Judge acquits Bathurst couple, says pandemic rules allowed protests

A provincial court judge has acquitted a Bathurst couple on charges they violated New Brunswick's pandemic restrictions during a protest against those measures in Moncton in 2021, saying protests were not prohibited.

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.

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."

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."