His Majesty the King - v. -, 2023 SKPC 62

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 62 Date: December 14, 2023 Information: 991187737 Location: Saskatoon _____________________________________________________________________________ Between: His Majesty the King - and - Maxime Bernier, Peter Christoph Boettcher, Bartel Boot, Jacob Boot, Jaxson Boot, Jenny Boot, Phyllis V. Bourassa, James Bubnick, Stella Chipesia, Rachael Cole, Breton Harley Cook, Daryl B. Cooper, Wallace Cottingham, Cheryl Drebit, Gerald Ferguson, Mark L.

Friesen, Pierre Marc Robert Groulx, Frederick John Harrison, Joyce Harrison, Mikela June Herbel, Deborah Rose Hretsina, Sarah Huizing, Cory Klassen, Dominika Kosowska, Cody Kuntz, Arley Laroque, Keesyn Larocque, Halden Lindjberg, Megan Machiskinic, Darrell T. Mills, Alexandre Nascimento, Terrance Nash, Luiz Augusto B. Penteado, Breanna Peskleway, Wayne Steven Peters, Amanda Philipenko, Joyce Ina Pierce, Emily Schmidt, Tanner Schmidt, Adrian B. Scarrow, Michael Styan, Luke Tournier, Michele Tournier, Pamela J. Waldner, Richard Brent Wintringham, and Stephanie Wintringham Appearing: B.L. Rodgers, S.S.

Bains, and S.L. Bree For the Crown T.J.C. Litowski and K.M. Roy For the Constitutional Law Branch E.F. Anderson For Bernier, Bourassa, Bubnick, Cooper, Ferguson, Friesen, Groulx, F. Harrison, J. Harrison, A. Laroque, K. Larocque, Machiskinic, Mills, Nascimento, Penteado, Peskleway, Philipenko, Scarrow, Waldner, R. Wintringham, S. Wintringham L.A. Coupal For P. Boettcher, B. Boot, Jacob Boot, Jaxson Boot, Jenny Boot, Cottingham, Drebit, Hretsina, Huizing, Klassen, Kosowska, Kuntz, Lindjberg, Nash, Peters, Pierce, E. Schmidt, T. Schmidt, Styan, L. Tournier, M. Tournier O.B. Griffiths For Cook and Herbel R.

Cole Self-Represented S. Chipesia Self-Represented JUDGMENT Q.D. AGNEW , J.

[1] On May 9, 2021, an event was held in the park surrounding the Vimy Memorial in Saskatoon. There was in effect at thattime a Public Health Order dated May 6, 2021 [PHO] prohibiting gatherings in excess of 10 persons, due to the then-ongoing COVID-19pandemic. There is no question but that this was a gathering, and that it exceeded 10 persons. The Crown alleges that the defendants inthis matter were all present at that gathering in violation of the PHO, and thus violated s. 61 of The Public Health Act, 1994, SS 1994, cP-37.1 [Act]. [2] There were originally 46 defendants in this prosecution.

The action against Stella Chipesia was severed, and the Crownstayed the prosecution against Rachel Cole. Evidence with respect to the remaining 44 defendants was heard over the course of eightdays in September 2022 and a further seven days in June, 2023. Argument was made solely by written submissions. [3] At a variety of times, various groups of defendants filed a total of 31 motions under the Canadian Charter of Rights andFreedoms [Charter].

In order to reduce the number of motions to be filed, it was agreed that every Charter application would apply toevery defendant, regardless of which defendant or set of defendants filed each particular motion. Over the course of the proceedings, anumber of these motions were resolved, dismissed, abandoned, withdrawn or subsumed into subsequent motions. One, relating tomasking, appears to have been filed in error as masking was not an issue in this trial, and accordingly I will not address it further.

Thereare also issues which appear in motions but which have not been argued; given the large number of motions and the convolutedprocedural history involving them, I assume that they have simply slipped from counsel’s notice, and that counsel have presentedargument on the Charter issues they wish to bring forward. I will accordingly not deal with Charter issues or motions not argued.

As allmotions apply to all defendants, I will refer to motions as filed by “the defendants” rather than specifying which defendant or group ofdefendants filed the specific motion being discussed unless the discussion requires otherwise. Written arguments were provided bycounsel for two of the groups of defendants, again with all arguments applying to all defendants. I will refer to these briefs as the“Bernier brief” and the “Herbel brief” respectively. [4] A large number of issues were raised in the course of these proceedings.

I will deal with each of them in turn, although thereis some overlap between some of them. I will begin with determining whether or not the Crown has proven beyond a reasonable doubtthe charge with respect to each defendant before proceeding with the various legal arguments, since if the violation itself cannot beproven, the legal arguments are irrelevant. Has the Crown proven beyond a reasonable doubt that each defendant committed the act with which they are charged? [5] There is no doubt but that the event in question was a gathering, and that it exceeded 10 persons.

It remains for the Crown toprove beyond a reasonable doubt, with respect to each defendant, the identity of the person as someone who attended the event. [6] For some defendants, police established their identity after the fact, by comparing a person’s photograph in the SGIAutoFund databank [SGI] with video of the rally. SGI also provided date of birth and last known mailing address, amongst otherinformation. That evidence is contained within Exhibit P-4.

The remainder of the defendants were identified by a variety of means,including personal knowledge of the person’s identity, the person providing identification, or otherwise. [7] Certain defendants were identified by police at the time of the rally by interacting with those persons, who then identifiedthemselves to police and were issued tickets. I am satisfied that the identity of those defendants as persons seen on the videos of thegathering has been established beyond a reasonable doubt.

The defendants identified in this way are: Maxime Bernier; Peter Boettcher;Dominika Kosowska; Gerald Ferguson; Fred Harrison; Megan Machiskinic; Amanda Philipenko; Tanner Schmidt; Pamela Waldner. [8] Certain other defendants voluntarily contacted the police after the event and identified themselves after police put theirphotographs out to the general public. I am satisfied that the identity of these defendants as persons seen on the videos has beenestablished beyond a reasonable doubt: James Bubnick; Alexandre Nascimento. [9] There were certain defendants who were identified in the courtroom.

Again, I am satisfied that the identity of thesedefendants as persons seen on the videos has been established beyond a reasonable doubt: Mark Friesen; Cory Klassen. [10] As can be noted, there is some overlap in these methods, such that certain defendants’ identities were confirmed by more thanone means. [11] The Crown concedes that evidence with respect to the identity of Wayne Peters is insufficient and invites me to dismiss thecharge as against him.

I concur with the Crown’s assessment, and I accordingly find Wayne Peters not guilty. [12] The remainder of the defendants were identified by police finding names by a variety of methods, searching those names inSGI and comparing the driver’s licence photographs found there with video of the rally participants. The officers involved testified as tothis process. There is no evidence that any of the officers had any personal knowledge of the defendants in this category.

Noidentification voir dire was conducted, nor was there any basis provided for me to accept that the officers were in any better positionthan myself to connect the persons in the photographs with the persons in the videos. Accordingly, the evidence of the officers in thisrespect is irrelevant and cannot be used to identify the defendants. [13] The trier of fact is entitled to draw their own conclusions about identity by reference to the evidence.

The Supreme Court ofCanada both affirmed this and offered cautions as to how the trier of fact should go about doing it, in R v Nikolovski, (SCC), [1996] 3 SCR 1197 at paras 23 and 30 [Nikolovski]: [23] It is precisely because videotape evidence can present such very clear and convincing evidence of identification that triers of factcan use it as the sole basis for the identification of the accused before them as the perpetrator of the crime.

It is clear that a trier of factmay, despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of a singleeyewitness. It follows that the same result may be reached with even greater certainty upon the basis of good quality video evidence.Surely, if a jury had only the videotape and the accused before them, they would be at liberty to find that the accused they see in the boxwas the person shown in the videotape at the scene of the crime committing the offence. If an appellate court, upon a review of the tape,

is satisfied that it is of sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused as the person inthe tape beyond any reasonable doubt then that decision should not be disturbed. Similarly, a judge sitting alone can identify the accusedas the person depicted in the videotape. . . . [30] Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercisecare in doing so.

For example, when a jury is asked to identify an accused in this manner, it is essential that clear directions be given tothem as to how they are to approach this task. They should be instructed to consider carefully whether the video is of sufficient clarityand quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond areasonable doubt. If it is the only evidence adduced as to identity, the jury should be reminded of this.

