was largely over. I find that very soon thereafter, Ms.

Apodaca was in a group of between seven and eight people, including herself, who were present during the police encounter with John Slastukin and his subsequent arrest and placement in a police vehicle which occurred between approximately 5:05 and 5:08 p.m. I also find that Erinn Knoll was in this group of between seven and eight people. [ 71 ] I also find there is support for Ms. Apodaca’s account that she was in a group of between seven and eight people including herself.

First of all, as set out in paragraph 60 of this decision I am of the view that Exhibit D-1 shows about four or five people initially followed Cst. Bespalko, Cst. Power and Mr. Slastukin to the east sidewalk on Lorne Street near the officers’ police vehicles. Three other people later came towards this group while the police were dealing with John Slastukin. I am also reminded that Cst. Bespalko testified that shortly after 5:00 p.m. he did not see John Slastukin in a group exceeding 10 people. In addition, he testified that during his initial interaction with Mr.

Slastukin, on the sidewalk of Victoria Avenue, a couple of people stood nearby them. Cst. Bespalko testified that soon thereafter the number of people standing nearby them grew to a group of seven or eight people at the time he arrested Mr. Slastukin for obstruction. For her part, Cst. Power estimated that about 10 to 12 protestors followed Cst. Bespalko, herself and Mr. Slastukin, however, she acknowledged that she did not count an exact number of protestors. As for Cst. Lauf, he saw Tanya Apodaca within a group which he estimated to be of between 10 to 12 people. Cpl.

Wilkinson testified there were probably more than 10 people in the group of people that gathered around the two officers and John Slastukin. [ 72 ] Based on the whole of the evidence before me, I find that there were about seven or eight people present during the police encounter, escort and arrest of Mr. Slastukin. I find that Tanya Apodaca and Erinn Knoll were among these people. A few other people may have came towards this group on Lorne Street, however, I am not convinced beyond a reasonable doubt that any of these additional people were known to or part of the group of seven or eight people.

For these additional reasons, I am not convinced that the Crown has established beyond a reasonable doubt that Tanya Apodaca and Erinn Knoll failed to comply with a PHO by attending a gathering exceeding 10 people . [ 73 ] I also find on the whole of the evidence before me, that the Crown has not established beyond a reasonable doubt, that on May 15, 2021, Christina Hagel failed to comply with a PHO by attending a gathering exceeding 10 people . CONCLUSION [ 74 ] As a result of my determination of the issues , I find John Slastukin and Cindy Gall guilty of the offence before the Court.

In addition, I find Tanya Apodaca, Erinn Knoll and Christina Hagel are not guilty of the offence before the Court.

_________________________ M. Hinds, J