His Majesty the King - v. –, 2023 SKPC 21

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 21 Date: February 3, 2023 Ticket No: 85447890 Location: Regina Between: His Majesty the King - and – Mark Friesen Appearing: Dana Brûlé For the Crown Elaine Anderson For the Accused JUDGMENT M. HINDS, J INTRODUCTION [ 1 ] Mark Friesen is charged that on December 12, 2020 at Regina, Saskatchewan he did fail to comply with a Public Health Order, dated November 26, 2020 (the “PHO”), by participating in a outdoor public/private gathering of more than 30 people , contrary to

section 61 of to The Public Health Act, 1994 , SS 1994, c P-37.1 [the Act ].

[ 2 ] The trial of Mr. Friesen took place on December 16, 2022 and January 13, 2023. As identity was in issue at the onset of this trial Mr. Friesen was required to attend his trial. He did so on December 16, 2022. Mr. Friesen did not attend his trial on January 13, 2022. At the onset of the resumption of trial on January 13, 2023, Mr. Friesen’s legal counsel, Ms. Anderson admitted Mr. Friesen’s identity for the purpose of the trial. Ms. Anderson withdrew a prior application made by Mr. Friesen under

section 8 of the Charter . The trial against Mr. Friesen continued in his absence on January 13, 2023. During the trial Ms. Anderson also withdrew a prior application made by Mr. Friesen under

section 7 of the Charter. [ 3 ] Staff Sergeant Cameron Kuffner, Constable Aaron Robertson, Corporal Todd Gottselig, Sergeant William Schmidt of the Regina Police Service and James Reiter testified for the Crown on a voir dire . I have determined that all the evidence presented on the voir dire is admissible and will be applied to the trial proper. No one testified on behalf of the accused, Mr. Friesen. [ 4 ] For the reasons which follow, this Court finds Mr. Friesen guilty of the offence before the Court. ISSUES [ 5 ] The issues to be determined are as follows: (

a) Has the Crown proved beyond a reasonable doubt that on December 12, 2020 a Public Health Order was in place? (

b) Has the Crown proved beyond a reasonable doubt that on December 12, 2020 Mark Friesen participated in an outdoor gathering greater than 30 people? (

a) Has the Crown proved beyond a reasonable doubt that on December 12, 2020 a Public Health Order was in place? [ 6 ] I have previously considered the testimony of James Reiter in Mark Friesen v His Majesty the King , 2023 SKPC 20 in which I determined that the Minister of Health made a valid sub delegation of his order-making authority under

section 45 of the Act to the Chief Medical Health Officer (CMHO) for the Province of Saskatchewan. I also determined that on November 26, 2020 Dr. Shahab, CMHO made a valid PHO. [ 7 ] The PHO was entered as Exhibit P-1 at trial. It is comprised of a total of 7 pages. Pages 1 and 2 of the PHO read in part as follows: PUBLIC HEALTH ORDER PROVINCIAL ORDER November 26, 2020 (Under

Section 38 and Subsection 45(2) of The Public Health Act, 1994 ) 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 45 of The Public Health Act, 1994 ; B. The transmission of the infectious agent SARS-CoV-2, which has caused cases and outbreaks of a serious communicable disease known as COVID-19 among the population of the Province of Saskatchewan, is a serious health threat, as defined in The Public Health Act, 1994 ; C. A person infected with SARS-CoV-2 can infect other people with whom the infected person is in contact;

D. The gathering of people in close contact with one another can promote the transmission of SARS-CoV-2 and increase the number of people who develop COVID-19; E. COVID-19 is a category 1 communicable disease; F. It is necessary to (

a) reduce the probability for transmission of SARS-CoV-2, and (

b) reduce the exposure to SARS-CoV-2, to decrease or eliminate the risk to health presented by COVID-19; G. I consider the following measures necessary to decrease or eliminate the risk to health presented by COVID-19; H. Effective 12:01am on November 27, 2020, I rescind my November 18, 2020 Provincial Order and by virtue of the foregoing and under

