Her Majesty the Queen - v. -, 2022 SKPC 33

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 33 Date: August 31, 2022 Ticket No: 85426918 Location: Nipawin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brady Baraniski Ms. Jennifer Souter For the Crown Mr. Theodore Litowski For the Attorney General (Saskatchewan) Mr. Luke A. Coupal For the Accused DECISION S.D. SCHIEFNER, J INTRODUCTION [ 1 ] COVID-19 is a highly infectious respiratory disease that is caused by a particular strain of the coronavirus (SARS-CoV-2).

Coronaviruses are a large family of viruses that are known to cause illnesses ranging from the common cold to more severe diseases, such are Severe Acute Respiratory Syndrome (SARS). COVID-19 was first identified in Wuhan, China in December of 2019. The virus causing this disease is considered novel because it had not previously been identified in humans. COVID-19 has been responsible for a worldwide pandemic. It has had a negative impact on global health, and it has disrupted economies around the world. Simply, COVID- 19 has had a profound impact on everyone’s lives.

[ 2 ] Someone becomes infected with COVID-19 when spike proteins from the virus (SARS-CoV-2) bind to receptors on the cellular membrane of certain tissues in the body. The particular receptors that the virus can attach are concentrated in the upper respiratory tract and bronchi along with the gastrointestinal system. As such, the primary mode of transmission of the virus is through respirable droplets and aerosols (small droplets of moisture exhaled by one person and inhaled by another).

COVID-19 results in a spectrum of illness ranging from no symptoms to symptoms that are manageable (either with or without medical intervention) to death. A variety of containment and mitigation strategies have been adopted around the world in response to COVID-19, including vaccination programs, handwashing, mask wearing, physical distancing, closures of borders, schools and workplaces, quarantines, and universal lockdowns.

The common objective of these strategies is to disrupt person-to-person transmission of the virus. [ 3 ] This case is about one of the mitigation strategies that was employed in Saskatchewan in March of 2021 in response to COVID-19 – the requirement to wear a face mask (covering the nose and mouth) at certain times. Mr.

Brady Baraniski is charged with failing to wear a face mask while in a prescribed enclosed setting (in a restaurant/bar) as required by a public health order duly enacted by the provincial government. [ 4 ] This case originally involved a number of complex questions, including a challenge to the constitutional validity of the public health order pursuant to which Brady Baraniski was charged. However, in the end, only one issue was left to be determined by this Court. Brady Baraniski asks that the proceedings against him be stayed on the basis of abuse of process.

It should be noted that the basis for this application is unique to this particular case and not likely applicable to others who may face a similar charge. [ 5 ] Having considered the evidence and for the reasons that follow, I find that the decision of the Crown to not withdraw the charges against Brady Baraniski was a matter of prosecutorial discretion. Furthermore, in light of deference owed to the Crown in relation to matters of prosecutorial discretion, I find that there is no basis upon which this Court ought to intervene in response to that decision.

Finally, even if I had found that an abuse of prosecutorial discretion had occurred (which I do not), a stay of proceedings would have not been the remedy I would have chosen to address that breach. THE PROCEEDINGS [ 6 ] A trial was conducted on March 3, 2022, March 4, 2022, April 5, 2022, and June 21, 2022 in Nipawin, Saskatchewan. The trial began as a blended Charter voir dire because Brady Baraniski challenged the constitutional validity of the public health order that was the basis of his charge.

However, on May 20, 2022, Judge Marquette released her thorough and thoughtful decision in R v Keough , 2022 SKPC 23 [ Keough ] addressing these very issues. In her decision (which was one of the first in Canada to examine the constitutional validity of a public health measure adopted in response to COVID-19), Judge Marquette found that the public health order that was the basis of that prosecution was validly enacted and did not offend the rights set forth in either s.2 or s.7 of the Charter .

The public health order which Brady Baraniski sought to challenge in these proceedings was the same order upheld by Judge Marquette in Keough . Following the release of the Keough decision, Brady Baraniski withdrew his challenge to the public health order on June 3, 2022. As a result, all evidence accepted by this Court during the voir dire to hear the Notice of Constitutional Questions filed dated September 13, 2021 was applied to the trial. [ 7 ] However, during the trial, Brady Baraniski filed a second Notice of Constitutional Questions dated March 13, 2022. In this notice, Mr.

