His Majesty the King - v. –, 2023 SKPC 34

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 34 Date: May 10, 2023 Tickets: 85437645 Location: Regina Between: His Majesty the King - and – John Slastukin Appearing: Bryan Carter For the Crown Luke Coupal For the Accused JUDGMENT M. HINDS, J Introduction [ 1 ] John Slastukin is charged that on May 1, 2021 at Regina, Saskatchewan he did fail to comply with a Public Health Order (PHO) by being involved in a public or private outdoor gathering of people exceeding 10 persons, contrary to

section 61 of The Public Health Act, 1994 , SS 1994, c P-37.1 [ The Public Health Act, 1994 ]. The evidentiary portion of this trial was heard on February 17, 2023. [ 2 ] On January 5, 2023, a Notice of Constitutional Question (NCQ) was filed on behalf of John Slastukin with respect to Ticket 85437645. Mr. Slastukin challenged the validity of section 4(1) of the material PHO or any similarly worded material order on the basis it breaches his Charter rights, namely: a.

Section 2(

c) freedom of peaceful assembly; and

b.

Section 7 liberty. The NCQ also indicated it would be necessary to consider vagueness and overbreadth as principles of fundamental justice. [ 3 ] On May 3, 2023 in R v Slastukin et al. , 2023 SKPC 32 , I determined that the Charter challenge based on ss. 2(

c) has been previously decided by this Court and cannot now be re-litigated. In addition, I was of the view that the impugned PHOs (including the PHO before the Court in this case) do not engage a

section 7 Charter liberty interest. If I had determined a liberty interest was engaged, I was of the view the PHOs do so in a manner consistent with the principles of fundamental justice. The PHOs are not unconstitutionally vague nor are they overbroad. [ 4 ] This judgment will consider the evidence presented at trial. [ 5 ] Constables Ryan Buhr, Tyler Gerrans and Sgt. Scott Wolfe of the Regina Police Service (RPS) testified for the Crown at trial. No one testified on behalf of the accused. [ 6 ] The Crown Exhibits consisted of the following: P-1 Certified Copy of a Public Health Order, dated April 27, 2021.

P-2 Ten photographs taken by Constable Buhr. [ 7 ] For the reasons which follow, the Court finds that John Slastukin is guilty of the offence before the Court . Issues [ 8 ] The issues to be determined are as follows: (

a) Has the Crown proved beyond a reasonable doubt that on May 1, 2021 a Public Health Order was in place? (

b) Has the Crown proved beyond a reasonable doubt that on May 1, 2021 John Slastukin failed to comply with a Public Health Order by attending a gathering exceeding 10 people ? (

a) Has the Crown proved beyond a reasonable doubt that on May 1, 2021 a Public Health Order was in place? [ 9 ] The Crown filed a certified copy of a PHO dated April 27, 2021 with the Court. With the consent of the defence, the PHO was entered as Exhibit P-1 at trial. It is comprised of a total of 14 pages. [ 10 ] The Crown did not file a certified copy of the Health Minister’s Order delegating powers to the Chief Medical Health Officer at trial . During several other trials that have taken place before me involving alleged breaches of

section 61 of The Public Health Act, 1994 , the Crown has filed a certified copy of the Health Minister’s Order delegating powers to the Chief Medical Health Officer which with the consent of the defence have been entered as an Exhibit at those trials. [ 11 ] In this case the Crown takes the position that it is not necessary to file a certified copy of the Health Minister’s Order delegating powers to the Chief Medical Health Officer as it is relying upon the presumption of regularity. [ 12 ] In R v Keough , 2022 SKPC 23 at paras 34 -36 my sister Judge Marquette sets out a helpful

summary of the presumption of

regularity: [34] The presumption of regularity is discussed in the Law of Evidence as follows: 4.64 The common law presumption of regularity is sometimes referred to by its Latin label omnia praesumuntur rite esse acta . In its narrower application, the presumption serves to regularize the appointment and acts of persons acting in an official capacity. Where a person is shown to have acted in an official capacity, it is supposed that the person would not intrude herself or himself into a public situation without authorization.

Furthermore, the person's acts are presumed to be regular. [35] The Saskatchewan Court of Appeal in R v Armbruster addressed the presumption of regularity in the context of proof required to prove that a peace officer was a qualified breath technician. The Court referenced its decision in R v Adams where it stated that as an alternative to calling the Attorney General or their deputy at trial, or filing a copy of the official Gazette or copy or certified copy of the appointment pursuant to the provisions of the Canada Evidence Act , the Crown could rely on the presumption of regularity, stating: [3] ...

