His Majesty the King - v. –, 2023 SKPC 35

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 35 Date: May 25, 2023 Informations: 991213623 and 991192864 Ticket: 85463943 Location: Regina Between: His Majesty the King - and – Maxime Bernier, Mark L. Friesen, Cindy Gall, Conrad Goodsir, Tamara Lavoie, Nathan Peter Lynchuk, George Seitz, Luke D. Tournier, Michele R. Tournier, R. Brent Wintringham and Gerald Ferguson. Appearing: Bryan Carter For the Crown Elaine Anderson For the Accused: Bernier, Ferguson, Friesen, Goodsir and Wintringham Luke Coupal For the Accused: Gall, Lynchuk, L. Tournier and M. Tournier George Seitz Self-represented JUDGMENT M. HINDS, J INTRODUCTION

[ 1 ] Maxime Bernier, Mark L. Friesen, Cindy Gall, Conrad Goodsir, Tamara Lavoie, Nathan Peter Lynchuk, George Seitz, Luke D. Tournier, Michele R. Tournier, George Seitz, R. Brent Wintringham and Gerald Ferguson are charged that on or about May 8, 2021 at Regina, Saskatchewan they did fail to comply with a Public Health Order (PHO) by attending a gathering exceeding 10 people , contrary to

section 61 of The Public Health Act, 1994 , SS 1994, c P-37.1 [ The Public Health Act, 1994 ]. [ 2 ] The trial of these accused took place before me on March 6, 2023. At the onset of matters Ms. Elaine Anderson sought and obtained leave from the Court to withdraw as counsel for Conrad Goodsir. An individual by the name of “R.C.” appeared in court and stated that he acted as the executor for the title of Conrad Goodsir. He submitted an Alberta Birth Certificate and a Registration of Live Birth for Conrad Goodsir to the Court, true copies of which were marked as Exhibit P-1.

The Court specifically asked R.C. whether he was Conrad Goodsir. R.C. advised the Court that he was not Conrad Goodsir. As neither Conrad Goodsir or Tamara Lavoie appeared in court at the onset of trial, the Court granted the Crowns’s request to enter a default judgment against each of these individuals and imposed a fine of $2,800.00 inclusive of surcharge. [ 3 ] Prior to the trial commencing, the Crown entered a stay of proceedings with respect to all of the charges before the Court concerning Mr. Coupal’s clients Luke D. Tournier and Michele R. Tournier. Mr.

Coupal continued to act as legal counsel for Cindy Gall and Nathan Lynchuk on Infomations 99121623 and 991192864. At the onset of the trial Mr. Coupal advised the Court that he was withdrawing a Notice of Constitutional Question (NCQ) as regards to Saskatchewan Offence Ticket (SOT) 85492769 respecting Cindy Gall. In addition, Mr. Coupal advised the Court that on February 28, 2023 he filed a NCQ as regards to Information 991192864 (which it was agreed applies to Information 991213623) on behalf of his two remaining clients, Cindy Gall and Nathan Lynchuk. They allege the PHO violates ss. 2(

c) and

section 7 of the Charter and is vague and overbroad. [ 4 ] Elaine Anderson acted as legal counsel for Maxime Bernier, Mark Friesen and R. Brent Wintringham on Information 991213623. Elaine Anderson also acted as legal counsel for Gerald Ferguson on SOT 85463943. Informations 991213623, 991192864 and SOT 85463943 deal with the same charge, on the same date being May 8, 2021 where it is alleged the accused did fail to comply with a PHO by attending a gathering exceeding 10 people, contrary to

section 61 of The Public Health Act, 1994 . Elaine Anderson agreed that a single trial should be held on Information 991213623 and SOT 85463943. Ms. Anderson also took the position that the NCQ filed by Mr. Coupal on February 28, 2023 applies to her clients: Bernier, Friesen, Wintringham and Ferguson. [ 5 ] George Seitz represented himself at trial. [ 6 ] In R v Slastukin et al. , 2023 SKPC 32 , I determined that the Charter challenges based on ss. 2(

c) and

section 7 have been previously decided by this Court and cannot now be re-litigated. In addition, I found that the current PHO before the Court is not unconstitutionally vague nor is it overbroad. [ 7 ] Constables Ryan Buhr, Chadwick Hunt, Scott Douglas and Corporal Gary Naylen of the Regina Police Service (RPS) testified for the Crown at trial. No one testified on behalf of any of the accused. [ 8 ] The Crown Exhibits consisted of the following: P-2 Certified Copy of a Public Health Order dated May 6, 2021.