Baraniski argued that this prosecution is an abuse of process and contrary to s.7 of the Charter . As a result, the Court entered into a second blended voir dire to hear the balance of the evidence. By agreement, all evidence previously accepted in the trial was applied to the second voir dire . THE EVIDENCE Documentary evidence [ 8 ] Dr. Saqib Shahab, FRCPC, is the Chief Medical Health Officer for the Province of Saskatchewan. Dr. Shahab has authority under The Public Health Act, 1994 , SS 1994, c P-37.1 [ The Public Health Act, 1994 ], and concomitant regulations.

The primary purpose of this body of legislation is to protect the health and well-being of the people of Saskatchewan from the risks associated with communicable diseases. Through authority set forth in The Disease Control Regulations, RRS c P-37.1 Reg 11 [ The Disease Control Regulations ], public health officials monitor communicable diseases within the province and take actions that are considered necessary to decrease or eliminate the risks to health presented by a communicable disease. In response to COVID-19, the Minister of Health delegated various authorities to Dr. Shabab.

One of the authorities that was delegated to Dr. Shahab was the authority to make orders for

the purpose of preventing, reducing and controlling the transmission of COVID-19, including the authority to require persons to wear face coverings. Although a number of public health orders were enacted by the province in response to COVID-19, of significance to these proceedings, Dr. Shahab enacted a public health order on or about February 18, 2021 dealing with face coverings (Public Health Order). [ 9 ] In the Public Health Order, Dr. Shahab directed that all persons must wear a face mask (a covering that covers the nose and mouth) when in certain enclosed settings enumerated in that order.

Restaurants, bars and taverns were specified as places where persons must wear face coverings. The Public Health Order included a number of exceptions for certain persons who were not required to wear a face mask, such as the very young. None of these exceptions are relevant to these proceedings. The Public Health Order also includes a number of circumstantial exceptions - circumstances during which the wearing of face coverings was not required.

For example, wearing a face mask was not required while a person is seated and consuming food or a beverage in restaurant or any other location where food or beverages are served. Dr. Mark Fenton : [ 10 ] Dr. Mark Fenton is a respirologist and associate professor at the University of Saskatchewan (medicine). He has undergraduate, Masters and medical degrees from the University of Saskatchewan. He first trained in Internal Medicine and later Respirology. He has completed fellowships in lung transplantation and sleep medicine. Among his many credentials and accomplishments, Dr.

Fenton is the Program Director of the Respirology Training Program at the University of Saskatchewan and Royal University Hospital in Saskatoon. Finally, he confirmed that, in his work, he has no oversight over the public health orders that are the subject matter of these proceedings. Dr. Fenton was qualified without reservation as an expert in respiratory illnesses, including COVID- 19, including the transmission and control of the virus (SAR-CoV-2) causing that disease. Dr.

Fenton knows what he is talking about and he provided this Court with a helpful and unbiased evaluation of the available scientific evidence respecting COVID-19. [ 11 ] Dr. Fenton testified that COVID-19 is a complicated disease, and it has a broad spectrum of presentations in infected patients. A person can be asymptomatic, or they can have a range of symptoms and illnesses progressing all the way to advanced respiratory failure and death. Initially, the disease tended to present as a respiratory illness. Many patients complained of fevers, chills, and sore throats.

Some patients experienced anosmia - the inability to smell and taste. For some patients, the respiratory illness will progress to COVID pneumonia – a condition caused by an over-aggressive immune response in the body to the virus that causes fluid to accumulate in the lungs – a condition that can cause acute respiratory distress in the patient requiring advanced medical intervention. The existence of co-morbidities, such as diabetes and underlying lung disease or heart disease, can increase the risk factors for negative outcomes in COVID-19 patients.

Similarly, patients with compromised immune systems are at greater risk in the event of exposure to the virus. Dr. Fenton also noted that COVID-19 can cause serious illness in people of all ages and has been known to cause serious illness and death in young, otherwise healthy individuals. Finally, Dr. Fenton noted that, since its initial appearance in the population, the virus (the infectious organism) has mutated on several occasions affecting the spectrum of illness seen in patients. [ 12 ] In his testimony, Dr.