section 38 and subsection 45(2) of The Public Health Act, 1994 ; This Order applies to all Individuals and businesses within the Province of Saskatchewan and City of Lloydminster 1. I hereby ORDER and DIRECT effective 12:01 a.m. on November 27, 2020: . . . (

c) Outdoor private and public gatherings over 30 people are prohibited. This

section does not apply to critical public services, allowable business services, events and activities to the extent that the guidelines applicable to those critical public services, allowable business services, events or activities found in the Re-Open Saskatchewan Plan as amended from time to time, on the Government of Saskatchewan website (Saskatchewan.ca) explicitly permits or requires an alternative gathering size. In such case, the gathering size explicitly permitted or required shall not be exceeded and specified physical distancing shall be maintained. This

section does not apply to events and activities to the extent that the guidelines applicable in the Re-Open Saskatchewan Plan, as amended from time to time, on the Government of Saskatchewan website (Saskatchewan.ca) explicitly permits or requires an alternative gathering size. In such case, the gathering size explicitly permitted or required shall not be exceeded, and specified physical distancing shall be maintained. . . . Page 7 of Dr.

Shahab’s Public Health Order reads in part as follows: This order remains in effect until 12:01 a.m. on December 18 th , 2020 or until, in the opinion of the Chief Medical Health Officer, there is no longer a public threat, whichever shall first occur. [ 8 ] I am satisfied that the Crown has proved beyond a reasonable doubt that the PHO dated November 26, 2020 was in place on December 12, 2020. The PHO prohibits outdoor private and public gatherings over 30 people. However, the PHO does not define the word “gathering”. The Shorter Oxford English Dictionary defines the word gathering as follows: 3.

A bringing together or coming together of people; an assembly, meeting. The Merriam-Webster Dictionary defines the word gathering as follows: a coming together of people in a group (as for social, religious, or political purposes). Synonyms for gathering include: assembly, meeting. Although both

definitions are helpful and suggest the same meaning, for the purpose of PHO before me I adopt the Merriam-Webster Dictionary definition for the word “gathering”. (

b) Has the Crown proved beyond a reasonable doubt that on December 12, 2020 Mark Friesen participated in an outdoor gathering greater than 30 people?

[9] On the first day of the trial, Mark Friesen’s identity was in issue. That changed on the second day of the trial when legal counselfor Mark Friesen admitted his identity. [10] In this case the Crown has sought to admit several electronic documents into evidence. These include screen shots taken fromthe Legislature live video surveillance from December 12, 2020, along with various screen shots and videos from the Facebook profilesof Mark Friesen and Tamara Lavoie.

As a result this requires a consideration of the electronic document provisions of the CanadaEvidence Act, RSC 1985, c C-5, s. 31.1 [CEA] and the relevant case law. The applicable statutory provisions for present purposes are ss.31.1 to 31.8 of the CEA.

They apply solely to electronic documents and create a framework for the admission of all forms of "electronicdocument," which is broadly defined in s. 31.8 together with several related terms. [11] The relevant sections of the CEA are as follows: Authentication of electronic documents 31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable ofsupporting a finding that the electronic document is that which it is purported to be.

Application of best evidence rule — electronic documents 31.2(1) The best evidence rule in respect of an electronic document is satisfied (

a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored; ... Presumption of integrity 31.3 For the purposes of subsection 31.2(1), in the absence of evidence to the contrary, the integrity of an electronic documents systemby or in which an electronic document is recorded or stored is proven (

a) by evidence capable of supporting a finding that at all material times the computer system or other similar device used by theelectronic documents system was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity ofthe electronic document and there are no other reasonable grounds to doubt the integrity of the electronic documents system; (

b) if it is established that the electronic document was recorded or stored by a party who is adverse in interest to the party seeking tointroduce it; or (

c) if it is established that the electronic document was recorded or stored in the usual and ordinary course of business by a person who isnot a party and who did not record or store it under the control of the party seeking to introduce it. [12] In R v Durocher, 2019 SKCA 97, 380 CCC (3d) 511 [Durocher] the trial judge was not alive to the specifics of the CEA.Nonetheless, the Facebook posts were admitted into evidence and this decision was affirmed by the Court of Appeal. The Court wassatisfied the evidence adduced by the Crown was capable of authenticating the Facebook messages and meeting the best evidence rule,bearing in mind the low bar attached to