Further, they should be told onceagain of the importance that, in order to convict on the basis of the videotape alone, they must be satisfied beyond a reasonable doubt thatit identifies the accused. [14] The Saskatchewan Court of Appeal has addressed this issue as well: R v Delorme, 2017 SKCA 3 at paras 37 - 41 and R vJohn, 2021 SKCA 83 at paras 23-25, 405 CCC (3d) 184. I note that Nikolovski, Delorme and John are all decisions involving the trialjudge comparing video or photographs to the accused in the courtroom, whereas in the case before me I must compare video to SGIphotographs.

I do not see any conceptual difference between the two situations. Rather, the potential problems are technical: is theresolution in the video and photograph sufficient to be able to determine that they show the same person? Is the identity of the personsufficiently established from the photograph to be able to say that the person in the photograph is the defendant?

If the answer to eitherquestion is anything less than “yes, beyond a reasonable doubt”, then the identification fails, and the accused must be found not guilty. [15] The question of video resolution has been addressed a number of times, including in John at para 18: [18] There are three recognized types of identification evidence that may be tendered at trial: eyewitness evidence, identification by thetrier of fact and recognition evidence. A

summary of each form of identification is found in R v Field, 2018 BCCA 253, 362 CCC (3d)401, leave to appeal to SCC refused, [Field]: [23] There are at least three distinct types of identification evidence that may be tendered, each with its own reliability characteristics: (i)Eyewitness evidence by a stranger: Experience has shown that eyewitness evidence proffered by a stranger to the accused is the leastreliable identification evidence. It has been described as "inherently unreliable": R. v. M.B., 2017 ONCA 653 at para. 29.

In light of themany instances in which identification has proved erroneous, the trier of fact must be cognizant of "the inherent frailties of identificationevidence arising from the psychological fact of the unreliability of human observation and recollection": R. v. Burke, (SCC), [1996] 1 S.C.R. 474 at para. 52. (ii)Identification by the trier of fact through photographic evidence: On occasion, the trier of fact will have the benefit of photographicevidence taken at or sufficiently near the scene of the crime to have probative value in determining the identity of the perpetrator.

Aslong as the photographic evidence is of sufficient clarity and quality to permit identification of the person shown in the photo, theevidence can be admitted and weighed with other evidence by the trier of fact: R. v. Nikolovski, (SCC), [1996] 3 S.C.R.1197 at para. 23. (iii)Recognition evidence: The Crown may also choose to tender opinion evidence from a person or persons who can identify theindividual shown in a photo or video.

This evidence is admissible if the witness had a prior acquaintance with the accused and istherefore in a better position than the trier of fact to conclude whether the individual in the photo is the accused: R. v. Leaney, (SCC), [1989] 2 S.C.R. 393; R. v. Brown (2006), (ON CA), 215 C.C.C. (3d) 330 (Ont. C.A.). (Emphasis in original) [16] I have therefore reviewed the video exhibits and the SGI photographs of the remaining defendants with care.

In my commentsbelow, I refer to the exhibits as follows: “Vimy 1" and “Vimy 2" are two different camera angles, labeled respectively with those names,shown simultaneously in side-by-side panes in Exhibit P-8; “WUC” is Exhibit P-9. Vimy 1 and Vimy 2 are of considerably better qualitythan is WUC, although WUC offers enough definition that some identifications can be made. Where possible, I have used Vimy 1 andVimy 2, as the quality of those videos is higher and allows for zooming in on faces without as much loss of definition as with WUC. [17] I have come to the following conclusions with respect to each defendant.

Unless specified otherwise:

(1) I am satisfied thateach defendant was present and committed the charged offence; and

(2) I have no reasonable doubt with respect to any of theseconclusions. [18] Maxime Bernier - as Mr. Bernier is not a Saskatchewan resident, he does not hold a Saskatchewan driver’s licence and wastherefore not identified via SGI. However, as a national political figure, his appearance is well-known. He also identified himself topolice. He appears a number of times in the videos of the event, commencing at 1:43:05 on Vimy 2; he is seen addressing the eventbeginning at 41:45 in WUC.

He is clearly participating in the gathering, both by being a member of the crowd and then by being aspeaker to the crowd. [19] Peter Boettcher - Mr. Boettcher’s name and photograph were proven via SGI. He also identified himself to police. Mr.Boettcher appears at the event on Vimy 2 from 4:50:26 to 4:51:55, where he can be seen engaging with others in the crowd. Although heis on the fringe of the crowd at this point, the gathering itself is clearly in excess of 10 people. As of 5:00:22, he can still be seen onVimy 2, where he remains in view for some time.

Although the crowd is breaking up, there are clearly still considerably in excess of 10persons present, and he is in the middle of them. His involvement is clearly not trivial or passing, and was sufficient to constitute“attending” the gathering. [20] Bartel Boot - Mr. B. Boot’s name and photograph were proven via SGI. He can be seen on Vimy 2 from 4:50:00 to 4:51:54,where he is on the fringe of the gathering, speaking with two persons, one of whom then leaves. With that identification, he can then be

seen on Vimy 2 at 3:31:20, when he is in the middle of the crowd watching the speakers and turns to face the camera. [ 21 ] Jacob Boot - Mr. Jacob Boot’s name and photograph were proven via SGI. He can be seen on Vimy 2 at 2:34:42 in the midst of the crowd by Mr. Bernier. He can also be seen on Vimy 2 from 5:00:20 to 5:00:55, at which time the crowd has largely broken up but is still substantially in excess of 10 persons, and he is clearly within that group. [ 22 ] Jaxson Boot - Mr. Jaxson Boot’s photograph and name were proven via SGI.

He can be seen in the crowd beginning on Vimy 2 at 4:48:18, and then speaking with others there until 4:51:51. [ 23 ] Jenny Boot - Ms. Boot’s photograph and name were proven via SGI. Ms. Boot’s face is clearly visible on Vimy 2 from 3:45:28 to 3:45:37, where she is in the midst of the crowd. She can also be seen on Vimy 2 from 4:49:23 to 4:50:00, although in that period she is not doing anything which would by itself be contrary to the PHO. [ 24 ] Phyllis Bourassa - Ms. Bourassa’s name and photograph were proven via SGI. The Crown alleges that she can be seen in WUC at 56:01.

The individual specified faces the camera from 56:04 to 56:07. However, although it may be Ms. Bourassa, I am not able to conclude that it is her beyond a reasonable doubt. As there is no other evidence of Ms. Bourassa’s attendance, she will be found not guilty. [ 25 ] James Bubnick - Mr. Bubnick’s name and photograph were proven via SGI. The Crown alleges that he appears on Vimy 2 at 1:53:25. That individual’s face can be seen clearly until 1:53:37. While I suspect it to be Mr. Bubnick, I cannot conclude this beyond a reasonable doubt. The Crown also alleges that Mr.

Bubnick identified himself to the police after a photograph had been published by police. However, I have no evidence of what photograph was published, nor what the circumstances were of Mr. Bubnick’s conversation with police, and accordingly I am disregarding those allegations in attempting to identify Mr. Bubnick in Vimy 2. The Crown has not proven Mr. Bubnick’s identity at the event beyond a reasonable doubt, and accordingly he will be found not guilty. [ 26 ] Breton Cook - Mr. Cook’s name and photograph were proven via SGI. He is clearly visible in WUC at 8:45 to 8:51.

He is obviously attending the event, at a time when the crowd is in excess of 10 people. [ 27 ] Daryl Cooper - Mr. Cooper’s name and photograph were proven via SGI. A person introduced as “Daryl Cooper” appears in WUC from 1:19:45 to 1:28:11, speaking to the crowd. The introduction of the speaker is hearsay, and of no assistance in identifying the speaker. Having viewed WUC and comparing the speaker to the SGI photograph, I am not satisfied beyond a reasonable doubt as to his identity.

On a balance of probabilities, I would not hesitate to convict him, but that is not the legal test in this case and accordingly he will be found not guilty. [ 28 ] Wallace Cottingham - Mr. Cottingham’s name and photograph were proven via SGI. He can be seen on Vimy 2 at 3:17:54 to 3:17:58. He is clearly taking

part in the event. [ 29 ] Cheryl Drebit - Ms. Drebit’s name and photograph were proven via SGI. Sgt. Larocque testified that he photographed her as an active participant in the event which, as noted above, was considerably in excess of the allowable 10 persons. The photograph which he took shows the same person as appears in the SGI photograph. She additionally appears in Vimy 2 from 2:44:57 to 2:45:38 as part of the gathering. [ 30 ] Gerald Ferguson - Mr. Ferguson self-identified, and his name and photograph also were proven via SGI.

