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R. v. Orydzuk, 2024 BCPC 44 (CanLII)

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Date:

2024-03-19

File number:

97230-1

Citation:

R. v. Orydzuk, 2024 BCPC 44 (CanLII), <https://canlii.ca/t/k3mjj>, retrieved on 2024-05-01

Citation:	R. v. Orydzuk
	2024 BCPC 44
Date:		20240319
File No:		97230-1
Registry:		Kelowna

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

(Criminal Court)

REX

BRUCE BOYD ORYDZUK

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE D. RUSE

Counsel for the Crown:		K. Short
Appearing on his own behalf:		B. Orydzuk
Place of Hearing:		Kelowna, B.C.
Dates of Hearing:	July 4, 5, 6, 7, August 28, 29, 30, 31, 2023 & January 17, 2024
Date of Judgment:		March 19, 2024

[1] In these reasons I will only refer to that portion of the evidence required to understand my decision and findings of fact. I have however reviewed carefully all of the evidence and the submissions of both parties. I am attaching as an appendix a list of authorities submitted by the Crown and Mr. Orydzuk.

[2] Bruce Orydzuk stands charged that on July 13, 2021 he caused a disturbance in a public place by using insulting or obscene language contrary to section 175(1)(a) of the Criminal Code. Although the overarching issue, as in any criminal prosecution, is whether the Crown has proved beyond a reasonable doubt the guilt of the accused, in the case at bar there are two main issues to be resolved: was the language used by Mr. Orydzuk insulting or obscene, if so, did his use of said language disturb the public peace.

Brief Overview of the Facts

[3] In December 2020, in response to the global COVID-19 pandemic, the Provincial Government began a vaccination program. The program initially targeted health care workers and those in acute care settings, the program then expanded to the general public. The Trinity Baptist Church (“Trinity Church”) located at 1905 Springfield Road was one location where a clinic was created to vaccinate the general public. It commenced operations on March 15, 2021 and was fully operating on July 13, 2021, the date of this incident.

[4] By July 2021, the clinic was vaccinating in excess of 2,000 people per day at a rate of 200 to 400 clients per hour. On July 13 there were approximately 80 to 100 employees and volunteers at the location working for either Interior Health, Trinity Church, or Paladin Security, who was contracted to provide security services on site.

[5] The public attended the clinic on foot or by vehicle. If by vehicle, the only access was an entrance off the east side of Spall Road. Spall Road at this location is a short road, approximately one block in length, which runs south from Springfield Road. On the east side is Trinity Church. On the west side is a mall with a number of stores. There are two driveways or entrances on the west side of Spall Road to allow vehicles to enter and exit the mall parking. Depending on the volume of clients attending the clinic, traffic could back up on Spall Road as clients waited to turn left into the clinic parking lot.

[6] On July 13, 2021, a group of people attended the site to protest the vaccination program. The protestors’ activities included carrying placards or signs with messages opposing vaccinations, verbally expressing their opinions with and without amplification, attending inside the clinic to interact with clients seeking vaccinations, photographing or video recording the licence plates of the nursing staff working at the clinic, and distributing pamphlets to the drivers of vehicles as they attempted to enter the clinic parking lot. Mr. Orydzuk was one of the protestors. His activities were limited to carrying a sign, verbally expressing his opinions without amplification, and along with another individual known as Nathaniel, distributing pamphlets to the drivers of vehicles turning into the clinic. The evidence is that Mr. Orydzuk remained on public property, and at no time did he enter onto the property of Trinity Church.

[7] The incident which gave rise to the charge occurred shortly after noon when Mr. Orydzuk engaged in a verbal interaction with Anmol Singh, a security guard employed by Paladin Security.

