Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Carver, 2022 PEICA 13, December 6, 2022, the accused was convicted of the offence of causing a disturbance.  The circumstances involved were described by the Prince Edward Island Court of Appeal, in the following manner (at paragraphs 7 to 9):

On November 20, 2020, Carver arrived at the Provincial Court as he was to appear before Provincial Court Judge Orr on an unrelated matter.  He was unaware upon approaching the courthouse that he would be required to wear a mask that day in order to gain entry to the courthouse.  The Public Health Order then in effect contained no mandatory mask requirement and communication of the court’s policy that wearing a mask was mandatory had yet to occur. 

At the entrance to the Provincial Courthouse, he was told by the Sheriff to wear a mask due to the COVID-19 restrictions.  The Sheriff offered to provide Carver with a mask from a box he was holding, but Carver swatted it out of his hand to the ground.  Carver refused to wear a mask, became agitated, used profane language and was yelling.  Carver tried to open the entrance door wide enough to get in the courthouse.  His way was blocked, and the Sheriff called for assistance.  At least four other Sheriffs came to the scene.  They attempted to explain the masking requirement to Carver who was being loud.  Carver would not listen. 

The Sheriffs had to guide a woman who was attempting to enter the courthouse around the confrontation while it was occurring.  The Sheriffs were concerned somebody was going to be hurt.  The Sheriff asked Carver for a doctor’s note excusing him from wearing a mask.  Carver argued with them saying that he had to go to court because he was compelled to do so and should the Sheriffs refuse him entry, the Provincial Court judge would issue a warrant for his arrest.  Carver ultimately left without being permitted to enter the courthouse. 

The accused appealed from conviction.  The appeal was dismissed.  The Prince Edward Island Court of Appeal concluded as follows (at paragraphs 22 to 25):

The task of the trial judge was to weigh the degree and the intensity of the conduct complained of against the degree and nature of the peace which can be expected to prevail in a given place in a given time.  (Lohnes, p. 298, para. e)  Context is important.  The interference with the ordinary and customary conduct in or near a public place may consist in something as small as being distracted from one’s work (Lohnes, p. 299, para. (f-g)).

The trial court and the SCAC did weigh the degree and intensity of the conduct and put the matter in context.  The incident occurred a mere five minutes before court was to open. The place was the entryway to the public courthouse.  That entryway is used by members of the public including those witnesses who are compelled to appear in court, some of whom may themselves be victims of crime.  Whether or not I agree with those findings of fact made by the trial judge and confirmed by SCAC is of no importance.  The trial judge applied the law as set out in Lohnes and made findings of fact which reasonably support his conclusion. 

For example, the Sheriff found it necessary to call for assistance and at least four other Sheriffs left their post to attend; one woman attempting to enter the courthouse had to be guided around the confrontation; the screener at the front door asked for assistance and appeared to be shaken; the box of masks that Carver swatted out of the Sheriff’s hands flew toward the bystander who put down his briefcase and motioned for assistance from the other Sheriffs inside.

The SCAC found that the facts found by the trial judge were facts from which the trial judge could reasonably infer that the actions of Carver caused more than an emotional disturbance and in fact caused a disturbance contrary to s. 175 of the Criminal Code.  The SCAC made no error of law.  I would therefore dismiss the appeal.