He can be seen participating in the event, including participating by bringing equipment and setting it up on Vimy 2 from 1:48:50 to 1:50:11 and Vimy 1 from 1:54:34 to 1:55:43. [ 31 ] Mark Friesen - Mr. Friesen was identified in the courtroom by Sgt. Larocque, who had observed him in the crowd at the event. His identification was also made via SGI. He can be seen at a variety of times on Vimy 2. [ 32 ] Pierre Groulx - Mr. Groulx’ name and photograph were proven via SGI. He can be seen on Vimy 2 from 2:34:53 to 2:35:25 in the midst of a number of people in excess of the limit. [ 33 ] Fred Harrison - Mr.

Harrison’s participation in the event was testified to by Sgt. Larocque, who photographed Mr. Harrison at the rally (Exhibit P-4, Tab 42). Cst. Zoorkan issued a ticket to Mr. Harrison, confirming his identity by his Alberta driver’s licence when he stopped the vehicle Mr. Harrison was in. Cst. Zoorkan testified that the person to whom he issued the ticket is the person shown in the photograph at Tab 42, and accordingly both Mr. Harrison’s identity and his violation of the gathering limit have been proven. [ 34 ] Joyce Harrison - Ms. Harrison’s name and photograph were proven via SGI. Cst.

Ferguson testified to having seen her at the event and took a photograph of her there. She can also be seen on Vimy 2 at 1:44:16 to 1:44:47 in the midst of a group of more than 10 persons. [ 35 ] Mikela Herbel – Sp. Cst. Scarrow testified that she created the “persons of interest” bulletin that was filed in evidence as part of Exhibit P-5, Ms. Herbel apparently being one of the persons whose name and photograph appeared thereon. Sp. Cst. Scarrow testified that she identified Ms. Herbel via SGI in creating the bulletin.

Accordingly, although the SGI information was not filed in the same manner as it was for other defendants, there is some evidence that the name and photograph in the bulletin are via SGI in the same manner as for other defendants whose SGI information was filed directly. This issue was not challenged on cross-examination, and there was no evidence to the contrary. Accordingly, I accept that Ms. Herbel’s name and photograph as they appear in the bulletin are from SGI, and usable in exactly the same manner as with other defendants. [ 36 ] Ms. Herbel can be seen on Vimy 2 at 2:11:10.

She also appears in a photograph taken by Cst. Ferguson. Accordingly, I find that her identity and presence at the gathering have been proven. [ 37 ] Deborah Hretsina - Ms. Hretsina’s name and photograph were proven via SGI. Her participation in the event can be seen on Vimy 2 from 2:11:59 to 2:13:09. She is clearly part of the gathering.

[ 38 ] Sarah Huizing - Ms. Huizing’s name and photograph were proven via SGI. She can be seen participating in the event on Vimy 2 from 5:00:17 to 5:00:35. Although the event is clearly breaking up, she is part of the gathering which remains in excess of 10 people. [ 39 ] Cory Klassen - Mr. Klassen was identified in court by Sp. Cst. Matieshin, who testified that he observed Mr. Klassen at the event for a lengthy period of time. I accept that evidence, there being no reason to do otherwise. [ 40 ] Dominika Kosowska - Ms. Kosowska identified herself to police, who confirmed her identity via SGI. Ms.

Kosowska testified that she was at the event only for the purpose of dropping off cupcakes on behalf of another person. She walked through the crowd to the Vimy Memorial itself (which was the stage for the event). Although she originally testified that she spoke with no one, the evidence is clear that she spoke to at least two people, one of them (Mark Friesen) very briefly and one of them for a longer period, and then left. [ 41 ] She can be seen on Vimy 2 arriving at 2:07:35, and then again from 2:09:29 to 2:09:40, with a brief gap.

She also appears in a photograph (Exhibit P-4, tab 21) which has a timestamp of 2:22. Although I cannot be sure that the timestamps between that photograph and Vimy 2 are the same, I note that the photograph shows Ms. Kosowska in a way which is not shown in Vimy 2 at any point. The views of her on the sidewalk on Vimy 2 show her arriving walking south, carrying a container or containers, and later walking north, not carrying those things. Those views are consistent with her arriving with the cupcakes, dropping them off and leaving.

The photograph, however, shows her walking south, not carrying a container (although she appears to have something small in her hand). This photograph is not consistent with her statement of having walked south to drop off the cupcakes, dropping them off and then walking north to leave. I have to conclude that she was at Vimy outside of the times she is seen on Vimy 2: in essence, that she was there for some period longer than required merely to drop off the cupcakes. [ 42 ] The question is whether or not she “attended” the gathering.

She was only there for a relatively brief period of time, although longer than she claims; perhaps ten minutes. She did not remain on the fringe of the group, where it might be argued that she was not actually “at” the gathering: rather, she made her way directly through it to its centre. She did so deliberately, not because she was on her way from one point to another such that her path happened to take her there.

She went to the Vimy Memorial with the specific knowledge that there was to be a gathering there, and to assist (albeit in a very small way) the organizers of the event, by delivering cupcakes to the event. When she saw the size of the gathering, clearly then in excess of 10 persons, she continued into the gathering. I conclude that she did in fact “attend” the gathering. [ 43 ] Cody Kuntz - Mr. Kuntz’ name and photograph were proven via SGI. His participation in the event was proven via the personal observations of Cst. Ferguson. [ 44 ] Arley Laroque - Mr. A. Laroque’s name and photograph were proven via SGI.

He can be seen at the event on Vimy 2 from 2:13:50 to 2:14:22, 2:15:06 to 2:16:30 and subsequently, to at least 2:28:13. Although Mr. Laroque argues that the evidence does not show anything more than “a brief stop”, this is clearly not true; similarly, his claim that the evidence only shows him to be “in a group of less than ten people” is likewise untrue. [ 45 ] Keesyn Larocque – the Crown has proven the name and photograph of “Keesyn Laroque” via SGI. The participation in the event of the person matching that photograph is seen on Vimy 2 from 2:13:40 to 2:14:11 and 2:16:27 to 2:17:22.

However, that person is not before the Court. The Information charges “Keesyn Laro c que” with having committed the offence. There is no evidence that Keesyn Laroque (whose last name is spelled without a “c”) is the same person as Keesyn Larocque, the person named as a defendant. There is no evidence with respect to the defendant Keesyn Larocque at all, and he will therefore be found not guilty. [ 46 ] Halden Lindjberg - Mr. Lindjberg’s name and photograph were proven via SGI. His participation in the event can be seen on Vimy 2 from 4:31:54 to 4:32:26.

Although he is by himself on the outer part of the gathering at the first of those times, and thereafter appears to leave, interacting with only one person on his way, the video prior to 4:31:54 shows him in the audience from at least 4:19:19. His presence was not merely transitory or incidental: he was a participant in the gathering. [ 47 ] Megan Machiskinic - Ms. Machiskinic self-identified to police, and her name and photograph were confirmed via SGI prior to the ticket being issued. Her presence at the event is seen on Vimy 2 from 2:10:59 to 2:11:56. [ 48 ] Ms.

Machiskinic testified that she went to the Vimy Memorial that day specifically because she understood that Mr. Bernier was going to be speaking at a public event, and she wished to hear him. She stated that she arrived shortly after 2:00, was there for a few minutes, then left with several others to assist someone with equipment for the event (although she ended up not carrying anything). She then received her ticket from police.

After that, she returned to the event, where she stayed for approximately an hour, sitting on the grass. [ 49 ] No argument was made by any counsel as to what use, if any, should be made of events after Ms. Machiskinic received her ticket. I am satisfied that I can use those events solely for the purpose of determining whether or not Ms. Machiskinic intended to “attend” the event. That is, the fact that she was clearly in breach of the PHO after receiving her ticket cannot itself justify the ticket, but it can speak to her purpose in being at the event prior to the ticket. [ 50 ] The evidence is that Ms.

Machiskinic went to the event for the purpose of hearing Mr. Bernier, and with the intention of doing so regardless of the size of the crowd. She cannot have failed to notice its size, substantially in excess of 10 persons, regardless of how many people she was personally speaking with at any given moment. [ 51 ] The actus reus of the offence that is significant with respect to Ms. Machiskinic consists of two parts: (1) that one attend an event, and (2) that the event be in excess of 10 persons .