Insulting or Obscene Language

[8] To put the actions of Mr. Orydzuk and Mr. Singh into proper context, some further background information is required. On July 13, 2021, Carli Berry was a reporter working for INFONEWS.ca, an internet based news site. She testified that she was dispatched by her editor to cover the protest at the vaccination clinic and arrived on scene at approximately 12:30. Upon exiting her car, Mr. Orydzuk approached her. She testified that although she had not had any in-person encounters with Mr. Orydzuk, she recognized Mr. Orydzuk from Facebook message posts. Ms. Berry testified that at some point prior to attending the clinic, she had blocked Mr. Orydzuk from her Facebook page because of the nature of his posts to her. Ms. Berry had a brief conversation with Mr. Orydzuk. Mr. Orydzuk recorded the conversation on a handheld GoPro video camera. The recording was marked as Exhibit 6. In the recording, Ms. Berry asks some questions regarding the protest. During the exchange, Mr. Orydzuk states, “I sure hope you don’t do any kind of smear or slander job. If you do, we know where to find you.”

[9] Ms. Berry testified she took Mr. Orydzuk’s comment as a threat. She described the interaction as a bit unsettling. After speaking with Mr. Orydzuk, Ms. Berry went to find someone from the clinic to provide a comment on the protest. She crossed the street and went over to a tent which had been erected at the entrance of the church parking lot to provide shade to the security and volunteers. She approached Mr. Singh who was at the tent and inquired about someone to provide a comment. Mr. Singh advised he could not comment but she could wait in the shade while he made some calls to try to track someone down for her.

[10] While waiting in the tent, Mr. Orydzuk called out to Ms. Berry asking why she was not reporting the injuries and death from the “jabs”, meaning the vaccinations. She responded: “Well, I’m not covering conspiracy theories Bruce.” She testified that Mr. Orydzuk began to get quite loud and aggressive, escalating in volume. She testified that Mr. Orydzuk was starting to yell at her and she did not want any further conversation with him. It was at this time that Mr. Singh stepped forward. He walked towards Mr. Orydzuk, positioning himself between Ms. Berry and Mr. Orydzuk.

[11] Mr. Singh is of obvious South Asian descent. He has brown skin and on July 13, 2021, was wearing a turban. Mr. Singh testified that while at the tent, Ms. Berry had advised Mr. Singh that Mr. Orydzuk had been harassing her on Facebook. Mr. Singh testified he intervened when the exchange between Mr. Orydzuk and Ms. Berry “started to escalate”. He testified his main concern was to get Mr. Orydzuk away from Ms. Berry to prevent any harassment or escalation of the situation. Mr. Singh testified he approached Mr. Orydzuk so that he, Mr. Singh, could talk slowly and softer to de-escalate the situation. When Mr. Singh approached, the following exchange occurred:

Bruce Orydzuk: Shut the hell up, I’m not talking to you.

Anmol Singh: No, well, like I have to protect the property, man. I’m here . . .

Bruce Orydzuk: Protect the property, go protect the property. I’m having a conversation with somebody. Get outta my face.

Anmol Singh: She is under my protection right now.

Bruce Orydzuk: She’s not under any protection.

Anmol Singh: You can’t, you cannot talk to her like that, yeah.

[12] At that point Mr. Orydzuk’s comments adopted a race-based character and included the following:

Bruce Orydzuk: Shut up, go back to your country. You’re not a Canadian.

Bruce Orydzuk: You’re not a Canadian.

Bruce Orydzuk: You are disgusting.

Bruce Orydzuk: Go back to your country.

Bruce Orydzuk: You’re not a Canadian.

Bruce Orydzuk: Beat it.

Bruce Orydzuk: You’re disgusting. You don’t know Canada. Canadian law.

Bruce Orydzuk: Get outta my face. You don’t know anything.

[13] Mr. Singh told Mr. Orydzuk to stay away. Mr. Orydzuk’s responses included the following:

Bruce Orydzuk: You’re not my boss.

Bruce Orydzuk: You’re not my boss, okay, so back off. You’re not my boss.

Bruce Orydzuk: You’re disgusting. You’re not a Canadian.

Bruce Orydzuk: Go back to India. Go back to India. We don’t want you.

Bruce Orydzuk: We don’t want you here.

Bruce Orydzuk: You don’t know Canadian law, you don’t know Canadian rights.

Bruce Orydzuk: So beat it. Beat it. You’re not a Canadian.

Bruce Orydzuk: You’re disgusting.

