Her Majesty the Queen - v. -, 2020 SKPC 18

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 18 Date: April 15, 2020 Information: 991118615, 991120532 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jerome Dias - and - Scott Allen Doherty Appearing: Mr. Derek Davidson For the Crown Mr. John M. Williams For Jerome Dias Mr. John M. Williams For Scott Allen Doherty DECISION ON APPLICATION TO AMEND CONDITIONS OF RELEASE D. KOVATCH , J

Background [ 1 ] The accused, Jerome Dias, is charged that: On January 20, 2020 he committed mischief by wilfully obstructing, interrupting or interfering with the lawful use, enjoyment or operation of property to wit: Co-op Refinery Complex of a value not exceeding $5000.00, the property of Consumer’s Co-Operative Refineries Ltd., contrary to section 430(4) of the Criminal Code . [ 2 ] The accused, Scott Allen Doherty is charged that: Between January 28, 2020 and February 3, 2020, he did commit mischief by wilfully interfering with the lawful use, enjoyment or operation of property to wit: Co-op Refinery Complex of a value not exceeding $5000.00, the property of Consumers Co-Operative Refineries Ltd., contrary to section 430(4) of the Criminal Code . [ 3 ] Both individuals were arrested without warrant by Regina City Police.

They were then taken before a peace officer and released on an undertaking with certain conditions. The accused Dias was arrested and released on January 20, 2020, and the accused Doherty was arrested and released on February 6, 2020. Both individuals then brought an application before this court pursuant to section 502(2) of the Code , asking for a hearing and asking this court to grant a new release order pursuant to section 515(1) or 515(2) of the Code . [ 4 ] Crown counsel, Mr. Davidson, agreed the accused were entitled to bring this application before the court.

Crown and defence were in agreement that this application resulted in a hearing de novo regarding release and the appropriate conditions. On March 25, 2020, I heard full arguments from counsel. Crown counsel argued that the conditions imposed by the officer were appropriate and necessary to prevent the commission of further criminal offences by these accused persons. Accordingly, he advocated I maintain the bail orders in their present form. [ 5 ] Counsel for the accused argued for the least restrictive conditions.

Counsel pointed out that their clients have a constitutional right to engage in lawful picketing, and argued the release conditions should be less restrictive, to allow the accused to carry forward with exercising their constitutional right. They also argued that the conditions, as presently drafted prevent the accused from carrying on with their duties related to their employment with the union. For this reason as well, counsel asked that the conditions be amended. [ 6 ] Following argument on March 25, I reserved my decision. This is that decision.

The Accused, Jerome Dias [ 7 ] Crown advised - and it is fairly common knowledge in Regina and area - that there has been a lengthy and bitter lockout and labour dispute at the Co-op Refinery Complex. There are seven gates to the refinery complex. The company has continued to operate during the lockout. When business operations are normal, a fleet of tankard trucks regularly attends at the refinery and is loaded with petroleum products.

These trucks then leave the refinery and deliver the product to various distribution points. [ 8 ] Prior to Christmas, 2019, management at Federated Co-operatives Limited complained that the union was obstructing or cutting off all access to the refinery by the truck fleet. On December 24, 2019, the Saskatchewan Court of Queen’s Bench granted an injunction that was clearly intended to allow trucks access to the refineries, and to be able to leave the refinery with product. [ 9 ] On January 20, 2020, police received a complaint that the union had cut off all access in to and out of the refinery.

Police ascertained that a number of vehicles and other items were used to completely blockade the roads and prevent all access. Police asked

that the obstacles be removed, and the roads cleared, so that trucks could enter and leave the refinery premises. The union refused. Police approached with tow trucks to clear the area. On this day, the accused Dias was in Regina and at the picket line. When theofficers approached to remove the vehicles and other obstacles, Dias stood in their way, and refused to move, thereby temporarilypreventing the officers from clearing the obstacles to allow access. Dias was arrested, taken into custody and charged. [10] The existing undertaking provides that Mr.

Dias shall not attend within 500 metres of the various gates to the refinery. Defence counsel, Mr. Williams, made a cogent argument that no condition should be imposed, other than requiring Mr. Dias to attend atcourt. In my view, I should not go that far in re-drafting the release conditions. In many other cases, where an individual commits theoffence of mischief against another person’s property, a release condition is imposed to prevent the accused from attending at thecomplainant’s property. There was evidence presented to the court that Mr.

Dias was actively involved in blocking or interfering withthe use and access to the Co-op’s property. Some release condition restricting him from being at the gates is appropriate. [11] The problem with this release condition is that it prevents Mr. Dias from being within 500 metres of the gates. The court wasadvised that the union has offices located at 200 Hodsman Road and 455 Maxwell Crescent in Regina. Both of these locations are within500 metres of the gates to the refinery. As a result, the release condition not only prevents Mr.

