Judge tears apart health authority's case claiming nightclub flouted COVID-19 restrictions

The first hint the Crown might have trouble winning its case against a nightclub accused of posting videos on social media of patrons flouting COVID-19 restrictions came when the judge overseeing the proceedings asked what Facebook was.

Things just went downhill from there.

Over the course of an hour and a half last month, Judicial Justice Brent Adair shredded Northern Health's prosecution of Lambda Cabaret — rejecting public complaints as hearsay, questioning the relevance of video showing a lineup of unmasked people, and asking how he could be sure someone hadn't hacked the Facebook account of the nightclub in Prince George, B.C.

"There are so many holes in this case — it's like someone shot a shotgun," Adair said at one point.

"There's holes all over the place. As I say, it's not just one blast of a shotgun. It's multiple blasts."

'What is a social media post?'

Lambda Cabaret, now known as Club 1177, identified itself as a "safe space" for the lesbian, gay, bisexual, transgender, queer/questioning and two-spirit community in northern B.C.

The business made headlines last winter after Northern Health issued a series of Public Health Act violation tickets to the nightclub for ignoring mask requirements, failing to check patrons for vaccination status and ultimately refusing to shut down in the face of a closure order.

The case appeared to be a slam dunk — not just a smoking gun, but the social media equivalent of someone firing the weapon, giving their name and address and then explaining why they did it. Repeatedly.

The cabaret posted videos on Facebook of large groups of unmasked people dancing and drinking and put up a sign saying they weren't following B.C.'s vaccine passport policy: "Open with zero mandates 2 weekends in a row," one post declared, "The media is the virus."

The CBC has now obtained audio of the hearing, which took place in a courtroom full of people who travelled from far and wide to watch Lambda challenge the tickets. They witnessed a crash course on the rules of evidence.

Environmental health officer David Creighton — who is not a lawyer — acted as the Crown. And his only witness was another environmental health officer named Joey Cheng.

They had hoped to try eight violation tickets all at once, but Adair said he wanted to go one by one — starting with a ticket related to Facebook posts that Cheng testified showed unmasked activity at the club on the weekend of Feb. 5.

"Hang on, hang on. What is a social media post?" Adair asked.

"These are posts that Lambda cabaret made on Facebook," Cheng answered.

"How do you know they made them on Facebook?" Adair responded.

"Ummm ... it was on their Facebook page," Cheng replied.

Adair went on to say he wasn't a "technical person" but did know that accounts could be hacked. He asked how he could be sure the defendant posted the video.

"I know Facebook exists. I don't use Facebook," Adair went on to say. "What is it? What does it show?"

'More holes than there is substance'

Adair dismissed the first ticket after saying the evidence Creighton introduced didn't "come anywhere close to proving beyond a reasonable doubt that this particular bar was open."

Northern Health withdrew the next ticket, then moved onto a ticket issued for serving unvaccinated patrons on Feb. 18. Cheng said that he and another environmental health officer attended the club with an RCMP officer.

"We observed patrons lined up outside of the club without any masks, and I also observed people inside the nightclub without any face coverings," he told the judicial justice.

Adair dismissed that ticket too.

"I'm not told what time you attended," he said.

"I'm not told whether the bar was open or not. It's just a bunch of people outside. You say you saw people inside — I don't know whether they were customers or workers. I don't know whether the door was locked or not."

Next up, a ticket for ignoring a closure order. Cheng said he posted the order himself at 10 a.m. on Feb. 19. The order stipulated that the order itself had to stay posted.

"We observed people lining up, and we believed they were opening," Cheng said.

"I also observed the order was removed from where I posted it."

With a sigh, Adair dismissed that charge too.

"I'm told the order was removed. I have no idea who removed the order," he said. "No offence to anybody. But sometimes things posted outside pubs get ripped off by all sorts of people."

The final ticket to go to trial followed a similar path.

"Usually, in a traffic case, I find perhaps one or two holes in the Crown's case," Adair told Creighton.

"Here, there are so many holes. There's more holes than there is substance."

'There's no way you're going to win this'

Creighton entered a stay of proceedings on the next two tickets after defence lawyer Saron Gebresellassi entered pleas of not guilty to both counts. She said the Crown didn't even show up to contest two more tickets the following day.

Gebresellassi told the CBC she was prepared to make extensive arguments challenging the tickets on human rights grounds. But she never got the chance.

"I was told by some folks before flying into Prince George: 'There's no way you're going to win this. Look at the Facebook posts,'" she said.

"But the way Canada's law works and the rules of evidence and the Evidence Act, it's just not quite that simple ... and so I think a lot of people were really surprised with the ability to defeat those prosecutions."

In a statement issued after the courtroom defeat, Northern Health pointed out that it and other health authorities have been successful before other judges with respect to COVID-19 order enforcement.

"It was Northern Health's view it had reasonable evidence necessary to support enforcement of the tickets issued," the health authority said.

Gebresellassi said the decision should give heart to anyone planning to challenge a ticket.

"There's a heavy reliance on the guilty plea regime, just hoping that Canadians will want it to go away.

"I am really encouraging Canadians not to plead guilty — if they believe they're not guilty."