[14] Mr. Singh and Mr. Orydzuk did not know one another. Mr. Orydzuk’s comments that Mr. Singh was “not a Canadian”, “to go back to India”, “go back to your country” etc., were assumptions based upon Mr. Singh’s appearance, his skin colour and religious headgear. Mr. Orydzuk’s race-based tirade was demeaning and belittling towards Mr. Singh. At its base was the assertion that Mr. Singh was less valued than other Canadians, that his home was not Canada and he was not wanted here. Mr. Orydzuk’s comments were offensive and they were insulting.

[15] Mr. Orydzuk submitted “Mr. Singh aggressively and without provocation interrupting the defendant’s conversation, demonstrated poor judgement and propensity to act in a bullying manner by abusing his authority”. Nothing could be further from the truth. Mr. Orydzuk’s interaction with Mr. Singh was a continuation of the belligerent and obnoxious behaviour Mr. Orydzuk exhibited at times throughout the day. Rhonda Wigglesworth was the Team Leader of Public Health Services and was supervising the Trinity Church vaccination clinic on July 13, 2021. Darren Metz is an employee of Trinity Baptist Church. On July 13, 2021, he was supervising all the church volunteers assisting with the vaccination clinic and coordinating security for the site. That a protest was occurring outside the clinic was brought to the attention of both Ms. Wigglesworth and Mr. Metz. On multiple occasions throughout the day Ms. Wigglesworth and Mr. Metz went outside to observe the protestors and interacted with Mr. Orydzuk. Some, but not all, of the interactions were recorded by Mr. Orydzuk on his GoPro and admitted into evidence at trial.

[16] Ms. Wigglesworth testified during one interaction Mr. Orydzuk called her stupid. This was not captured on the video recordings tendered into evidence but both Mr. Metz and Mr. Singh testified they overheard the comment. There is no evidence of collusion on the part of these witnesses and I accept their evidence.

[17] The video recordings of the interactions of Mr. Orydzuk with Ms. Wigglesworth and Mr. Metz generally depict the interaction devolving to the point where Mr. Orydzuk talks very loudly overtop of, and drowning out, any response Ms. Wigglesworth or Mr. Metz may have to Mr. Orydzuk. Mr. Orydzuk tells Ms. Wigglesworth that she is disgusting. Mr. Orydzuk tells Mr. Metz:

You are ill informed.

You are incompetent.

You’re killing people.

You obviously don’t know anything.

You’re un-educated.

You are insane.

You aren’t even a human being, in all fairness you aren’t even human.

[18] Returning to the interaction between Mr. Orydzuk and Mr. Singh, Mr. Orydzuk’s tone was loud and aggressive. Ms. Berry described Mr. Orydzuk as yelling at Mr. Singh. Ms. Berry testified she stayed quiet because she “did not want to add any fuel to the fire.” She said she had “already made my comment and things escalated from there.” She testified she was concerned for her safety. I accept the evidence of Ms. Berry and Mr. Singh. Their evidence is consistent with each other and consistent with the video recordings. Mr. Orydzuk was belligerent, obnoxious and verbally aggressive. For his part, Mr. Singh’s use of language, tone of voice, and body language all exhibited an intention to de-escalate the situation. Mr. Singh’s professionalism in the face of Mr. Orydzuk’s insulting and offensive comments is commendable.

[19] I have absolutely no hesitation in finding that the Crown has proved beyond a reasonable doubt that the language used by Mr. Orydzuk towards Mr. Singh was insulting.

Disturbance of the Public Peace

[20] Section 175(1)(a) makes it an offence to cause a disturbance in or near a public place by using insulting or obscene language. While Ms. Wigglesworth, Mr. Metz and Donna Fulton, a nurse who witnessed Mr. Orydzuk’s race-based tirade, all testified that they were emotionally distraught having heard the exchange, that is not the manner of disturbance required to find a conviction. R. v. Lohnes, 1992 CanLII 112 (SCC), is the seminal case considering this section of the Criminal Code. McLachlin J. as she then was, writing for the court, considered previous court decisions, statutory construction and policy considerations before determining that the disturbance contemplated by s. 175(1)(a) is something more than mere emotional upset. “There must be an externally manifested disturbance of the peace, in the sense of interference with ordinary and customary use of the premises by the public”. The disturbance may consist of the impugned act itself or it may flow as a consequence of, or secondary to, the impugned act. But there must be some evidence, either direct or by inference through a police officer, that the public’s normal or customary use of the area was somehow interfered with.