P-3 Certified Copy of the Health Minister’s Order Delegating Powers to the Chief Medical Health Officer dated December 7, 2020. P-4 Agreed Statement of Facts, which applies to Maxime Bernier. P-5 Agreed Statement of Facts, which applies to Mark L. Friesen. P-6 Agreed Statement of Facts, which applies to R. Brent Wintringham.

P-7 Agreed Statement of Facts, which applies to Gerald Ferguson. P-8 Disc containing 29 photographs and three videos taken by Constable Buhr. P-9 Disc containing 20 videos taken by Constable Hunt. [ 9 ] For the reasons which follow, this Court finds Maxime Bernier, Mark L. Friesen, Cindy Gall, Nathan Peter Lynchuk, George Seitz, R. Brent Wintringham and Gerald Ferguson guilty of the offence before the Court. ISSUES [ 10 ] The issues to be determined are as follows: a. Has the Crown proved beyond a reasonable doubt that on May 8, 2021 a Public Health Order was in place? b.

Has the Crown proved beyond a reasonable doubt that on May 8, 2021 Maxime Bernier, Mark L. Friesen, Cindy Gall, Nathan Peter Lynchuk, George Seitz, R. Brent Wintringham and Gerald Ferguson failed to comply with a Public Health Order by attending a gathering exceeding 10 people ? a. Has the Crown proved beyond a reasonable doubt that on May 8, 2021 a Public Health Order was in place? [ 11 ] A certified copy of the Health Minister’s Order delegating powers to the Chief Medical Health Officer dated December 7, 2020 was entered as Exhibit P-3 at trial.

In addition, a certified copy of a PHO was entered as Exhibit P-2 at trial. It is comprised of a total of 14 pages. Pages 1 and 2 of the PHO read in part as follows: PUBLIC HEALTH ORDER PROVINCIAL ORDER May 6, 2021 (Under Subsection 45(2) of The Public Health Act, 1994 and

section 25.2(2) of The Disease Control Regulations ) 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 and under

section 25.2 of The Disease Control Regulations; 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. COVID-19 is a category I communicable disease; D. To decrease or eliminate the risk to health presented by COVID-19, it is necessary to (

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

b) reduce the exposure to SARS-CoV-2;

E. Multiple SARS-CoV-2 variants of concern have emerged worldwide and are now present in Canada and Saskatchewan. These variants of concern are more transmissible than the previously known variants, and are more likely to cause death or serious illness; F. As of May 6, 2021, the seven-day moving average of new COVID-19 cases in Regina is 19.9 cases per 100,000 people, compared to 17.6 cases per 100,000 for the rest of Saskatchewan. Regina presently accounts for just over one-quarter (27%) of Saskatchewan’s total active COVID-19 cases; G.

Also as of May 5, 2021, 7,848 cases of variants of concern have been detected in Saskatchewan. 4,168 of these cases were reported in Regina and the surrounding area. Variants of concern presently account for the majority of active COVID -19 cases in Regina; H. Household transmission is the largest known source of recent COVID-19 transmission in Saskatchewan. Evidence in other jurisdictions has shown that limiting the small household gatherings has a substantial impact on reducing transmission of COVID-19; I.

A person infected with SARS-CoV-2, including a variant of concern, can infect other people with whom the infected person is in contact. The gathering of people in close contact with one another can promote the transmission of SARS-CoV-2, including variants of concern, and increase the number of people who develop COVID-19; J. I am aware of and have considered the impact that this Order and other public health measures, including the Re-Open Saskatchewan Plan, have had and will continue to have on the people of Saskatchewan; K.

I am continually evaluating and reconsidering these public health measures based upon the information and evidence available to me, including the impacts on the people of Saskatchewan previously discussed, and also including infection rates, sources of transmission, the presence of outbreaks, the number of people in hospital and in intensive care, deaths, the emergence of and risks posed by virus variants of concern, vaccine availability, immunization rates, the vulnerability of particular populations, and reports from the rest of Canada and other jurisdictions; L.

While issuing this Order, I have done my utmost to strike a proportionate balance between the public interest in holding and attending public and private gatherings against the serious risk that such gatherings pose to public health; M. I am aware of and have considered that the public interest includes constitutionally-protected interests, particularly the rights and freedoms protected by the Canadian Charter of Rights and Freedoms (“ Charter ”), including the freedom of religion, and association, and mobility rights.

I also recognize that the rights and freedoms protected by the Charter are not absolute, and are subject to reasonable limits, prescribed by law as can be demonstrably justified in a free and democratic society; N. When issuing this Order, I have considered alternative measures that are less impactful on the Charter -protected rights and freedoms of the people of Saskatchewan are appropriate and consistent with public health principles, including the precautionary principle.

