Charges dropped against two pandemic protestors as trial was set to start
Nicholas DeAngelis, Britney Green faced criminal charges, Emergency Measures
Charges against two people accused of violating pandemic restrictions at a Moncton grocery store were dropped Friday as their trial on the nearly three-year-old allegations was set to start.
Nicholas DeAngelis and Britney Green appeared by phone in Moncton provincial court where Crown prosecutor Logan Landry asked for charges related to events on Dec. 31, 2020, to be withdrawn.
They faced charges alleging they violated the province's Emergency Measures Act by not wearing a mask, which was required in public spaces at the time, and criminal charges of mischief, causing a disturbance, obstructing police and resisting police.
Landry told Judge Brigitte Volpé that the Crown had determined that a defence of "legally induced error" would be available for the two, and as a result there would be no reasonable prospect of conviction on the mask charges. Landry didn't elaborate on the nature of the induced error.
The judge withdrew those, and Landry then said because those were withdrawn that "we feel it is not in the public interest" to pursue the criminal charges.
"Ok, thank you very much," DeAngelis said after the judge withdrew the charges.
The events that led to the charges were at the centre of a trial that began in May of last year for another person, David Robert West of Riverview.
At his trial, witnesses testified that a group of four to five people walked into the Superstore on Main Street without masks. Police were called, eventually resulting in a scuffle after officers questioned their claimed mask exemptions.
West's case is ongoing. Green on Friday asked the judge if his charges would also be dropped, but Volpé said she had no information about that case as it's being handled separately.
DeAngelis, Green and West were previously acquitted by a judge in cases that followed their arrest at a protest against pandemic restrictions in front of Moncton City Hall in January 2021.
Judge acquits Bathurst couple, says pandemic rules allowed protests
Emergency Measures Act charge against Britney Green and Nicholas DeAngelis dismissed
Judge Brigitte Volpé issued her ruling in the case involving Britney Green and Nicholas DeAngelis on Wednesday. Both were accused of taking part in a gathering of five or more people without wearing masks and not being physically distanced from others on Jan. 24, 2021 outside Moncton city hall.
Green and DeAngelis sought a directed verdict, a motion made after the Crown closes its case if the defence believes the prosecution has failed to prove the essential elements of the charge. The couple were self-represented.
In this case, they argued a protest did not amount to a gathering under the province's rules in place at the time.
Volpé, who also cited numerous examples of conflicting testimony from RCMP officers, agreed.
"A gathering was clearly defined and did not capture the act of publicly assembling to protest," Volpé said in a decision read in court Wednesday morning.
Britney
Green, left, and Nicholas DeAngelis, as he was being taken into custody
by RCMP on Jan. 24, 2021, outside Moncton city hall. (Guy LeBlanc/Radio-Canada)
The judge said people in the province retained the right to protest, leading to a supporter in the public gallery clapping.
The judge said given the Crown had therefore failed to prove one of the essential elements of the charge, the charges would be dismissed.
Inconsistent police testimony
Volpé's decision highlighted a series of inconsistencies in testimony from seven officers earlier in the trial.
The judge said officers testified the crowd that day was between five and 20 people, one said larger than five, another said around 30 people, while another said 30 to 50 with about 20 officers. Yet another said around 10 people.
Officers testified some people were wearing masks, while another officer testified the majority were wearing masks and only those arrested weren't, while yet another said no one was wearing a mask.
Officers generally agreed that people were there to protest, the judge said.
The mandatory order that imposed restrictions at the time barred indoor or outdoor gatherings. It defined those as implying common intent or purpose associated with socializing, celebration, ceremony or entertainment.
Crown prosecutor Logan Landry had suggested a protest was implied in the definition.
"I disagree," Volpé said in her decision. She said the Crown presented no evidence to show people were there to socialize, for ceremony or entertainment.
About a dozen supporters in the public gallery clapped after the judge finished reading her decision.
Green told reporters outside court that she wasn't sure how the decision would go when the judge started reading.
"We're feeling pretty relieved," Green said.
The protest was one of a series that regularly took place in Moncton during the pandemic.
A few days before the Jan. 24 protest, Codiac Regional RCMP's commanding officer was questioned about the force's approach to anti-mask rallies by Codiac Regional Policing Authority board member Irwin Lampert, a retired provincial court judge.