Dias from being at the gates; it preventshim from peacefully picketing and prevents him from fulfilling duties in the course of his employment with the union. [12] Mr. Davidson argued that there were other ways for Mr. Dias to perform his job, and that such a restriction was necessary inorder to prevent Mr. Dias from repeating a criminal offence. This court regularly attempts to craft a condition to allow an individual tocontinue with his employment. It is certainly not the function of this court to draft a condition that effectively punishes an individual bypreventing him from carrying on with his employment.

As a result, the Undertaking that Mr. Dias entered before the officer in charge isrevoked. He will be released on a new release order without any financial conditions that provides that he shall not attend within 50 metres of the following: 234 East 9th Avenue North, 250 McDonald Street, 580 Park Street, 90 Kress Street, 310 Henderson Drive,Regina, SK, or Victoria Plains Rail Facility, RM of Sherwood Saskatchewan. He shall not attend at or be stopped at the prohibitedlocations. He may drive past the gates in order to attend at the union’s properties. The Accused, Scott Allen Doherty [13] With respect to Mr.

Doherty, the evidence was that on January 30 and on February 3 he gave some speeches at the picket line. During these speeches, he said that the union would not stop escalating unless bargaining started. He said there would be action taken atother Federated Co-operative sites. He said they would put back the barricades, and they did not care about the cops. He invited otherunions to come and join in the fight. He made a number of statements to the effect that the union has not done anything wrong, and theywould continue the fight.

Crown counsel presented no evidence of any individual taking any substantive action pursuant to Mr.Doherty’s speech. There was no evidence of any individual physically committing any act of mischief against the Co-op’s property. The Crown referred to sections 21 and 22 of the Criminal Code. These are the party and counselling provisions in the Criminal Code. In my view,

section 21 requires a common intention to commit an offence. Section 22(1) speaks of a person counselling another personwhen “that other person is afterwards a party to that offence…” Section 22(2) also speaks of another person committing the substantiveoffence after being counselled. It seems to me that these subsections contemplate and require that a second party act on the advice ordirection, and in so doing actively attempt or participate in the commission of a criminal offence.

In R v Cowan, 2018 SKQB 75, theaccused was acquitted of counselling robbery because there was insufficient evidence that the second party actually committed therobbery. On the show cause hearing, the Crown presented no evidence that any individual had acted upon the advice given by Mr.Doherty or committed any substantive offence on the basis of advice given by Mr. Doherty. The strength of the Crown’s case istherefore questionable. [14] In addition, defence counsel placed particular emphasis upon the accused having a constitutional right to engage in lawfulpicketing.

They rely upon on B.C.G.E.U. v British Columbia (Attorney General), (SCC), [1988] 2 SCR 214. The citedcase certainly stands for the proposition that there is a constitutional right to engage in lawful picketing. The same case also indicatesthat picketing includes the right of freedom of expression. In Pepsi-Cola Canada Beverages (West) Ltd. v R.W.D.S.U., Local 558 atparas 30-36, 2002 SCC 8 , [2002] 1 SCR 156, inclusive, the Court reaffirmed its view that picketing includes a broad range ofexpressive action which is protected under the heading of “freedom of expression” in

section 2(

b) of the Charter. Indeed, according tothe decision, the very purpose of the picket line is to convey a message to the general public and to advance ideas and arguments aboutwages, working conditions, employee benefits, etc. It seems to me that I can take judicial notice that speeches are commonplace and aform of expression at demonstrations and picket lines. This being the case, it is at the very least questionable whether Mr.

Doherty canbe convicted of anything for simply giving a speech at the picket line. [15] The new section 515(1), which came into force on December 18, 2019, provides that a justice shall make a release order withoutconditions, unless the prosecutor shows cause “in respect of that offence, why the detention of the accused in custody is justified or whyan order under any other provision of this

section should be made.” Mr. Davidson, for the Crown, argued that the conditions against Mr.Doherty were justified to prevent the repetition of criminal offences. However, I have already concluded that it is questionable whetherMr. Doherty has committed any criminal offence. He has no record. In my view, the mere fact that Mr. Doherty has given a speech at a

picket line does not justify the imposition of any conditions. [ 16 ] As a result, the Undertaking entered into by Mr. Doherty before the officer in charge is revoked. Mr. Doherty will be released on a simple release order that only requires that he appear before the court as and when required to do. [ 17 ] Prior to the start of the COVID-19 crisis, the court clerks would prepare release orders, and have the accused person sign to acknowledge receipt of the order. Since the start of the COVID-19 crisis, the court has routinely mailed copies of such orders to the mailing address of the accused person.

In this case, Mr. Dias and Mr. Doherty are both represented by experienced and well regarded counsel. Those counsel, as Saskatchewan lawyers, are also “officers of the court”. Legal counsel have undertaken that they will immediately advise their clients of the new orders, and get them copies of those orders. I rely on the Undertakings provided by those “officers of the court”.

Service of the amended release orders shall be effected by delivery of the orders by ordinary mail or facsimile to the legal offices of their respective counsel. [ 18 ] I express my thanks to all counsel for their comprehensive and very able arguments. Dated at the City of Regina, the Province of Saskatchewan, this ____ day of April 2020. __________________________ D. Kovatch, J