Fenton provided his opinion that face masking is an effective mechanism to reduce person-to-person transmission of the virus and to reduce the risk of contracting COVID-19. Dr. Fenton explained that masking works in two ways. First, it helps with source control by providing a physical barrier to respiratory drops – a barrier that helps to reduce the extent to which a person affected with the disease can spread the virus through respiratory droplets.

Second, a physical barrier over the nose and mouth also reduces the risk that an uninfected individual who comes into contact with an infected person will inhale respiratory droplets containing the virus. Dr. Fenton testified that face masks are made from a variety of materials with cloth being the most common among the public, particularly early in the pandemic when hospital grade materials (N95) were in short supply. Dr. Fenton explained that, while cloth masks are porous, they still possess the ability to bar the size of respiratory droplets that tend to carry the virus. Dr.

Fenton also explained that, in addition to the physical barrier, there is also an electrostatic effect wherein the respiratory droplets at attracted to material used in the mask increasing the effectiveness of the mask. Constable Tanner Maynard [ 13 ] Constable Tanner Maynard is a member of the RCMP working out of the Nipawin/Smeaton detachment.

Constable Maynard was asked by a local public health official to go to the Shorebird Inn at Tobin Lake and conduct an investigation regarding compliance with various public health orders that were in place at the time, including the Public Health Order dealing with the wearing of face masks. Apparently, public health officials had received complaints of non-compliance with these orders. [ 14 ] On March 6, 2021, Constable Maynard attended to the Shorebird Inn with the intention to enter the premise, make observations and gather evidence. He arrived just after 10:35 p.m.

Because the officer was conducting an investigation, he began audio/video recording his actions. This recording was tendered as evidence in these proceedings. Constable Maynard testified that upon arrival at the Shorebird Inn he entered the bar portion of the building complex. The officer testified that he observed three employees

working in the bar at that time. A waitress (Skylar David) was walking around the bar, picking up glasses, and wiping down tables. This individual was not wearing a face mask. Another waitress (Jennifer Tresser) was working near the serving counter. This individual was also not wearing a face mask. The third employee was Brady Baraniski. He was observed by Constable Maynard standing by the serving counter. Brady Baraniski was not wearing a face mask. [ 15 ] The video recording made by Constable Maynard on March 6, 2021 confirms the officer’s testimony respecting Brady Baraniski. In the video, Mr.

Baraniski can be observed standing by the serving counter. He appears to be watching a television set on the wall. He was not wearing a mask or any form of face covering. He is not seated, and he is neither eating food nor drinking a beverage. He is just standing watching tv. The bar is busy at the time and there are several patrons present, as well as the two other staff previously mentioned. [ 16 ] In cross-examination, Constable Maynard testified that he delivered a copy of the ticket that is the basis of this prosecution to Brady Baraniski on May 9, 2021.

When the officer did so, he had a conversation with Brady. During that conversation, the Officer told him that he had a discussion with his supervisor, as well as an official from Public Health, and, after doing so, the Officer gave Mr. Baraniski an extended court date (June 30, 2021) and told Brady that if there were no further problems with him not complying with the public health orders between that date and the court date (June 30, 2021) that “we” would look at having the ticket withdrawn. Constable Maynard told Mr.

Baraniski that, if he was willing to comply with the public health rules in the future, “we” would be willing to withdraw the ticket. [ 17 ] Constable Maynard testified that he was transferred out of the jurisdiction soon after May 9, 2021 and that he did not have any further dealings with Brady Baraniski. Constable Maynard also testified that he was not aware of any other officer having any dealings with Brady Baraniski regarding compliance with public health orders. Constable Maynard testified that, to his knowledge, Brady Baraniski met the expectations he described during their conversation.

Defence Evidence Bryan Baraniski (Father of Accused) [ 18 ] Bryan Baraniski was called to testify in these proceedings. Bryan Baraniski is one of the owners of the Shorebird Inn and Brady Baraniski’s father. In cross-examination, Bryan Baraniski testified that he could not remember if he was working on March 6, 2021. He did not recall Constable Maynard entering the building or speaking to his staff.