section 31.1, the functional approach adopted by the courts with regard to its application, and thepresumption of integrity under the CEA. [13] In Durocher Madam Justice Schwann wrote in detail about the CEA sections dealing with the admissibility of electronicdocuments. She explained the authentication and best evidence requirements found in

section 31.1 and

section 31. 2 of the CEA asfollows: [76] Authentication requires the introduction of some evidence to establish that the document is what it purports to be: C.B. at para66, R v Hirsh, 2017 SKCA 14 at paras 18 and 24, 353 CCC (3d) 230 [Hirsch], and R v Donald (1958), (NB CA), 121CCC 304 (NBCA) at 306.

Authentication "is not onerous and may be established by direct and circumstantial evidence" (C.B. at para66). [77] The matter at hand concerns an electronic document and thus engages the Canada Evidence Act, RSC 1985, c C-5 [CEA],separate and apart from the common law rules: R v J.V., 2015 ONCJ 837 at para 3 [J.V.], and R v Soh, 2014 NBQB 20 at paras 32--33,416 NBR (2d) 328 [Soh].

The provisions of the CEA pertaining to electronic documents facilitate the admission of electronic documentswhile screening for threshold authenticity and integrity, which is a codification of the common law of evidence authentication (Hirsch atpara 18, and R v Ball, 2019 BCCA 32 at para 70, 371 CCC (3d) 381 [Ball]). … [80] Printouts or screen captures of Facebook messages have been found to be electronic documents within the meaning of the CEA

and smart phones have been found to fall within the definition of computer system: R v Donaldson , [2016] OJ No 7153 (QL) at para 3 (Ct J) [ Donaldson ], Ball at para 67, Soh at para 21, Hirsh at para 24 , and C.B at para 57. … [82] The burden of proof to establish threshold authenticity for purposes of s. 31.1 is low and, once satisfied, the document is admissible and available for use by the trier of fact ( C.B. at paras 67 and 68, Hirsch at para 18, Donaldson at para 17, and Ball at para 70 ).

To meet this threshold, the proponent need only provide sufficient evidence of authenticity from which the trial judge could reasonably find the document to be what it purports to be. Once this threshold is met, the evidence is admissible, and it becomes available to the trier of fact. … [84] That said, authentication does not necessarily mean the document is genuine: "That is a question of weight for the fact-finder which often turns on determinations of credibility" (citations omitted, Ball at para 70 ).

Evidence can be authenticated even where there is a contest over whether it is what it purports to be. [...] [85] Before leaving the issue of authenticity, I wish to briefly comment on the relationship between authorship and authenticity. Although there appears to be some confusion in some of the case authority as to whether authorship is subsumed within the concept of authentication, the better view is that these are two distinct concepts giving rise to two distinct tests: see, for example, Soh, R v Hamdan , 2017 BCSC 676 , 349 CCC (3d) 338 [ Hamdan ], and R v Moazami , 2013 BCSC 2398 [ Moazami ].

Hirsch , from this Court, speaks of authorship as a related issue to authentication, but it does not say that it is synonymous (at para 18). This conclusion stands to reason since, as explained in Graham Underwood and Jonathan Penner, Electronic Evidence in Canada , loose-leaf (Rel 1, 2016) vol 1 (Toronto: Thomson Reuters, 2010), authorship and authentication speak to two different concerns (at 13-11): It is also important to note that establishing the authenticity of an electronic document is not necessarily synonymous with demonstrating its authorship.

The relationship between authenticity and authorship for electronic documents is not reciprocal; demonstrating authorship is sufficient to establish authenticity, but establishing authenticity of an electronic document does not necessarily provide strong evidence of authorship. (Footnotes omitted) [86] The second requirement of the CEA is the best evidence rule. At common law, the best evidence rule requires the proponent of a record to produce the original record or the next best available record ( Law of Evidence at 1324).