There is no requirement that the accused be within a certain distance of others, or speak with a certain number of people, or any such requirement. Here, Ms. Machiskinic clearly attended the event: she went with the express purpose of hearing Mr. Bernier speak at the event. When she arrived, there were clearly more than 10 persons present for the event: it is clear, and would have been clear to her, that their common purpose was to attend the event - indeed, she never argued to the contrary. She chose not to leave. It is clear that she attended an event where more than 10 persons were present.

[52] Ms. Machiskinic has asserted a defence of due diligence and seeks a “judicial stay of proceedings” as a result (Bernier brief,paras 27 and 30). I note that if the defence of due diligence is made out, then a stay would not be available: as with any other defence, ifthe defence of due diligence is established, then Ms. Machiskinic is entitled to be found not guilty: a stay would then be bothunnecessary and inappropriate. [53] The defence of due diligence comes from R v Sault St. Marie, (SCC), [1978] 2 SCR 1299.

In essence, itallows a defence in certain types of proceedings (including the present one) where the accused shows that they took all reasonable stepsto avoid committing the offence. Ms.

Machiskinic testified that she limited her contact at the event to a few people, she ensured that shefelt well and did not have any symptoms of COVID-19 (although she did not test herself), and she timed her arrival so that the eventwould already have started. [54] With respect, none of these steps constitute due diligence in the present context. “Due diligence” applies to the specificcharge the accused is facing, not other charges that they might, in different circumstances and at different times, have faced.

In thematter before me, the essential components for a due-diligence defence are “attending” and “a gathering of over 10 persons”. If a persondid in fact attend an event of more than 10 persons, then distancing within that group, or being healthy, or wearing a mask, are allirrelevant. The due diligence must be with respect to the specific charge. The proper question, therefore, is not whether or not Ms.Machiskinic felt ill, but what steps she took to ensure that she did not attend, or that the gathering she attended was not in excess of 10persons. The answer, of course, is that she took no such steps.

Accordingly, she cannot maintain a defence of due diligence. [55] Darrell Mills – Mr. Mills’ identity was proven via SGI. Cst. Kateryniuk observed Mr. Mills at the event and confirmed hisidentity via SGI. He can be seen at various points in the video evidence. [56] Alexandre Nascimento - Mr. Nascimento self-identified to the police, following which his identity was confirmed via SGI. He can be seen at the event on Vimy 2 from 2:17:50 to 2:19:15 and from 3:38:17 to 3:38:30. [57] Terrance Nash - Mr. Nash’s identity was proven via SGI. Cst. Scarrow observed Mr.

Nash present throughout the event,which is confirmed by the video evidence. [58] Luiz Penteado - Mr. Penteado’s name and photograph were proven via SGI. He can be seen a variety of times throughout theevent, including on Vimy 2 from 5:00:49 to 5:07:46. [59] Breanna Peskleway - Ms. Peskleway’s name and photograph were proven via SGI. She can be seen on WUC from 54:50 to55:04 in the audience of the event. Cst. Ferguson testified that she noted Ms. Peskleway, photographed her at the event (the photographsform part of Exhibit P-4, tab 31) and subsequently confirmed her identity through SGI.

I am satisfied that the person shown in the SGIphotograph is the same person shown in the event photographs taken by Cst. Ferguson. [60] Amanda Philipenko - Ms. Philipenko’s identity and presence at the event were testified to by Ms. Machiskinic. Evidence ofparticipation also came from Cst. Ferguson, who testified that he took the second photograph in Exhibit P-4, tab 32 because the personsthere were part of the gathering, in the manner which he described. Ms. Machiskinic identified Ms. Philipenko in that photograph. LikeMs. Machiskinic, Ms.

Philipenko appears to have been at the event for an extended period of time. Ms. Philipenko’s defence, from thebrief filed by her counsel, appears to be that she remained within a small group of people within the larger gathering prior to her beingticketed. Although Ms. Philipenko did not testify, Ms. Machiskinic’s evidence indicates that she went to the event expecting to meet Ms.Philipenko, indicating some prior planning on the part of the two of them to attend this event. As with Ms. Machiskinic, it would havebeen obvious to Ms.

Philipenko that she was attending a gathering of more than 10 persons. [61] I am satisfied that the identity and participation of Ms. Philipenko have been proven. [62] Joyce Pierce - Ms. Pierce’s name and photograph were proven via SGI. She can be seen at the event on Vimy 2 at 2:16:56 to2:17:27, 2:17:50 to 2:18:03 and 4:39:05 to 4:39:52. [63] Adrian Scarrow - Mr. Scarrow’s name and photograph were proven via SGI. He can be seen on Vimy 2 from 2:18:59 to2:19:17, 2:42:28 to 2:42:36 and 4:32:43 to 4:32:53.

Additionally, it appears that he was carrying a distinctive flag throughout much ofthe event, which both confirms his participation and makes it easier to confirm his continued attendance. His attendance at the event isevident in the portions of video where his face is clear. [64] Emily Schmidt - Ms. Schmidt’s name and photograph were proven via SGI. I first note her presence at the event on Vimy 2 at4:03:33, where she is standing with one other adult and appears to be holding a very young child. She appears to leave at 4:16:30.

Herinvolvement, from what can be seen in the video evidence, consists of standing in two locations beside a public walkway, observing theevent, not interacting with any other persons other than what appears to be her immediate family, and then continuing to walk. At most,she would be described as being on the fringe of the event, and perhaps not even that. I do not conclude that she attended the gathering,and accordingly she will be found not guilty. [65] Tanner Schmidt - Mr. Schmidt self-identified to police, who then confirmed his information via SGI. He is the other adultseen with Ms.

Schmidt, referred to above. The evidence with respect to him is the same as it is for her. I accordingly will also find himnot guilty, for the same reasons. [66] Michael Styan - Mr. Styan’s name and photograph were proven via SGI. Cst. Ferguson testified to Mr. Styan’s participationin the event. Cst. Ferguson also took the photograph of Mr. Styan at Tab 37 of Exhibit P-4 showing that participation. [67] Luke Tournier - Mr. Tournier’s name and photograph were proven via SGI. Cst. Ferguson testified to Mr. Tournier’sparticipation in the event and provided the photograph of Mr.

Tournier at Tab 38 of Exhibit P-4 showing that participation. He can alsobe observed on Vimy 2 at 4:48:43 to 4:49:59, although at that time he is only conversing with three other people. [68] Michele Tournier - Ms. Tournier’s name and photograph were proven via SGI. Cst. Ferguson testified to her participation in

the event. He also testified that she appears in the photograph at Tab 38 on Exhibit P-4, although her face is not clear in that photograph. She also appears on Vimy 2 at 4:4:48:43 to 4:49:59, although at that time she is only conversing with three other people. [ 69 ] Pamela Waldner - Ms. Waldner’s name and photograph were proven via SGI. Sgt. Larocque testified that she participated in the rally, and accordingly took photographs which included her (Exhibit P-4, Tab 44).

She can additionally be seen at a variety of times in the video evidence, including on Vimy 2 at 3:49:14, 3:51:38 and 4:01:18. [ 70 ] Brent Wintringham - Mr. Wintringham’s name and photograph were proven via SGI. He can be seen a number of times in the video evidence, including speaking on the stage to the crowd. [ 71 ] Stephanie Wintringham - Ms. Wintringham was identified by police via SGI, but no photograph of her from that source was provided in evidence. I therefore have no way of confirming the opinion of police as to her identity. No basis was provided for believing that police were able to identify Ms.

Wintringham other than via SGI. Accordingly, her identity has not been proven, I have not been able to locate her in the video evidence as having attended the event, and she will be found not guilty. Irrelevant matters [ 72 ] The Herbel brief raises a number of matters which are irrelevant and/or assert facts which are not found in the evidence and of which judicial notice cannot be taken. I have not considered any of them in coming to my decision.

Without being exhaustive, these matters include: a. a personal anecdote from counsel; b. references to the federal election held several months after the event in question here, as well as assertions as to the share of the popular vote obtained by the government and speculation as to what effect COVID-19 restrictions had on the outcome of the election; c. a detailed listing of what can only be described as “complaints” about disclosure and the trial process, without an application for any form of relief with respect thereto; d. citation of and reference to non-legal publications never referred to in evidence, such that neither I nor any party to this case have had any opportunity to determine the validity of the information asserted.

Stare decisis [ 73 ] A large number of issues raised in these proceedings have been answered by other decisions of the Provincial Court of Saskatchewan and the Court of King’s Bench (as it now is) of Saskatchewan. The Supreme Court of Canada addressed the matter of stare decisis in R v Sullivan , 2022 SCC 19 , 472 DLR (4 th ) 521 [ Sullivan ]. In Sullivan (at para 75 ), the Supreme Court spoke to what it referred to as “horizontal stare decisis ”, or judicial comity, and directed that: [75] . . .

Trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances: 1. The rationale of an earlier decision has been undermined by subsequent appellate decisions; 2. The earlier decision was reached per incuriam ("through carelessness" or "by inadvertence"); or 3.

The earlier decision was not fully considered, e.g. taken in exigent circumstances. [ 74 ] Also in Sullivan , the Supreme Court reaffirmed the principle of “vertical stare decisis ”, or the doctrine that “other courts are bound to follow precedent set by higher judicial authority” (para 59), which the Court refers to as “strictly binding” (para 65). “Higher judicial authority”, of course, refers only to higher Saskatchewan courts and the Supreme Court of Canada, not courts of other provinces. [ 75 ] As a result of stare decisis , a number of issues which have been raised in this matter do not need to be separately analyzed by me.

Defence counsel noted that for certain of their issues and motions, stare decisis would bind me and accordingly they did not wish to waste time arguing those points; they did, however, wish to preserve their clients’ appeal rights in the event that any of those prior cases were to be overturned. For brevity, and for the sake of any potential appeal, rather than listing each issue and its corresponding resolution, I will simply note that I consider myself bound by the following decisions which relate to issues raised in cases regarding COVID-19 and PHOs.

Any issues raised in the matter before me which are dealt with in these decisions should be taken to have been decided by me in accordance with these decisions, subject to my further comments below. The cases are: - Grandel v Saskatchewan , 2022 SKKB 209 [ Grandel ] - R v Friesen , 2022 SKPC 50 - R v Friesen , 2023 SKPC 18 - R v Friesen , 2023 SKPC 20 - R v Grandel , 2022 SKPC 48 - R v Keough , 2022 SKPC 23 - R v Wong , 2023 SKPC 7 [ Wong ] Ultra Vires

[76] The defendants have raised the question of whether or not the PHO was ultra vires the Act. Although this issue was addressedin Wong, and is therefore presumptively closed due to Sullivan, the defendants argue that Wong’s authority “has been undermined bysubsequent decisions of a higher court” (Bernier brief, para 102), namely the decision of the Alberta Court of King’s Bench in Ingram vAlberta (Chief Medical Officer of Health), 2023 ABKB 453 [Ingram]. With respect, this is an incorrect reading of Sullivan.

While theAlberta Court of King’s Bench is undoubtedly a higher court than the Provincial Court of Saskatchewan, it does not fall within the“chain of authority” principle of vertical stare decisis. The courts whose decisions are binding on the Provincial Court of Saskatchewanby virtue of vertical stare decisis are the Saskatchewan Court of King’s Bench, the Saskatchewan Court of Appeal and the SupremeCourt of Canada. The decisions of any other court, no matter its level, are of persuasive value only.

I do not read Sullivan’s firstexception (“the rationale of an earlier decision has been undermined by subsequent appellate decisions”) as changing the fundamentalprinciple of vertical stare decisis. If the Supreme Court had intended that extra-provincial appellate courts’ decisions should have thesame impact as those of our own province’s courts, I am confident that the Supreme Court would have made such a significant changeexplicit.

Were the defendants’ proposition correct, the effect would be that any decision outside Saskatchewan above the ProvincialCourt level would automatically negate Sullivan with respect to this Court. To reiterate, I believe that so drastic a change would havebeen made explicit by the Supreme Court; in the absence of an express statement to that effect, I cannot find that Sullivan means whatthe defendants urge me to find. Accordingly, I am not bound by Ingram. [77] However, Wong also notes (paras 55 and 56) that Sullivan leaves room for new arguments to be advanced.

Thus, although thedefendants cannot use the authority of Ingram to overcome Wong, they are entitled to use the arguments advanced in Ingram to attemptto overcome Wong. As will be seen, however, the Ingram analysis is not applicable. [78] In Ingram, a similar PHO was found to be ultra vires because its governing legislation required that the order be made by theChief Medical Officer of Health for Alberta or designate, but instead it had been made by the provincial government cabinet. The bodythat made the order thus did not have the authority to do so.

The defendants before me argue similarly that the Act specifies that an orderlike the PHO can only be made by a medical health officer, quoting Wong at paras 77-82, 85 and 91-93. The defendants then state thatthe PHO before me was made by the Minister of Health and, per Ingram, is ultra vires. [79] The defendants’ argument ignores two significant points. The first is that the legislative landscape changed between the orderwhich was the subject of Wong and the PHO before me now. Unlike in Wong, the PHO in the present matter was enacted under s. 25.2of The Disease Control Regulations, RRS c P-37.1 Reg 11. That

section states, in part, “If . . . the minister determines that it is in thepublic interest to do so, the minister may order that any or all of the measures set out in subsection (3) are to be taken . . .” (emphasisadded). As a result, it is perfectly appropriate that the order was made via the Minister’s power. [80] The second point is that the defendants have attempted to make their argument by misquoting the PHO. They allege, as afactual matter, that “Paragraph A of Exhibit P-2 states the PHO was, ‘authorized by the Minister of Health’” (Bernier brief, para 109). This statement is misleading.

The PHO was made by Dr. Saqib Shahab, Chief Medical Health Officer for Saskatchewan, under authoritydelegated to him by the Minister of Health, and the portion of the PHO from which the defendants selectively quote makes that clear: “I,Dr. Saqib Shahab, an official with the Ministry of Health and the Chief Medical Health Officer for the Province of Saskatchewan, havebeen authorized by the Minister of Health . . .”. The quote cherry-picked by the defendants, “authorized by the Minister of Health”, doesnot refer to the PHO itself, as the defendants allege, but refers to the derivation of the powers which Dr.

Shahab is exercising. [81] The argument that the PHO was ultra vires accordingly fails. Use of SGI as an unconstitutional search [82] I have reviewed the arguments of the defendants with considerable care, as this is a point I spent a great deal of time on inWong. There is nothing that the defendants have raised which falls within the Sullivan rules for overcoming judicial comity, andaccordingly I remain bound by my decision in Wong. Administrative law proceeding [83] The Herbel brief argues (paras 55 and 56): . . . this is an Administrative Law proceeding assisted by Criminal Law evidentiary procedure . . .

It is possible that the absence of theclarification of the court sitting as a criminal court or administrative “tribunal” was a cause for confusion in these proceedings . . . Insofaras this Court is acting as trier constituted not for criminal proceedings, but as an administrative tribunal . . .(emphasis in original) [84] It is unfortunate that the argument that this Court is sitting in this matter as an administrative tribunal rather than as a courtwas not developed further, since the basis for this remarkable assertion is not at all clear to me.

This trial was conducted in theProvincial Court of Saskatchewan which is, as the name suggests, a court. The Provincial Court of Saskatchewan was continuedpursuant to s. 3(1) of The Provincial Court Act, 1998, SS 1998, c P-30.11[PCA]. It is defined to be “a court of record” (PCA, s. 3(2)).

Itis an independent body, not an agent of government policy (PCA, s. 4). [85] The Supreme Court of Canada directly addressed the distinction between courts and administrative tribunals in Ocean PortHotel Ltd. v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 at paras 23 and 24, [2001] 2SCR 781: [23] This principle reflects the fundamental distinction between administrative tribunals and courts.

Superior courts, by virtue oftheir role as courts of inherent jurisdiction, are constitutionally required to possess objective guarantees of both individual andinstitutional independence. The same constitutional imperative applies to the provincial courts: Reference re Remuneration of Judges ofthe Provincial Court of Prince Edward Island, (SCC), [1997] 3 S.C.R. 3 (the "Provincial Court Judges Reference").Historically, the requirement of judicial independence developed to demarcate the fundamental division between the judiciaryand the executive.

It protected, and continues to protect, the impartiality of judges -- both in fact and perception -- by insulating themfrom external influence, most notably the influence of the executive: Beauregard v. Canada, (SCC), [1986] 2 S.C.R. 56,at p. 69; Régie, at para. 61.

[24] Administrative tribunals, by contrast, lack this constitutional distinction from the executive. They are, in fact, createdprecisely for the purpose of implementing government policy. (emphasis added) [86] The Provincial Court of Saskatchewan, as a body with objective guarantees of independence and not an agent of executivegovernment charged with carrying out government policy, is a court, not an administrative tribunal. [87] The Herbel rebuttal brief cites a legal blog as authority for the proposition that this court is supposed to be functioning in thiscase as an administrative tribunal.

