Her Majesty the Queen - v. -, 2022 SKPC 23

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 23 Date: May 20, 2022 Ticket Nos: 7884687, 6845951, 85329693, 7884688, 6845953, 90195270 Location: Wynyard Between: Her Majesty the Queen - and - Richard Keough Appearing: A. Wyatt For the Crown L. Coupal For the AccusedT. Litowski For the Constitutional Law Branch JUDGMENT M. MARQUETTE, J.

Introduction [1] In late 2019, an outbreak of COVID-19, a disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2)was reported and by the spring of 2020, the outbreak had become a global pandemic.[1] Attempting to mitigate the transmission of theCOVID-19 virus, governments around the world began implementing public health measures.

The Government of Saskatchewan was noexception. [2] On March 20, 2020, a state of emergency was declared by the Government of Saskatchewan pursuant to The EmergencyPlanning Act[2] which was renewed from time to time and was in place at the time of the alleged offences in this matter.[3] Further, theGovernment of Saskatchewan designated COVID-19 a “category I” communicable disease pursuant to The Disease ControlRegulations[4] and in late 2020, an amendment was made to The Disease Control Regulations[5] pursuant to The Public Health Act,1994[6] granting the Minister of Health the ability to make Public Health Orders (PHOs) in response to COVID-19 pandemic. [3] Mr.

Keough is charged with violating these PHOs[7] as well as trespassing, specifically:

a) by failing to wear a face covering while in an enclosed setting specifically the Foam Lake Co-op food store on December 16, 2020,February 26, 2021, March 9, and March 17, 2021 contrary to

section 61 of The Public Health Act, 1994; and

b) by trespassing at the property of the Foam Lake Co-op food store on February 26, 2021, and March 17, 2021 contrary to

section 14 of The Trespass to Property Act.[8] [4] Prior to the trial date, defence filed a notice pursuant to The Constitutional Questions Act, 2012,[9] challenging the validity of thePHOs in force on the date of the alleged offences. Defence asserts the mandatory face covering order contained in the PHOs infringeshis rights under sections 2(

b) and

section 7 of the Canadian Charter of Rights and Freedoms[10] and asks this Court to declare the PHOsin effect on the date of the alleged offences invalid and to have no application to the case at bar. [5] While this Court is prohibited from declaring a law to be of no force and effect pursuant to section 52(1) of the Constitution Act,1982,[11] I, as a provincial court judge do have the jurisdiction to determine the constitutionality of a law and upon deciding that the lawruns afoul of the constitution, decline to apply the invalid law to the case at bar.

The Supreme Court in R v Lloyd [12] confirmed theprovincial court’s jurisdiction in the following passage. [15] … As this Court stated in R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295 at p. 316, “it has always been

open to provincial courts to declare legislation invalid in criminal cases. No one may be convicted of an offence under an invalid statute. … [18] If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision- making process in the case. [19] The effect of a finding by a provincial court judge that a law does not conform to the Constitution is to permit the judge to refuse to apply it in the case at bar. The finding does not render the law of no force or effect under s. 52 (1) of the Constitution Act, 1982 .

It is open to provincial court judges in subsequent cases to decline to apply the law, for reasons already given or for their own; however, the law remains in full force or effect, absent a formal declaration of invalidity by a court of inherent jurisdiction. [ 6 ] By agreement of the parties, the trial proceeded by way of a blended voir dire on all ticket matters. My decision today addresses the constitutionality of the PHOs issued by Dr. Saqib Shahab, Chief Medical Officer for Saskatchewan dated December 10, 2020, and February 18, 2021, and whether these PHOs infringe Mr.

Keough’s freedom of expression and his right to liberty and security of the person as guaranteed in the Charter and if so, if those infringements are reasonable limits prescribed by law on those rights as can be demonstrably justified in a free and democratic society pursuant to

section 1 of the Charter . [ 7 ] If there is a violation of Mr. Keough’s Charter right that is not justified under

section 1 of the Charter , this Court, as stated above, has the authority to declare the law invalid and of no application to the case at bar resulting in an acquittal on each of the tickets issued pursuant to The Public Health Act, 1994 . If there is no infringement of Mr. Keough’s Charter rights or in the alternative if the infringement is justified under

section 1 of the Charter , I must determine whether the Crown has met its burden of proof and proven beyond a reasonable doubt that Mr. Keough is guilty of violating the PHOs contrary to

section 61 of The Public Health Act, 1994 . [ 8 ] I must also determine whether the Crown has proven beyond a reasonable doubt that Mr. Keough committed

an act of trespass on the date of alleged offences contrary to

section 14 of The Trespass to Property Act . [ 9 ] Several issues were raised in this matter, and I intend to deal first with the tickets issued under The Public Health Act, 1994 outlining the issues pertaining to the tickets, the statutory framework, the evidence tendered at the voir dire, and then an analysis of the issues within this context concluding with my decision as to the validity of the PHOs and whether Mr. Keough is guilty of contravening

section 61 of The Public Health Act, 1994 . I will then outline the issues and evidence for the tickets issued pursuant to The Trespass to Property Act and conclude with my analysis in determining whether the Crown has proven Mr. Keough is guilty of trespassing pursuant to the Trespass to Property Act . The Public Health Act, 1994 Tickets Issues [ 10 ] The issues in respect to The Public Health Act, 1994 tickets are as follows: 1. Do the PHOs in question exist in law? 2. Do the PHOs infringe Mr. Keough’s

section 2(

b) Charter rights? 3. Do the PHOs deprive Mr. Keough’s right to liberty or security of the person as set out in

section 7 of the Charter and if so, is the deprivation contrary to the principles of fundamental justice? 4. If the PHOs violate

section 2 (

b) and/or

section 7 of the Charter , are the PHOs a reasonable limit on the Mr. Keough’s Charter rights prescribed by law as can be demonstrably justified in a free and democratic society pursuant to

section 1 of the Charter ? 5. If Mr. Keough’s application for relief pursuant to section 24(1) of the Charter is unsuccessful, has the Crown proven beyond a reasonable doubt that Mr. Keough has violated a Public Health Order contrary to

section 61 of The Public Health Act , 1994 ? Is the defence of necessity available to Mr. Keough? Statutory Framework [ 11 ] The Public Health Act, 1994 , addresses public health matters within the Province of Saskatchewan including community health protection and communicable diseases.

Section 61 is the penalty

section for contravening The Public Health Act, 1994 or regulation, bylaw, or order: 61 Every person who contravenes any provision of this Act or a regulation, bylaw or order made pursuant to this Act is guilty of an offence and liable on

summary conviction. [ 12 ] In late 2020, an amendment was made to The Disease Control Regulations pursuant to The Public Health Act, 1994 granting the Minister of Health the ability to make certain orders in response to COVID-19.

Section 25.2 states: 25.2

(1) In this section: (a) “face covering” means a medical or non-medical mask or other face covering that fully covers the nose, mouth, and chin, but does not include a face shield or visor;

(b) “SARS – CoV-2” means severe acute respiratory syndrome coronavirus 2 the virus that causes COVID-19. (1.1.) Notwithstanding the repeal of

section 25.1, the terms “business” and “person” as defined in that

section before it was repealed continue to apply for the purposes of this section.

(2) If, based on the opinion of the chief medical health officer that the increased rate of infection or the expectation of an increased risk of infection from SARS-CoV-2 is likely to cause a serious public health threat, the minister determines that it is in the public interest to do so, the minister may order that any or all of the measures set out in subsection (3) are to be taken for the purposes of preventing , reducing and controlling the transmission of SARS-CoV-2.