This concept was further elaborated on in Hirsch : "The purpose of the best evidence rule is to assist the trier of fact with the verification of the integrity of documents because alterations are more readily detectable on an original" (at para 23). [87] The concept of original is ill-suited to electronic documents because their inherent nature makes it often not possible to provide direct evidence of their integrity ("Proof and Progress" at 195). Accordingly, s. 31.2 to s. 31.8 of the CEA set out the means by which document integrity can be met with electronic documents. … [88]

Section 31.3 ... establishes a list of statutory presumptions of integrity with regard to an electronic document system. These presumptions apply in the absence of evidence to the contrary. … [89] These presumptions are aimed at providing some assurance that no changes in the information found in the document have been caused by technical reasons or human intervention. ... [90] Returning to the CEA framework as a whole, Hirsch adopted a "functional approach" to its application.

Other courts across this country have taken a similar approach: see, for example, Soh, Ball , and R v K.M. , 2017 ONSC 4769 [ K.M. ]. [Emphasis in original] The evidence of and photographs taken by Constable Robertson [ 14 ] Constable Aaron Robertson is member of the Regina Police Service, working in the forensic identification unit. Constable Robertson testified that he was directed to monitor a protest in front of the Legislature on December 12, 2020. He arrived at the Legislature at 12:30 p.m.

He talked to the Sergeant-at-Arms who permitted him to look at and take screen shots from a live feed (in real time) video surveillance system used at the Legislature. Constable Robertson took multiple screen shots of what he termed was the Freedom Rally. The screen shots were compiled in a photobook and entered as Exhibit P-2, which is comprised of 15 photographs. Constable Robertson testified that some people set up a public announcement system on the lower steps of the Legislature around 1:00 p.m. Speeches started around 2:00 p.m. and continued for an hour.

He observed that a crowd of people then marched along a parade route and returned to the steps of the Legislature around 3:45 p.m. Speeches resumed until about 4:30 p.m. [ 15 ] Constable Robertson estimated that at its peak the crowd assembled on the lower steps of the Legislature was about 200 people. This occurred during the speeches which occurred between 2:00 p.m. and 3:00 p.m. It was during this time that Mark Friesen spoke to the assembled crowd.

[ 16 ] I am satisfied that the screen shot photographs taken by Constable Robertson and tendered by the Crown were electronic documents within the meaning of the CEA . I am of the view that Constable Robertson’s testimony surrounding the taking of the screen shot from the Legislature’s live feed video surveillance system on December 12, 2020 meets the threshold for authenticity supporting the conclusion the photographs in Exhibit P-2 are what Constable Robertson claims them to be. I am also of the view that the best evidence requirement set out in

section 31.2 CEA has been met. No evidence to the contrary was presented and there is no reasonable basis to doubt the integrity of the electronic document system, i.e. the Legislature video surveillance system. There is no suggestion that the photographs have been altered or tampered with. I am satisfied that the presumption of integrity set out in

section 31.3 (

a) of the CEA applies. I find they are admissible in the trial before me. [ 17 ] The 15 screen shots depict a variety of individuals, including Mark Friesen who has a grey beard and is wearing a dark jacket, and a fur lined hat. In particular Mr. Friesen can be seen in Exhibit P-2, photographs #’s 2, 3, 4, 5, 6,11,12 and 13. [ 18 ] Photograph #2 shows Mark Friesen to be standing on a flat portion of the lower set of steps which have descended from the Legislature building. A pedestrian sidewalk can also be seen in the photograph where some people are standing.

Mark Friesen is wearing black or dark coloured pants, jacket, gloves and hat which is trimmed with fur. He appears to have a microphone in his left hand. The microphone appears to be connected by a wire to a loud speaker mounted on a tripod that has been put in place for the protest. About 17 people including Mark Friesen are visible in the photograph #2. Tamara Lavoie is situated within a few feet of Mark Friesen. She is wearing grey boots, dark pants and a jacket with a fur trimmed hood. She is also wearing a pink hat with a small brim and sunglasses.

About six people are within a radius of six feet of Mark Friesen. Six other people are further away and appear to be in another flat area a step below where Mark Friesen is. Parts of two other people can be seen on the pedestrian sidewalk leading to the steps. There are five protest signs visible in the photograph. [ 19 ] Constable Robertson testified that photographs #3 and #4 were taken during the first round of speeches, between 2:00 and 3:00 p.m. Photograph #3 is a somewhat closer view of the scene depicted in photograph #2.