I am aware of my obligations to choose measures that impact the Charter- protected rights and freedoms of the people of Saskatchewan as little as possible. To that end, this Order: a. Allows outdoor public and private gatherings up to ten people, both in and outside of the Regina Region; b. Allows persons living alone or single parents with minor children to form household “bubbles” with one other household for social support; c. In concert with the Re-Open Saskatchewan Plan, allows 30 people to attend places of worship for ceremonial purposes; and d.

Allows visitors in care homes where the rate of vaccination among the residents of the care home is high enough to substantially limit the spread of COVID -19 within the facility. O. I consider the following measures necessary to decrease or eliminate the risk to health presented by COVID-19 and in the public interest, in order to prevent, reduce and control the transmission of SARS-CoV-2, including variants of concern; P.

This Order imposes additional requirements or restrictions to those found in the Re-Open Saskatchewan Plan , as updated from time to time, and found on the Government of Saskatchewan website: Saskatchewan.ca. Where this Order conflicts with the Re-Open Saskatchewan Plan, this Order shall prevail; Q. By virtue of the foregoing and under subsection 45(2) of The Public Health Act, 1994 and

section 25.2(2) of The Disease Control Regulations . This Order applies to all Individuals, businesses, institutions associations and other organizations within the Province of Saskatchewan and City of Lloydminster. Effective May 6, 2021 at 5:40 p.m. I rescind my April 27, 2021 “Provincial Order” and order the following 1. I hereby ORDER and DIRECT: Gathering Sizes and Restrictions

. . . (

d) Subject to 4(c), public and private outdoor gatherings are permitted up to 10 persons. Persons in attendance must ensure that physical distancing of at least two metres between households are 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. . . . Pages 10 and 12 of the PHO reads in part as follows: 4. I hereby ORDER and DIRECT for the Regina Region: (

c) In the Regina Region, public and private outdoor gatherings are permitted up to 10 persons. Persons in attendance must ensure that physical distancing of at least 2 metres between households is maintained. This subsection 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 13 states in part as follows: This order remains in effect until 12:01 a.m. on May 31st, 2021, or until, in the opinion of the Chief Medical Health Officer, there is no longer a public threat, whichever shall first occur. [ 12 ] I am satisfied that the Crown has proved beyond a reasonable doubt that the PHO dated May 6, 2021 was in place on May 8, 2021. [ 13 ] The PHO permits public and private outdoor gatherings up to 10 persons.

I am of the view that by necessary implication on May 8, 2021 the PHO prohibits public and private outdoor gatherings over 10 persons. In addition, I am of the view that the two metre distancing requirement between households applied to permissible gatherings up to 10 people, however, it did not apply to gatherings over 10 persons. [ 14 ] 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 the 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 May 8, 2021 Maxime Bernier, Mark L. Friesen, Cindy Gall, Nathan Peter Lynchuk, George Seitz, R. Brent Wintringham and Gerald Ferguson failed to comply with a Public Health Order by attending a gathering exceeding 10 people ? (

i) A consideration of the evidence with respect to Maxime Bernier, Mark Friesen, R. Brent Wintringham and Gerald Ferguson [ 15 ] Exhibit P-4 is an Agreed Statement of Facts. It reads as follows:

Maxime Bernier admits the following facts for the purpose of dispensing with proof thereof, pursuant to

section 655 of the Criminal Code : 1. On May 8, 2021 at Regina, Saskatchewan, people gathered in Victoria Park, near the Cenotaph, for a planned public protest between about 1:00 p.m. and 5:00 p.m. There were posts on social media planning a protest at this date, time and location. Maxime Bernier was among those promoted on social media as a planned speaker at this event. 2. Maxime Bernier is a resident of Quebec and the leader of the People’s Party of Canada. He travelled to Regina for the purpose of attending and speaking at this event. 3.

Maxime Bernier attended Victoria Park in the afternoon of May 8, 2021. 4. Maxime Bernier took to the stage, an elevated platform set-up near the Cenotaph, and addressed the crowd using a loudspeaker from about 2:17 p.m. to 2:28 p.m. The number of people gathered at Victoria Park exceeded 200 persons during his remarks. 5. Maxime Bernier remained at Victoria Park for a period of time after he left the stage and he moved about the crowd talking with various people gathered there. 6. The photograph attached as

Schedule “A” to this Agreed Statement of Facts was taken by a police officer who was present at Victoria Park on or about 2:27 p.m. on May 8, 2021. Maxime Bernier is depicted in this photograph and he is circled in red. 7. The number of people gathered at Victoria Park, near the Cenotaph, exceeded 10 persons at all material times, including when Maxime Bernier was in attendance. [ 16 ] Exhibit P-5 is an Agreed Statement of Facts. It reads as follows: Mark L. Friesen admits the following facts for the purpose of dispensing with proof thereof, pursuant to

section 655 of the Criminal Code : 1. On May 8, 2021 at Regina, Saskatchewan, people gathered in Victoria Park, near the Cenotaph, for a planned public protest between about 1:00 p.m. and 5:00 p.m. There were posts on social media planning a protest at this date, time, and location. Mark Friesen was among those promoted on social media as a planned speaker at this event. 2. Mark Friesen is a resident of Saskatoon and a political activist. He travelled to Regina for the purpose of attending and speaking at this event. 3. Mark Friesen attended Victoria Park in the afternoon of May 8, 2021. 4.

