R v Pawlowski, 2023 ABCJ 131

In the Alberta Court of Justice Citation: R v Pawlowski, 2023 ABCJ 131 Date: 20230502 Docket: 220132690P1 Registry: Lethbridge Between: His Majesty the King - and - Artur Pawlowski Decision of the Honourable Justice G.K. Krinke [ 1 ] The accused, Artur Pawlowski, is charged with three offences: Count 1.

On or about the 3 rd day of February 2022, at or near Coutts, Alberta, did aid, counsel, or direct another person or persons to wilfully enter on any essential infrastructure, or wilfully obstruct, interrupt, or interfere with the construction, maintenance, use or operation of any essential infrastructure in a manner that renders the essential infrastructure dangerous, useless, inoperative, or ineffective, contrary to section 2 (4) of the Critical Infrastructure Defence Act . (“ CIDA ”) Count 2.

On or about the 3 rd day of February 2022, at or near Calgary, Alberta, did wilfully obstruct, interrupt, or interfere with the lawful use of a property of a value exceeding $5,000 to wit: inciting persons to wilfully obstruct or interfere with the highway belonging to the government of Alberta, thereby committing mischief, contrary to section 430 (1)(

C) of the Criminal Code of Canada . (the " Code ") Count 3. On or about the 3 rd day of February 2022, at or near Calgary, Alberta, being at large on a release order did fail, without lawful excuse, to comply with a condition 4 of that release order, to wit: keep the peace and be of good behaviour contrary to section 145 (5) (

a) of the Criminal Code of Canada . [ 2 ] First, I intend to deal with some preliminary matters. Next, I will outline the facts I rely upon. Third, I will outline some general principles relevant to Mr. Pawlowski's charges. Finally, I will deal with each charge in the following order: Count 2, the mischief charge; Count 1, the CIDA charge; and finally Count 3, the breach charge. Preliminary Matters

[3] The trial of this matter took place over two days; February 2nd and 3rd, 2023 in Lethbridge. Neither the Crown nor theDefence called any witnesses. An agreed statement of facts was filed as Exhibit 1 (the "ASF"). Attached to Exhibit 1 were severalphotographs and a transcript of a speech which Mr. Pawlowski made (the "Speech").

As well, I have a video in digital format of theSpeech. [4] The ASF, the photographs, the video of the Speech, and the accompanying transcript constitute the totality of the evidence. [5] The Crown filed its Crown Closing Argument and the Defence provided Written Submissions of the Accused.

I asked thatthe Defence provide me with additional submissions with respect to the mens rea of the CIDA charge. [6] After both Crown and Defence had provided their initial oral and written submissions, I requested in a letter dated February 6th, 2023, that the Crown and the Defence provide me with additional submissions on two issues dealing with the wording of the chargeson the Information. That letter is marked as Exhibit 2. [7] The first issue concerned the allegation that the mischief and the breach charges occurred at or near Calgary, Alberta ratherthan at or near Coutts.

My concerns were that I may lack jurisdiction to decide the matter or that the Defence had been prejudiced by theinaccuracy. [8] The Defence has conceded, rightfully so, that my territorial jurisdiction encompasses the entire province of Alberta so theerror in the Information does not affect my jurisdiction. It has, as well, conceded that it was not prejudiced by the misnaming of the townor city. [9] The second issue concerned the particularization of the mischief charge.

Rather than using terms found in s. 21 (aid or abet)or s. 22 (counsel) or both, the Crown chose the word "incite" to describe in the Information Mr. Pawlowski's actions.

The question Iasked of counsel was whether, given this wording, the Crown was limited to proving inciting rather than other potential avenues ofcriminal liability. [10] The Defence's position is that the Crown is limited to the word "incite." The Crown's position is, as I understand it, that both"abet" and "counsel" are somewhat synonymous, incite is a component of both, and therefore the Crown's earlier submissions onabetting continue to be relevant. The Crown's submissions did not address the specific issue of whether I am limited to a determination of"inciting" as the sole avenue to establish whether Mr.

Pawlowski is a party to the offence of mischief. [11] In R v Saunders, (SCC), [1990] 1 SCR 1020, at paragraph 5, the Court concluded "...it is a fundamentalprinciple of criminal law that the offence, as particularized in the charge, must be proved." [12] This was the same conclusion reached in R v Cockell, 2013 ABCA 112 at paragraph 49. The latter case, however, qualifiedthe statement in Saunders.