Brady Baraniski (Accused) [Abuse of Process voir dire ] [ 19 ] Brady Baraniski testified that his father, Bryan Baraniski, owns the Shorebird Inn, which is a hotel and public eating establishment located at Tobin Lake. Brady testified that his primary role at the Shorebird Inn was the kitchen manager. As Brady put it, he worked mostly in the “back of house” – working with the food, planning menu, etc. However, if his father needed him to, he would also watch the “front of the house” (i.e. manage the bar, supervise staff, and/or do whatever was needed to operate the hotel).

Brady explained that he only worked in the front of the house when his father was away from the facility. Brady acknowledged that one such area where he was required to work from time to time was the bar. [ 20 ] When asked by his counsel, Brady Baraniski declined to acknowledge that he had any responsibility to ensure that the employees of the Shorebird Inn wore face coverings or otherwise complied with any of the public health orders respecting COVID-19. As he put it “that’s more my father’s kinda party”.

However, Brady acknowledged his personal obligation to comply with the applicable face covering orders (i.e. the need to wear a face mask). Although denying that it was his responsibly to do so, Brady Baraniski testified that, if he happened to see someone not wearing a mask, he would tell them to “mask up”. [ 21 ] In cross-examination, Brady acknowledged that during the winter of 2020/2021 (prior to March 6, 2021), both he and his father had discussions with officials from Saskatchewan Health regarding the public health measures related to COVID-19.

Although he could not remember precisely when, Brady recalled that public health officials had stopped at the Shorebird Inn a couple of times. Brady specifically recalled having discussions with Inspector Michael Hayduk regarding the public health measures that had been introduced by the province in response to COVID-19 (for example, the need to separate tables by six feet). However, Brady testified that, at this time, his father was healthy and in charge of the facility. As a result, Brady felt that his personal views about what should happen at the Shorebird Inn did not really mean much.

[ 22 ] However, soon after Constable Maynard’s attendance at the Shorebird Inn on March 6, 2021, an outbreak of COVID-19 occurred at that facility. Several individuals, including Bryan Baraniski, tested positive for COVID-19. Brady testified that as a result of illness, his father was away from the Shorebird Inn for an extended period in the spring of 2021. On March 9, 2021, Brady testified that he was approached by officials from Saskatchewan Public Health and directed to close the Shorebird Inn.

Brady testified that the officials told him that the Shorebird Inn could reopen after the facility had been cleaned and disinfected. Brady made these arrangements from home because he was required to quarantine for a couple of weeks after the outbreak. [ 23 ] Brady Baraniski testified that the Shorebird Inn closed on March 9, 2021 for cleaning and remained closed until March 22, 2021. Brady specifically recalled dealing with Inspectors Michael Hayduk and Inspector Ryan Philipation, both of whom were public health officials with the Saskatchewan Health Authority.

Brady Baraniski testified that, during this time and while his father was recovering, he was responsible for managing all operations at the hotel, including its cleaning and reopening. Although he obtained direction from his father from time to time, Brady Baraniski supervised the reopening of the Shorebird Inn after its closure, and he was responsible for operations at the Shorebird Inn until Bryan Baraniski was well enough to return to work in mid-June, 2021. [ 24 ] Brady Baraniski testified that in May of 2021, he was still the kitchen manager at the Shorebird Inn.

So, although he was also responsible for the “front of house” (meaning the restaurant, the bar and the hotel), he was primarily focused on tasks such as preparing a new menu and assisting with the hiring of new staff for the upcoming summer season. [ 25 ] Brady Baraniski testified that he was served with a copy of Ticket #85426918 on or about May 9, 2021 by Constable Maynard. He remembered that he had a conversation with the officer when he was served with the ticket and that conversation took place at the Shorebird Inn.

Brady testified that Constable Maynard told him that, although he had been issued a ticket, not to worry about it. He said the officer told him that, if he kept wearing a mask, obeying the rules (public health rules), and following orders (public health orders), the ticket would be “shredded” or “ripped-up” by the first court appearance. Brady Baraniski’s first court appearance on the matter was set for June 30, 2021 at 10:00 in Nipawin Provincial Court.

When pressed in cross-examination, Brady had difficulty remembering the details of his conversation with the officer. [ 26 ] Brady Baraniski testified that the obligation to keep wearing a mask, obeying the rules and following public health orders requested by Constable Maynard applied to him personally and not to the staff he supervised or to the Shorebird Inn in a general sense. Brady Baraniski testified that between May 9, 2021 and June 30, 2021 he wore his face masks at all times while working at the Shorebird Inn.