Mark Friesen took to the stage, an elevated platform set-up near the Cenotaph, and addressed the crowd using a loudspeaker from about 2:08 p.m. to 2:17 p.m. 5. Mark Friesen remained at Victoria Park for a period of time after he left the stage and he moved about the crowd talking with various people gathered there. 6. The photograph attached as

Schedule “A” to this Agreed Statement of Facts was taken by a police officer who was present at Victoria Park on or about 2:08 p.m. on May 8, 2021. Mark Friesen is depicted in this photograph and he is circled in red. 7. The number of people gathered at Victoria Park, near the Cenotaph, exceeded 10 persons at all material times, including when Mark Friesen was in attendance. [ 17 ] Exhibit P-6 is an Agreed Statement of Facts. It reads as follows: R. Brent Wintringham admits the following facts for the purpose of dispensing with proof thereof, pursuant to

section 655 of the Criminal Code : 1. On May 8, 2021 at Regina, Saskatchewan, people gathered in Victoria Park, near the Cenotaph, for a planned public protest between about 1:00 p.m. and 5:00 p.m. There were posts on social media planning a protest at this date, time, and location. 2. R. Brent Wintringham is a resident of Saskatoon. He travelled to Regina for the purpose of attending and speaking at this event. 3. R. Brent Wintringham attended Victoria Park in the afternoon of May 8, 2021. 4. R.

Brent Wintringham took to the stage, an elevated platform set-up near the Cenotaph, and addressed the crowd using a loudspeaker from about 2:40 p.m. to 2:46 p.m. 5. R. Brent Wintringham was at Victoria Park for a period of time before and after he was on the stage, and he moved about the crowd talking with various people gathered there. 6. The photograph attached as

Schedule “A” to this Agreed Statement of Facts was taken by a police officer who was present at Victoria Park at about 2:40 p.m. on May 8, 2021. R. Brent Wintringham is depicted in this photograph and he is circled in red.

7. The number of people gathered at Victoria Park, near the Cenotaph, exceeded 10 persons at all material times, including when R. Brent Wintringham was in attendance. [ 18 ] Exhibit P-7 is an Agreed Statement of Facts. It reads as follows: Gerald Ferguson admits the following facts for the purpose of dispensing with proof thereof, pursuant to

section 655 of the Criminal Code : 1. On May 8, 2021 at Regina, Saskatchewan, people gathered in Victoria Park, near the Cenotaph, for a planned public protest between about 1:00 p.m. and 5:00 p.m. There were posts on social media planning a protest at this date, time and location. 2. Gerald Ferguson attended Victoria Park in the afternoon of May 8, 2021 and participated in the gathering there. 3. In the image attached as

Schedule “A” to this Agreed Statement of Facts is a screen shot from a video taken at Victoria Park in the afternoon of May 8, 2021, and live-streamed to social media. Gerald Ferguson is depicted in this image and he is circled in red. 4. The number of people gathered at Victoria Park, near the Cenotaph, exceeded 10 persons at all material times, including when Gerald Ferguson was in attendance. [ 19 ] Based on the Agreed Statement of Facts set out in Exhibits P-4, P-5, P-6 and P-7, I am of the view that the Crown has proved beyond a reasonable doubt that on May 8, 2021 Maxime Bernier, Mark L. Friesen, R.

Brent Wintringham and Gerald Ferguson failed to comply with a PHO by attending a gathering in Victoria Park which exceeded 10 people. b. (ii) A consideration of the evidence with respect to Nathan Lynchuk, George Seitz and Cindy Gall. [20] The Crown has sought to have several electronic documents (Exhibits P-8 and P-9 admitted into evidence.

These include: 1. 29 digital photographs and three video recordings taken of individuals at Victoria Park on May 8, 2021 by Constable Ryan Buhr of the RPS (Exhibit P-8). 2. 20 in-car video recordings taken of individuals at Victoria Park on May 8, 2021 by Constable Chadwick Hunt (Exhibit P -9). As a result this requires a consideration of the electronic document provisions of the Canada Evidence 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 which apply solely to electronic documents and create a framework for the admission of all forms of "electronic document," which is broadly defined in

section 31.8 together with several related terms. [21] 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 of supporting 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 system by 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. [22] 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. [23] 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]). … [82] The burden of proof to establish threshold authenticity for purposes of s. 31.1 is low and, once satisfied, the document isadmissible 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 para70).