[21] In the case at bar the Crown’s proposed route to conviction lies upon a narrow consideration of disturbance. In other words, a consideration of the immediate consequences of Mr. Orydzuk’s interaction with Mr. Singh as opposed to the secondary consequences. The Crown acknowledges the difficulty in considering the secondary consequences lies in attempting to isolate Mr. Orydzuk’s interaction with Mr. Singh, from the actions of the protestors in general. As an example, Ms. Wigglesworth testified that after Mr. Orydzuk’s interaction with Mr. Singh, she called the police. The audio recording of the 911 call was played and marked as an exhibit. Ms. Wigglesworth first advises the dispatcher the police are required as it is “out of control here”. Ms. Wigglesworth’s first concern is with respect to traffic flow and she is concerned there may be an accident. She indicated the traffic was backed up down Spall Road. She describes various protestors with signs and one individual who set up a speaker on his truck which was being used to amplify his comments. The last item she mentions is that racial slurs are being yelled. Traffic congestion and accident risk due to the actions of the protestors had been a concern for the staff running the clinic throughout the day. Ms. Wigglesworth acknowledged that even without Mr. Orydzuk’s comments towards Mr. Singh, she would have contacted the police because the protestors were blocking the entrance to the clinic parking lot.

[22] In a similar vein, Ms. Wigglesworth was asked how the clinic’s operations changed as a result of Mr. Orydzuk’s comments towards Mr. Singh. She testified they arranged for Paladin to escort the nurses to their vehicles at the end of the day, security to escort the vaccine back to the Interior Health main office on Doyle Avenue, and staff were advised to remove Interior Health tags from their vehicles as visible identification could be used to link the vehicle to clinic staff. However, as I understood her evidence, while her own interaction with Mr. Orydzuk, and witnessing Mr. Orydzuk’s comments to Mr. Singh, were a concern that she factored into her assessment underlying the increased security efforts, the main reasons for the security concerns related to actions of other protestors. She testified that protestors were observed video recording vehicles and vehicle licence plates belonging to nursing staff and recording vehicle information for vehicles in which Interior Health identification was visible within the vehicle interior. The change in business operations related to security were driven by the actions of these protestors, not Mr. Orydzuk.

[23] In my view, given the difficulty in isolating within any secondary consequences, Mr. Orydzuk’s comments to Mr. Singh from the actions of the protestors in general, this matter must be determined based only on the initial consequences of Mr. Orydzuk’s insulting remarks to Mr. Singh. In that regard, the Crown relies upon the reactions of two occupants of a white vehicle driving on Spall Road, an unknown male who left the clinic and walked through the parking lot, and Ms. Fulton, a nurse who was eating her lunch at a picnic table outside the clinic and overheard Mr. Orydzuk’s remarks.

[24] In Lohnes, at p. 172, Madam Justice McLachlin identified the tension present when considering offences under s. 175(1)(a) as follows:

. . . On the one hand lies the freedom of the individual to shout, sing or otherwise express himself or herself. On the other lies the collective right of every subject to peace and tranquillity. Neither right is absolute. The individual right of expression must at some point give way to the collective interest in peace and tranquillity, and the collective right in peace and tranquillity must be based on recognition that in a society where people live together some degree of disruption must be tolerated. The question is where the line is to be drawn.

[25] There are no hard and fast rules as to how much interference amounts to a disturbance of the peace. At best, the decided cases offer illustrations of when various activity creates a disturbance and circumstances in which it does not.

