Her Majesty the Queen - v. -, 2021 SKPC 31

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 31 Date: May 28, 2021 Information: 90430589 Location: Swift Current _____________________________________________________________________________ Between: Her Majesty the Queen - and - Andrew Edward Russell Appearing: Curtis Wiebe For the Crown Carl Swenson and Nicole Bree For the Accused SENTENCING DECISION K.P. BAZIN , J [ 1 ] Earlier in the week when I went out for groceries, all the people working in the grocery store were wearing masks.

They did not have a choice, as in order to work they have to follow the health orders. [ 2 ] As I came to the court house today, I stopped and filled my vehicle with gas. The people working at the gas station were wearing masks. They did not have a choice, as in order to work they have to follow the health orders. [ 3 ] After the gas station, I picked up coffee at a local drive through, and the people that were working there were wearing

masks. They did not have a choice, as in order to work they have to follow the health orders. [ 4 ] These frontline workers that I encountered, being fortunate not to be like so many Canadians that have lost their jobs because of the COVID-19 pandemic, all start each day, trying their best to avoid contracting the virus and coming home to infect their family and loved ones. [ 5 ] Many of the people that served me were in entry level jobs and make minimum wage. Many are students and new Canadians.

Each day they got up and went out to provide a service to the public so that the public, myself included, could have the basic services that we need to go about our lives so that we can provide for ourselves, our families and loved ones. [ 6 ] These frontline workers do not have the choice whether to follow the health orders or not. They do not have a choice as to who they will come in contact with each day at work. They do not know who will walk in the door each day.

They do not know if the people to whom they have provided services have been honest about their travels, their health, or if they have been following the health orders, including quarantine requirements. [ 7 ] The frontline workers do not know if the people they will serve have been socially distancing, and not visiting family and friends as set out in the orders as they have been set over the past year. They do not know if the people that they serve may have just attended an anti-mask rally, blatantly breaking all the health orders.

They do not know if the people they serve have been to a super spreader social event. They do not know if the people they will serve understand that no indoor gatherings applies to them, not just others. [ 8 ] All of us, myself included , have an easier task when we want to obtain the many services that are still being offered in light of restrictions related to COVID-19 health orders. I am simply asked to wear a mask when I enter a store. That is it. [ 9 ] I can continue to access many of the basic services by simply wearing a mask when I enter a store.

If I do not want to wear a mask for whatever reason, I am not obliged to do so, but I cannot enter stores. I can have someone else pick up my items, have them delivered or order online. It’s as simple as that. [ 10 ] In many cases, as in this matter, the frontline workers must enforce the health orders on behalf of the government. They have to require people to wear a mask when entering the store, and if they do not, they or their employer may face repercussions including fines or orders to close their businesses.

These people are asked to police the health orders on behalf of all of us, as it would be an impossibility to have peace officers at the door of every business to enforce the health orders for the government. [ 11 ] I contrast what the frontline workers face every day with my privileged position as a Judge in the Provincial Court. People are not allowed to enter the courtroom at will. Even if you are summoned to court you may be required to attend by phone. If you come to the court house here in Swift Current you must wear a mask.

If you do not, you will be reminded by two armed peace officers to wear a mask or leave. Not surprisingly, the armed peace officers tell me that we have had no problem with people wearing masks and following the health orders while in court, or arguing with them when told to wear a mask. [ 12 ] This all leads to the matter before the court involving Mr. Russell going to the Pioneer Co-op Home Centre to make a purchase. He was wearing a plastic face shield, which does not comply with the health orders. You must wear a mask in a store.

Upon entering the store he was politely asked by the young woman at the entrance to wear a mask. She had only begun working at the Co-op three weeks earlier. [ 13 ] Over this simple request Mr. Russell became enraged. He is not a small person, being 5’9” and 220 lbs. He began to yell and scream at the young woman . She called her manager, and when the manager came to tell Mr. Russell that he had to wear a mask or leave, Mr. Russell’s anger increased. He started to punch the manager in the face. A third employee, a middle aged woman, came to help. Mr.

Russell punched her in the side of the head and shoved her into the counter. [ 14 ] A fourth employee came to help and he was pushed and shoved backwards. A fifth employee approached to help, and Mr. Russell threatened that he would assault him as well.

[ 15 ] Mr. Russell then left the store. A sixth employee, a gentleman aged 62, followed Mr. Russell out of the store into the parking lot to try to identify him and see if he got into a vehicle and take the license number. Mr. Russell saw this gentleman and turned on the employee and attacked him . Mr. Russell punched this employee 20 to 21 times in the face over the course of about a minute. He punched him in the chest and tried to sweep out the employee’s legs. This employee has significant injuries and was taken to the hospital.