(3) An order made pursuant subsection (2) may impose all or any of the following measures that the minister considers necessary for the purposes of the order: (

a) a requirement that persons wear face coverings in the manner set out in the order: … [ 13 ] On December 10, 2020, and February 18, 2021, PHOs concerning face coverings came into force pursuant to

section 25.2 of The Disease Control Regulations . Both PHOs were issued by Dr. Saqib Shahab, an official with the Ministry of Health and the Chief Medical Health Officer for the Province of Saskatchewan. [ 14 ] The PHOs require the wearing of a face covering in certain enclosed settings and in this case, paragraph 2 (

g) is applicable: 2. “Subject to the exemptions set out in

section 3, 4 and 5, all persons shall wear a face covering that covers the nose and mouth when in the following enclosed settings: … g. Retail businesses, such as grocery stores, clothing stores, and sporting goods stores. … (aa). [ 15 ] Exemptions to wearing a face covering are set out in sections 3, 4 and 5 of the PHOs. In this case, the exemption stated in paragraph 3(

c) is applicable: 3. Face coverings are not required for the following persons: c. Persons who, in the determination of a health professional, are unable to wear a face covering due to a particular medical condition. Evidence [ 16 ] The Crown called six witnesses at the voir dire . Mr. Casey, the Foam Lake Co-op food store manager as well as four RCMP officers, all members of the Wadena-Foam Lake RCMP detachment who interacted with Mr. Keough on the relevant dates. The Crown also called Dr. Mark Fenton at the voir dire who was qualified as an expert witness. Mr. Keough testified in his own defence.

There was no medical evidence tendered by defence. [ 17 ] Upon review of the evidence of Mr. Casey and the RCMP officers as well as the evidence of Mr. Keough, it is unequivocable that Mr. Keough entered the Foam Lake Co-op grocery store absent any type of face covering on each of the alleged offence dates. While Mr. Casey, the Foam Lake Co-op Manager had difficulty recalling the specific dates that Mr. Keough entered the store without a face covering, the Crown tendered in-store video recordings [13] from the Foam Lake Co-op food store on each of the alleged offence dates and the recordings depict Mr.

Keough entering the Foam Lake Co-op grocery store without a face covering on each of the alleged offence dates. [ 18 ] Further, Mr. Keough was forthright in his testimony that on each of the alleged offence dates he did in fact enter the grocery store without a face covering. [14] Based on Mr. Keough’s own admission, I do not find it necessary to detail the testimony at the voir dire pertaining to Mr. Keough’s failure to wear a face covering on each of the alleged offence dates. [ 19 ] The Court further accepts that although Mr. Keough testified, he attended at the office of Dr.

Litwin, a local physician and telephoned his cardiologist’s office to obtain an exemption from wearing a face covering, he did not possess a medical exemption during any of the alleged offence dates. There was no evidence that Mr. Keough fell within the parameters of any of the other exemptions enumerated in the PHOs. [ 20 ] Dr. Fenton was qualified as an expert in respiratory illnesses, such as COVID-19, including the transmission and control of COVID-19. His curriculum vitae and expert report were filed with the court. [15] Dr.

Fenton is an adult respirologist practicing in Saskatoon and is the division head for the Division of Respirology, Critical Care and Sleep Medicine at the University of Saskatchewan and an associate professor at the University of Saskatchewan, College of Medicine. He is also the co-chief of staff for the pandemic for the Saskatoon Health region. He testified he is responsible for delivering care for COVID-19 patients in acute care settings and participates in community-based interventions.

Specifically in respect to the latter, he is the chair of the expert committee within the safety pillar of the Emergency Operations Command associated with the pandemic and this committee adjudicates the science behind interventions employed to mitigate the risk of acquiring infections within health care facilities. [ 21 ] Dr.

Fenton testified the fundamental principle in a pandemic is to disrupt the transmission of the disease between infected and uninfected members of the community and since COVID-19 is primarily transmitted through respirable droplets and aerosols, [16] there must be a disruption of this transmission.

[ 22 ] Dr. Fenton testified that masks [17] serve a two-fold purpose in disrupting this transmission. First, as source control, which reduces the spread of disease from an infected individual to an uninfected individual and second, as personal protection, which protects the uninfected person from acquiring the disease. While he acknowledged that masks are not perfect and the quantification of source control and personal protection at an individual level is difficult, he testified the likelihood of inhaling droplets and aerosol goes down significantly when an individual is wearing a face covering. [ 23 ] Dr.

Fenton cited several articles in his expert report [18] to support his opinion that face coverings have resulted in a reduction in community transmission and disrupted the exponential spread of the virus. [ 24 ] Dr. Fenton was cross-examined at length in respect to his conclusions and the conclusions cited in various medical articles referenced in his report. Dr.

Fenton readily acknowledged any limitations faced by some of the studies [19] for example in the Hendrix study (P-3, Tab 4) it was an observational study as opposed to a randomized placebo-controlled trial; in the Karaivanov paper, the challenges of disentangling the impact of mask mandates from other public health measures or behavioural facts (P-3, Tab 12); the issue of bias within the context of scientific studies identified in the Talic paper (P-5), but he maintained his opinion that the most recent data that is analyzing our experience with COVID-19 shows that on a statistical level, there is a reduction in the spread of COVID-19 with the use of masks. [20] There was no contrary medical evidence tendered before this Court and I accept Dr.

Fenton’s evidence and his conclusions as set out in his report filed. [21] Analysis 1. Do the Public Health Orders (PHOs) exist at law? [ 25 ] Defence submits that the PHOs are a nullity and of no force and effect as the orders were not issued by the Minister of Health or in conformity with the scheme set out in

section 25.2(2) of The Disease Control Regulations . [ 26 ] In particular, defence submits that the PHOs were issued by Dr. Saqib Shahab, the Chief Medical Health Officer as opposed to the Minister and that neither order contains the Minister’s determination of public interest as required by

section 25.2(2) of The Disease Control Regulations or that following a determination of public interest to do so, that the Minister has selected any or all of the measures set out in subsection 25.2(3) to prevent, reduce or control the transmission of SARS-CoV-2 as required by

section 25.2(2). [ 27 ] Defence submits there is no explicit or implicit authority for the Minister to delegate, assign or abrogate their duties and authorities in subsection 25.2(2) and (3) of The Disease Control Regulations and as such the PHOs in place at the time of the allegations were of no force and effect. [ 28 ] As set out by the Attorney General, the express statutory authority for a Minister to delegate decision-making authority to person within the Ministry is set out in

section 2 - 34(2) of The Legislation Act [22] which states: 2-34

(2) If an enactment directs or empowers a minister of the Crown to do

an act or thing, that act or thing may be done on the minister’s behalf by any person appointed to serve in the ministry over which the minister presides if: (

a) The minister has, in writing, authorized that person, by name or by office, to do the act or thing; or (

b) That person is appointed to serve in a capacity appropriate to the doing of the act or thing whether or not the person, or any other person, was authorized by the minister to do the act or thing. [ 29 ]

Section 2 - 29 of The Legislation Act defines “enactment” as

an Act or a statutory instrument or a portion of

an Act or a statutory instrument; and

section 1—2 of The Legislation Act defines “statutory instrument” as “a regulation, order , rule, rule of court, form, tariff of costs or fees, proclamation, letter patent, bylaw or resolution enacted in the execution of a power conferred by or pursuant to the authority of

an Act . . .” (Emphasis mine) [ 30 ] The PHOs each refer to this authorization in

preamble A: Whereas: A. I, Dr. Saqib Shahab, an official with the Ministry of Health and the Chief Medical Health Officer for the Province of Saskatchewan, have been authorized by the Minister of Health to act under

section 25.2 of The Disease Control Regulations ; (Emphasis mine) [ 31 ] A copy of the written delegation from the Minister of Health to Dr.

Saqib Shahab was filed by the Attorney General in its closing written submissions. [23] The Minister’s Order Delegating Powers to the Chief Medical Officer dated December 7, 2020 states that the Minister of Health delegated to the Chief Medical Officer the power to issue orders for purposes of preventing, reducing and controlling the transmission of SARS-CoV-2 pursuant to subsection 25.2(2) of The Disease Control Regulations . [ 32 ] Defence submits this court cannot consider the written authorization as this authorization was not tendered as evidence at the voir dire.

