Judge rejects pandemic protesters' request to challenge constitutionality of law

A provincial court judge has rejected a Bathurst couple's request to challenge the constitutionality of the law used to charge them with violating pandemic restrictions at a 2021 protest in Moncton.

Britney Green and Nicholas DeAngelis are accused of participating in a gathering of more than five people while not wearing masks and not being physically distanced on Jan. 24, 2021.

Green and DeAngelis' trial began last week and heard testimony from RCMP officers before the Crown closed its case.

On Wednesday, as the case resumed, Green made a motion for a directed verdict. DeAngelis also raised the prospect of challenging the constitutionality of the mandatory order provisions that restrict gatherings used to charge them.

Crown prosecutor Logan Landry said raising that would likely require the Crown to present evidence about the reason for the mandatory order's existence for the judge to consider.

Request denied on procedural grounds

Provincial court Judge Brigitte Volpé said court rules require notice of such motions 30 days before trials begin, and the couple failed to file that notice. While judges have discretion to consider motions during trial, she said she wouldn't.

"If this request would have been made any time before the Crown closed its case, I would have considered it," Volpé said.

"Now it's late, the Crown can't present evidence toward that motion."

The pair, who are self-represented, were among five charged following the protest. Two pleaded guilty, while the trial of David Robert West is still going on. All three accused are assisting each other in their separate cases.

On Tuesday, West's case was before a different judge.

"I believe the law might be over-broad," Judge Luc Labonté said, 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."

In that case, Labonté indicated he may be open to West challenging the constitutionality of the law if the case isn't dismissed before that point.

West, Green and DeAngelis have requested the judges hearing their cases consider a directed verdict.

Once the Crown closes its case, the defence can make a motion for a directed verdict if they believe the Crown has failed to prove the essential elements of the charge. If the judge rules in their favour, they are acquitted and the case ends. If not, the case continues and they can call evidence.

Green read a statement to Volpé on Wednesday that echoed the one West read to Labonté.

Green argued that 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.

She also said RCMP officers who testified had "many contradictory statements and inconsistencies."

That included testimony about whether most or few protesters were wearing masks, how long people were beside each other, and how long she was attending the protest before her arrest.

West, Green and DeAngelis also argue the mandatory order prohibition on gatherings doesn't cover protests.

The Crown prosecutor said in response to the request for a directed verdict that the "common sense" definition of a gathering should be used, which captures a protest.

Case adjourned to June

Volpé said she would need time to reflect on the directed verdict issue. The case is scheduled to return to court June 15 when the judge may issue her ruling.

She said if she rules against Green and DeAngelis, they should be prepared to call their witnesses.

At the opening of the trial, the pair had sought the judge's permission to summon Dr. Jennifer Russell, the province's chief medical officer of health, to testify. It wasn't clear what the judge ruled on that request heard in a closed courtroom.

The couple had already told the judge they would appeal if the outcome of the case wasn't in their favour and called her "biased" because she told their supporters in the courtroom gallery at the trial's outset to wear masks.