r v. AKASH SINHA, 2022 QCCQ 6322

Director of Public Prosecutions c. Sinha 2022 QCCQ 6322 COUR DU QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU « Chambre criminelle et pénale » N° : 550-61-074597-218 DATE : July 8 2022 ______________________________________________________________________ PRESIDING JUSTICE HONORABLE JUDGE CHRISTINE AUGER, J.P.M. ______________________________________________________________________ DIRECTOR OF PUBLIC PROSECUTIONS Prosecutor v.

AKASH SINHA, Defendant, Applicant And THE ATTORNEY GENERAL OF QUEBEC Mis en cause ______________________________________________________________________ JUGEMENT ______________________________________________________________________ [ 1 ] The Attorney General of Québec has filed a Motion for

Summary Dismissal of the Applicant’s Motion [1] to have the Order in Council 1020-2020 declared in

part inoperative, ordered pursuant to

Section 123 , para. 1 (8) of the Public Health Act [2] . [ 2 ] All parties recognize that as of March 2020, the world has been in the midst of a worldwide Covid-19 pandemic, recognized by the World Health Organization on March 11, 2020, and as of March 13, 2020, the Québec government declared a state of emergency, by Order of Council 177-2020, under s. 118 of the Public Health Act .

The decrees were adopted by the Québec government in virtue of section 123 (8) of the Act . [ 3 ] Order in Council 1020-2020 imposed the wearing of a face covering, that is, a mask or tightly fitting cloth that covers the nose and mouth, when gathered to exercise their right to peacefully demonstrate.

This Order was applicable on the territorial jurisdiction of the City of Gatineau and the Applicant was served with a statement of offence on March 20, 2021 for refusing to wear a face covering during a peaceful demonstration. [ 4 ] It is in light of this statement of offence that the Applicant presents his Motion to have the decree adopted by the Government of Québec declared in

part inoperative and as Applicant, it is incumbent on the party to demonstrate violation. Once the violation is shown, the AGQ must justify the violation. However, prior to the hearing on the merits of the Constitutional Notice, the AGQ has filed a Motion for

Summary Dismissal. POSITION OF THE ATTORNEY GENERAL OF QUEBEC [ 5 ] The AGQ argues that the Constitutional Notice fails to identify how the Order in Council is the source of the alleged violations of ss. 2 and 7 of the Canadian Charter of Rights and Freedoms and it fails to demonstrate how the Public Health Act decree creates a “serious imbalance” between the legislative and executive powers [3] , under s. 52 of the Charter .

The AGQ also submits that it fails to support the allegation [4] of unlimited powers to the police, in particular, as to how the Order in Council granted the alleged unlimited powers. [ 6 ] In light of the orientation determined in R v. Cody [5] , the issue of dismissal must be raised at the earliest possible occasion, if, at its face, a motion has no basis upon which it could reasonably succeed.

It is the trial judge’s duty to dismiss applications when it becomes apparent that they are frivolous. [ 7 ] The AGQ invites the Court to conclude that the Constitutional Notice does not clearly state the contentions the Applicant intends to

assert nor how it is well founded in law, which are mandatory thresholds under ss. 76 and 77 of the Civil Code of Procedure . [ 8 ] The AGQ argues that

summary dismissal on penal matters, is governed by common law and civil law principles [6] in a suppletive fashion, as well as the Code of Penal Procedure [7] , which provides that notices of constitutional questions may be dismissed summarily if they are deemed unfounded in law [8] . In particular, s. 168, para. 2 requires the Court make a finding that the alleged facts give rise to the conclusions sought in the constitutional notice. In support of the AGQ’s Motion for

Summary Dismissal, it is submitted that the Applicant’s Constitutional Notice does not respect the threshold set out in by Art. 77 of the Code of Civil Procedure, which states: Art. 77.

To be validly given, the notice to the Attorney General of Québec must clearly state the contentions the person intends to assert and the grounds on which they are based , and be served on the Attorney General by a bailiff as soon as possible in the course of the proceedings but, in a civil matter, at least 30 days before the case is ready for trial and, in other matters, at least 30 days before the trial; in addition, the notice must be accompanied by all pleadings already filed in the record.

The Attorney General becomes a party to the proceeding without further formality and may submit conclusions to the court, in which case the court must rule on them. Only the Attorney General may waive the notice period.

The notice to the Attorney General must also be served on the Attorney General of Canada if the provision or rule of law concerned comes under federal jurisdiction; it must be notified to the Director of Criminal and Penal Prosecutions if the provision or rule of law concerned relates to a criminal or penal matter. [ 9 ] To this end, the AGQ submits that Art. 76 requires that no application may be ruled upon unless the Constitutional Notice has been validly given and the Court must solely adjudicate with respect to the grounds set out in said Notice. [ 10 ] In keeping with the guidance set out in s. 168, para. 2 of the Code of Penal Procedure, the Court at this stage must exercise prudence in order to avoid putting an end prematurely to the argument sought in the Notice and in the event of doubt, continue to a full hearing [9] . [ 11 ] The AGQ submits that the Constitutional Notice has no reasonable chance of success, it is frivolous and the alleged violations are of a general, imprecise nature upon which no credible argument is founded.

