His Majesty the King - v. -, 2023 SKPC 9

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 9 Date: January 17, 2023 Ticket No: 85442760 Location: Saskatoon _____________________________________________________________________________ Between: His Majesty the King - and - Mark Friesen Appearing: B.L. Rodgers and K.M. Roy For the Crown/Attorney General E.F. Anderson For the Accused JUDGMENT Q.D.

AGNEW , J [ 1 ] Mark Friesen is charged that on December 5, 2020, at Saskatoon, Saskatchewan he attended a public gathering at Vimy Memorial in Kiwanis Park in Saskatoon where there were in excess of 30 people, contrary to the Public Health Order [PHO] in effect at that time. That order was made as a result of the COVID-19 pandemic then sweeping not only Saskatchewan but the entire world. [ 2 ] Constable Joslin of the Saskatoon Police Service testified as to his attendance at, and video recording of, the gathering. That recording was played for the Court.

There were clearly substantially more than 30 persons in attendance, including the accused. [ 3 ] The defendant has raised two arguments with respect to this charge. He argues that the PHO is invalid, and hence unenforceable against him, as it exceeds its authorizing legislation: that is, that it is ultra vires . He additionally argues that the provisions under which he has been charged are too vague, and hence violate s. 7 of the Canadian Charter of Rights and Freedoms .

[ 4 ] Concurrent with this decision, I am releasing decisions in R v Wong et al. , 2023 SKPC 7 and R v Drebit et al ., 2023 SKPC 8 . The first of Mr. Friesen’s arguments is addressed in Wong , and I adopt the reasons in that decision. To the extent that any other issues raised by Mr. Friesen are addressed in either Wong or Drebit , I adopt the reasoning in those decisions. Charter s. 7 and vagueness [ 5 ] The defendants in Wong abandoned their s. 7 argument but continued with their argument regarding vagueness. As noted above, I have adopted the reasoning in Wong , and that portion of Mr.

Friesen’s argument has therefore been dealt with and dismissed. However, Mr. Friesen has not abandoned his s. 7 argument in the current matter, and I must accordingly address it. [ 6 ] Having found that the provisions in question, namely ss. 25.1 and 25.2 of The Disease Control Regulations, RRS P-37.1 Reg 11, and the PHO made pursuant to those sections, are not unconstitutionally vague, I do not see that any basis remains on which Mr. Friesen could argue that their vagueness constitutes a breach of s. 7 . [ 7 ] The application is accordingly dismissed.

Police actions [ 8 ] The defendant attempted to raise an issue with respect to what he saw as improper use of police discretion in ticketing him and not ticketing other persons. However, there was no evidence as to who else, if anyone, was charged. There may have been a multitude of charges, there may have only been Mr. Friesen’s; police may have acted on the basis of cogent information in laying charges, they may have been acting randomly, or they may have been acting in some other fashion. I have simply no evidence of any kind. The only evidence I have is that Mr. Friesen was charged.

That is insufficient to show that the police, in so doing, acted in an improper use of their discretion. [ 9 ] Mr. Friesen also argued that no warning was given by police that the people at the gathering might be charged. There are two difficulties with this argument, both of them fatal. In the present circumstances, there is simply no evidence that this proposition is true. The sole witness could do no more than testify that he did not hear any such warning; I cannot take that as proof that it did not happen. More importantly, however, there is simply no legal basis for this argument.

The police are not required to warn people who are breaking the law that they are doing so, and that if they do not stop they may be subject to some form of sanction. Tellingly, counsel did not put forward any authority for this extraordinary proposition: I suspect because there is none. [ 10 ] Both of these arguments, therefore, are of no assistance to Mr. Friesen. Conclusion [ 11 ] Mr. Friesen was at the gathering, along with more than 30 others. Doing so was contrary to the PHO in effect at the time. No legal defence has been established. Accordingly, I find Mr. Friesen guilty. ____________________ Q.D.

Agnew, J