To meet this threshold, the proponent need only provide sufficient evidence of authenticity from which the trial judge couldreasonably find the document to be what it purports to be. Once this threshold is met, the evidence is admissible, and it becomesavailable 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-finderwhich often turns on determinations of credibility" (citations omitted, Ball at para 70).

Evidence can be authenticated even where there isa 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 ofauthentication, 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 ofauthorship as a related issue to authentication, but it does not say that it is synonymous (at para 18). This conclusion stands to reasonsince, 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 demonstratingits authorship.

The relationship between authenticity and authorship for electronic documents is not reciprocal; demonstrating authorshipis sufficient to establish authenticity, but establishing authenticity of an electronic document does not necessarily provide strong evidenceof 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 arecord to produce the original record or the next best available record (Law of Evidence at 1324).

This concept was further elaborated onin Hirsch: "The purpose of the best evidence rule is to assist the trier of fact with the verification of the integrity of documents becausealterations 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 providedirect 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 whichdocument 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. Thesepresumptions 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] [24] Madam Justice Schwann has provided a comprehensive guide to the admissibility of electronic documents which I will use for this case.

The evidence of Constable Ryan Buhr and photographs and videos taken by him [25] Constable Ryan Buhr is a forensic identification officer with the RPS. On May 8, 2021 he was tasked with taking some photographs and some video recordings of a gathering of people in Victoria Park in downtown Regina. He testified that he spent the better part of the afternoon (several hours) at Victoria Park, although he could not recall when he first arrived. He took 29 photographs and three video recordings while at Victoria Park which have been loaded onto a disc and entered into evidence as Exhibit P-8.

He testified that the photographs and video are an accurate depiction of what he saw that day and have not been altered in any way. [26] The 29 photographs and three videos taken by Constable Buhr depict a number of different people who are in Victoria Park in Regina near the Cenotaph on May 8, 2021. Constable Buhr testified that the videos accurately depict what he observed that day and that they have not been altered in any way. Viewed as a whole, the photographs and videos show that at all material times, well in excess of 10 people gathered by the Cenotaph listening to various speakers .

The evidence of Constable Chadwick Hunt and the videos taken by him [27] Constable Chadwick Hunt is a member of the RPS. On May 8, 2021, he was tasked with taking some videos of people who were in Victoria Park by the Cenotaph. He did this by parking his unmarked police vehicle in a parking spot, north of Knox Metropolitan Church which is situated near the intersection of Victoria Avenue and Lorne Street in Regina. By doing this the unmarked police vehicle was facing in an easterly direction into Victoria Park.

He then activated the record function of the in-car video recording system and took 20 separate videos which are set out in Exhibit P-9. The video recordings made be Constable Hunt begin around 1:54 p.m. and end around 3:30 p.m. At times Constable Hunt made video recordings making use of a wider angle lens. At other times Constable Hunt made video recordings using a lens that zoomed in on groups of individuals. Constable Hunt testified that the videos accurately depict what he observed that day and that they have not been altered in any way.

Viewed as a whole, the 20 videos show that at all material times well in excess of 10 people gathered by the Cenotaph listening to various speakers. [28] I am satisfied that the photographs and videos taken by Constables Buhr and the in-car videos taken by Constable Hunt tendered by the Crown are electronic documents within the meaning of the CEA . I am of the view that the two officers’ testimony surrounding the taking of the photographs and videos, on May 8, 2021, meet the threshold for authenticity supporting the conclusion the photographs and video are what each of the officers 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 camera and in-car video. There is no suggestion that the photographs or video have been altered or tampered with. I am satisfied that the presumption of integrity set out in ss. 31.3 (

a) of the CEA applies. I find they are admissible in the trial before me. The issue of identification respecting the accused, Nathan Lynchuk, George Seitz and Cindy Gall [29] Prior to any evidence being called on the first day of trial March 6, 2023, I was introduced to Nathan Lynchuk and Cindy Gall who were present in the courtroom, as their identity was an issue in the trial. I observed that Ms. Gall is a middle aged woman who is relatively short in stature, has a somewhat stocky build and has short red hair. She was wearing a grey sweater and a black shirt.

I also observed that Nathan Lynchuk is a man in his early thirties. He is a tall, slim man and has a long black beard and was wearing a plaid shirt. George Seitz is a self-represented accused. His identity was also an issue in the trial. He was also in the courtroom. I have met him in court on at least five prior occasions. I observed that George Seitz is a middle aged man, of average height and weight with dark hair and he wears eyeglasses.