The particulars alleged must be essential to the circumstances of the case. [13] An individual may become a party to an offence in one of four ways: he may be the person who committed the offence; hemay be a person who aided or abetted the person who committed the offence; he may be a person who counselled the person whocommitted the offence; or he may have conspired with the person to commit the offence. [14] Because there are several ways to affix criminal liability to Mr. Pawlowski, it is imperative that the Defence knows whichavenue the Crown has chosen.

When the Crown chooses to particularize one specific way, in this case "incite," then the Crown mustprove that particularization. The Crown, of course, had the ability to apply for an amendment of the Information to accord with the factsalleged, but no such application has been made. As a result, I consider that I am limited to determining whether Mr. Pawlowski incitedothers to commit mischief. [15] The final preliminary matter related to the breach charge. The Crown did not file a certified copy of the release order referredto in Count 2.

This was not necessary because the ASF acknowledged the existence of the release order and the condition contained inthe release order. However, I requested from the Crown and Defence that they provide me with a copy of the release order, and Ireceived a copy of that document from the Crown. The Facts [16] The ASF provided details of events which commenced at or near Coutts on or about January 28th, 2022, and which continued until February 14th, 2022. The owners and operators of a number of vehicles were protesting various issues related to the COVID-19pandemic, lockdown measures, and vaccine requirements.

They formed a blockade of Highway 4 near Coutts, Alberta which resulted inHighway 4 and the Coutts Port of Entry to be closed or only partially opened during that period of time. [17] Mr. Pawlowski travelled from Calgary to Coutts on February 3rd, 2022. He did not participate in the blockade of the highway. He did, however, give a speech at the Smuggler's Saloon (“Smugglers”) in Coutts, Alberta on February 3rd, 2022. A video recording ofthe Speech and a copy of the transcript of the Speech formed part of Exhibit 1. At the time he gave the Speech, Mr.

Pawlowski was bound by a release order requiring him to keep the peace and be of good behaviour. Later in the afternoon on February 3rd, 2022, Mr.Pawlowski returned to Calgary. [18] On February 8th, 2022, Mr. Pawlowski was arrested and charged with the offences noted in the Information. General Principles

[19] Mr. Pawlowski is presumed innocent. This is codified in s. 11(

d) of the Charter as one of the basic legal rights of Mr.Pawlowski. The presumption of innocence leads to two interrelated concepts. [20] First, the Crown must prove Mr. Pawlowski's guilt. This is the burden of proof. The Crown must prove all the essentialelements of the offence. The Defence need not prove anything. Second, the Crown must prove the essential elements of the offencebeyond a reasonable doubt. This is the standard of proof.

The criminal standard of proof is something more than the civil standard ofproof, on a balance of probabilities, but does not need to be a moral certainty. [21] Our Supreme Court in R v Starr (2000), 2000 SCC 40 , 147 CCC(3d) 449 SCC at page 545 indicated that areasonable doubt falls much closer to an absolute certainty than to proof on the balance of probabilities. However, a reasonable doubt isnot a doubt based on sympathy or prejudice. It can not be imaginary or frivolous. It needs to be logically connected to the evidence orabsence of evidence. [22] The Crown must prove the essential element of the offence.

The Crown must prove jurisdiction, identity, the actus reus (theact complained of) and the mens rea (the necessary mental element). In this case, jurisdiction and identity have been admitted.

TheCrown, however, must still prove the actus reus and the mens rea for each of the three charges. [23] I need, as well, to distinguish between the mental element of a criminal offence and the motive for committing the offence.The mental element to be proven beyond a reasonable doubt to affix criminal liability, generally, is either intent or recklessness whenassessing actions, and actual knowledge or wilful blindness when assessing a state of affairs. [24] Motive is different.

Motive, as stated in R v Lewis, (SCC), [1979] 2 SCR 821 at 831, is “that which precedesor induces the exercise of the will.” Motive refers to the reason why the accused did what he did. It is generally not relevant whenconsidering the criminal liability of a particular accused. The validity of an accused's beliefs and the worthiness of an accused's actionsand, when the accused is not the principal party that committed the underlying offence, the validity of the principals’ beliefs and theworthiness of their actions are not issues for this Court.

