Judge wonders if pandemic law used against Moncton protesters was ‘over-broad’

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.

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.

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.

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.

Shane Magee is a Moncton-based reporter for CBC. He can be reached at shane.magee@cbc.ca.