Without evidence of the authorization, defence submits the court is essentially left in the same position in that there is no evidence the Minister authorized Dr. Shahab in writing to implement the public health measures set out in subsection 25.2(2) of The Disease Control Regulations . Defence further submits that the Attorney General cannot rely on the

preamble of the PHOs to provide evidence of the authorization described in The Legislation Act . [ 33 ] The Attorney General submits that they are not required to walk back and prove that Dr. Shahab had the legal authority to make the decisions and directions set out in subsection 25.2 of The Disease Control Regulations and that presumption of regularity applies in the case at bar. [ 34 ] The presumption of regularity is discussed in the Law of Evidence [24] as follows:

4.64 The common law presumption of regularity is sometimes referred to by its Latin label omnia praesumuntur rite esse acta . In its narrower application, the presumption serves to regularize the appointment and acts of persons acting in an official capacity. Where a person is shown to have acted in an official capacity, it is supposed that the person would not intrude herself or himself into a public situation without authorization.

Furthermore, the person’s acts are presumed to be regular. [ 35 ] The Saskatchewan Court of Appeal in R v Armbruster [25] addressed the presumption of regularity in the context of proof required to prove that a peace officer was a qualified breath technician.

The Court referenced its decision in R v Adams [26] where it stated that as an alternative to calling the Attorney General or their deputy at trial, or filing a copy of the official Gazette or copy or certified copy of the appointment pursuant to the provisions of the Canada Evidence Act , the Crown could rely on the presumption of regularity, stating: [27] [3] … Third, the Crown may proceed by relying on certain presumptions of law and rules of evidence developed by the common law. It may, for example, rely upon the application of the maxim omnia praesumuntur rite esse acta .

In effect that is what happened in the present case. When this presumption is relied upon to prove that a public officer was duly appointed, the rules respecting the burden and the shifting of it are important to bear in mind. These rules are aptly stated in Cross on Evidence (4 th ed. 1974), p. 112 in these terms: If it becomes necessary to prove that a public officer was duly appointed, one way of achieving this result, in the absence of a statutory provision limiting the mode of proof, would be to show that the man in question had acted in the requisite capacity.

If, however, the party denying due appointment were to adduce evidence fit to be left to a jury tending to negative the appointment, the party bearing the evidential burden on the issue would lose unless the tribunal of fact was satisfied to the requisite degree of persuasion that the man was duly appointed. [ 36 ] Chief Justice Richards in Armbruster stated the principle enunciated by former Chief Justice Bayda in the Adams was that “in the absence of evidence to the contrary, persons acting in public capacities are presumed to have been regularly and properly appointed.” [28] and concluded that this approach was consistent with a well recognized maxim of omnia praesumuntur rite et solemnitr acta. [ 37 ] In this case, the PHOs both provide in the

preamble the authorization of the Minister of Health for Dr. Saqib Shahab to act under subsection 25.2 of The Disease Control Regulations . Applying the doctrine of regularity there is a prima facie presumption that Dr.

Shahab has the necessary authority to act under subsection 25.2 of The Disease Control Regulations and impose any or all the measures enumerated in subsection 25.2(3) that he considers necessary. [ 38 ] Defence consented to the admission of the certified copies of the PHOs at the voir dire and like Armbruster , the issue as to the validity of the PHOs was only raised by defence in closing argument. There was no evidence led by defence to rebut on a balance of probabilities the prima facie presumption that Dr. Shahab had the necessary authority to act under subsection 25.2 of The Disease Control Regulations .

I am satisfied based on the presumption of regularity that his authorization to do so was valid. Accordingly, I find the PHOs filed to be valid lawful orders. 2. Do the PHOs infringe Mr. Keough’s

section 2(

b) Charter rights? [ 39 ] Defence asserts that the PHOs mandating the wearing of a face covering in the specified enclosed settings infringes his freedom of expression contrary to

section 2(

b) of the Charter . [ 40 ] Freedom of expression is a tenet of fundamental freedoms in our society. As eloquently stated by MacIntyre, J. in RWDSU v Dolphin Delivery Ltd. [29] [12] … Freedom of expression is not, however, a creature of the Charter . It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection. [ 41 ] Recognizing this fundamental freedom, freedom of expression was entrenched in

section 2(

b) of the Charter : 2. Everyone has the following fundamental freedoms: … (

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. [ 42 ] Defence bears the burden of proving on a balance of probabilities that the PHOs requiring him to wear a face covering in a specified enclosed setting, in this case the Foam Lake Co-op grocery store violates his freedom of expression guaranteed in

section 2(

b) of the Charter . [ 43 ] In Irwin Toy Ltd. v Quebec (Attorney General) , [30] a decision dealing with whether legislation that prohibited television advertising directed to persons under the age of 13 years limited the guarantee of freedom of expression as set out in the Charter , Dickson, J. recognized the entrenchment of the fundamental freedom of expression in the Constitution. He recognized that

section 2 (

b) ensures that every individual is free to express their thoughts, opinions and beliefs notwithstanding how unpopular, repugnant or

divergent those expressions are from the mainstream, stating that “(s)uch protection is, in the words of both the Canadian and Quebec Charters , "fundamental" because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual.” [ 44 ] In Irwin Toy Ltd. , [31] the Supreme Court directed that when faced with an alleged

section 2 (

b) violation, a two-step analysis should be conducted: 1. Does the plaintiff's activity falls within the sphere of conduct protected by the guarantee? (Keeping in mind that an activity that does not convey or attempt to convey a meaning, and thus has no content of expression or an activity that conveys a meaning but through a violent form of expression, is not within the protected sphere of conduct) If the answer to the first step is yes, then; 2. Determine whether the purpose or effect of the government action in issue was to restrict freedom of expression?

If the government aimed to control attempts to convey a meaning either by directly restricting the content of expression or by restricting a form of expression tied to content, then its purpose trenches upon the guarantee, but if it aims only to control the physical consequences of conduct, its purpose does not trench upon the guarantee.

If it is determined that the government's purpose was not to restrict free expression, then an individual can still assert the effect of the government's action was to restrict their expression but to prove this claim, they must at minimum show the meaning being conveyed and how this meaning relates to the “pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing”. [ 45 ] Defence submits that the requirement to wear a face covering in a specified enclosed setting as enumerated in

section 2 of the PHOs is a form of compelled speech. He submits the face covering expresses a message that COVID-19 is real and dangerous, and this message is contrary to his beliefs [32] and as such this compelled speech infringes on his freedom of expression. [ 46 ] Appellate courts have had an opportunity to consider compelled speech or forced expression in the context of a

section 2(

b) violation – cases involving the payment of union dues through a mandatory check-off clause in a collective bargaining agreement ( Lavigne v Ontario Public Service Employees Union ); [33] an arbitration order requiring an employer to provide a letter of recommendation to an employee and further to not to answer any employment inquiries except with the letter of recommendation ( Slaight Communications Inc. v Davidson ); [34] an objection to pronouncing an oath to the Queen as part of the requirement to state an oath of citizenship in order to become a citizen. ( McAteer v Canada ) [35] [ 47 ] As set out in Slaight Communications Inc. v Davidson , [36] “[t]here is no denying that freedom of expression necessarily entails the right to say nothing or the right not to say certain things.

Silence is in itself a form of expression which in some circumstances can express something more clearly than words could do.” (Emphasis mine) [ 48 ] In determining the appropriate analysis to conduct where the consideration is “forced expression”, the Ontario Court of Appeal in McAteer , confirmed that the Irwin Toy Ltd. test was the appropriate approach in analyzing claims under

section 2(b) [37] and as such, I find that in cases of compelled speech which is the position of the defence in this case, the analysis in Irwin Toy Ltd. is applicable . [ 49 ] Accordingly, in applying the Irwin Toy Ltd . test, the first determination is w hether the activity in which Mr. Keough is being forced to engage is expression. Is the face covering a form of expression?

Certainly, it is not a violent form of expression but as established in Irwin Toy Ltd. test, if the a ctivity does not convey or attempt to convey a meaning it has no content of expression and is not within the protected sphere of freedom of expression. [ 50 ] Dickson, J. in Irwin Toy Ltd. discussed what amounts to "expression": [38] [41] … "Expression" has both a content and a form, and the two can be inextricably connected. Activity is expressive if it attempts to convey meaning.