Brady noted that no charges arose against him during this period. [ 27 ] Brady Baraniski acknowledged that, after being served with the ticket, he had several dealings with officials from the Saskatchewan Health Authority regarding operations at the Shorebird Inn and compliance with the applicable public health orders in place at the time respecting COVID-19.

However, in cross-examination, Brady Baraniski denied that Inspector Philipation or any other public health official observed him either not wearing proper face covering or not wearing his face covering properly - that it was being worn so as to not cover his nose and mouth. He specifically denied that such observation could have been made of him while he was working at the Shorebird Inn on October 19, 2021, or on October 25, 2021, or on October 27, 2021.

While denying that these incidents occurred as suggested by public health officials, Brady Baraniski acknowledged that he had been charged with failing to wear a face mask as a result of the October 25, 2021 incident. Reply Evidence by the Crown [Abuse of Process voir dire ] Inspector Ryan Philipation [ 28 ] Mr. Ryan Philipation testified that he was the Senior Public Health Inspector for the area of the province where the Shorebird Inn was located.

He explained that public health officials routinely worked with hotels and public eating establishments, such as the Shorebird Inn, to educate owners/operators and encourage compliance with applicable public health regulations, such as The Food Safety Regulations , RRS c P-37.1 Reg 12 . Inspector Philipation testified that, in response to COVID-19, he and his staff began working with all hotels and public eating establishments, including the Shorebird Inn, to educate owners/operators and encourage voluntary compliance with the public health orders enacted by the province.

By way of background, Inspector Philipation explained that public health officials use a progressive enforcement strategy in enforcing public health regulation - beginning with education and assistance, then moving to warning and cautions in the event of non-compliance, and then progressing to prosecution where voluntary compliance cannot be obtained. Inspector Philipation testified that public health officials spoke with both Bryan and Brady Baraniski to provide education on each of the public health measures instituted by the province in response to COVID-19 beginning as early as October of 2020.

[ 29 ] Inspector Philipation testified that he communicated with Brady Baraniski on March 16, 2021 by email and he had a lengthy conversation with him on March 22, 2021. Both of these communications were about the measures required by the public health orders in place respecting COVID-19. During these conversations, Brady agreed that the Shorebird Inn would comply with all public health orders.

However, Inspector Philipation testified that, soon after these conversations, public health officials became concerned that the Shorebird Inn was not complying with the record keeping obligations required by the province as a result of COVID-19. Inspector Philipation testified that he attended to the Shorebird Inn on March 25, 2021 and served Brady Baraniski with a corporate ticket in that respect. Finally, Inspector Philipation testified that he conducted a site inspection of the Shorebird Inn on June 19, 2021, and he observed that face masks were not being worn by staff of the Shorebird Inn.

Brady Baraniski was present at the Shorebird and came to speak with Inspector Philipation. Brady was wearing a face mask when he came to speak with the Inspector. [ 30 ] Inspector Philipation testified public health officials attended the Shorebird Inn on October 19, 2021 and observed that Brady was not wearing a face mask. These same officials did a second visit on October 22, 2021, and again they observed that Brady was not wearing a face mask. Finally, Inspector Philipation testified that he attended to the Shorebird Inn on October 25, 2021, and he personally observed that Brady was not wearing a face mask.

Evaluation of the Evidence and Findings of Fact : [ 31 ] The facts in this case are largely not in dispute. For example, there is no dispute that on March 6, 2021 Brady Baraniski was not wearing the prescribed face covering (a face mask) as required by the Public Health Order (respecting face covering dated February 18, 2021). The video evidence depicts him standing by the serving counter in the bar at the Shorebird Inn and watching tv. He was not seated. He was not eating food or consuming a drink. And he was not wearing a face mask.

Because he was not seated and actively consuming food or drinking a beverage, none of the exceptions set forth in the Public Health Order are applicable. Having reviewed the evidence, I am satisfied that the Crown has proven the actus reus (the physical element of the offence). Brady Baraniski has tendered no evidence to assert that he used due diligence and/or reasonable care in an effort to avoid a breach of his face-masking obligation. As such, the Crown has also proven the limited mens rea component required of a strict liability offence.