Those issues are for another forum. [25] To conclude, this decision focuses on whether the Crown has proven beyond a reasonable doubt the actus reus and the mensrea of the offences to which Mr. Pawlowski is charged. If it has, I must convict. If it has not, I must acquit. The Charges [26] I consider the mischief charge the most serious of the charges and I will deal with that charge first. I will then address theCIDA charge. However, most of my findings on the mischief charge, will be applicable to the CIDA charge. Finally, I'll address thebreach charge. The Mischief Charge [27] Section 430(1)(

c) of the Code provides that everyone commits mischief who wilfully obstructs, interrupts, or interfere withthe lawful use, enjoyment, or operation of property. [28] The ASF acknowledges that persons identified in the ASF as truckers, and who I will refer to hereafter as protesters, created a blockade of Highway 4 and this blockade was in place from January 29th, 2022, to February 14th, 2022. During this time, Highway 4 andthe Coutts Port of Entry were closed or only partially open as a direct result of these events. I also have photographs of the blockade which have been included as Exhibit A to the ASF.

I am satisfied that during the period of time between January 29th, 2022, and February 14th , 2022, the protesters were wilfully obstructing and interfering with the use of Highway 4, thus committing mischief. [29] Further, I am satisfied that, at the time Mr. Pawlowski addressed the protesters on February 3rd, 2022, Mr. Pawlowski knewthat the protesters were obstructing and interfering with the lawful use of Highway 4. In order to reach Smuggler's, Mr. Pawlowski wouldhave passed a police check point.

Approaching Smuggler's, he would have been able to see a multitude of vehicles blocking the highway.I have no doubt that Mr. Pawlowski was aware of the blockade at the time he gave the Speech. This knowledge is confirmed in theopening of his Speech, when Mr. Pawlowski told the audience, "Don't you dare break the line." [30] The Crown, however, did not allege that Mr. Pawlowski wilfully obstructed, interrupted, or interfered with the lawful use ofthe highway belonging to the Province of Alberta. Rather, the Crown alleged that Mr.

Pawlowski was a party to this offence because heincited the protesters to commit the offence of mischief, and thereby became a party to the offence. [31] Sections 21 and 22 of the Code specify who is a party to an offence.

Section 21 provides that everyone is a party to an offencewho actually commits it, who does or omits to do anything for the purpose of aiding any person to commit it, or who abets any person incommitting it.

Section 22 deals with counselling an offence. Where a person counsels another person to be a party to an offence and thatother party is afterwards a party to that offence, the person who counselled becomes a party to that offence. [32] The definition of counsel in s. 22(3) of the Code includes "procure, solicit, or incite." The actus reus for counselling is adeliberate encouragement or active inducement of the commission of a criminal offence.

The mens rea consists in the accompanyingintent or conscience disregard of the substantial and unjustified risk inherent in the counselling. [33] To secure a conviction on the mischief charge therefore, the Crown must prove that Mr. Pawlowski intended to incite theprotesters to commit mischief. A careful analysis of the Speech is integral to making this determination. The Crown provided me withone characterization of the Speech; the Defence has provided me with another.

[ 34 ] The Crown characterized the Speech as a "fiery address" wherein Mr. Pawlowski incited the crowd to participate in the continued blockade of the highway. [ 35 ] The Defence characterized the Speech as an expression of Mr. Pawlowski's support for the protesters to engage in a peaceful resolution and a call for others to come and express their support. In the Defence’s view, the Speech was not a call for interference with the highway or blockade of the border. Mr. Pawlowski's message was to encourage the exercise of fundamental freedoms of expression and assemblage. Mr.

Pawlowski was communicating information only. [ 36 ] The two characterizations are not mutually exclusive. Mr. Pawlowski could, for example, be encouraging the exercise of fundamental freedoms of expression and assembly at one point during the Speech, while at other times encouraging the protesters to participate in the blockade of the highway. [ 37 ] I am fortunate to have not only the transcript of the Speech but also the video tape of the Speech. Mere words upon a page can provide some assistance in determining the intent of Mr. Pawlowski.

However, the video tape of the Speech can provide greater context and a more complete picture. [ 38 ] The proper way of interpreting the Speech is to view it holistically as the Crown suggests. First, I must examine the context of the Speech: where it was delivered; when it was delivered; by whom and to whom; and how it was delivered. Then I must analyze the content. Having done that, I can determine Mr. Pawlowski's intent in making the Speech. [ 39 ] The Speech was delivered at Smuggler's Saloon on February 3 rd , 2022, in the afternoon. It was the fifth day of the blockade. There was an indication in Mr.

Pawlowski's Speech that he was concerned some of the protesters were considering leaving Coutts for other protests, notably in Edmonton or Ottawa. [ 40 ] I'm not certain whether Mr. Pawlowski had planned in advance to address the protesters or whether he was speaking extemporaneously. Mr. Pawlowski used a microphone to address a room crowded with people. I am satisfied that a number of individuals in the audience were, in fact, protesters. [ 41 ] Mr. Pawlowski delivered the Speech in a fairly impassioned manner. He was clearly aligned with the protesters and their goals.