That meaning is its content. … Indeed, if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee. Of course, while most human activity combines expressive and physical elements, some human activity is purely physical and does not convey or attempt to convey meaning. ...

To bring such activity within the protected sphere, the plaintiff would have to show that it was performed to convey a meaning. [42] The content of expression can be conveyed through an infinite variety of form of expression: for example, the written or spoken word, the arts, and even physical gestures or acts. While the guarantee of free expression protects all content of expression, certainly violence as a form of expression receives no such protection.

It is not necessary here to delineate precisely when and on what basis a form of expression chosen to convey a meaning falls outside the sphere of the guarantee. [ 51 ] The Attorney General submits the decision of Rosen v Ontario (Attorney General) [39] , assists the court in considering the question of whether the wearing of a face covering is “expression”. In Rosen , the applicant asserted the provisions of the Tobacco Control Act which prevented the sale of tobacco products in designated places, specifically a pharmacy, infringed their freedom of expression.

They asserted the government was declaring that when a pharmacist sells cigarettes, they convey a message and further that legislation preventing pharmacists from selling cigarettes compelled the pharmacists to become “ vehicles for the public dissemination of

the government's anti-tobacco message, despite their having chosen not to take such a stand.” [40] In essence, the actions of the government were forcing expression on the part of the appellant. [ 52 ] The Court in Rosen , determined that the government action of prohibiting the sale of a particular product was not itself a form of expression and while the Court recognized freedom of expression includes the right not to express views, the Court held that if it accepted the suggestion that a person obeying a law was communicating support for the message that was fundamental to the primary purpose behind the law, then compliance with almost any law would become a form of expression and this could not be supported. [41] I adopt this reasoning and conclude that the requirement to comply with the face covering mandate in the PHOs is not compelled speech and not a form of expression.

As set out in Rosen , supra : [19] … freedom of expression guarantees our right to express disagreement with government regulation; it does not guarantee the right to be free from government regulation with which we disagree. [42] [ 53 ] I do not accept that a face covering is a form of expression and even if I did, the question on the second step of Irwin Toy Ltd. test would be: What is the government purpose in this matter? Is the purpose of the PHOs in question to communicate a specific message and restrict all contrary or dissenting messages and if yes, then there has been a limit of

section 2(

b) and a

section 1 analysis under the Charter must be conducted. However, if this is not the purpose of the orders, then the Court must consider and analyze the effects of the government action. [ 54 ] I conclude the purpose of the face covering requirement is not aimed at controlling expression but is for the purpose of maintaining and protecting public health. Dr. Fenton testified the fundamental principle in any pandemic is to disrupt the transmission of the infection between infected and uninfected members of a community. He testified that face coverings achieve this disruption as the COVID-19 virus is transmitted through the respiration of droplets or aerosols. [ 55 ] The

preamble of the PHOs corroborates the evidence of Dr. Fenton, in that experimental and epidemiological data support community face coverings reduce the transmission risk of SARS-CoV-2. The purpose of

section 25.2(2) of The Disease Control Regulations and the PHOs is clear – to reduce, prevent and control the transmission of COVID -19. [ 56 ] However, even though it is determined the government’s purpose in mandating face coverings in enumerated enclosed settings was not to control or restrict free expression, Mr. Keough could still claim that the effect of the government's mandate was to restrict his right of expression. As set out in Irwin Toy Ltd. , to make this claim, Mr.

Keough must at least identify the meaning being conveyed and how it relates to the “pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing”. [43] There is no credible evidence before me to support this claim. [ 57 ] In Lavigne , Wilson J. held that “compelled speech turns on the question of whether the public would identify the message with the individual, and whether that individual had an opportunity to disavow that message.” While Wilson, J. favoured the inclusion of concerns over public identification and the opportunity to disavow within

section 2(

b) rights in that it ensured “everyone has a meaningful opportunity to express themselves” she continued stating: [44] [131] … If a law does not really deprive one of the ability to speak one's mind or does not effectively associate one with a message with which one disagrees, it is difficult to see how one's right to pursue truth, participate in the community, or fulfil oneself is denied . [ 58 ] In Lavigne , Wilson J. concluded that compulsory contribution to the union does not constitute an infringement of

section 2(

b) stating that compulsory contribution: [45] [133] ... does not inhibit him in any meaningful way from expressing a contrary view as to the merits of the causes supported by the Union. He is free to speak his mind as and when he wishes. Nor does his being governed by the Rand formula have such an effect. It is a built-in feature of the Rand formula that Union activities represent only the expression of the Union as the representative of the majority of employees. It is not the voice of one and all in the bargaining unit. I find therefore that the appellant's s. 2(

b) right has not been infringed. [ 59 ] The face covering order does not prevent Mr. Keough from voicing his disagreement with the government policies. He is free to enter any of the enclosed settings enumerated in

section 2 of the PHOs while wearing a face covering and proclaim his opposition to the face covering mandate in addition to any other government mandate or policy in force at that time. In fact, on several of the alleged offence dates, Mr. Keough entered the Foam Lake Co-op food store and attempted to show a cell phone video offering counter information concerning COVID-19 to store employees. He was free to do so.

He was also free to enter the Foam Lake grocery store with signs, shirts, or even face coverings displaying his disagreement with the government policies regarding the face covering mandates and expressing his own views. His ability to voice his concerns and his opposition to the mandates was not prevented by the requirement for him to wear a face covering in the grocery store. [ 60 ] Accordingly, even if the first step of the Irwin Toy Ltd. test had been satisfied, I conclude following the analysis on the second step of the Irwin Toy Ltd. test that Mr. Keough’s

section 2(

b) rights were not infringed. [ 61 ] Mr. Keough’s application for relief based on an infringement of his right to freedom of expression as set out in

section 2(

b) of the Charter is dismissed. 3. Do the PHOs mandating the wearing of face coverings deprive the applicant, Mr. Keough of his right to liberty or security of the person as set out in

section 7 of the Charter and if so, is the deprivation contrary to the principles of fundamental justice? [ 62 ]

Section 7 of the Charter states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [63] Defence bears the burden of demonstrating on a balance of probabilities, first that the PHOs in question interfere with, or deprivehim of life, liberty, or security of person and if he can establish that

section 7 rights are engaged, he must then demonstrate that thedeprivation in question is contrary to the principles of fundamental justice.[46] [64] Defence asserts liberty rights protect an individual’s right to control their bodily integrity and make their own health caredecisions and as face coverings are medical treatment, any order requiring or mandating medical treatment upon an individual is abreach of an individual’s liberty rights. [65] The defence further asserts that

section 7 of the Charter guarantees that an individual has a right to be free from state-imposedpsychological and emotional stress and submits that the face covering requirement imposes psychological and emotional stress on Mr.Keough and as such infringes his

section 7 rights. [66] I have approached defence submissions as an assertion that PHOs violate both Mr. Keough’s right to liberty as well as hissecurity of person interests protected under

section 7 of the Charter. [67] Liberty rights were discussed by the Supreme Court of Canada in Godbout v Longueuil (City):[47] [63] In the recent case of B. (R.) v. Children's Aid Society of Metropolitan Toronto, (SCC), [1995] 1 S.C.R. 315. Iundertook a detailed discussion of the various principles I think should guide the

interpretation of s. 7, noting particularly that s. 7 must(as was first enunciated in R. v. Lyons, (SCC), [1987] 2 S.C.R. 309, and repeatedly followed by this Court) be read inlight of the values reflected in the Charter as a whole, and not just those embodied by the other provisions described as "legal rights". Ithen referred specifically to the decisions of Dickson C.J. in R. v. Oakes, (SCC), [1986] 1 S.C.R. 103, and R. v. Big MDrug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, in which the meaning of the term" freedom" in ss. 1 and 2(

a) wasdiscussed, and found as follows, at p. 368: The above-cited cases give us an important indication of the meaning of the concept of liberty. On the one hand, liberty does not meanunconstrained freedom.... Freedom of the individual to do what he or she wishes must, in any organized society, be subjected tonumerous constraints for the common good. The state undoubtedly has the right to impose many types of restraints on individualbehaviour, and not all limitations will attract Charter scrutiny. On the other hand, liberty does not mean mere freedom from physicalrestraint.