In final argument, Brady acknowledged his contravention. [ 32 ] One area where there is a dispute in the evidence involved what Constable Maynard said to Brady Baraniski on May 9, 2021 when he served him with his copy of the ticket. Where there is conflict in the evidence, I prefer and rely upon the evidence of Constable Maynard as to the substance of the conversation that occurred.

Brady Baraniski acknowledged that he did not remember the conversation precisely and his use of expressions like “shred” or “rip up” in describing what would happen with his ticket demonstrate the imprecision of his recollection – that is not language used by a peace officer. On the other hand, Constable Maynard’s conversation with Brady Baraniski had been previously discussed with his supervisor and officials from Public Health. The officer had specifically asked and been authorized to make a proposal to Brady Baraniski.

Under these circumstances, Constable Maynard’s memory of that conversation is far more reliable than Brady’s recollection. ANALYSIS [ 33 ] Brady Baraniski’s counsel takes the position that Constable Maynard proposed something akin to “mediation” when he spoke with Brady on May 9, 2021. Counsel suggests that the officer extended an offer proposing that, if Brady complied with the applicable public health rules, the ticket would be withdrawn, and he would not be prosecuted.

Counsel asserts that the evidence supports the conclusion that Brady Baraniski did what the officer asked him to do – that he complied with all applicable public health orders during the “mediation period” (May 9, 2021 to June 30, 2021). Counsel notes that Brady Baraniski was neither charged nor convicted of any contraventions of any applicable public health order during this period. [ 34 ] Counsel’s position is that the continued prosecution of Brady Baraniski would undermine the integrity of the justice system.

Counsel argues that the public will lose confidence in the police and their important role in the justice system if Brady is prosecuted after being offered mediation by the officer and after complying with the requirements of that offer. Counsel argues that most members of the public trust police and believe they speak with authority and knowledge. Counsel further argues that, to maintain that public trust, the police must be able to keep their word. To which end, counsel argues that permitting this prosecution to continue would undermine the authority and trust the public have in the police.

In support of his position, counsel for Brady Baraniski relies upon the decision of the Supreme Court of Canada in R v Babos , 2014 SCC 16 , [2014] 1 SCR 309 [ Babos ]. To be clear, Brady Baraniski does not assert that the impugned state conduct has compromised the fairness of his trial. Rather, the argument is that the state conduct risks undermining the integrity of the judicial process as a whole – the “residual” category identified by the Court in Babos where remedial relief is sought for an abusive process.

See: Babos at para. 31 . [ 35 ] Brady Baraniski’s “abuse of process” argument is properly characterized as a challenge to the prosecutorial discretion exercised by the Crown. To resolve this issue, I must consider the following questions:

1. Did Constable Maynard make a resolution proposal to Brady Baraniski? 2. Did Brady Baraniski comply with the proposal made by Constable Maynard? 3. Is it an abuse of process for the Crown to continue to prosecute Brady Baraniski under the circumstances? 4. What is the appropriate remedy under the circumstances? Did Constable Maynard make a resolution proposal to Brady Baraniski? Yes. [ 36 ] I am satisfied that Constable Maynard made a proposal to Brady Baraniski on May 9, 2021 when he served him with his copy of the ticket. I am also satisfied that the officer had authority to do so.

Police officers routinely conduct the prosecution of regulatory offences in rural Saskatchewan. Constable Maynard spoke with his supervisor and with officials from Public Health, the agency that originally asked him to investigate potential contraventions at the Shorebird Inn. Inspector Philipation confirmed that Public Health utilizes a progressive enforcement model directed at obtaining voluntary compliance where possible and prosecution only where necessary.

The proposal Constable Maynard suggested to Brady Baraniski is consistent with the kind of progressive enforcement described by Inspector Philipation. [ 37 ] The proposal that Constable Maynard gave to Brady Baraniski was that the prosecution team (he, his supervisors and the public health officials) would “look at” having his ticket withdrawn if Brady “complied” with all applicable public health rules and orders respecting COVID-19. Did Brady Baraniski comply with the proposal made by Constable Maynard?