R. v. R.G., 1993 CanLII 15191 (NB PC)

[26] In R.G. the offender was a high-school student who disagreed with the discipline he received in the principal’s office. Upon leaving the office, he swore loudly and struck the walls with his hands. His outburst was witnessed by two custodians who stopped their work, albeit briefly, to watch the youth. In convicting the accused, the court found at paragraph 23:

[23] The two lady custodians were clearly distracted from their work by the loud “swearing” of the accused. They were clearly in a public place at the time this was taking place and the principal’s office was near this public area. It is clear that the distraction flowed as a “direct consequence of the impugned act”, the swearing.

R. v. Terrigno, 1995 CanLII 16077 (AB CJ)

[27] The police dealt with Mr. Terrigno outside a loud and busy bar. Mr. Terrigno became upset and started yelling and swearing at the officers. People standing in line to enter the bar turned to watch, and persons walking from the bar through the parking lot, some stopped to watch, some stopped, watched, then went on their way. The court was not convinced the reason for the citizen’s attention was Mr. Terrigno swearing and not the presence and action of the police. In the alternative, the court would have found the actions of Mr. Terrigno did not cause an interference with the public’s use of the area. The people watching from the line still were doing what they had before Mr. Terrigno’s outburst – queuing for the bar, the staff watching the exterior of the bar did that as part of their normal job, and the people walking through the parking lot still did so but may have chosen to stop and turn their heads as they went.

R. v. Moore, 1997 CanLII 458 (BCSC)

[28] The incident in Moore occurred on the sidewalk of Pandora Avenue in Victoria. Mr. Moore began yelling profanities at police officers present dealing with a matter unrelated to Mr. Moore. The evidence of the police officers and of a witness called on behalf of Mr. Moore was that as a result of Mr. Moore’s actions, a crowd of people numbering between seven and 20, stopped to watch. Mr. Moore appealed his conviction. In dismissing the appeal, Mr. Justice Melvin stated at para. 19:

[19] In the case at bar, the external manifestation of the disturbance is found in the evidence that the shouting and swearing of the appellant had an impact on the number of people who were present. In this respect, their conduct was affected, albeit only to the extent that they stopped what they were doing and gathered to watch. They were not, as a crowd of onlookers, a disturbance; however, they were objective evidence that a disturbance occurred. . . .

R. v. Stewart, 2000 CanLII 2941 (MB PC)

[29] At 10:30 in the evening in the entertainment district of Winnipeg, two street musicians set up outside of a nightclub. The police were in the area because of a riot earlier in the day. Initially, only two or three individuals stopped to listen, but when the musicians observed the police and altered the song lyrics to abuse the police a small crowd formed with some joining the chorus. The court referenced Lohnes and found no interference with the public’s use of the area.

R. v. Daniel, 2001 ABPC 12 (CanLII)

[30] The police pulled Mr. Daniel over for making an illegal U-turn; his vehicle was unregistered. When told the vehicle would be impounded, Mr. Daniel commenced shouting and swearing at the police officers. It was loud enough to attract the attention of the occupants of houses in the immediate area. The court described the circumstances as follows:

[7] . . . It was quite a scene and passing cars gave it a wide berth. A lady with a baby carriage proceeding on the same side of the sidewalk towards the accused, decided to cross to the other side to go around the commotion. From half a block away, she could hear the accused’s “ticked-off tone” and perceived he was upset and unhappy with the situation. She decided it would be wise to avoid the uncomfortable scene. Her ordinary course of passage was interrupted and she continued on the other side of the road until she had passed the scene, at which time she re-crossed to her original sidewalk.

[31] The court convicted Mr. Daniel on the basis that the lady with the baby carriage had her peaceful passage along a public sidewalk disturbed (Daniel at paras. 7 and 14).

R. v. Edwards, 2004 ABPC 14 (CanLII)

[32] In Edwards, police investigating a recent homicide used crime-scene tape to cordon off an area to be searched for evidence. Within this area was the vehicle belonging to the Edwards brothers. At bar close, the brothers approached the police, demanding their vehicle. A dispute arose with the brothers yelling and swearing at two police officers. A crowd gathered, some of whom were egging the brothers on. Police officers left their duties investigating the homicide in order to assist the officers dealing with the brothers. The court found that bar patrons who would normally have left the area after bar close remained because of the action of the brothers. This, along with drawing police resources away from other duties, provided sufficient grounds to convict both brothers.