In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to makedecisions that are of fundamental personal importance. [Emphasis added; citations omitted.] [68] Godbout recognized that its analysis drew support from the Supreme Court of Canada’s earlier reasoning in R v Morgentaler[48]but also recognized that the sphere of personal autonomy was not without restrictions:[49] [66] … I do not by any means regard this sphere of autonomy as being so wide as to encompass any and all decisions that individualsmight make in conducting their affairs.

Indeed, such a view would run contrary to the basic idea, expressed both at the outset of thesereasons and in my reasons in B. (R.), that individuals cannot, in any organized society, be guaranteed an unbridled freedom to dowhatever they please. [69] In Carter v Canada (Attorney General), the Court discussed both liberty rights and security of the person as protected undersection 7 stating:[50] [64] Underlying both of these rights is a concern for the protection of individual autonomy and dignity.

Liberty protects “the right tomake fundamental personal choices free from the state interference”: …Security of the person encompasses “a notion of personalautonomy involving ... control over one’s bodily integrity free from state interference” and it is engaged by state interference with anindividual’s physical or psychological integrity, including any state action that causes physical or serious psychological suffering.(citations omitted) [70] Certainly, jurisprudence has recognized that medical interventions have engaged both liberty and security interests protectedunder

section 7 of the Charter, such as cases addressing abortion,[51] assisted death,[52] and blood transfusions.[53] Do mandatory facecoverings in specified enclosed settings fall within the parameters of medical intervention? Do the PHOs fall within the sphere ofpersonal autonomy whereby an individual should be entitled to make their own fundamental choice whether to wear a face coveringwithout state intervention?

Is this decision as described in Morgentaler, one that involves a basic choice that goes “to the core of what itmeans to enjoy individual dignity and independence?” Do the PHOs infringe on a person’s right to have control over their bodilyintegrity free from state interference? [71] The Attorney General asserts the PHOs are not medical intervention and asks this court to draw a legal analogy between the facecovering order and provincial laws regarding seat belts, helmets or other protective gear, laws that have consistently withstood

section 7challenges. [72] In R v Fisher,[54] the defendant argued mandatory helmet laws infringed his

section 7 rights submitting that while helmetstended to reduce the seriousness of the injury sustained following an accident, the wearing of a helmet increased the likelihood of anaccident and as such put him at risk for physical injury. The mandate deprived him of his right to security of the person and was not inaccordance with the principles of fundamental justice. The defendant in that case presented statistical information to the court that incertain states where there were compulsory helmet laws, the accident rate had increased. [73] In dismissing the defendant’s appeal, the Scollin, J. stated:[55]

[11] The Charter is an instrument of engineered imprecision. As a compass it shows only the general direction of the destination. The selection of the route requires guides who are familiar with the type of terrain and climate. The judiciary is not the only guide in town. The broad road to constitutional validity must not be narrowed to an uncertain path by an elite veto veiled in traditional judicial reasoning. [12] To strike this legislation down would be to exercise just such a veto.

There will be cases where statistics may assist the court in testing the constitutionality of legislation, but this is not such a case. Genuine as the defendant is in his position, his claim is a self —— centred assertion of a virtually absolute right to the security of his own person - as he himself defines it — whenever he chooses to travel on the public highway. The concept of rights makes sense only in society and that very setting negatives absolutes. The subway is not for hermits.

For the general good of the defendant himself and his fellow citizens, as not unreasonably perceived and determined by the elected legislators, he must — even if his own presentation is sound — endure the statistical risk of an accident for the statistical benefit of living through it. … On an unselfish, moderate and practical understanding of the right to security of the person, such provisions create duties to others which in no way affect Charter rights. [ 74 ] In Léger v Montréal (Ville), (1986) 3 QAC 241 [56] the Quebec Court of Appeal considered whether mandatory seat belts laws were constitutional. Mr.

Léger argued the mandatory seat belt law protected only the driver and the state’s infringement on his right to choose whether to wear a seat belt infringed his

section 7 liberty rights. The Quebec Court of Appeal disagreed: [57] [14] In my opinion, simple common sense shows that the wearing of seatbelts by the driver will reduce the risk of severe injury in the event of an accident not only for him but also, by reducing the possibility of loss of control of the vehicle, for its passengers and other users of the public road. Moreover, even if such were not the case, the reduction in the risk of serious injury for the driver alone would certainly concern people who depend on them.

Finally, society has a legitimate interest in the well-being of each of its members. [ 75 ] Defence submits the jurisprudence concerning the constitutionality of seat belt and/or helmet laws can be distinguished on the basis that people can choose whether to ride a motorcycle or ride in a car but in this case, Mr. Keough does not have a choice. He must wear a face covering if he enters any of the enclosed settings stipulated in the PHOs, in this case, a grocery store.

He does not have a choice whether to enter a grocery store to purchase food and as such is mandated to wear a mask. [ 76 ] Based on the evidence, I am unable to conclude that the wearing of a face covering is a medical intervention that intrudes on one’s bodily integrity to the degree that infringes a person’s

section 7 rights. Dr. Fenton testified that cloth masks do not cause illness per se and although acknowledging cloth masks may cause skin irritation in some persons, he identified this reaction as inconvenient and not life threatening.

He further acknowledged that a person may perceive shortness of breath or dyspnea while wearing a face covering but this is a perception and while it could cause an increased heart rate or blood pressure, he testified that there is no resulting physiological harm when one experiences dyspnea when wearing a face covering. [58] [ 77 ] The Merriam-Webster online dictionary provides the medical definition of treatment is the action or manner of treating a patient medically or surgically or an instance of treating. [59] Medically assisted death, blood transfusions, abortions, drug treatments, surgical interventions fall within the parameters of this definition.

Based on the evidence of Dr. Fenton, a measure to reduce the transmission and/or exposure to a transmissible disease by means of a face covering does not fall within this definition and I find that the face coverings requirement is a protective law, such as seat belt laws, helmet laws and laws requiring workers to use specific forms of protective equipment. [60] [ 78 ] The catalyst for legislation concerning seat belts, helmets, protective gear, or face coverings remains the same – the common good.

The implementation of legislation is to provide protection to society as a whole and minimize the ramifications of accidents, falls or infections on both individual members of society and society as a whole. [ 79 ]

Section 2 5.2 (2) of The Disease Control Regulations states that the Minister of Health may order any of the measures set out in subsection 25.2 (3) of The Disease Control Regulations for the purpose of preventing, reducing, and controlling the transmission of SARS-CoV-2 virus and the

preamble of the PHOs as well as the testimony of Dr. Fenton in this matter, corroborate this purpose. The focus of the PHOs is on public health - an enactment of measures by the government that are in the public interest and for the overall good of the community. The PHOs requiring face coverings do not rise to the level of engaging either liberty rights or security interests under

section 7 . [ 80 ] Mr. Keough does not believe COVID-19 is real. He does not believe face coverings are necessary or required. Mr. Keough is entitled to his opinion. However as in stated in Fisher , Mr. Keough’s claim is “a self-centred assertion of a virtually absolute right to the security of his own person” – that he is free to enter the grocery store without any face covering whenever he chooses to do so.

I agree with Scollin J., that the concept of rights only make sense when viewed within the context of society, and based on information before him, the Chief Medical Health officer, has determined that to prevent, reduce and control the transmission of the COVID-19 virus and variants of concern within society , face coverings in specific indoor settings are one of the measures to facilitate this goal. This is the context within which the order must be viewed. Further, i n this case, Mr.

Keough had options available to him to obtain his groceries without entering the store with a face covering and he chose not to exercise them. [ 81 ] Defence further submits that the face covering mandate causes Mr. Keough psychological and emotional stress which infringes his security of the person interest under

section 7 of the Charter . Mr. Keough testified he experienced dyspnea, claustrophobia, an increased heart rate, and increased stress due to his current heart condition. The Supreme Court in Blencoe v British Columbia (Human Rights Commission) [61] held that to demonstrate a breach of security of the person, a person must demonstrate serious psychological harm that is caused by the state, and which goes beyond ordinary stress and anxiety that a person may suffer. [ 82 ] There was no medical evidence presented to this court that demonstrates Mr.