[30] In R v John, 2021 SKCA 83, 405 CCC (3d) 184 [John] at paragraph 18 the Saskatchewan Court of Appeal provided an overviewof the law concerning the admissibility and assessment of identification evidence as follows: [18] There are three recognized types of identification evidence that may be tendered at trial: eyewitness evidence, identification by thetrier of fact and recognition evidence. A

summary of each form of identification is found in R v Field, 2018 BCCA 253, 362 CCC (3d)401, leave to appeal to SCC refused, [Field]: [23] There are at least three distinct types of identification evidence that may be tendered, each with its own reliability characteristics: (

i) Eyewitness evidence by a stranger: Experience has shown that eyewitness evidence proffered by a stranger to the accused is the leastreliable identification evidence. It has been described as "inherently unreliable": R. v. M.B., 2017 ONCA 653 at para. 29. In light of themany instances in which identification has proved erroneous, the trier of fact must be cognizant of "the inherent frailties of identificationevidence arising from the psychological fact of the unreliability of human observation and recollection": R. v.

Burke, (SCC), [1996] 1 S.C.R. 474 at para. 52. (ii) Identification by the trier of fact through photographic evidence: On occasion, the trier of fact will have the benefit of photographicevidence taken at or sufficiently near the scene of the crime to have probative value in determining the identity of the perpetrator. Aslong as the photographic evidence is of sufficient clarity and quality to permit identification of the person shown in the photo, theevidence can be admitted and weighed with other evidence by the trier of fact: R. v.

Nikolovski, (SCC), [1996] 3 S.C.R.1197 at para. 23. (iii) Recognition evidence: The Crown may also choose to tender opinion evidence from a person or persons who can identify theindividual shown in a photo or video. This evidence is admissible if the witness had a prior acquaintance with the accused and istherefore in a better position than the trier of fact to conclude whether the individual in the photo is the accused: R. v. Leaney, (SCC), [1989] 2 S.C.R. 393; R. v. Brown (2006), (ON CA), 215 C.C.C. (3d) 330 (Ont.

C.A.). (Emphasis in original) [31] In this case, the Crown has called some recognition opinion evidence provided by police officers with respect to the accused,Nathan Lynchuk, George Seitz and Cindy Gall. In addition, the Crown has submitted that as the trier of fact, I am entitled to draw myown conclusions about the identity of these three accused by comparing video or photographic evidence to the persons appearing beforeme, and has invited me to do so. Nathan Lynchuk [32] Corporal Naylen is a member of the RPS.

On May 8, 2021, he was working in traffic services and was assigned to work nearVictoria Park in Regina. He testified that he served Nathan Lynchuk and George Seitz each with a Public Health Act ticket that day. [33] Corporal Naylen testified that in the afternoon of May 8, 2021 other police officers stopped a truck near the intersection of 12th Avenue and Hamilton Street in Regina, which is approximately a city block northeast of Victoria Park. Corporal Naylen attended thislocation to assist the other officers. Constable Bespalko provided Corporal Naylen with a driver’s licence in the name of NathanLynchuk.

Corporal Naylen compared the photograph on this driver’s licence with a man who was seated in the rear seat of the truck onthe passenger side. He determined it was a match and he concluded the man in the back seat was Nathan Lynchuk. [34] During a recognition voir dire, Corporal Naylen was shown Exhibit P-8, photogragh 9. Corporal Naylen testified that the mandepicted in this image, who has a beard, who is wearing a hat and a blue jean jacket, standing to the left of the lady holding amicrophone is Nathan Lynchuk. He testified that he compared the SGI driver’s photograph with photograph 9.

While the man inphotograph 9 has a longer beard, he has the same facial features and hence it is the same man. During the trial, I determined thatCorporal Naylen had a prior acquaintance with the accused on May 8, 2021 and was in a better position than the trier of fact to concludethe individual in photograph 9 is the accused, Nathan Lynchuk.

As a result, I found his recognition evidence was admissible to the trialproper. [35] The Crown also invited me to compare the man depicted in Exhibit P-8, photographs 9, 10 and 11 and Exhibit P-9, video #10,who is on the stage in front of the Cenotaph with the individual who was present in the courtroom on the trial day of March 6, 2023,who identified himself to me as Nathan Lynchuk. I have done these comparisons. I recognized Nathan Lynchuk as being the mandepicted in Exhibit P-8, photographs 9, 10 and 11 and Exhibit P-9, video #10. [36] In

summary, I accept the recognition opinion evidence of Corporal Naylen respecting the accused Nathan Lynchuk. In addition,as I have indicated above, as the trier of fact, I am of the view that Nathan Lynchuk is the individual in Exhibit P-8, photograph 9 andExhibit P-9, video #10. Nathan Lynchuk was at or near the centre of Victoria Park amongst people which numbered well over 10

persons at all material times. [37] Based on all of the evidence before me I find the Crown has established beyond a reasonable doubt that on May 8, 2021, Nathan Lynchuk failed to comply with a PHO by attending a gathering in Victoria Park which exceeded 10 people George Seitz [38] Corporal Naylen also testified, that in the later afternoon of May 8, 2021, he issued and served a Public Health Act ticket on a man he identified as being George Seitz.