The blog writer apparently stated: “Unlike most legal cases, which deal with legal issues betweenindividuals and corporations, administrative law deals with legal issues between individuals and government entities.” [88] I do not know the context in which that statement was written, or what knowledge the writer may have about the Canadianlegal system, or indeed the law at all: I am accordingly reluctant to criticize the writer for making the statement. I have no suchhesitation in criticizing the statement itself in the context in which it was put before me, however.

As a stand-alone assertion, which isthe way it was presented in the Herbel brief, it is shockingly erroneous. It is surprising for a counsel who primarily appears on criminalmatters to assert that “most legal cases . . . [are] between individuals and corporations”. I see no difficulty in taking judicial notice of thevast number of cases dealt with by trial courts which are not between individuals and corporations, including most obviously the entiretyof the criminal law, family law, and wills and estates law, as well as wide swathes of bankruptcy law and personal injury law, to namesimply a few.

In the face of such an erroneous statement, the authority cited is clearly not reliable.

In essence, if I were to accept theproposition urged on me by counsel, I would necessarily have to conclude that all criminal trials - dealing as they do with “legal issuesbetween individuals and government entities” - are not criminal trials at all, but are actually administrative law proceedings,notwithstanding centuries of understanding to the contrary. [89] Even were the statement “administrative law deals with legal issues between individuals and government entities” true, it is alogical fallacy to conclude that this means that any legal issue between individuals and government entities is an administrative lawissue.

If true, it is a statement about administrative law, not about the law generally. In essence, the Herbel brief wants the statementread as if it said, “only administrative law deals with legal issues between individuals and government entities”, in order to derive theconclusion that, since this case is between individuals and a government entity, it must be an administrative law proceeding. Thestatement does not say that. [90] It is clear that this Court is not, as the Herbel brief asserts, an administrative tribunal, nor is it in some way sitting as one.

It isa court, charged with determining whether or not the Crown has proven the guilt of the defendants beyond a reasonable doubt based onthe law and admissible evidence. All of the defendants’ arguments based on some theory of administrative law proceedings must,necessarily, fail. [91] The Herbel rebuttal brief further asserts that this court is, in these proceedings, effectively conducting “judicial review of boththe regulations and the enforcement conduct of same” (para 14). This is a fundamental mis-statement of this proceeding and this court’srole and powers.

The Provincial Court of Saskatchewan has no power of judicial review. Furthermore, I am not “reviewing” theregulations or the enforcement of them: I am assessing challenges validly brought under the Charter, and I am considering legally-admissible evidence to conclude whether or not it shows the guilt of the respective defendants beyond a reasonable doubt. There issimply no validity to the defendants’ assertion. Paramountcy [92] It is unclear, but the Herbel brief appears to be suggesting (para 74) that the SGI database, or perhaps the police’ use of it, isunconstitutional, without actually using that word.

It may be that “unconstitutional” is avoided because no notice was given of thisargument, which would be required under The Constitutional Questions Act, 2012, SS 2012, c C-29.01 [CQA]. To the extent that Iunderstand the defendants’ argument, it is one which required notice be given. No notice having been given, I am not prepared toentertain this argument. [93] Even if proper notice had been given, the argument would necessarily fail.

The argument seems to be that the federalgovernment, with the Identification of Criminals Act, RSC 1985, c I-1 [ICA], has occupied the field of photographs for identification oflawbreakers, and accordingly either the SGI database itself, or perhaps only the police use of it as an investigative tool, isunconstitutional. [94] As a matter of law, the test for such an argument is not the “occupied field” but rather whether or not the provincial andfederal legislation are incompatible.

The Supreme Court of Canada, in a recent case arising out of Saskatchewan, very clearly articulatedthe process for, and the rules governing, the examination of legislation in a paramountcy argument (Saskatchewan (Attorney General) vLemare Lake Logging Ltd., 2015 SCC 53 at paras 15 to 21, [2015] 3 SCR 419) [Lemare Lake]: [15] The guiding mantra of the paramountcy analysis is that "where there is an inconsistency between validly enacted but overlappingprovincial and federal legislation, the provincial legislation is inoperative to the extent of the inconsistency": Rothmans, Benson &Hedges Inc. v.

Saskatchewan, 2005 SCC 13 , [2005] 1 S.C.R. 188, at para. 11; see also Reference re Remuneration of Judges ofthe Provincial Court of Prince Edward Island, (SCC), [1997] 3 S.C.R. 3, at para. 98; Luanne A. Walton,"Paramountcy: A Distinctly Canadian Solution" (2003-2004), 15 N.J.C.L. 335, at p. 335. [16] The first step in the analysis is to determine whether the federal and provincial laws are validly enacted.

This requires looking atthe pith and substance of the legislation to determine whether the matter comes within the jurisdiction of the enacting legislature.Assuming both laws are validly enacted, the second step requires consideration of whether any overlap between the two laws constitutesa conflict sufficient to render the provincial law inoperative. A provincial law will be deemed to be inoperative to the extent that itconflicts with or is inconsistent with the federal law: see Tsilhqot'in Nation v. British Columbia, 2014 SCC 44 , [2014] 2 S.C.R.257, at paras. 128-30; Canadian Western Bank v.

Alberta, 2007 SCC 22 , [2007] 2 S.C.R. 3, at paras. 25-26 and 32.

[17] Two kinds of conflict are at play: (1) an operational conflict, where compliance with both the federal and provincial law isimpossible; and (2) frustration of purpose, where the provincial law thwarts the purpose of the federal law (Quebec (AttorneyGeneral) v. Canadian Owners and Pilots Association, 2010 SCC 39 , [2010] 2 S.C.R. 536 (COPA), at para. 64; Rothmans,Benson & Hedges Inc., at paras. 11-12; Quebec (Attorney General) v. Canada (Human Resources and Social Development), 2011 SCC60 , [2011] 3 S.C.R. 635, at para. 17; Marine Services International Ltd. v.

Ryan Estate, 2013 SCC 44 , [2013] 3 S.C.R.53, at paras. 68-69; Bank of Montreal v. Marcotte, 2014 SCC 55 , [2014] 2 S.C.R. 725, at para. 80). [18] The operational conflict branch of the paramountcy doctrine requires that there be "actual conflict" between the federaland provincial legislation, that is, "the same citizens are being told to do inconsistent things": Multiple Access Ltd. v. McCutcheon, (SCC), [1982] 2 S.C.R. 161, at p. 191.

Stated otherwise, operational conflict arises "where one enactment says 'yes' andthe other says 'no', such that 'compliance with one is defiance of the other'": COPA, at para. 64, citing Multiple Access Ltd., at p. 191; seealso Ryan Estate, at para. 68; Rothmans, Benson & Hedges Inc., at para. 11. In M & D Farm Ltd. v.

Manitoba Agricultural Credit Corp., (SCC), [1999] 2 S.C.R. 961, for example, an order granting leave to commence foreclosure proceedings underprovincial legislation in circumstances where a stay had been granted under a federal statute, was found to be operationally inconsistentbecause the order made under the provincial statute purported to authorize the very litigation that the federal stay prohibited: paras. 39-42. [19] Under the second branch of the paramountcy analysis, provincial legislation will be found to be inoperative when itfrustrates the purpose of a federal law: Canadian Western Bank, at para. 73.

In Law Society of British Columbia v. Mangat, 2001 SCC67 , [2001] 3 S.C.R. 113, for example, this Court held that provincial legislation prohibiting non-lawyers from practising law fora fee before a tribunal, conflicted with federal legislation providing that a non-lawyer could represent a party before the Immigration andRefugee Board, even for a fee.

Acknowledging that dual compliance was not strictly impossible because a person could either join theLaw Society or not charge a fee, the Court nonetheless found the provincial law to be "contrary to Parliament's purpose": para. 72. [20] Significantly, against the background of the two paramountcy paradigms of operational conflict and frustration of purpose, thisCourt cautioned in Canadian Western Bank that "[t]he fact that Parliament has legislated in respect of a matter does not lead to thepresumption that in so doing it intended to rule out any possible provincial action in respect of that subject": para. 74.

Thefundamental rule of constitutional

interpretation is, instead, that "[w]hen a federal statute can be properly interpreted so as not to interferewith a provincial statute, such an

interpretation is to be applied in preference to another applicable construction which would bring abouta conflict between the two statutes": Canadian Western Bank, at para. 75, citing Attorney General of Canada v. Law Society of BritishColumbia, (SCC), [1982] 2 S.C.R. 307, at p. 356; see also Ryan Estate, at para. 69. [21] Given the guiding principle of cooperative federalism, paramountcy must be narrowly construed. Whether under the operationalconflict or the frustration of federal purpose branches of the paramountcy analysis, courts must take a "restrained approach", andharmonious

interpretations of federal and provincial legislation should be favoured over

interpretations that result inincompatibility: Reference re Securities Act, 2011 SCC 66 , [2011] 3 S.C.R. 837, at paras. 59-60, citing OPSEU v.