R. v. Penton, 2020 NLSC 98 (CanLII)

[33] The circumstances in Penton were that as a female reporter was conducting a video-recorded interview of a local councillor, Mr. Penton drove past and yelled sexually explicit obscenities at the reporter. She testified that as a result, she felt humiliated and embarrassed. The insult derailed the follow-up question she was about to ask the councillor, but the conversation did continue. The court, while characterizing the actions of Mr. Penton as vile and loathsome, noted they “did not cause more than a transitory interference with the work Ms. Gillis was doing with Mr. Breen.” Mr. Penton was acquitted at trial and the acquittal was upheld upon Crown appeal.

Carver v. R., 2021 PESC 40 (CanLII)

[34] This is a decision of the Prince Edward Island Supreme Court dismissing Mr. Carver’s appeal of his conviction for causing a disturbance. The circumstances in brief were that Mr. Carver attended the Provincial courthouse in Charlottetown when restrictions were in place due to the COVID-19 pandemic. A deputy sheriff asked Mr. Carver to wear a mask and offered him one from a box. Mr. Carver swatted the box to the ground. Mr. Carver refused to wear a mask, began yelling and using profane language. The deputy sheriff attempted to explain the masking requirement but Mr. Carver refused to listen. As more sheriff personnel became aware of the confrontation, they left their posts to attend. A least one woman had to be escorted by a deputy sheriff around the confrontation in order to access the courthouse. The conviction was properly grounded by the immediate consequences of Mr. Carver’s actions – the prevention of individuals accessing a public space, specifically the courthouse, and the secondary consequences – drawing members of the sheriff’s department away from the normal posts (Carver at para. 10).

R. v. Swinkels, 2010 ONCA 742 (CanLII)

[35] In Swinkels, the majority of the court allowed the appeal from convictions on the basis that the crowd gathered as a result of the police action in arresting Mr. Swinkels, rather than Mr. Swinkels’ loud swearing which led to the arrest. Significantly, the court commented on the contextual nature of the analysis. At paras. 24 and 25, LaForme J.A. stated:

[24] The "packed" and noisy streets of downtown London, just after the closing of the bars forms the context against which the disruptiveness of the appellant's conduct must be measured. The "nature of the peace" that could be expected at this time and place is not the same as what one would expect in the library, or at the supermarket. While Mr. Swinkels' behaviour was loud and raucous, its "disruptiveness" is dependent on the surroundings.

[25] In this context, and based on the evidence noted above, it appears unlikely that the presence of a crowd around or near Mr. Swinkels was a disturbance, as contemplated by Lohnes. . . .

[36] The analysis offered by Mr. Justice LaForme is helpful in reconciling the above-referenced decisions. The tolerance courts are prepared to extend to individuals when the public’s use of the area is already raucous in nature, such as outside of bars late at night, is significantly greater than where the expectation of tranquillity is much higher, such as within the corridors of an educational institution or quiet residential street.

[37] Turning to the case at bar, the white vehicle and occupants are captured in the video clip recorded by Ms. Berry in Exhibit 8. Neither occupant testified. The Crown relies solely on their reactions as captured in Exhibit 8. Ms. Berry recorded the video looking towards Spall Road. The vehicle can first be seen exiting the mall parking lot and initially turning south on Spall. The vehicle drives slowly south and as the vehicle passes behind Mr. Orydzuk, the male driver of the vehicle can be seen watching the interaction between Mr. Orydzuk and Mr. Singh. The vehicle pauses briefly for four seconds during which time the female front passenger leans forwards and looks towards Mr. Orydzuk. The male driver shakes his head then the vehicle continues south. One minute later the white vehicle drives north on Spall. As the vehicle passes Mr. Orydzuk, the female front passenger gives Mr. Orydzuk the finger.