As he gave the Speech, several members of the audience were responding with their own comments. [ 42 ] Having placed the Speech in context, I now examine the contents of the Speech. I need not attempt to parse each statement made by Mr. Pawlowski in the Speech. That is an artificial way of understanding the Speech. [ 43 ] The content of the Speech provides several clues as to Mr. Pawlowski's thoughts. [ 44 ] Mr. Pawlowski appeared to realize that the protesters were potentially engaged in illegal activity, suggesting to them that they might be arrested for the blockade.

He also seemed to realize that his actions might cause his own arrest. [ 45 ] Mr. Pawlowski used various historical analogies in the Speech. The historical analogy with which he commenced the Speech and to which he returned on a number of occasions was the solidarity movement in Poland. However, he also referred to the sacrifices made in World War I, and II, and to the Alamo. The common themes running through these analogies were sacrifice and heroism in support of a just cause. At one point, Mr. Pawlowski described the protesters as heroes. [ 46 ] One central focus of Mr.

Pawlowski's Speech, however, is the solidarity movement. This is one key to understanding Mr. Pawlowski's intent. He referred to the solidarity movement in Poland paralyzing the system as an effective means of achieving its goals. The implication to the protesters was clear: their blockade of the highway and of the border crossing would be an effective means of achieving their goals. [ 47 ] Mr. Pawlowski then addressed an issue with which he appeared concerned: some of the protesters were considering leaving the blockade to attend at other rallies, particularly rallies in Edmonton and Ottawa.

He is critical of those other rallies saying: “You pack your stuff, you go to Edmonton and there will be lots of 40 honking, there will be lots of syrup on the road, and lots of promises that will never be met.” [ 48 ] He told the protesters that the whole world was watching them. He told the protesters that they had the momentum at the blockade, saying "Do not lose your momentum." He told the protesters that they have the power and not to give it away. On two occasions, he told the protesters not to break the line. [ 49 ] Sprinkled throughout the Speech, Mr.

Pawlowski made a number of ad hominem attacks referring to individuals who he blamed for the current situation, Trudeau, Kenney, Hinshaw, and Tam, in derogatory terms, calling them villains. [ 50 ] He encouraged the protesters to continue the protest. He pointed out a child in the audience and told the audience they were fighting for the future of Canada so that their children would not be enslaved. [ 51 ] As Mr. Pawlowski was addressing the protesters, some members of the audience were responding.

Comments came from the audience such as: "that's right," "we're staying," "let's go," "freedom is not free." [ 52 ] There are a number of

definitions of “incite”. These include “urge”, “stir up”, “stimulate”, or “spur on”. All of these terms are in accord with Justice Charron comments in R v Hamilton , 2006 SCC 47 that the various elements of counselling require active inducing, procuring, or encouraging the commission of an offence. [ 53 ] Looking at the context of the Speech, looking at the content, and looking at the tone of the Speech I am satisfied beyond a

reasonable doubt that Mr. Pawlowski intended to incite the audience to continue the blockade. Mr. Pawlowski deliberately incited the protesters to commit mischief with the intent that the protesters would continue to commit that mischief. [ 54 ] Having determined that Mr. Pawlowski intended to incite the protesters to commit mischief, I turn to some issues raised by the Defence. First, the Defence suggested that there can be no counselling where the offence already was in progress as in this case.

For two reasons, I disagree. [ 55 ] Our Courts have consistently held that counselling by procuring or inciting another person does not require that the inciter originate or initiate the transaction. In other words, a person may be convicted of incitement and thus counselling, although the plan originated with the party alleged to have been incited: R v Nguyen , 2018 ABQB 366 , relying on R v Root , 2008 ONCA 869 .

I disagree that counselling requires a causal connection between the words spoken and the commencement of the mischief. [ 56 ] As well, in situations such as the blockade, the offence is ongoing, lasting for a period of over two weeks. In such cases, inciting individuals to continue with the offence is no less serious than inciting individuals to initiate the offence. The harm counselled remains the same. [ 57 ] The Defence also relied on s. 464 of the Code which specifically relates to counselling an offence that is not committed. As I have already concluded that Mr.