Ontario(Attorney General), (SCC), [1987] 2 S.C.R. 2, at p. 18, per Dickson C.J. (concurring); see also Canadian Western Bank,at paras. 37 and 75. [emphasis added] [95] Therefore, assuming that both the federal and provincial laws are validly enacted, paramountcy will require the overruling ofthe provincial legislation in one of two situations: 1. where it is impossible to comply with both the federal and the provincial legislation; 2. where the provincial legislation frustrates the purpose of the federal law. [96] SGI does neither of these.

There is clearly no difficulty with complying with both the ICA and having information in SGI (thefirst Lemare Lake test).

Nor can it be said that requiring photographs and other information for drivers’ licences be held in SGI, orreleased to police for investigative purposes, frustrates the purpose of the ICA (the second Lemare Lake test): SGI and the ICA havedifferent objectives and purposes, which at best can be said to overlap in police investigations; in such instances, rather than frustratingthe ICA, SGI complements it. [97] Furthermore, Lemare Lake cautions that the mere fact that the federal government has legislated in an area does not in and ofitself preclude provincial legislation (para 20), and further that paramountcy itself must be narrowly construed and only applied where nointerpretation of the legislation can result in both standing (para 21). [98] Accordingly, the paramountcy argument must fail.

Censorship [99] The Herbel brief raises an issue which it dubs “censorship” (para 50). Various defendants, in their testimony, referred to“Facebook jail” and other perceived online social-media persecutions. Those allegations form no part of my reasoning, as there were avariety of problems with them. The witnesses provided no evidence beyond their personal experiences with various social-mediaplatforms, and their own beliefs for why, for example, more people were not following their accounts from time to time, or why theirposts did not receive the prominence which the posters felt they deserved.

I cannot take this as evidence that their explanations are true. In some instances, the witnesses were apparently told by their platform hosts that they were facing consequences for breaching theplatform’s terms of use - which, I note, is a private contractual matter between the user and the platform owner. It is not clear what use,in this prosecution for a violation of a quasi-criminal law, the defendants sought to make of their unhappiness with their contractualpartners.

There was some suggestion at one point that some defendants thought these allegations were relevant to the curtailment of theirfree-speech rights by the PHO, but this argument was not developed and I am accordingly unable to engage with it, as I do not knowwhat the argument would be.

[100] To the extent that an argument was advanced, it was at para 51 of the Herbel brief. That paragraph asserts that the defendants’ability to communicate online was “regulated by federal State actors to be a near impossible alternative”, and then goes on to refer to thetype of evidence noted above.

It is unclear to me how the anecdotal evidence provided by the defendant witnesses, speaking of theirpersonal experiences with private online social-media sites, translates into evidence of state action which would be subject to Charterscrutiny, which seems to be the thrust of the argument. [101] Either further or alternatively, these anecdotes are put forward in the Herbel brief as a basis for not following Grandel,apparently on the basis that Grandel referred to the applicants therein having the ability “to express themselves online, communicatewith each other online, and relay their opinions directly to government officials online” (Herbel brief, footnote 63, quoting Grandel, para109).

I note that none of the allegations by the defendant witnesses actually prevented any of these. If the allegations are true, at mostthey may have made it more difficult for the posters to reach the audience they wished to reach. It remains unproven that anyone whoany given defendant would otherwise have reached was rendered unreachable by the sanctions these defendants claim, withoutconvincing evidence, have been visited upon them.

With respect to the other two abilities referred to in Grandel, communicating witheach other and offering their opinions to government officials, there is no evidence that either of those were curtailed or significantlyaffected. [102] There are therefore a number of difficulties with the “censorship” allegations:

a) they are not proven. I accept that the witnesses who testified to “Facebook jail”, “shadow-banning” and similar outcomesbelieve that (1) such things exist, and (2) such events happened to those witnesses or to others. Belief is not proof. They may be correctin their beliefs, or they may not be: that is why courts require evidence, not mere assertions. The defendants are entitled to their beliefs;they are not entitled to have the Court act on them in the absence of evidence;

b) the effects which the witnesses complained of appear, even in their own understanding, to have been the actions of the ownersof the social-media or communications software, not the federal or provincial governments. Those relationships are private andpresumably contractual. Even if the defendants’ beliefs are well-founded, it is not clear how they translate into a Charter issue, as theCharter does not apply between private parties;

c) the allegations, were they proven, do not overturn Grandel. They do not show that the abilities referred to in Grandel were socurtailed that Grandel’s reasoning becomes inapplicable. [103] I have accordingly not dealt further with this issue. Abuse of process [104] The defendants argue that they are entitled to a stay of proceedings due to discriminatory or arbitrary enforcement orprosecution, based not on constitutional grounds but on common-law principles.

They may have been forced to take this position due tothe fact that, despite having filed over 30 Charter motions, no defendant raised a Charter issue alleging abuse of process. This lack of aCharter notice is, in and of itself, fatal: the Supreme Court has been clear that abuse of process, since at least 2011, must be pursued as aCharter violation. In this regard, see R v Nixon, 2011 SCC 34 at paras 36-37, [2011] 2 SCR 566 [Nixon]: [36] Ten years later in R. v.

O'Connor, (SCC), [1995] 4 S.C.R. 411, the Court noted that there was much overlapbetween the Charter and the common law doctrine of abuse of process, as the latter had found application in circumstances involvingstate conduct touching upon both "the integrity of the judicial system and the fairness of the individual accused's trial" (para. 73).Consequently, L'Heureux-Dubé J., writing for a unanimous Court on this point, held that the two regimes should be merged under s. 7 ofthe Charter.

Depending on the circumstances, different Charter guarantees may be engaged by the alleged abuse of process and thussome claims may be better addressed by reference to the specific procedural guarantee. For example, "where the accused claims that theCrown's conduct has prejudiced his ability to have a trial within a reasonable time, abuses may be best addressed by reference to s. 11(b)"(para. 73).

The Court identified two categories of abuse of process which would be caught by s. 7 of the Charter: (1) prosecutorialconduct affecting the fairness of the trial; and (2) prosecutorial conduct that "contravenes fundamental notions of justice and thusundermines the integrity of the judicial process" (para. 73). [37] The Court held further that there was no practical utility in maintaining two distinct analytic regimes based on the different burdensof proof.

Even if a violation of s. 7 is proved on a balance of probabilities, the court would still have to determine the appropriate remedyunder s. 24(1) of the Charter and the "clearest of cases" burden would still apply to justify the remedy of a judicial stay of proceedings(para. 69). The Court made clear, however, that the fusion of common law and Charter claims of abuse of process under s. 7 of theCharter does not alter "the essential balancing character of abuse of process".

L'Heureux-Dubé J. explained as follows (at para. 69): Remedies less drastic than a stay of proceedings are of course available under s. 24(1) in situations where the "clearest of cases"threshold is not met but where it is proved, on a balance of probabilities, that s. 7 has been violated. In this respect the Charter regime ismore flexible than the common law doctrine of abuse of process.

However, this is not a reason to retain a separate common law regime.It is important to recognize that the Charter has now put into judges' hands a scalpel instead of an axe - a tool that may fashion, morecarefully than ever, solutions taking into account the sometimes complementary and sometimes opposing concerns of fairness to theindividual, societal interests, and the integrity of the judicial system.

Even at common law, courts have given consideration to thesocietal (not to mention individual) interests in obtaining a final adjudication of guilt or innocence in cases involving serious offences . . .I see no reason why such balancing cannot be performed equally, if not more, effectively under the Charter, both in terms of definingviolations and in terms of selecting the appropriate remedy to perceived violations. [Emphasis added.] [105] It is not clear what remedy is sought by the defendants, which is another reason why it would have been helpful had they puttheir motion in writing.