Third, the Crown may proceed by relying on certain presumptions of law and rules of evidence developed by the common law. It may, for example, rely upon the application of the maxim omnia praesumuntur rite esse acta . In effect that is what happened in the present case. When this presumption is relied upon to prove that a public officer was duly appointed, the rules respecting the burden and the shifting of it are important to bear in mind.

These rules are aptly stated in Cross on Evidence (4 th ed. 1974), p. 112 in these terms: If it becomes necessary to prove that a public officer was duly appointed, one way of achieving this result, in the absence of a statutory provision limiting the mode of proof, would be to show that the man in question had acted in the requisite capacity.

If, however, the party denying due appointment were to adduce evidence fit to be left to a jury tending to negative the appointment, the party bearing the evidential burden on the issue would lose unless the tribunal of fact was satisfied to the requisite degree of persuasion that the man was duly appointed. [36] Chief Justice Richards in Armbruster stated the principle enunciated by former Chief Justice Bayda in the Adams was that "in the absence of evidence to the contrary, persons acting in public capacities are presumed to have been regularly and properly appointed." and concluded that this approach was consistent with a well-recognized maxim of omnia praesumuntur rite et solemnitr acta . [ 13 ] In this case, the

preamble of the PHO dated April 27, 2021 reads in part as follows: Whereas 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 subsection 25.2 of The Disease Control Regulations . [ 14 ] On pages 2 , 3, 4, 10 and 14 of the PHO reads in part as follows: This Order applies to all individuals, businesses, institutions, associations and other organizations within the Province of Saskatchewan and City of Lloydminster. Effective April 27, 2021 at 4:48 p.m., I rescind my April 23 rd , 2021, “Provincial Order” Effective April 29, 2021 at 12:01 a.m., I rescind my April 20 th , 2021 “Provincial Order” and order the following: 1. 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 is maintained. This subsection does not apply to the 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 . . . .

4. I hereby ORDER and DIRECT FOR THE Regina Region: 4(

c) In the Regina Region, public and private outdoor gatherings are permitted up to 10 persons. Persons attendance must ensure that physical distancing of at least two metres between households is maintained. This subsection does not apply to the 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. [ 15 ] On page 13 of the PHO dated April 27, 2021 the following appears: This order remains in effect until 12:01 a.m. on May 10, 2021, or until, in the opinion of the Chief Medical Health Officer, there is no longer a public threat, whichever shall first occur. [ 16 ] Applying the presumption of regularity, there is a prima facie presumption that Dr. Shahab had the necessary authority under

section 45 of The Public Health Act, 1994 and under subsection 25.2 of The Disease Control Regulations , RRS c P-37.1 Reg 11 [repealed] to make the PHO and impose restrictions on gathering sizes as set out in ss. 1(

d) and 4(c). [ 17 ] Having reviewed all of the evidence and heard arguments on this matter, I am of the view that this presumption of regularity has not been rebutted by the defence in this case. [ 18 ] I am satisfied that the Crown has proved beyond a reasonable doubt that the PHO dated April 27, 2021 was in place on May 1, 2021. The PHO permits public and private outdoor gatherings up to 10 persons. By necessary implication it prohibits outdoor private and public gatherings greater than 10 people. However, 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 gathering as 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 adopt the Merriam-Webster Dictionary definition for the word “gathering”. (

b) Has the Crown proved beyond a reasonable doubt that on May 1, 2021 John Slastukin failed to comply with a Public Health Order by attending a gathering exceeding 10 people? Constable Buhr [ 19 ] Constable Buhr is a member of the RPS forensic identification unit. On May 1, 2021 he was directed by Sgt. Wolfe to photograph a group of people involved in a protest in Victoria Park in Regina. He arrived on scene at 3:05 p.m. and remained there less than one hour. He took 10 photographs of people situated on the north sidewalk of Victoria Avenue near the south side entrance to Victoria Park.

He testified that the photographs accurately depict what he saw that day and that they have not been altered in any way. These photographs were marked at Exhibit P-2 at the trial. I find that these 10 photographs are admissible evidence in this trial. [ 20 ] A review of the 10 photographs reveals that people were located on the north side walk of Victoria Avenue near the south side entrance to Victoria Park. Several signs are visible. Some of these signs have been planted in the ground on the boulevard separating the westbound and eastbound traffic lanes on Victoria Avenue.