Keough was caused serious psychological harm or even physical harm by wearing a face covering. He bears the burden of demonstrating that the government action caused physical or

serious psychological suffering. He has failed to do so. Accordingly, I do not find there has been violation of Mr. Keough’s security of the person interest as set out in

section 7 . [ 83 ] Even if I had determined that Mr. Keough had been deprived of his right to liberty and security of the person as set out in

section 7, this Court would have concluded that Mr.

Keough failed to demonstrate that the deprivation in question was contrary to the principles of fundamental justice. [ 84 ] In its constitutional notice to the court, defence asserted that “[w]hile the principles of fundamental justice may at some point require the rights of the individual to give way to public interest, nothing as regards the 24 th of December, 2020, or before, or after, has been sufficient, or of such novelty, degree, abnormalcy, immediacy, or otherwise as to justify public regulation of this traditional and necessary liberty of health care.” [ 85 ] In closing argument, defence submits the PHOs are constitutionally vague – specifically

section 3(

c) of the PHOs regarding the granting of exemptions and based on the doctrine of vagueness, the deprivation of

section 7 rights is not in accordance with the principles of fundamental justice. [ 86 ] In the Reference re ss. 193 and 195.1(1)(

c) of the Criminal Code (Man.), [62] the Supreme Court held the void for vagueness doctrine in Canada is grounded in the principles of fundamental justice guaranteed by

section 7 of the Charter . The doctrine of vagueness was more thoroughly discussed by the Supreme Court in R v Nova Scotia Pharmaceutical Society, [63] where the Court concluded that the Combines Investigation Act offence of conspiracy to lessen competition “unduly” did not violate

section 7 of the Charter on the grounds of vagueness. [ 87 ] In discussing the doctrine of vagueness, Gonthier, J. held: [63] A vague provision does not provide an adequate basis for legal debate, that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria. It does not sufficiently delineate any area of risk, and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion.

Such provision is not intelligible, to use the terminology of previous decisions of this Court, and therefore it fails to give sufficient indications that could fuel a legal debate. It offers no grasp to the judiciary. This is an exacting standard, going beyond semantics. [64] [ 88 ] Gonthier, J. summarized: [65] [71] The doctrine of vagueness can therefore be summed up in this proposition: a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate.

This statement of the doctrine best conforms to the dictates of the rule of law in the modern State, and it reflects the prevailing argumentative, adversarial framework for the administration of justice. [ 89 ] The vagueness analysis to be conducted was set out by the Supreme Court of Canada in Ontario v Canadian Pacific Ltd. [66] [47] In undertaking vagueness analysis, a court must first develop the full interpretive context surrounding an impugned provision.

This is because the issue facing a court is whether the provision provides a sufficient basis for distinguishing between permissible and impermissible conduct, or for ascertaining an “area of risk”. This does not necessitate an exercise in strict judicial line-drawing because, as noted above, the question to be resolved is whether the law provides sufficient guidance for legal debate as to the scope of prohibited conduct.

In determining whether legal debate is possible, a court must first engage in the interpretive process which is inherent to the “mediating role” of the judiciary. ( Nova Scotia Pharmaceutical Society, supra at p. 641). Vagueness must not be considered in abstracto , but instead must be assessed within a larger interpretive context developed through an analysis of considerations such as the purpose, subject matter and nature of the impugned provision, societal values, related legislative provisions, and prior judicial

interpretations of the provision. Only after exhausting its interpretive role will a court then be in a position to determine whether an impugned provision affords sufficient guidance for legal debate. [ 90 ]

Section 3(

c) of the PHOs in question are identical. The

section provides: 3. Face coverings are not required for the following persons: … (

c) Persons who, in the determination of a health professional, are unable to wear a face covering due to a particular medical condition. [ 91 ] Defence submits the wording of

section 3(

c) specifically the words “unable” and “health professional” are vague. They submit the law prevents a legal debate as to who should be able to provide medical exemptions, only that they must be a health professional without defining who is a health professional, and further but failing to define “unable” the Chief Public Health Officer has failed to define the parameters under which a person may be eligible for an exemption. The

section does not provide sufficient basis that one could follow to obtain an exemption and thus avoid culpability for not wearing a face covering. [ 92 ] In applying the analysis set out in Canadian Pacific , this Court is precluded from merely examining the specific words “unable” and “health professional” in the abstract but rather the provisions must be assessed “within a larger interpretive context”.

[ 93 ] In conducting this analysis, it is noted that at present there are no judicial

interpretations concerning

section 3(

c) of the PHOs, however in considering the purpose as well as the subject matter and the nature of the impugned section, I conclude that the Chief Medical Officer has determined there are persons to whom or situations whereby face coverings are not required and has provided accommodations for those persons or situations. This is the purpose of

section 3(c), a mechanism which recognizes that there may be persons who have medical conditions that prevent them from wearing a face covering and it provides direction to those persons in that they must seek an exemption from a health professional to provide consistency in obtaining an exemption and certainty for those persons enforcing the mandate knowing that people who have obtained an exemption from a health professional are not required to wear a face covering. [67] [ 94 ] Since the purpose of the PHOs is to reduce, prevent and control the transmission of the SARS-Co-V-2 virus, it makes sense that health professionals would determine whether the risks posed to an individual’s medical condition by wearing a face covering are greater than the risk posed to an individual that they may contract or disseminate the virus by not wearing a face covering.

There may be a myriad of medical reasons why a person may be unable to don a face covering and the flexibility in utilizing the terminology of “health professional” recognizes that certain health professionals may be more familiar with certain conditions than others and better able to assess whether a certain medical condition prevents the wearing of a face covering. [ 95 ] The threshold for finding a law vague is relatively high and I do not find the wording of the

section vague but rather provides clear limitations to a person who seeks not to wear a face covering due to a medical condition in that they must first obtain an exemption from a health professional and is flexible in that it provides for varying

interpretations of a health professional, given as stated, the myriad of medical reasons why a person may be unable to wear a face covering and which health professional may be qualified to conduct a risk/harm analysis in granting an exemption. I do not find it does not give sufficient guidance for legal debate. By his own testimony, Mr. Keough indicated that he sought a medical exemption from the face covering mandate by contacting two parties both employed in the health profession, a local physician as well as his cardiologist.

He was not uncertain of the steps required to obtain a medical exemption to avoid culpability. He followed the procedure as outlined and a medical exemption was not granted by the health professional. [ 96 ] Therefore, even if I had determined that the PHOs in question violated Mr. Keough’s

section 7 rights, I would conclude that the impugned

section was not void for vagueness and as such that the deprivation of Mr. Keough’s

section 7 rights was not contrary to the principles of fundamental justice. [ 97 ] Mr. Keough’s application for relief based on an infringement of his

section 7 rights of the Charter is dismissed. 4. If the PHOs violate

section 2(

b) and/or

section 7 of the Charter , are the PHOs a reasonable limit on the Mr. Keough’s Charter rights as can be demonstrably justified in a free and democratic society pursuant to

section 1 of the Charter ? [ 98 ] Having determined that the PHOs in question do not violate Mr. Keough’s

section 2(

b) rights or his

section 7 rights of the Charter , I do not find it necessary to conduct a

section 1 analysis under the Charter to determine whether the PHOs are a reasonable limit on Mr. Keough’s Charter rights and demonstrably justified in a free and democratic society. Mr. Keough’s application for relief is dismissed. 5. If Mr. Keough’s application for relief pursuant to section 24(1) of the Charter is unsuccessful, has the Crown proven beyond a reasonable doubt that Mr. Keough has violated a Public Health Order contrary to

section 61 of The Public Health Act, 1994 ? Is the defence of necessity available to Mr. Keough? [ 99 ] As stated, it is unequivocal upon review of the testimony of Mr. Casey, the grocery store manager and the RCMP officers, and upon viewing the in-store video from each of the alleged offence dates as well as the testimony of Mr. Keough, that Mr. Keough entered the Foam Lake Co-op grocery store without a face covering on each of the dates that a Public Health Act ticket was issued - December 16, 2021, February 26, 2021 March 1, 2021, and March 17, 2021. Further, Mr. Keough was not exempt from wearing a face covering pursuant to any of the exemptions outlined in

section 3 of the PHOs, specifically he was not exempt on the basis that he was unable to wear the face covering due to a medical condition. As indicated, he testified of two attempts to obtain a medical exemption which were unsuccessful. [ 100 ] Defence raises the defence of necessity in this matter. Defence submits that Mr. Keough had no choice but to obtain his sustenance from a grocery store.