The Court of Appeal reaffirmed in Paul v.

DPCP , the necessity that the arguments setting out the violations be precise in nature. [ 12 ] It is the AGQ’s position that even if the facts alleged were deemed to be true, the Constitutional Notice filed by the Applicant is unfounded in law in that there is no demonstration of the manner in which the Order in Council infringe of the constitutionally protected rights under ss. 2 and 7 of the Canadian Charter of Rights and Freedoms [10] , as set out in paragraphs 35-38 of the Constitutional Notice. [ 13 ] The remedial structure of the Charter requires that breaches be addressed by sections 24 (1) and 52 (1) of the Constitution Act, 1982 .

The Supreme Court in Ferguson [11] clearly states that when the “law produces an unconstitutional effect” or purpose, the prescribed remedy under 52 (1) results in that law having no force or effect either for the party seeking or a third party. Section 24 (1) is a remedy for unconstitutional government actions and not unconstitutional laws. POSITION OF THE APPLICANT ON THE CONSTITUTIONAL NOTICE [ 14 ] The Applicant invites the Court to exercise prudence in the analysis of the Motion for

Summary Dismissal, in light of Patrick Ouellet v. The Queen [12] , wherein the Court of Appeal reiterates that

summary dismissal should only be used in cases wherein the constitutional challenge is, at its face value, frivolous [13] . [ 15 ] The facts supporting the Constitutional Notice attest that on March 20, 2021 during the course of a pacific demonstration, the officers present had orders to ensure compliance of the mandatory face covering.

The pacific gathering left Robert Guertin arena at 1 pm and at the crossing of Saint-Henri and Carillon Street, at 1:34 pm, the officer observed the Applicant without a mask. [ 16 ] The officer explains to the Applicant the mandatory requirement of wearing the mask during the peaceful demonstration. While the officer is drafting the statement of infraction, the Applicant laughed and told the officer he would not be wearing a mask. He returned to the peaceful demonstration. [ 17 ] The officer opted to wait to the end of the walk to intervene with the Applicant, for safety concerns.

At the end of the gathering at approximately 3 pm, the Applicant is located in a car and he is served with the statement of offence. Approximately 1 hour and 30 minutes has elapsed since the initial warning. [ 18 ] The Applicant recognizes that the Public Health Act was adopted on September 20, 2001 and grants the Québec government the ability to declare a state of health emergency and it also can impose, by decree, all necessary measures to protect the population, including the creation of penal provisions to ensure compliance. [ 19 ] In Bricka c.

P.G.Q [14] ., the Court of Appeal ruled on the validity of the renewal of the declaration of emergency and used as a premise that the measures taken under the emergency powers must be linked to the threat, real and imminent, to the health or to the population, that initially justified the state of emergency. This is to avoid any abuse in the exercise of these emergency powers. [ 20 ] The Applicant takes issue with the fact that

section 122 of the Act does not contain any review or control process by the Québec National Assembly [15] in relation to the penal provisions put in force in virtue of s. 123 (8) of the said Act . The Applicant argues that this

creates a serious imbalance between the legislative and the executive power. Alleged

section 7 Charter violation [ 21 ] S. 7 of the Charter guarantees: Life, liberty and security of person Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 22 ] The Constitutional Notice also argues that the measures taken by the executive branch must be in compliance with the Charter , in particular, s. 7 that must be interpreted broadly as relates to the values and the protection of personal autonomy [16] .

The Applicant submits that the state has deprived him of the guarantees under s. 7 of the Charter , of life, liberty and security and that the deprivation is contrary to the principles of fundamental justice [17] . [ 23 ] The Constitutional Notice seeks a conclusion of unconstitutionality of Order 1020-2020 because its creation of penal provisions engaged policing authorities to enforce the provisions. [ 24 ] The alleged violation of

Article 7 of the Charter is described as follows:

a) The mere fact of making breathing more laborious is important and intrusive enough to achieve the dignity and independence of the individual;

b) There is no more fundamental inherent right to live and security of the person than the right to breath;

c) The government, forcing the citizens to wear a mask like any other form of clothing, is a violation of freedom; [ 25 ] The AGQ submits that the Applicant has failed to show how the Order in Council is the source of the alleged infringement and failed to invoke, identify nor demonstrate the violation of fundamental justice. Alleged

section 2 Charter violation Fundamental freedoms Everyone has the following fundamental freedoms: (

a) freedom of conscience and religion; (

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (

c) freedom of peaceful assembly; and (

d) freedom of association. [ 26 ] The Applicant submits that the Order violates his right to peaceful assembly and his right to breathe. [ 27 ] It is in light of the statement of offense that the Applicant presents his Motion to have the decree adopted by the Government of Québec declared inoperative and as Applicant, it is incumbent on the party to demonstrate violation. Once the violation demonstrated, the AGQ must justify the violation. However, prior to the hearing on the merits of the Constitutional Notice, the AGQ has filed a Motion for

Summary Dismissal. Justified infringement as per s. 1 of the Charter [ 28 ] The Applicant reiterates the requirement that the AGQ show pressing and substantial objectives in the law and the means chosen are proportional [18] to that objective.