[38] The unknown male is depicted in Exhibit 7, the video recorded by Mr. Orydzuk on his GoPro camera. The individual is first seen at 00:48 seconds into the video recording. The individual is walking westbound beside the south wall of the church. The individual then walks across the parking lot, at times looking towards Mr. Orydzuk and Mr. Singh, but at other times looking towards his right hand and then towards the line of parked vehicles. The male walks between the parked vehicles and reaches the edge of the Church property at 01:07. He can be seen looking towards Mr. Orydzuk and Mr. Singh until 01:09, when he is out of the frame. The video swings back towards Spall Road at 01:35 and the individual can be seen a ways down Spall Road walking northbound away from the incident.

[39] It should be noted, the two videos also capture a number of other vehicles in the immediate area, the occupants of which exhibit no reaction to Mr. Orydzuk. These include a brown SUV, a grey SUV, a FedEx van, and a black convertible with the top down, all driving north on Spall Road, and three vehicles which turned from Spall Road into the clinic parking lot. In addition, the videos capture two individuals on foot leaving the west side of the church and walking south, then east; neither of these two individuals exhibited any reaction to Mr. Orydzuk.

[40] Ms. Fulton testified that she was outside at a picnic table set up for staff, having just finished her lunch when she heard Mr. Orydzuk insulting Mr. Singh. She was going to get up to intervene but she saw Mr. Metz. Mr. Metz told her he was going to deal with it so Ms. Fulton went back inside the clinic. Ms. Fulton located her supervisor, Ms. Wigglesworth, and advised her of Mr. Orydzuk’s comments to Mr. Singh. After speaking to Ms. Wigglesworth, Ms. Fulton went back to work administering the vaccines. Her evidence was that although she was emotionally upset by Mr. Orydzuk’s comments, she continued to perform her duties and meet the needs of the clients attending the clinic. Ms. Wigglesworth testified the clinic continued to run as usual and all clients attending the facility that day received their vaccine.

Decision

[41] In my view, momentarily attracting the attention of the occupants of the white car and the man walking through the parking lot, and the brief transitory disruption of Ms. Fulton’s workday as she was returning to work from lunch, are insufficient interferences with the public’s use of the space to find a conviction. This is especially so given the evidence indicates numerous other individuals in the immediate area were unaffected by Mr. Orydzuk’s comments and the overall operations of the clinic continued without affect. The issue for this Court is not whether the conduct of Mr. Orydzuk was obnoxious or deplorable, but whether it was criminal. Although Mr. Orydzuk’s behaviour towards Mr. Singh was insulting and highly offensive, it did not result in an interference with ordinary and customary use of the premises by the public. I find him not guilty of the offence as charged.

Outstanding Issue

[42] Before completing these reasons, I would be remiss if I did not address the aspersions cast by Mr. Orydzuk during his oral argument and contained within his written argument, upon the ethical and professional conduct of the Crown. I have presided over one of the pre-trial conferences, all eight days of evidence, and received the Crown’s written and oral arguments. The criticisms made by Mr. Orydzuk have no merit.

[43] In 1955, Mr. Justice Rand of the Supreme Court of Canada in R. v. Boucher, 1954 CanLII 3, described the role of Crown counsel which remains, even after the passage of almost 70 years, the touchstone for prosecutorial conduct:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty which in civil life there can be none charged with greater personal responsibility.

It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. [Boucher at page 23.]

[44] It is a high standard of professional and ethical conduct, but one which British Columbians expect from the Crown counsel within the criminal justice branch. It is a standard of conduct that they deserve, and it is a standard of conduct that they received.

_____________________________

The Honourable Judge D. Ruse

Provincial Court of British Columbia

Appendix of case law filed by Crown and Mr. Orydzuk

(If both parties submitted the same case, it is only listed once.)

1. R. v. Lohnes, 1992 CanLII 112 (SCC)

2. R. v. Barilla, 2023 ONSC 936

3. R. v. Peters, (1982) CanLII 422 (BC CA)

4. R. v. Green, 2000 ABPC 201

5. R. v. Moore, 1997 CanLII 458 (BCSC)

6. R. v. Chikoski, 1973 CanLII 1477

7. R. v. Daniel 2001 ABPC 12