Pawlowski counselled an offence that was committed, this

section is not applicable to Mr. Pawlowski's matter. [ 58 ] The Defence also relied on s. 429(2) of the Code to justify the actions of Mr. Pawlowski. This reads, "A person shall not be convicted of an offence under sections 430 to 446 if they act with legal justification or excuse or colour of right." The Defence asserts that the Charter guaranteed right of freedom of expression provides a legal justification for Mr. Pawlowski and therefore he can not be convicted for counselling mischief. [ 59 ] To support this, the Defence relied on R v Whatcott , 2014 SKPC 215 .

In Whatcott , Judge Beaton, after finding that the Crown had not proven the actus reus of mischief, continued with some obiter comments. In these comments, the Court concluded after a brief analysis that freedom of expression was a justification under s. 429 (2) . With all due respect to Judge Beaton, I decline to follow that reasoning. [ 60 ] Whether a Charter guaranteed right can provide a justification for committing an otherwise criminal offence can only be determined after a fulsome discussion about the scope and restrictions of that right as they relate to the case under consideration.

That is the principal reason for the requirement that the Defence file a Charter application. While the Defence has filed a Charter application with respect to the CIDA charge, it has not done so with respect to the mischief charge. Having not done so, it can not now assert that the Charter provides a justification for Mr. Pawlowski's Speech. [ 61 ] The Defence also asserted that Mr. Pawlowski is able to rely on the Defence contained in s. 430 (7) of the Code . Section 430(7) provides “. . . no person commits mischief within the meaning of this

section by reason only that he attends at or near or approaches a dwelling, house, or place for the purpose only of obtaining or communicating information." [ 62 ] R v Tremblay , 2010 ONCA 169 provides a useful

interpretation of s. 430(7). At paragraph 21, the Court discussed when s. 430(7) might be available to the accused: In my view, Section 430 (7) protects acts done for the purpose of communicating information that would otherwise constitute mischief regardless of whether the intended results were to interfere with or interrupt the use or enjoyment of another person's property. [ 63 ] The Court then limited the applicability of s. 430(7) , at paragraph 28: Of course, the communication must be peaceful and non-violent, to be entitled to protection.

And it must not simply be a mask or subterfuge for conduct that is not solely communicative and that has some entirely different purpose. This line will not always be easily drawn and will depend upon the circumstances of the case. [ 64 ] Having already concluded that Mr. Pawlowski's Speech was intended to incite the protesters to continue the blockade, it is not logical to conclude his actions were solely communicative. His comments were designed to spur on the protesters to continue the blockade. As such, the protections of 430(7) of the Code are not available to Mr.

Pawlowski. [ 65 ] In conclusion, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Pawlowski incited others to commit mischief. I find that none of the defences or justifications raised by the Defence are available or applicable to Mr. Pawlowski's actions. Therefore, I find Mr. Pawlowski guilty of Count 2. The CIDA Charge [ 66 ] The accused is charged under s. 2(4) of CIDA , which creates a separate offence for aiding, counselling, or directing another person to commit an offence under CIDA . That other offence, in Mr.

Pawlowski's case, is found in s. 2(3) of CIDA : No person shall, without lawful right, justification, or excuse wilfully obstruct, interrupt, or interfere with the construction, maintenance, use or operation of any essential infrastructure in a manner that renders the essential infrastructure dangerous, useless, inoperative, or ineffective. [ 67 ] This charge essentially mirrors the mischief charge. It is not unusual for an accused to be charged with more than one offence for essentially the same act. If the Court enters convictions on both offences, the matter is then dealt with during the sentencing phase.

For the most part, my comments respecting the mischief charge are applicable to the CIDA charge and I don't mean to repeat them.

[ 68 ] There are a few differences between the mischief charge and the CIDA charge, however, that I will address. The first difference is that under the CIDA charge, Mr. Pawlowski is alleged to have aided, counselled, or directed another person to commit an offence. Under the mischief charge, Mr. Pawlowski is alleged to have incited another person to commit an offence. [ 69 ] Counselling is not a defined term in the CIDA . The word counsel in this regard means the accused deliberately encouraged or actively induced the commission of the offence.

Inciting others to commit the offence falls within this ambit. [ 70 ] My comments therefore on Mr. Pawlowski's Speech when considering the mischief charge, are equally applicable to the CIDA charge. I will not repeat them here except to conclude that Mr. Pawlowski intended to incite and therefore, in the wording found in s. 2(4), intended to counsel the interference. [ 71 ] The second difference between the CIDA charge and the mischief charge is that the interference (or in other words, the mischief), must be in relation to essential infrastructure. This restriction is not found in the mischief charge.