Mark Friesen is more centrally located on a flat portion of the stairs leading to the Legislature building. He has the microphone in his right hand. It is raised to within an inch of his mouth. He appears to be speaking into the microphone addressing the people who have assembled in front of and behind him. Tamara Lavoie can be seen holding a cell phone which is raised in the direction of Mark Friesen. It appears she is taking a video. Photographs #4 and #5 also show Mark Friesen speaking into a hand held microphone. Photograph #6 shows a wider view of the area where Mark Friesen had been situated.

A new person in dark clothing (with a white stripe on the right sleeve of the jacket) and a dark toque, appears to be using the microphone. A crowd of people which I estimate to be 70 is standing facing the new speaker. They are mostly on the pedestrian sidewalk and roadway about 15 to 20 feet from the speaker. About 16 people are located to the side of and behind the new speaker, including Tamara Lavoie and Mark Friesen.

What appears to be a predominately red coloured flag with the Union Jack in the upper left corner and a Saskatchewan Flag are in view as well as several protest signs held by people in the crowd. [ 20 ] Tamara Lavoie can be seen speaking into the hand held microphone in photograph #7, which is quite similar to photograph #6. However, Mark Friesen cannot be seen in this photograph. Photographs #8, #9 and #10 show a boy holding up a cell phone to video Tamara Lavoie as she appears to be speaking into the microphone. Mark Friesen is next seen in photograph #11, he is seen standing beside Tamara Lavoie.

They are standing to the left and behind another person who is at the microphone wearing dark coloured clothing and a black and white checked head covering. A wider view of this same scene is depicted in photograph #12. The speaker with the black and white checked head covering is addressing a crowd of people which is in excess of thirty people. Photographs #14, #15 and #16 depict part of the crowd who are assembled for speeches. The crowd of people is in excess of thirty people. [ 21 ] Sergeant William Schmidt was situated in his patrol car on Albert Street and 20 th Avenue.

He had a view of the people gathered in front of the steps to the Legislature. He testified that he could not see through the crowd. Sergeant Schmidt issued the ticket to Mark Friesen. [ 22 ] I am of the view that based on the testimony and photographs of Constable Robertson alone, I am able to conclude that the Crown has proved beyond a reasonable doubt that Mark Friesen participated in an outdoor public gathering of more than 30 people. Mark Friesen was a speaker at the Freedom Rally which took place on the lower steps of the Legislature, on the sidewalk and roadway on December 12, 2020.

He spoke before a gathering of more than 30 people who were assembled for a protest against the government. While the main body of the group of people were 15 to 20 feet away from him when he spoke, this does not mean he was not part of the overall gathering. It is clear than the people who gathered together as they did on the lower steps of the Legislature, on the sidewalk and roadway was to hear from speakers like Mark Friesen who spoke out against the actions and restrictions put in place by the government as a result of COVID -19.

As a speaker, Mark Friesen was in integral part of the gathering as a whole. [ 23 ] In this case there is additional evidence to consider.

Screen shots and videos obtained from Facebook profile by Constable Robertson [ 24 ] Corporal Todd Gottselig is a member of the Regina Police Service and at all material times was assigned to the Cyber Crimes Support Unit which is involved in collecting online information to assist other police officers with their investigations. He was tasked with monitoring a gathering event through social media channels. In particular, he was assigned to monitor the social media profiles of Mark Friesen and Tamara Lavoie.

On December 14, 2020 Corporal Gottselig looked at the Facebook profiles of Mark Friesen and Tamara Lavoie and the content contained therein. He testified that both of these Facebook profiles were open sourced, meaning that they were open to the public. He stated that using the “Snag It” software program he downloaded several files that were posted on these two Facebook profiles. There are several electronic documents which Corporal Gottselig downloaded and presented to the Court. Of those I will focus on two. The first is a screen shot of the Facebook home page of Tamara Lavoie which is file 2020-12-14-7 55-57.

