Thread by @rpoconnor

🧵Today, I appeared in Provincial Court and successfully secured a withdrawal of charges - in the middle of trial - on behalf of a client facing $8,135 in fines for allegedly failing to use the ArriveCAN app returning from Europe in *September 2022*.

Here's what happened:

2. My client was charged on September 16, 2022. This was two weeks before the Liberals made ArriveCAN voluntary. Instead of the Crown declining to prosecute these cases, they are still being scheduled for trial.

My client ultimately waited a year to be assigned a trial date.

3. After we were retained in February 2024, the Court adjourned the trial to April. While we were prepared to proceed then, the court docket was full with other cases involving ArriveCAN and the Court adjourned the trial until June.

4. In June, the trial again did not proceed because the docket was full. The Court adjourned the trial to today.

To start, we advised of our intention to bring an application under section 11(b) of the Charter of Rights, as our client's right to a timely trial was violated.

5. The Court permitted the Crown to proceed with its case, allowing us to bring our Charter application later.

The Crown called its only witness - the Public Health Agency of Canada officer who detained our client at Pearson Airport and issued offence notices.

6. The PHAC officer appeared remotely via Zoom. He was wearing a blue surgical mask!

After we confirmed that the PHAC officer was alone, we brought an in-trial motion seeking an order that the mask be removed, as, in our view, our client's right to a fair trial was breached.

7. We argued there'd be no reason for someone ALONE IN A ROOM ON ZOOM to wear a mask, and that our inability to see facial expressions while testifying - so important during remote trials - undermined our ability to test his credibility and thus our client's defence rights.

8. (separately, I theorised that the PHAC officer was using the mask strategically so that he could not be identified by my client, or as a crutch to make it more comfortable to give evidence).

9. My job when acting as defence counsel is not to ensure a witness' comfort, it's to ensure that I can conduct a fair and vigorous cross-examination. Sometimes that's uncomfortable, but it's my client facing nearly $10,000 in fines, while the public pays the officer to attend.

10. The judge, citing expired requirements to mask indoors in public, held that "things are different now" and that she would invite the officer to remove his mask, if he wished, but only if he was comfortable.

(Recall that the officer was on Zoom and confirmed he was alone)

11. (as an aside, even in the middle of the pandemic, I never once encountered a witness, lawyer, or judge to wear a mask while appearing remotely from home or the office)

12. The Crown proceeded with its examination of the blue-masked PHAC officer, who had difficulty recalling some important details of the alleged offences. About seven minutes into the Crown's examination - the prosecution fell apart and the charges were withdrawn.

13. Had the Crown not halted the prosecution, we would have moved for a directed verdict at the start of the defence case, arguing that the Crown was unable to prove beyond a reasonable doubt that my client did not comply with the federal government's ArriveCAN rules.

14. Ultimately, we did not need to, nor did we need to argue that our client's right to a timely trial was violated.

23 months later, the right result was reached and our client no longer has to worry about crippling fines nor about having to take yet another day off work.

15. My client and I felt it was important to share his story and my observations about COVID prosecutions, because we believe that the public should be aware that public dollars continue to be flushed down the toilet pursuing cases about an ArriveCAN law which no longer exists.

16. The Crown should never have pursued this case, not just because of the corruption involving the ArriveCAN app, nor because the law was repealed two weeks after my client was ticketed, but because of the unconstitutional delay in reaching trial.

17. The Supreme Court has held that Canadians have a constitutional right to a trial in Provincial Court within 18 months. The Court recognises that witness' memories fade, affecting trial fairness, and that accused persons need certainty.

18. Yet even with a PHAC officer who didn't know the date of the alleged offence, and facing an unconstitutional delay argument, the Crown still prosecuted its case (for seven minutes until it properly ceased its case).

19. This is not the fault of the individual Crown prosecutor, who was fair-minded and judicious in the best tradition of the Crown. That said, there is clearly a policy to continue pursuing these futile and effectively moot ArriveCAN cases - a horrible waste of court resources.

20. The public loses confidence in the legal system when those who allegedly did not download an app under an expired law are forced to retain lawyers and proceed to trial, when court resources are so strained that sexual assault and firearms cases are routinely tossed for delay.

21. How can Ontarians be confident in a legal system where public dollars are wasted prosecuting elderly and disabled Ontarians (two previous clients) who can't use an app, but on July 22 the same court stayed serious sex assault charges against a public figure because of delay?

22. Today was a great day for my client, but yet another travesty for this country's legal system.

This is the 12th ArriveCAN/Quarantine Act charge which my clients have defeated, but they should not have had to retain a lawyer to do so.

23. I call on our Attorney-General, Doug Downey, to direct Crown prosecutors to immediately drop all remaining ArriveCAN charges, and I call on all Canadian Attorneys-General to agree that every province will do the same.

24. Our justice system is already overworked with *real crimes* and *real civil disputes*.

It should not waste more time and public dollars punishing Ontarians for not using an app, while contributing to delays which prevent violent offence cases from even going to trial.

🧵 I want Ontarians who encounter our justice system to respect and not revile it.

Continuing to prosecute these frivolous and asinine COVID cases will go a long way to cause less of the former - and more of the latter.