He was unable to wear a mask and was unable to obtain an exemption from wearing a mask and as he needed sustenance, he acted out of necessity in entering the Foam Lake grocery store without a face covering on each of the above noted dates. [ 101 ] The Crown filed the case of R v Reid [68] as informative on the defence of necessity. In Reid , the accused raised the defence of necessity at trial, asserting she had driven her vehicle while impaired to escape from people coming after her.

On appeal of her acquittal, Chief Justice Popescul referenced the case of R v Maxie [69] which confirmed the elements of the defence of necessity as set out by the Supreme Court of Canada in R v Perka [70] as follows: (

i) there must be a situation of imminent peril; (ii) the accused must have no reasonable legal alternative to the course of action taken by him or her; and

(iii) the harm inflicted must be proportionate to the harm avoided. [ 102 ] As set out in Maxie, the test on the first two elements is a modified objective test such that at the time of the act, the accused must honestly believe on reasonable grounds they face a situation of imminent peril that leaves no reasonable legal alternative open and there must be a reasonable basis for the accused’s beliefs and actions. The test to be applied on the third element is purely objective. If the Court is satisfied that all three elements are present, then Mr.

Keough was justified in breaking the law - he was justified in entering the store without a face covering contrary to the PHOs. The Crown has the burden to prove beyond a reasonable doubt that he did not. [ 103 ] The Court is satisfied the defence of necessity is not available to Mr. Keough. There was no imminent danger to Mr. Keough if he entered the store wearing a face covering and further there were reasonable legal alternatives available to him to purchase his grocery items other than entering the store without a face covering. I accept the evidence of Mr.

Casey that the Foam Lake grocery store offered reasonable alternatives to patrons who did not want to enter the grocery store wearing a face covering. A patron could request curbside pickup or home delivery. Mr. Casey testified that he had on occasion even offered to personally deliver the groceries to Mr. Keough’s home. Mr. Keough elected not to use any of these reasonable legal alternatives that were available to him.

His actions were not of necessity but rather a purposeful act to defy the Public Health Order on a misguided perception that his individual rights were being thwarted by the implementation of the Public Health Order. [ 104 ] The evidence of Dr. Fenton that the SARS Co-V-2 virus is transmitted through particles and droplets and that masks decrease the transmission of the virus based on the experimental and epidemiological data leads this Court to a conclusion that a failure to wear a face covering is not proportionate to the harm caused by wearing a face covering which Dr.

Fenton testified at most times is simply an inconvenience. [ 105 ] This Court is satisfied that the Crown has proven the elements of the offence beyond a reasonable doubt on all Public Health Act tickets and as such Mr. Keough is guilty of Ticket nos. 7884678, 6845951, 85329693 and 7884688. The Trespass to Property Act Tickets [ 106 ] Mr. Keough is charged with trespassing at the Foam Lake grocery store on February 16, 2021, and March 17, 2021, contrary to

section 14 of The Trespass to Property Act . Issue [ 107 ] Has the Crown proven the elements of the offence of trespass pursuant to The Trespass to Property Act beyond a reasonable doubt? Statutory Framework [ 108 ] The pertinent sections of The Trespass to Property Act (Prior to the January 1, 2022, amendments) as of the date of the offence were as follows:

Section 2: (c) “occupier” includes: …. (ii) a person who: (

A) has responsibility for and control over the condition of premises or of the activities there carried on; or …

Section 3: 3

(1) Without the consent of the occupier of a premises, no person who is not acting under a right or authority conferred by law shall: (

a) enter in or on the premises when entry is prohibited pursuant to this Act; (

b) engage in an activity in or on the premises if that activity is prohibited by this Act; (

c) after being requested either orally or in writing by the occupier to leave the premises, fail to leave the premises as soon as is practicable; (

d) after being requested either orally or in writing by the occupier to stop engaging in an activity in or on the premises, fail to stop the activity as soon as is practicable; …..

(2) For the purposes of subsection (1), the onus rests on the defendant to prove, on a balance of probabilities, that he or she had the consent of the occupier to enter in or on the premises or to engage in the activity in or on the premises.

Section 4: 4

(1) For the purposes of clause 3(1)(a), entry in or on premises is prohibited if any person:

(

a) enters in or on premises that are the property of another person when a notice respecting the premises is given in accordance with

section 11; or …

(2) For the purposes of clause 3(1)(b), an activity is prohibited if it is an activity for which notice respecting the premises is given in accordance with

section 11. …

Section 7: … 7

(2) It is a defence for a person charged with an offence pursuant to

section 3 or 5 to prove, on a balance of probabilities, that the entry in or on the premises or the activity there engaged in was: (

a) with the consent of an occupier of the premises; (

b) under a right or authority conferred by law; (

c) undertaken in the honest and reasonable belief that he or she had the consent of an occupier of the premises; or (

d) undertaken in the honest and reasonable belief that he or she had lawful justification to enter in or on the premises or to engage in the activities complained of.

Section 8: 8

(1) Entry in or on premises may be prohibited by a notice given in accordance with

section 11. ……

Section 11:

(1) A notice pursuant to this Act may be given: (

a) orally or in writing; (

b) by means of signs posted so that a sign is clearly visible in daylight under normal conditions from the approach to each ordinary point of access to the premises to which the notice applies; …

(2) Substantial compliance with clause (1)(

b) or (

c) is sufficient notice. ….

Section 14: 14 Every person who contravenes any provision of this Act or the regulations is guilty of an offence and liable on

summary conviction to a fine of not more than $5,000. Evidence [ 109 ] It is alleged that Mr. Keough trespassed at the Foam Lake Coop food store on February 26, and March 17, 2021. On each of these dates, Mr. Keough was also issued a ticket alleging an offence pursuant to The Public Health Act 1994 . As stated earlier in my decision, based on the evidence o f Mr. Casey and the RCMP officers as well as the evidence of Mr. Keough and the in-store video recordings, it is incontrovertible that Mr. Keough entered the Foam Lake Co-op grocery store without a face covering on February 26 and March 17, 2021. [ 110 ] Mr.

Casey testified that on February 26, 2021, he was advised by an employee that Mr. Keough had entered the store without a face covering. Mr. Casey testified he observed Mr. Keough on the store cameras and contacted the police. He testified that although the portion of the video recording tendered as an exhibit did not show him interacting with Mr. Keough, he testified that he did speak to Mr. Keough on that date, asking him to either put on a mask or leave the store and explaining the grocery delivery options available to him, including an option that Mr. Casey would personally deliver his groceries to his home.

Mr. Casey testified that Mr. Keough did not leave the store right away when asked to do so. He also advised Mr. Keough that the Co-op store was a private business and that they would have him banned from the store and he would be trespassing if he entered the store. [ 111 ] Constable Amanda Jesperson testified that on February 26, 2021, there was a complaint received from the Foam Lake grocery store that a man was not wearing a face covering while in the store. When she attended at the grocery store with her partner, she observed Mr. Keough standing by the grocery till without a face covering.