He adds that the Order in Council 1020-2020 restricted the ability of Québec citizens to peacefully demonstrate without face coverings and that because experts around the world have differing opinions on the effectiveness of mask wearing outdoors, the measure is unjustified in a free and democratic society. [ 29 ] He argues that the measures were imposed without adequate scientific studies nor sourcing.

He adds that the measure is unjustified in light of the transmission that occurs in restricted and poorly ventilated environments. [ 30 ] The Applicant submits that the measure is random and unjustified, with no studies demonstrating effectiveness and that the penal offence created infringes on individual liberty in that he is unable to express himself and is obliged to wear a mask while peacefully demonstrating. [ 31 ] The Applicant sets out in his Constitutional Notice that the Order in Council is not a proportional response and that no efforts were made to ensure minimal infringement.

As well, no efforts were taken to avoid negative impacts on the health of citizens [19] . As well, he submits that the infringement is not minimal in that the measures violate the right to liberty and security of a person, in giving unlimited powers to the police.

[ 32 ] According to the Applicant, there is no proven rational connection between the imposition of these conditions and the health of the Québec citizens against Covid-19. ANALYSIS [ 33 ] In order for a Constitutional Notice in virtue of s. 52 (1) of the Charter to have a reasonable chance of success, it must be precise , it must clearly outline the well foundedness in law of the arguments and conclusions sought, supported by detailed facts. [ 34 ] The Applicant on the Constitutional Notice, faced with a Motion for

Summary Dismissal, does not have to convince the Court of the existence of a violation of the constitutional rights, but only that its Constitutional Notice is not frivolous and has a reasonable chance of success [20] . [ 35 ] The Constitutional Notice cannot simply summarize the judicial principles set forth by the Courts, which in essence, constitute the legal framework in which the Court must then apply alleged facts.

Facts need to be addressed in the Notice and in particular, the Court must be able to define, develop and analyze each alleged constitutional violation o as to the effect of the Order in Council 1020- 2020 on the Applicant. [ 36 ] As well, the Court must have a clear context as to how the legislation of mandatory mask wearing during the peaceful demonstration impacted the constitutional rights of the Applicant himself, namely his freedom of assembly and of his right to breath or making his breathing more laborious.

The violations cannot exist in a legal vacuum and must be set out clearly and not merely as hypothetical assumptions. The only facts that can be applied by the Court are those alleged in the Constitutional Notice summarized earlier, which must be considered as proven. [ 37 ] In Kutynec [21] , the Ontario Court of Appeal outlined the requirement that a Charter violation motion should not be heard when it has “no basis for a finding of a Charter infringement” and a judge should only choose to adjudicate those “with potential merit”. In the exercise of this discretion, the Court of Appeal in R. v.

Loveman [22] states that “where a Charter right is at stake, a trial judge will be reluctant to foreclose an inquiry into an alleged violation”. More recently, the Québec Court of Appeal in Antonio Accurso v. The Queen [23] , reaffirmed in the principles set forth in Kutynec , Loveman and Vukelich [24] . CONSIDERATIONS [ 38 ] First, in light of these principles that provide the framework for the Motion on

Summary Dismissal , the Court concludes that the arguments set out in the Constitutional Notice have no reasonable chance of success. The Court must assess the viability of the Notice under s. 52 (1) which does not create a personal remedy.

The Court must be in a position to conclude that the Applicant has a reasonable chance of success in demonstrating, at hearing, that the legislation targeted, that is mandatory mask wearing during a peaceful demonstration, has an unconstitutional purpose or effect. [ 39 ] Second, there must be a reasonable chance of success in demonstrating that the legislation is null and void, in concluding that the legislation of mandatory masks during a peaceful protest and making breathing more laborious, poses a real risk of unconstitutional treatment for the Québec population [25] .

The Constitutional Notice, by no means, demonstrates this argument, at its face. The allegations supporting an argument that the legislation was enacted in a non-discretionary way are insufficient and unfounded. [ 40 ] Thirdly, what the Applicant is asking the Court to conclude, by this Notice, is that the enactment of the Order in Council 1020- 2020 and penal provisions have allowed unchecked police conduct to ensure compliance of mandatory mask wearing during a peaceful protest and automatic infringement of ss. 2 and 7 constitutionally protected rights.

Consequently, it follows, because of these effects of the legislation, it is invalid under section 52 (1) . This line of argument has no chance of success. FOR THESE REASONS, THE COURT: GRANTS the Attorney General of Québec’s Motion for

Summary Dismissal. __________________________________ JUGE CHRISTINE AUGER, J.P.M. M e Sarah Brouillette Attorney for the Applicant Me Vincent Riendeau Attorney for the Attorney General of Québec

Me Josiane Larose Director of Public Prosecutions Date d’audience : 24 mai 2022