This occurred on the corner of Cornwall Street and Victoria Avenue which is near the southeast corner of Victoria Park. [39] Initially, Corporal Naylen asked this man for his name. At first the man refused to give his name to Corporal Naylen. Then Corporal Naylen asked this man if the vehicle which the man was standing beside was registered to him. The man said yes. The man then provided his name as George Seitz.

Corporal Naylen went back to his police vehicle and confirmed he was dealing with George Seitz by comparing this man to a photograph of George Seitz he obtained from the SGI database. [40] The Crown played a portion of video 3 in Exhibit P-9 from 13:10:14 to 13:10:30 for Corporal Naylen. He testified that he remembered the gentleman in the hat with the glasses, jacket and blue jeans situated in the middle of the screen near a white sign with the words “Hope-Love--Truth-Freedome [sic] -Peace -Beware” written on it. He identified this person to be George Seitz, the person he issued a ticket to on May 8, 2021.

He further testified that the man shown in video 3 matched the photograph of George Seitz he obtained from the SGI database. During the trial, I determined that Corporal Naylen had a prior acquaintance with the accused on May 8, 2021 and was in a better position than me, as the trier of fact, to conclude the individual shown in video 3 Exhibit P-9 is George Seitz. As a result I found his recognition evidence was admissible to the trial proper. The defence, however, points out that this short segment of video evidence only shows Mr.

Seitz to appear to be passing through Victoria Park. [41] In response, the Crown has invited me as the trier of fact to examine all of the video evidence respecting the man said to be George Seitz. In particular the Crown has asked me to review the following evidence: 1. Exhibit P-9, video 1: (13:02:11 to 13:02:30) This segment of video shows the same man wearing a dark cap, dark jacket, blue jeans and dark sunglasses briefly embrace a woman near the Cenotaph and fist bump another woman.

During several seconds of the video the man is behind a white sign with the words “Hope-Love-Truth-Freedome [sic] -Peace-Beware” written on it. 2. Exhibit P-9, video 2 (13:07 – 13:09.55) This segment of video shows the same man wearing a dark cap, dark jacket, blue jeans and dark sunglasses talking to a different woman near the Cenotaph. He also walks about the centre area near the Cenotaph. 3. Exhibit P-9, video 3 (13:10:23 – 13:10: 27) This segment of video shows the same man wearing a dark cap, dark jacket, blue jeans and dark sunglasses walking past the centre area near the Cenotaph. 4.

Exhibit P-9, video 5 (13:24:09 – 13:24:27) This segment of video shows the same man wearing a dark cap, dark jacket, blue jeans and dark sunglasses walking in near the Cenotaph. The number of people situated there is larger. The dark cap man briefly stops and exchanges words with another man. [42] I am of the view that having reviewed all of the video evidence as set out in paragraph 41, above, that the man who Corporal Naylen identified as being George Seitz wearing a dark cap, dark jacket, blue jeans and dark sunglasses was not simply passing through Victoria Park on May 8, 2021.

The video evidence reveals George Seitz was at or near the centre of Victoria Park among people which numbered well over 10 persons on four different time segments between 1:02 p.m. and 1:34 p.m. He was not simply passing through Victoria Park on May 8, 2021. He was an active participant in the event.

[43] I accept the recognition opinion evidence of Corporal Naylen respecting the accused George Seitz. [44] Based on all of the evidence before me, I find the Crown has established beyond a reasonable doubt that on May 8, 2021 George Seitz failed to comply with a PHO by attending a gathering in Victoria Park which exceeded 10 people. Cindy Gall [45] Constable Scott Douglas is a member of the RPS. He testified on a recognition voir dire . On May 8, 2021, he was working during the afternoon in combined traffic services. He was instructed by Sgt. Lemar to go to Victoria Park and wait for further directions.

He testified that he was instructed to issue Public Health Act tickets to three people that day, one of whom was Cindy Gall. [46] Constable Douglas was advised by another officer that Cindy Gall was near the Cenotaph. He went to the Cenotaph which is in the centre of Victoria Park where he observed a large group of 10 or more people. He was advised that Cindy Gall was in that group of people. As he looked at the group of people he testified that he observed a woman that he thought was Cindy Gall. He then approached this woman and explained why he was there and asked her for her identification.