No. [ 38 ] Counsel for Brady Baraniski suggests that the absence of another ticket for non-compliance prior to his first appearance supports his assertion that he complied with the applicable public health rules and orders. With all due respect, I am not persuaded by this argument. On June 19, 2021, Inspector Philipation attended to the Shorebird Inn and observed that certain staff were not in compliance with their obligation to wear face masks.

While Brady Baraniski was in compliance, his staff were not. [ 39 ] Brady Baraniski’s belief that Constable Maynard and the public health officials were only concerned about his personal compliance and not compliance at the Shorebird Inn more generally is both illogical and self-serving. For example, there had just been a serious outbreak of COVID-19 at that facility, which had to be closed for several days. Several staff, including Brady himself, were required to isolate – others had contracted COVID-19.

As part of the plan to reopen the Shorebird Inn, public health officials had repeatedly communicated their desire that the Shorebird Inn comply with all applicable public health rules respecting the pandemic. Brady Baraniski told these officials that the Shorebird Inn would do so as part of his reopening plan. Between May 9, 2021 and June 20, 2021, Bryan Baraniski was either at home or in hospital recovering from COVID-19.

While he may have felt that he did not have much control over the policies and operational decisions at the Shorebird Inn, at the time Constable Maynard spoke to him on May 9, 2021 and at the time Inspector Philipation conducted his site visit on June 19, 2021, Brady Baraniski was the defacto manager of the Shorebird Inn. He was not merely an employee working in the back. [ 40 ] For these reasons, I am not satisfied that Brady Baraniski was in compliance with the proposal presented to him on May 9, 2021 by Constable Maynard.

While “he” may not have violated the applicable public health orders prior to June 30 2021, the same cannot be said for the staff he was supervising at the time. Is it an abuse of process for the Crown to continue to prosecute Brady Baraniski under the circumstances? No. [ 41 ] In the first instance, Brady Baraniski’s allegation of abuse of process must fail because he did not fulfil his obligations under the proposal made to him by Constable Maynard by not ensuring that the staff he supervised at the Shorebird Inn were in compliance with the applicable public health orders respecting COVID-19.

However, even if I had found that the obligation arising out of the officer’s proposal only applied to Brady Baraniski personally (and did not include his duties as the defacto manager of the Shorebird Inn), I am not satisfied that intervention by the Court is appropriate based on the applicable standard of review for claims of abuse of prosecutorial discretion.

[42] In R v Anderson, 2014 SCC 41, [2014] 2 SCR 167 [Anderson], the Supreme Court of Canada reviewed and clarified the lawrespecting the exercise of prosecutorial discretion and claims of abuse of process. Prosecutorial discretion is an expansive term. It coversall decisions regarding the nature and extent of a prosecution. In Anderson, the Supreme Court reaffirmed that prosecutorial discretion isa necessary part of a properly functioning criminal justice system and it is entitled to considerable deference.

Simply put, the SupremeCourt cautioned that decisions of the Crown respecting the nature and extent of a prosecution must not be the subject of routine second-guessing by the courts. The Supreme Court explained the importance of judicial non-interference in prosecutorial discretion at para. 37 ofAnderson. [37] This Court has repeatedly affirmed that prosecutorial discretion is a necessary part of a properly functioning criminal justicesystem: Beare, at p. 410; R. v. T. (V.), (SCC), [1992] 1 S.C.R. 749, at pp. 758-62; R. v. Cook, (SCC),[1997] 1 S.C.R. 1113, at para. 19. In Miazga v.

Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at para. 47, the fundamentalimportance of prosecutorial discretion was said to lie, “not in protecting the interests of individual Crown attorneys, but in advancing thepublic interest by enabling prosecutors to make discretionary decisions in fulfilment of their professional obligations without fear ofjudicial or political interference, thus fulfilling their quasi-judicial role as ‘ministers of justice’”.

More recently, in Sriskandarajah v.United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609, at para. 27, this Court observed that “[n]ot only does prosecutorialdiscretion accord with the principles of fundamental justice — it constitutes an indispensable device for the effective enforcement of thecriminal law”. [43] In cases where abuse of prosecutorial discretion is alleged under the residual category, while actual prejudice to an accused isrelevant, “prejudice” is better examined in a broader sense – could the impugned conduct taint or undermine society’s expectation offairness in the administration of justice?