"I don't know why, at the very least, they're not being ticketed," Lampert said during the policing authority's board meeting on Jan. 14, 2021. "I don't think they should be able to stand there and make fun of the whole thing when people in the province are getting sick and dying."
An RCMP officer shown among protesters in Moncton on Jan. 24, 2021. (Guy LeBlanc/Radio-Canada)
A day before the Jan. 24 protest, more restrictive measures were imposed that limited indoor and outdoor gatherings to five people.
Green and DeAngelis were among five people arrested and charged on Jan. 24. Two others pleaded guilty. David Robert West of Riverview also faces a similar charge and asked a separate judge hearing his case for a directed verdict as well. That decision is expected on June 29.
West said outside court he believes the outcome in Green and DeAngelis's case is a good sign.
The judge in his case has already signalled he has concerns about the restrictions West allegedly violated.
"I believe the law might be over-broad," Judge Luc Labonté said May 24, referring to New Brunswick's mandatory order under the Emergency Measures Act. "And might be contrary to the charter because it captures, I believe, perhaps conduct that shouldn't be penalized."
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David R. Amos
Judge wonders if pandemic law used against Moncton protesters was 'over-broad'
David Robert West accused of violating province's Emergency Measures Act at protest in January 2021
A New Brunswick judge has suggested provisions of the province's pandemic restrictions used to charge several people who took part in a protest last year may have been an overreach.
"I believe the law might be over-broad," Judge Luc Labonté said Tuesday morning, referring to New Brunswick's mandatory order under the Emergency Measures Act. "And might be contrary to the charter because it captures, I believe, perhaps conduct that shouldn't be penalized."
Labonté made the comments as the trial of David Robert West of Riverview resumed Tuesday in Moncton.
West is accused of violating the mandatory order by attending a gathering of more than five people without wearing a mask and without being physically distanced from others on Jan. 24, 2021.
West was among five arrested and charged at the protest of pandemic rules that day outside Moncton city hall. His trial began April 13 and had adjourned after the Crown finished presenting its evidence.
An RCMP officer shown among protesters in Moncton on Jan. 24, 2021. (Guy LeBlanc/Radio-Canada)
West, who is representing himself in court with assistance from several of the others charged, stood and read a prepared statement to Labonté requesting a directed verdict.
That's a motion used when the defence believes the Crown has failed to prove the essential elements of the offence.
West said there was no evidence people were not doing their best to stay two metres apart, no evidence whether the people were from the same household, and no evidence if people were near each other briefly or not.
The mandatory order at the time included an exemption for briefly coming closer than two metres.
RCMP
officers issued tickets and arrested several people at the protest for
violating the province's emergency measures imposed to limit the spread
of COVID-19. (Guy LeBlanc/Radio-Canada)
He said the word "gathering" is ambiguous and doesn't cover a protest.
"The mandatory order in question is not applicable as it does not prohibit protests [and] demonstrations," West said.
He called the mandatory order unlawful.
That led Labonté to ask Crown prosecutor Logan Landry several questions about the law.
The judge asked whether a family of six that gathered outside without masks would have been violating the law.
Logan said if they weren't on private property, it would have been a violation.
The judge then laid out a similar scenario, asking about a family of six walking and then stopping in front of city hall and whether that would count as a gathering.
"Do you find that may be a bit over-broad in its reach?" Labonté said.
It wasn't clear what Logan's response was to the judge.
Labonté went on to suggest he believed the law may be contrary to the Canadian Charter of Rights and Freedoms. He said the onus is on West to prove that and invited the Crown to begin preparing to argue on that issue.
The judge will issue his decision on the directed verdict issue on June 29.
He if rules in West's favour, he will be acquitted. If not, the judge said West still can call evidence and make a motion to challenge the constitutionality of the law.
Other cases on similar offence
Two of those who faced similar accusations from the protest have admitted the offence. Two others, Nicholas DeAngelis and Britney Green, have a trial that continues Wednesday. Both have been attending court assisting West with his case.
They were charged under a section of the mandatory order introduced only days before the protest and which didn't last very long.
Outside the courthouse, West told reporters he believes the judge seems to be ready to rule in his favour but needs to go through the procedures first.
"He sees what we see," West said. "It's a fraud, and he's willing to expose it and I think he's going to use us to do it and we're happy with that."
West is also in the midst of a separate trial on a charge alleging he violated the mandatory order by not wearing a mask at a Moncton grocery store on Dec. 31, 2020. That case resumes June 14.
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