The Crown and Defence have agreed that Highway 4 is "essential infrastructure" within the meaning of the CIDA . [ 72 ] The third difference is that the interference must occur in a manner that renders the essential infrastructure dangerous, useless, inoperative, or ineffective. Again, this restriction is not found in the mischief charge. The Defence asserted that the Crown had not shown that any interference by the protesters rendered the highway dangerous, useless, inoperative, or ineffective.

I disagree. [ 73 ] I am satisfied based on the ASF that, during the blockade, Highway 4 and the Coutts Port of Entry were closed or only partially opened as a direct result of events taking place at Coutts and that this interference rendered the highway useless for at least a portion of the time the blockade occurred. Moreover, even if the Crown had not shown that the highway was rendered useless, the question is whether Mr. Pawlowski counselled the protesters to render the highway useless. [ 74 ] I will not, again, repeat my earlier comments about the intent of Mr.

Pawlowski's Speech other than to repeat that Mr. Pawlowski intended to counsel the protesters to continue the blockade in order to paralyze the system. In other words, he intended to counsel the protesters to render the highway useless. [ 75 ] In conclusion, I find that the Crown has satisfied me beyond a reasonable doubt that Mr. Pawlowski counselled other persons to interfere with the use of Highway 4 in a manner which rendered Highway 4 useless. [ 76 ] Normally at this time, a conviction would be entered.

However, the Defence has filed a notice of constitutional question seeking s. 52 remedies to have CIDA or parts thereof struck down as unconstitutional. That application will have to be heard before any conviction is entered. The Breach Charge [ 77 ] Section 145 (5) (

a) of the Code provides: Every person is guilty of an indictable offence and liable to punishment for a term of not more than 2 years or is guilty of an offence punishable on

summary conviction who is at large on a release order and who fails without lawful excuse, to comply with the condition of that release order other than the condition to attend court. [ 78 ] The parties did not file a certified copy of the release order. Rather, both parties agree that on February 3 rd , 2022, Mr. Pawlowski was bound by a release order, the sole condition of which was that Mr. Pawlowski keep the peace and be of good behaviour. [ 79 ] The Crown's position is that, if Mr.

Pawlowski was found guilty of either or both the mischief charge or the CIDA charge, then a conviction on the breach charge must necessarily follow, committing the substantive offences clearly being a breach of Mr. Pawlowski's requirement to be of good behaviour. [ 80 ] The Defence argued against a conviction on the breach charge. It noted recent comments from our Supreme Court about the overuse of conditions on release and calls by our Supreme Court for restraint on imposing conditions and on enforcing conditions.

The Defence, echoing comments from our Supreme Court, referred to the vicious cycle related to judicial interim release and how this cycle was relevant to Mr. Pawlowski's situation. [ 81 ] All of these are valid arguments but, in my view, do not impact the verdict on this charge. Rather, they are relevant on any potential sentencing. [ 82 ]

Section 515 of the Code outlines the procedure for judicial interim release. The accused is to be released on the least onerous form of release. The conditions authorized by s. 4 do not include a condition to keep the peace and be of good behaviour, although that term is almost always used in release orders, arising I assume out of s. 515(4)(h), "any other reasonable condition specified in the order that a justice considers desirable." It is not however, an enumerated statutory condition. [ 83 ] The accused, however, was aware of the condition and agreed to comply with it.

The condition is somewhat vague and potentially criminalizes a wide range of behaviour which otherwise would not attract criminal sanction. On those occasions, the Court may intervene, sometimes relying on the de minimis concept, as suggested by the Defence. The Court should not be sanctioning trivial breaches. [ 84 ] In this case however, the breach is not trivial. It is arising as a result of Mr. Pawlowski counselling mischief, a criminal offence. Clearly, in order to be of good behaviour, Mr.

Pawlowski must, at a minimum, not commit a further criminal offence upon release. [ 85 ] As a result, I am satisfied beyond a reasonable doubt that Mr. Pawlowski was subject to a release order with a condition to

keep the peace and be of good behaviour and that he failed to comply with that condition without lawful excuse. Therefore, I find Mr. Pawlowski guilty of the breach charge, Count 3. Heard on the 2 nd and 3 rd day of February, 2023. Dated at the City of Lethbridge, Alberta this 2 nd day of May, 2023. G.K. Krinke A Justice of the Alberta Court of Justice Appearances: S. Johnston for the Crown C. Haggerty for the Accused S.C. Miller for the Accused