Recognizing the important role that prosecutors play in the administration of justice and thebroad range of decisions they are required to make to effectively and efficiently perform their role, a high threshold has been set to findabusive behaviour. For example, the Court must find compelling evidence of misconduct, malicious intent, or decisions that are simplyunfair, unreasonable, oppressive or irrational. In other words, while matters of prosecutorial discretion are not immune from judicialoversight, they are entitled to considerable deference by the courts.

Prosecutorial decisions are only reviewable for abuse of processunder the residual category where the Crown’s conduct has been “egregious” and would “seriously” compromise the integrity of thejustice system. See: Anderson at para. 50.

Simply put, I must use caution when asked to second guess the decision of the Crown to notwithdraw the charges against Brady Baraniski and to continue the within prosecution. [44] In the present case, even if am wrong and the proposal suggested by Constable Maynard on May 9, 2021 only was aboutBrady Baraniski’s personal conduct prior to his first court appearance, was the Crown’s decision to not withdraw the ticket on June 30,2021 malicious, unfair, unreasonable, oppressive or irrational? No. Constable Maynard, as a member of the prosecution team at the time,made a resolution proposal to Brady Baraniski.

After Constable Maynard was transferred, the prosecution team either concluded thatBrady did not meet the terms of the officer’s proposal or that he did not meet the “spirit” of that proposal. On the facts, either conclusionwas open to the Crown. Under these circumstances, the decision to not withdraw the charge against Brady Baraniski and to continue withthese proceedings is understandable. More importantly, that decision, understood in its full context, is unlikely to taint anyone’s sense offairness or undermine the community’s confidence in the administration of justice.

Officials from Public Health continued to haveconcerns about non-compliance at the Shorebird Inn and staff were observed not wearing face masks just a few days prior to Brady’sfirst court appearance. This occurred notwithstanding Brady Baraniski’s personal assurances that it would not. [45] Was the decision to take this prosecution through to trial egregious? No. Brady Baraniski was charged with a newcontravention prior to this matter coming to trial. In light of the new charge, it is not surprising that the Crown felt that voluntarycompliance was not working.

Regardless of the precise language used, the key point is this: the Crown’s decision to continue toprosecute Brady Baraniski in these proceedings falls well within the range of conduct that is entitled to deference by this Court. What is the appropriate remedy under the circumstances? [46] Because I have found no abuse of prosecutorial discretion, no remedy is appropriate. However, even if I had been satisfiedthat judicial intervention was appropriate, a stay of proceedings would not have been the form of remedy I would have granted.

As notedby the Court in Babos at para. 31, a stay of proceedings is the most drastic remedy a criminal court can order. It permanently halts theprosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated, and the public is deprived of the opportunity tosee justice done on the merits. A stay of proceedings is only warranted in the clearest of cases where the Crown’s conduct would shockthe conscience of the community and would taint the administration of justice to such a degree that it would be indecent to proceed withthe prosecution.

See: Miazga v Kvello Estate, 2009 SCC 51 at para 48, [2009] 3 SCR 339. This is not one of those cases. [47] These proceedings involve matters of the health and public safety at Tobin Lake. In my opinion, that community and thepublic in general both have a compelling interest to see this case decided on the merits. Dr. Fenton’s testimony clearly demonstrated thatCOVID-19 is real, and it is a dangerous, communicable health disease.

His testimony also established beyond any doubt that thegovernment’s decision to require the wearing of face masks in March of 2021 was a reasonable response to decrease the public healthrisk in the community at that time.

[ 48 ] If I had found a breach (which I did not), another remedy would have been capable of redressing the breach. I could have reduced the quantum of the fine. CONCLUSION [ 49 ] For the foregoing reasons, Brady Baraniski’s claim of abuse of process is dismissed. I find him guilty of contravening s. 61 of The Public Health Act, 1994 on March 6, 2021 at Tobin Lake, Saskatchewan, by failing to comply with a public health order respecting face coverings dated February 18, 2021, made pursuant to s. 25.2 of The Disease Control Regulations . Dated this 31 st day of August, 2022, at the Community of Nipawin, in the Province of Saskatchewan. __________________________ S.D. Schiefner, J