The Bernier brief appears to argue for a stay of proceedings (Bernier brief, paras 7, 112 and 138). However, asthe defendants have not brought a Charter motion with respect to abuse of process, I have no power to consider a stay as a remedy forabuse of process: the Supreme Court has stated that a remedy for abuse of process must be sought through the Charter (see Nixon), and

CQA states that no court has the power to grant a remedy for a stay of proceedings unless notice has been given in accordance with that Act ( s. 13 ). [ 106 ] The Herbel brief seem to argue for exclusion of evidence (p. 16, issue D; paras 119 and 125) rather than a stay of proceedings. The Herbel argument is difficult to follow, in part because it assumes that this matter is an administrative adjudication rather than a quasi -criminal prosecution (see, for example, para 92). As indicated above, this is an incorrect understanding of the nature of this proceeding.

Additionally, Practice Directive VIII of this Court requires at least 14 days’ notice of a Charter motion seeking exclusion of evidence. This is not a new requirement, and indeed the many Charter notices filed in the course of this prosecution make it clear that all defence counsel were fully aware of the technical requirements for Charter notices.

The failure to file a Charter notice seeking exclusion of evidence is therefore a breach of the Practice Directive and the request for exclusion of evidence will accordingly not be considered. [ 107 ] Even were none of these technical difficulties present, I would still not have granted any of the remedies sought, for the simple reason that the evidence does not establish an abuse of process. [ 108 ] As I noted in R v Repo , 2023 SKPC 46 at para 40 , it is not a defence to assert that others who also broke the law were not punished. Something more is required.

Specifically, the test for abuse of process has been set out by the Supreme Court of Canada in R v Babos , 2014 SCC 16 , [2014] 1 SCR 309 [ Babos ]. There, the Supreme Court reaffirmed its

interpretation in O’Connor that there are generally two categories of abuse of process: (1) where state conduct compromises the fairness of an accused's trial (the "main" category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category) (para 31). The defendants’ argument before me is that the police enforcement actions which ultimately led to the present charges fall into the second, or “residual”, category. [ 109 ] Babos sets out the tests for determining whether or not an abuse of process has occurred.

With respect to the test for the residual category, the Court stated (para 35): [35] By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences.

At times, state conduct will be so troublesome that having a trial - even a fair one - will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system.

In these kinds of cases, the first stage of the test is met. [ 110 ] The first issue which must be decided, therefore, is whether or not “the state has engaged in conduct that is offensive to societal notions of fair play and decency”. [ 111 ] The allegation, so far as I can follow it, is that the Saskatoon Police Service engaged in selective enforcement of the “gathering” law, in that it issued tickets to persons at the gathering at the Vimy Memorial on May 9, 2021, but did not issue tickets to persons at other gatherings at other times.

There are also references to entrapment (Bernier brief, para 18, for example), to investigation as opposed to enforcement (Herbel brief, paras 99 and 100, for example) and to the (federal) 2018 Summer Jobs Program (Herbel brief, para 106).

I am unable to determine what any of these references have to do with the issue of selective enforcement in the matter before me, and accordingly I have not referred further to them. [ 112 ] To return to Babos , in order to establish that a stay of proceedings is appropriate the defendants must show, through admissible evidence, that the police in issuing the tickets which resulted in the present prosecution “engaged in conduct that is offensive to societal notions of fair play and decency and [that] proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system”. [ 113 ] The core of the defendants’ assertions regarding selective enforcement is the following: (

a) they were ticketed for attending the Vimy Memorial gathering on May 9, 2021; (

b) there were a number of police officers at the Vimy Memorial gathering on May 9, 2021, who had been tasked with recording participants and issuing tickets to them; (

c) police had patrolled other gatherings similar to the May 9, 2021, gathering protesting against Public Health Orders; (

d) there was a similar rally, with similar objectives, held at the Vimy Memorial on May 15, 2021; (

e) there was again a significant police interest in, and presence at, that rally; (

f) there was another rally on May 15, 2021, at City Hall (the “Free Palestine” rally) which was in excess of the gathering limit, which did not attract a police presence similar to that at the Vimy Memorial on either May 9 or May 15; (

g) the Free Palestine rally did not result in any tickets written or charges laid. [ 114 ] There are two difficulties with the defendants’ assertions. Firstly, they are unable to establish critical portions of them in evidence. Secondly, even if they were able to do so, they would not satisfy the legal test for abuse of process. I will review each in turn. Evidence of abuse of process [ 115 ] The evidence on which the defendants rely is contained in Appendix F to the Herbel brief. It consists of 13 pages of transcript from the trial, being extracts from the testimony of eight witnesses.

[116] None of those witnesses were in significant decision-making positions with respect to the allegations of selective enforcement. The closest were officers who viewed the video cameras and steered officers to issue tickets at the time. Testimony from that source wassimply who was ticketed, not why other rallies were not ticketed (if such was the case). The nearest this evidence comes to showinguneven enforcement is questioning regarding whether or not counter-protestors were ticketed, and in such cases, all the witnesses couldtestify to was that they themselves had not issued such tickets.

As no witness issued all tickets, this falls short of demonstrating that thecounter-protestors were not ticketed, or that other events did not result in tickets. [117] The defendants appear to want to suggest that a deliberate decision had been made to target themselves and not the counter-protestors, or persons at the Free Palestine rally, due to the views that various defendants espoused. No such evidence has been putforward. No witness testified to making such a decision, or being aware of such a policy; indeed, no witness was able to state that notickets had been handed out at the Free Palestine rally.

The most that each witness could testify to was what they had personallyobserved; none of them were able to testify as to the actions of other officers, let alone the policy behind any decisions made. Noevidence was provided of a policy to ticket certain events or certain classes of individuals and not others, let alone the reasons behind anysuch policy - yet such evidence, or evidence from which such reasons could be deduced, would be crucial to the defendants’ claims. [118] The evidence establishes that there had been a number of rallies similar to the May 9 event, expressing similar views.

A numberof the participants were familiar to police from those prior rallies. There is no evidence as to whether or not there had likewise beenprevious Free Palestine rallies, whether with the same attendees or otherwise. [119] There is no evidence as to whether or not tickets were issued to anyone at the Free Palestine rally. The most that could be saidwas that more police resources were devoted to the Vimy Memorial rally on May 16 than to the Free Palestine rally occurring at thesame time.

Again, no evidence was provided as to the reasons for that decision: there was merely speculation from a witness who wasnot involved in that decision. Evidence not meeting test for abuse of process [120] Assuming that (a) - (

g) of the defendants’ assertions set out above were all fully proven in the evidence, they would still notestablish an abuse of process. As noted above, the Babos test applicable here is, “whether the state has engaged in conduct that isoffensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful tothe integrity of the justice system” (Babos, para 35).

Answering this question requires a review of the police power of discretion. [121] That the police have a certain degree of discretion in deciding what matters to investigate and whether to lay charges, forexample, has long been understood. In R v Beare; R v Higgins, (SCC), [1988] 2 SCR 387, the Supreme Court ofCanada gave examples of police discretion (para 51): “[p]olice necessarily exercise discretion in deciding when to lay charges, to arrestand to conduct incidental searches”.

The Court, in the same paragraph, gave the reason for such discretion: “[d]iscretion is an essentialfeature of the criminal justice system. A system that attempted to eliminate discretion would be unworkably complex and rigid.” TheCourt expanded on this concept in R v Beaudry, 2007 SCC 5 at para 37, [2007] 1 SCR 190: [37] . . . Applying the letter of the law to the practical, real-life situations faced by police officers in performing their everyday dutiesrequires that certain adjustments be made.

Although these adjustments may sometimes appear to deviate from the letter of the law, theyare crucial and are part of the very essence of the proper administration of the criminal justice system, or to use the words of s. 139(2),are perfectly consistent with the "course of justice". The ability -- indeed the duty -- to use one's judgment to adapt the process of lawenforcement to individual circumstances and to the real-life demands of justice is in fact the basis of police discretion . . .

Thus, a policeofficer who has reasonable grounds to believe that an offence has been committed, or that a more thorough investigation might produceevidence that could form the basis of a criminal charge, may exercise his or her discretion to decide not to engage the judicial process. . . [122] The Supreme Court then went on to refer to the limits on that discretionary power (paras 38 and 39): [38] The required justification is essentially twofold.

First, the exercise of the discretion must be justified subjectively, that is, thediscretion must have been exercised honestly and transparently, and on the basis of valid and reasonable grounds (reasons ofChamberland J.A., at para. 41). Thus, a decision based on favouritism, or on cultural, social or racial stereotypes, cannot constitute aproper exercise of police discretion. However, the officer's sincere belief that he properly exercised his discretion is not sufficient tojustify his decision. [39] Hence, the exercise of police discretion must also be justified on the basis of objective factors.

I agree with Doyon J.A. that indetermining whether a dec

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