The woman indicated that she did not have any identification with her. Constable Douglas then asked her for her name and date of birth. The woman who Constable Douglas was speaking to then identified herself as Cindy Gall and gave him her date of birth and her home address. He then issued a ticket to this woman. [47] The Crown played a portion of video 13 in Exhibit P-9 for Constable Douglas starting at 14:25:44 and pausing the video at 14:26:02. Constable. Douglas testified that he recognized Cindy Gall to be in the video.

He further testified that Cindy Gall is the female in the video that is wearing glasses, a yellow shirt and has short hair. She is facing the camera. [48] On cross-examination, Constable Douglas testified that he had received “intel” about Cindy Gall prior to May 8, 2021, however, he had not personally seen Cindy Gall prior to May 8, 2021. He confirmed the woman in the fluorescent yellow shirt did not give him any identification that day. Therefore, he was relying purely on her statement to him that she was Cindy Gall as the basis of identifying her.

He did acknowledge that he did not have a photograph of Cindy Gall or access to the SGI photo database when he encountered the woman in the fluorescent yellow shirt on May 8, 2021. [49] During the trial, I determined that Constable Douglas had a prior acquaintance with the accused on May 8, 2021 and was in a better position than myself, as the trier of fact, to conclude the individual shown in video 13 in Exhibit P-9 starting at 14:25:44 and pausing at 14:26:02 was Cindy Gall.

As a result, I found his recognition evidence was admissible to the trial proper. [50] The Crown takes the position that this same woman who Constable Douglas identified as Cindy Gall appears in five videos set out in Exhibit P-9. I have reviewed the following videos in Exhibit P-9. My observations are as follows: 1. Exhibit P-9, video 1: (13:01:14 to 13:01:30) This 16 second segment of video 1 shows a middle aged woman with short red hair wearing sunglasses, a dark coloured sweat shirt and blue jeans hug a younger man with facial hair wearing a white hoodie near the Cenotaph.

The front of the young man’s hoodie says “Hugs over Masks”. Exhibit P-9, video 1: (13:04:18 to 13:04:50) The same woman is seen standing behind a white sign near the Cenotaph with the words “ Hope-Love-Truth-Freedome [sic] -Peace- Beware” written on it talking another woman. 2. Exhibit P-9, video 3 (13:11.39 to 13:11:44)

This five second segment of video shows the same red haired woman now wearing a yellow fluorescent t-shirt over her dark coloured sweater. The young man described above is singing on a stage situated near the Cenotaph. The woman walks by the stage as he sings. 3.Exhibit P-9, video 8 (13:56:04 to 13:56:08) This four second segment of video shows the same red haired woman wearing the yellow fluorescent t-shirt over her dark coloured sweater walking near a stage situated near the Cenotaph. A woman is on the stage speaking into a microphone. 4.

Exhibit P-9, video 13 (14:24:34 to 14:26:50) The entire two minute and 16 second video shows the same red haired woman wearing the yellow fluorescent t-shirt over her dark coloured sweater standing and clapping in a group of people greater than 10 near a stage situated near the Cenotaph.

Maxime Bernier is on the nearby stage speaking into a microphone. 5.Exhibit P-9, video 15 (14:43:37 to 14:43:58) This 21 second segment of video shows the same red haired woman wearing the yellow fluorescent t-shirt over her dark coloured sweater walking near the Cenotaph with a sign in her hands and standing in a group of people greater than 10 near the Cenotaph. R.

Brent Wintringham is on the nearby stage speaking into a microphone. [51] I am of the view that having reviewed all of the video evidence as set out in paragraph 50, above, that the red haired woman who appeared in court before me prior to this trial commencing and identified herself as Cindy Gall is the same woman in the video evidence. Cindy Gall was not simply passing through Victoria Park on May 8, 2021. She was walking around within the crowd of people who had assembled that afternoon. On one occasion she hugged a young man who subsequently sang on stage.

At other times she was talking to people in the crowd, listening to speeches and applauding. She was an active participant in the event. [52] I also accept the recognition opinion evidence of Constable Douglas respecting the accused Cindy Gall. [53] Based on all of the evidence before me, I find the Crown has established beyond a reasonable doubt that on May 8, 2021, Cindy Gall failed to comply with a PHO by attending a gathering in Victoria Park which exceeded 10 people. CONCLUSION [54] I find Maxime Bernier, Mark L. Friesen, R.

Brent Wintringham, Nathan Peter Lynchuk, George Seitz, and Cindy Gall guilty of the offence set out in Information 991213623. I also find that Gerald Ferguson is guilty of the offence set out in SOT 85463943. _________________________ M. Hinds, J