Examples of the writing on these signs include: EXPOSE COVID B.S., FAKE Media Is The VIRUS, BLOOD CLOT SHOTS AND WAKE UP! SAVE CANADA. Some of the people present are carrying signs with such messages as: END SHA’s REIGN of TERROR, I AM standing up 4 Freedom and ALL HUMANS ARE ESSENTIAL! [ 21 ] Mr. Coupal indicated at the onset of the trial that Mr. Slastukin’s identity was not in issue. Mr. Coupal clarified his position following the testimony of Cst. Buhr. Mr. Coupal admitted that the heavy set individual in a white t-shirt with a bald head as seen in all 10 photographs is his client, John Slastukin. Sgt.

Wolfe [ 22 ] On May 1, 2021, Sgt. Wolfe was acting as a Patrol Supervisor for the Regina central district. He first arrived on scene driving west bound on Victoria Avenue beside Victoria Park around 2:00 p.m. He observed a group that he estimated to be between 20 to 30

people walking on the south side of Victoria Park. He heard loud music and saw several signs. Sgt. Wolfe parked his vehicle in the Knox Metropolitan United Church parking lot, which is near the intersection of Victoria Avenue and Lorne Street in Regina. This is near to the south west portion of Victoria Park. From this position he monitored the protest using binoculars. He was there from approximately 2:00 p.m. to 5:00 p.m.

He estimates that the number of people protesting stayed mostly the same, that is between 20 to 30 people, who were walking back and forth on the north side walk on Victoria Avenue between Lorne Street and Scarth Street. This is a distance of two city blocks in length. [ 23 ] Sgt. Wolfe testified that he had seen John Slastukin at previous protests. On May 1, 2021 Sgt. Wolfe saw John Slastukin walking among other protestors. He added that Mr. Slastukin was within a couple of feet of other protestors. [ 24 ] On cross-examination, Sgt.

Wolfe admitted that during the time he observed the protest there may have been one or two people who walked through or past the protestors. He also testified that the distance between Lorne Street and Scarth Street is a couple of hundred yards. Cst. Gerrans [ 25 ] On May 1, 2021, Cst. Gerrans was dispatched to a rally in Victoria Park in Regina. He parked his vehicle on Cornwall Street which is south of Victoria Avenue and is situated near the midway portion of Victoria Park. He got there at 2:00 p.m. and left around 4:00 p.m.

He observed 20 to 30 people walking on the north sidewalk of Victoria Avenue, just south of Victoria Park. [ 26 ] Cst. Gerrans testified that he recognized John Slastukin from previous rallies. On May 1, 2021 he saw John Slastukin walking back and forth with a group of 20 to 30 people. He observed that John Slastukin was wearing a white shirt. At times he observed that John Slastukin was shoulder to shoulder with other people, meaning he was three to six feet apart from other people. At other times he was further away from other people.

Analysis [ 27 ] Photograph 1 shows John Slastukin situated in the middle of a close grouping of 13 people on the north sidewalk of Victoria Avenue. Two other people are located approximately two to three feet to the east of the group of 13. A group of five other people are located approximately four to five feet west of the group of 13. One person in a red shirt in the group of five people is holding up a protest sign. Four protest signs are seen within the group of 13 people. One protest sign appears to be held up by the group of two.

Despite the small gaps between these groups of protestors, I am of the view this photograph shows there is a gathering of 20 people who have come together for a common purpose, which is to protest the actions and restrictions put in place by the government of Saskatchewan as a result of COVID -19. In the event I have erred in this determination, it is clear to me that at a minimum John Slastukin is amongst a group of 13 protestors. Photographs 2 and 3 illustrates this as well, despite the apparent movement of people along the sidewalk.

The remaining photographs show that John Slastukin remains in one place behind a green protest sign and next to a man wearing a black and red ballcap while more than 10 protestors appear to be walking by him. [ 28 ] The uncontradicted evidence of Sgt. Wolfe is that between approximately 2:00 p.m. and 5:00 p.m. he saw John Slastukin walking among 20 to 30 protestors on Victoria Avenue between Lorne Street and Scarth Street. The uncontradicted evidence of Cst. Gerrans is that between approximately 2:00 p.m. and 4:00 p.m. he saw John Slastukin walking among 20 to 30 protestors on Victoria Avenue.

It is clear that between 20 to 30 people gathered together on the north sidewalk of Victoria Park, just south of the park, to protest against the actions and restrictions put in place by the government as a result of COVID -19. John Slastukin was among them. [ 29 ] Based on the 10 photographs taken by Constable Buhr (Exhibit P-2), the admission that Mr. Slastukin is in each of the 10 photographs and the testimony of Sgt. Wolfe and Cst. Gerrans.

I am of the view that the Crown has proved beyond a reasonable doubt that John Slastukin participated in an outdoor public gathering of more than 10 people. [ 30 ] I find John Slastukin guilty of the offence before the Court. ___________________________

M. Hinds, J