This file is contained within Exhibit P-3 and was printed and marked as Exhibit P-3(c). The second a video posted to Tamara Lavoie’s Facebook home page entitled “Tamara Lavoie was live. December 12 at 1:56 PM” which is file 2020-12-14-9-002-32 contained in Exhibit P-3 and again in Exhibit P-4. [ 25 ] I am satisfied that the screen shot of Tamara Lavoie’s Facebook homepage which is file 2020-12-14-7 55-57 and the video posted to her Facebook homepage which is file 2020-12-14-9-002-32 are electronic documents within the meaning of the CEA .

I am of the view that Corporal Gottselig’s testimony about how he obtained these electronic documents from Tamara Lavoie’s publicly accessible Facebook homepage on December 14, 2020 meets the threshold for authenticity supporting the conclusion that these two files are what Corporal Gottselig claims them to be. I am also of the view that the best evidence requirement set out in

section 31.2 of the CEA has been met. No evidence to the contrary was presented and there is no reasonable basis to doubt the integrity of the electronic document system, i.e. Tamara Lavoie’s Facebook homepage. There is no suggestion that the files have be altered or tampered with. In addition, as will be discussed below, the screen shot and in particular video which was posted on Tamara Lavoie’s Facebook page show the same protest at the Legislature on December 12, 2020, however in much greater detail than the photographs taken by Constable Robertson on the same day. I am satisfied that the presumption of integrity set out in

section 31.3 (

a) of the CEA applies. I find they are admissible in the trial before me. [ 26 ] The screen shot of the Facebook home page of Tamara Lavoie (file 2020-12-14-7 55-57) prominently displays a head and shoulders photograph of Tamara Lavoie wearing a jacket with a fur trimmed hood, pink hat with a small brim and sunglasses. She is seen to be situated in front of the Legislature building in Regina. Above this photograph are the words “Tamara Lavoie was live. December 12 at 1:56 PM” This is the beginning of a video (file 2020-12-14-9-002-32).

A review of the video shows it is an audio/visual recording of a protest that occurred on the lower steps leading to the Saskatchewan Legislature on December 12, 2020. It begins with Tamara Lavoie saying “Guys, we are here in Regina.” The video then pans to a crowd of people well exceeding 100 people gathered on the lower steps and public sidewalk leading to the Legislature. Tamara Lavoie is dressed just as she is depicted in the photographs taken by Constable Robertson on December 12, 2020. Other things shown in the video correspond with the photographs taken by Constable Robertson on December 12, 2020.

These include: a loudspeaker mounted on a tripod is seen on a flat portion of the steps, signs are being carried by unidentified individuals which are on white backgrounds and state “Enough is Enough”, “Hugs Over Masks” and “FACTS OVER FEAR”, an unidentified individual passes by carrying a predominately red coloured flag with the Union Jack in the upper left corner and Mark Friesen is seen wearing a black or dark coloured pants, jacket, gloves and hat which is trimmed with fur. He briefly speaks to Tamara Lavoie. It is apparent that they are waiting for more people to gather before speeches begin.

After an unidentified individual sings O Canada, Mark Friesen is introduced by name and is the first speaker at the event. He speaks between the 13:08 mark on the video recording until 20:14. During this time, the video pans to a crowd of people situated in front of him which well exceeds 100 people. The speakers which follow Mark Friesen also correspond to some of the photographs taken by Constable Robertson including Tamara Lavoie and a person in dark clothing (with a white stripe on the right sleeve of the jacket) and a dark toque. [ 27 ] In

summary, I am satisfied that Constable Robertson’s photographs and the video (file 2020-12-14-9-002-32) are of the same event, a protest which occurred on the steps, sidewalk and roadway below the Legislature building in Regina on December 12, 2020. This is an public event that Mark Friesen spoke at, before a gathering well exceeding 100 people. [ 28 ] I am of the view that the Crown has proved beyond a reasonable doubt that on December 12, 2020 Mark Friesen participated in an outdoor gathering greater than 30 people.

CONCLUSION [ 29 ] As a result of my determination of the issues, I find Mark Friesen guilty of the offence before me. [ 30 ] I am grateful for the assistance of all counsel on this matter.

___________________________ M. Hinds, J