After speaking with Mr. Casey, the police officers allowed Mr. Keough to complete the purchase of his groceries and accompanied him out of the store. Constable Jesperson testified that she advised Mr. Keough that the Co-op no longer wanted him in the store and if he continued to go into the store without following the rules,

he would be charged with trespassing. She then acknowledged after considering Mr. Casey’s statement and consulting Corporal Jesperson and the health officer, she issued tickets to Mr. Keough pursuant to The Trespass to Property Act , and The Public Health Act, 1994 and served the tickets on Mr. Keough at his residence. [ 112 ] Mr. Casey testified that on March 17, 2021 he either observed Mr. Keough in the store or was advised by one of the employees that Mr. Keough was in the store without a face covering. He testified he approached Mr. Keough at the grocery till and advised Mr.

Keough that he was not allowed in the grocery store and could not purchase any grocery items. [71] Mr. Keough disputed Mr. Casey’s ability to refuse him service stating it was against his constitutional rights and remained in the store. Mr. Casey testified he advised Mr. Keough that the police were on their way and Mr. Keough remarked that he would wait for the police. Mr. Casey testified that it took quite a long time for the police to arrive at the store and Mr. Keough left the store before the police arrived at the store.

This was corroborated by Constable Bates who testified that when he attended at the store Mr. Keough was not present. [ 113 ] In addition to the two alleged offence dates, Mr. Casey testified there were other dates when Mr. Keough entered the grocery store without a face covering, specifically December 10, 2020, December 16, 2020, March 1, 2021, and March 9, 2021. Mr. Casey testified he advised Mr. Keough on each occasion that he could not be in the store without a mask and provided options for grocery delivery to him including that Mr. Casey would personally deliver his groceries to his home. Mr.

Casey testified that on occasion, he would contact the police to remove Mr. Keough from the store and when the police attended, he would advise the police that he did not want Mr. Keough in the store without a mask. Mr. Casey testified that at times Mr. Keough was allowed to purchase his grocery items to hasten his exit from the store and at times Mr. Keough was refused service. [ 114 ] Mr. Casey testified that he understood that in February or March of 2021, the police had delivered a letter from the grocery store to Mr.

Keough advising him that he was not allowed in the store and that if he entered the store, it would be considered trespassing. Mr. Casey acknowledged he had not written the letter and he had not seen the letter, however, he testified that while he did not provide Mr. Keough with a written notice banning him from the store or advising him of trespassing, Mr. Casey personally told Mr. Keough to not enter the store without a mask. [72] [ 115 ] Corporal Jesperson testified that he attended Mr. Keough’s residence on December 10, 2020, and provided a warning to Mr.

Keough regarding his noncompliance with the Public Health Order and advising Mr. Keough that if he continued his behavior, he would be “getting trespassed”. [73] Corporal Jesperson testified he provided a similar warning to Mr. Keough on December 16, 2020. [74] [ 116 ] Corporal Jesperson testified that he and Constable Amanda Jesperson attended at the food store on March 9, 2021, and Mr. Keough was at the grocery till without a face covering. Corporal Jesperson testified he advised Mr. Keough that he was ‘trespassed’ from the store and had to leave. Mr.

Keough was physically cooperative but argumentative when leaving the store and Corporal Jesperson testified that as they exited the store, he pointed out the signage to Mr. Keough that stated masks were required to enter the store. [ 117 ] Mr. Keough testified that after the first time he went to the food store without a mask, a police officer attended at his home and advised him that he was not allowed back at the store as there were rules and regulations in place.

He testified that he did not receive any correspondence from the Co-op advising him that he was not allowed into the store nor did any one from the Co-op advise him that he was not allowed to go back to the store, just that they wanted him to wear a mask. Mr. Keough testified that Mr. Casey did not tell him that he could not come back to the store or that he had to leave the store but on cross-examination, agreed that it may have been possible that Mr. Casey asked him to leave the store. [ 118 ] Mr.

Keough agree there were signs on the entrance doors of the Co-op advising patrons that they had to wear a mask inside the store but testified there were no signs in respect to trespassing or indicating a consequence for not wearing a mask. He testified he was aware that as of December 10, 2020, there was a mandatory mask mandate requiring people to wear a mask in all public settings such as grocery stores. Analysis [ 119 ] The Crown submits that Mr.

Keough can be found guilty of trespassing based on any of the subsections set out in section 3(1) except subsection 3(1)(f). [ 120 ] I do not find it necessary to determine if Mr. Keough can be found guilty of trespassing pursuant to each of the subsections set out in section 3(1) as I am satisfied based on the evidence before me that Mr. Keough is guilty of trespassing pursuant to subsection 3(1)(

c) and subsection 3(1)(d). [ 121 ] I am satisfied that Mr. Casey, as the grocery store manager had responsibility for the day-to-day activities in the store and as such falls within the definition of “occupier” set out in The Trespass to Property Act . I am also satisfied that while Mr. Casey had difficulty recalling the particular words, he used on each of the dates that Mr. Keough entered the store without a face covering, he was firm on his evidence that on each occasion he asked Mr. Keough to put on a face covering or leave the store. I accept this evidence.

I also accept that while there was a reference to a written notice banning Mr. Keough from the store, there was no evidence of this correspondence being prepared or delivered to Mr. Keough. [ 122 ] Mr. Keough also had difficulty recalling the particulars regarding each of the encounters with Mr. Casey but there is no dispute that he was not wearing a face covering on any of the alleged offence dates. Mr. Keough also acknowledged that it was possible that Mr. Casey could have asked him to leave the store and as stated I accept the evidence of Mr.

Casey that he did so. [ 123 ] The in-store video recording on March 17, 2021, depicts Mr. Casey approaching the grocery till where Mr. Keough is standing with grocery items in his shopping cart and speaking with Mr. Keough. I accept the evidence of Mr. Casey that it was at this time he advised Mr. Keough that he was not allowed in the store and would not be allowed to purchase his grocery items. Despite being close to the exit doors of the building, Mr. Keough remained standing at the grocery till. There was nothing preventing him from exiting the store in a timely manner after being advised by Mr.

Casey that he was not allowed in the store, but rather he remained in the store despite being advised that the police were on route to the store. He did not exit as soon as practicable.

[124] I am satisfied beyond a reasonable doubt that on March 17, 2021, Mr. Casey advised Mr. Keough that he was not allowed in thestore and Mr. Keough failed to leave the store as soon as practicable contrary to section 3(1)(

c) and accordingly is guilty of trespassing. Iam also satisfied that based on the credible evidence that no defence is available to Mr. Keough. [125] With respect to the incident arising on February 26, 2021, I accept Mr. Casey evidence that upon observing Mr. Keough withouta face covering, he contacted the police and then subsequently asked Mr. Keough to either put on a mask or leave the store. WhenConstable Jesperson attended at the store, Mr. Keough was not wearing a face covering. [126] I am satisfied that Mr. Keough contravened section 3(1)(

c) of The Trespass to Property Act by failing to leave the store as soon aspracticable when he chose not to don a face covering and remain in the store after being advised by Mr. Casey that he had to either weara face covering or leave the store. I am also satisfied that he contravened section 3(1) (

d) of The Trespass to Property Act by continuingto be in the store without a face covering despite the request by Mr. Casey that he had to wear a face covering. I am satisfied that basedon the evidence that no defence is available to Mr. Keough. Conclusion [127] Having determined that the Crown has proven the offence of trespassing pursuant to The Trespass to Property Act beyond areasonable doubt, I find Mr. Keough guilty on Ticket Nos. 6845953 and 90195270. _________________________________Marquette, J [12] R v Lloyd, 2016 SCC 13 at paras 15-19, [2016] 1 SCR 130. [14] Transcript, December 10, 2021, T6.

Line 32 Q - How many times do you remember going to the Co-op without a mask on? A - Well, there would be one for each ticket, I believe. Transcript, December 10, 2021, T68. Line 11 Q - … Each time, you went to the Foam Lake Co-op, you were alone, correct? A - Yes. Q - And each time you had – we always say you didn’t have a mask, but to be clear, you didn’t have anything covering your mouth ornose, correct? A - No, I would not have. [16] Dr.

Fenton testified that respiratory droplets and aerosols fall along a continuum of respiratory secretions, in that droplets arepredominately large and due to gravity do not remain suspended in the air while aerosols are small and remain

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