He has a suspected concussion and facial injuries with one tooth cutting the inside of his mouth almost through the cheek. [ 16 ] It is significant that this was a prolonged event. Mr. Russell had left the Co-op Home Centre when he attacked the sixth employee in the parking lot. He had time to think about what he had just done in the store when he yelled at one and then attacked, assaulted and threatened four employees in the store. He instead attacks the sixth employee. [ 17 ] The employees stated that it was as if Mr.

Russell had an agenda when he came to the store, and his behaviour was so out of control that they feared that he might do something more drastic. [ 18 ] The defence described the incident, that Mr. Russell saw ‘red’ as soon as he was asked to wear a mask and he went ‘postal’. The defence indicated that Mr. Russell was suffering from COVID fatigue, and he lives in Regina which recently had been under more restrictive health orders. They argue that the assaults were out of character for Mr. Russell. [ 19 ] Mr. Russell, as indicated, had a full time job delivering mail daily between Regina and Swift Current.

He stays at the company’s Swift Current apartment during the week so he is able to sleep after his shift ends at 3:00 a.m. [ 20 ] The defence argues that this is a one-off event and that a rehabilitative sentence is in order. They acknowledge the severity of the assaults and the circumstances in that they argue for a 12-18 month jail term, but served in the community under a conditional sentence order. Mr. Russell has been a productive member of society and continues to be employed. He has the support of his spouse, who is also employed in the same field as Mr.

Russell. [ 21 ] The Crown argues for a four month jail term. This is based on the need for a sentence prioritizing general deterrence. They argue particularly that the court needs to send a message to those who are harassing and now assaulting frontline workers, who are asked to police the health orders. They argue that the frontline workers have no training in enforcing health orders nor did they sign up to be peace officers but that is what is being asked of them. [ 22 ] The Crown indicates that the proposed four month sentence takes into consideration Mr.

Russell’s very early guilty plea (offered virtually the next day), his supportive family, and that he has lived a crime free life for over thirty years. [ 23 ] The Crown argues that, to a large extent, assaults on frontline workers who are required to enforce the health orders including the wearing of masks, is akin to assaults on peace officers who are mandated to enforce the law. [ 24 ] The Crown in their submissions indicated that the Co-op Home Centre has experienced confrontational incidents approximately three times a week relating to people not following the request to wear a mask and follow the health orders.

The Co-op does not have armed peace officers to tell people to follow the health orders as the court does.

The frontline workers and business managers take the brunt of these outbursts over the government health orders requiring the wearing of masks inside stores. [ 25 ] I find that the principle of general deterrence is paramount to send a message to those who believe that they can attack and threaten frontline workers over government health orders which they did not create but are required to enforce. [ 26 ] In some cases, deterrence and denunciation can be accomplished under conditional sentence orders, that being jail sentences served in the community when the terms are sufficiently onerous. [ 27 ] I find the commentary by The Honourable Gilles Renaud, Ontario Court of Justice author of “The Sentencing Code of Canada – Principles and Objectives”, (2009) paragraph §3.52 helpful.

Judge Renaud is referring to police officers, but I find it aptly gives the reason why general deterrence is required in such assaults against frontline workers in the present COVID-19 pandemic situation.

… it is important to emphasize the need to denounce any harm visited upon those who accept to encounter grave risks in order to protect the whole of the community… Stated otherwise, harm to this vulnerable group must be denounced on grounds of policy, to proclaim our fundamental values as a society… by ensuring that all understand that an attack on our protectors is an attack on the community as a whole. [ 28 ] In this matter, I find that general deterrence would not be achieved by a conditional sentence. The assaults, threats, and bodily harm which Mr.

Russell perpetrated are an extension of people challenging and confronting frontline workers, who are only doing their job. They did not put in place the health orders, but they are increasingly taking the brunt of anger from certain individuals who believe that the law does not apply to them. [ 29 ] A jail term for the criminal acts against the frontline workers is required, to bring home the message that society, through the courts, will not tolerate such acts against entirely innocent people. People who are reminding us to follow the health orders so that we can all be safer.

People who are simply trying to support themselves and their families, and keep them and those they encounter each day, all safe from the COVID virus. [ 30 ] I find that as to Information 90430589 a fit sentence will be the following: Count 1 Assault causing bodily harm s. 267 (

b) of the Criminal Code : 120 days jail. Count 2 Utter a threat to cause bodily harm s. 264.1(1) (

a) of the Criminal Code : 30 days jail. Served concurrently with any other sentence. Count 3 Assault on the named three victims, 90 days jail served concurrently with any other sentence. [ 31 ] Following the jail terms set out, on each count there will be a 12 month probation order, served concurrently with each other, as previously set out orally, which covers, amongst other things the requirement for counselling for anger management, mental health, and personal issues. Dated at the City of Swift Current, the Province of Saskatchewan, this 28 th day of May, 2021. _______________________

K.P. Bazin, J