Appeal court won’t hear anti-masker’s case
Mitchell Noel Albert, 25, of Kintore, sought to sue judge for requiring facemasks in courtroom, but small claim was dismissed as was first appeal in Court of King’s Bench
A vocal opponent of precautionary restrictions during the height of the pandemic won’t be heard in the province’s top court, as it deemed his appeal of a small claim decision to be without merit.
Mitchell Noel Albert, 25, of Kintore, near Perth-Andover, had filed a small-claim lawsuit against Fredericton provincial court Judge Kenneth Oliver last year.
Albert was seeking $3,000 in damages and a declaration that Oliver be barred from presiding over the criminal and quasi-criminal court cases of him and fellow pandemic-restriction protesters.
His beef with the judge was over Oliver’s insistence on facemasks in his courtroom, even after a provincial emergency order requiring them in public places was lifted.
The small-claim adjudicator dismissed the action, accepting an argument from Oliver’s counsel that the Provincial Court Act prohibits suing judges for actions taken from the bench.
Albert appealed that ruling to the Court of King’s Bench, which oversees appeals from the small-claims courts. That appeal was dismissed as well in a decision that confirmed the adjudicator was correct.
The appellant filed a notice seeking leave to appeal in late June with the New Brunswick Court of Appeal, but in a decision issued this week, Chief Justice Marc Richard wrote the court declined to grant leave to appeal.
“The sole ground of appeal [Albert] proposes to raise is that the judge’s ruling in the Court of King’s Bench ‘does not follow [precedents] from the Supreme Court,’ referring to two Supreme Court of Canada decisions, neither of which, on their face, have any application to the doctrine of judicial immunity that was applied in this case,” the chief justice wrote.
The ruling notes Albert failed to file a written argument with the court to justify his request for leave to appeal, as is required.
“I discern no error of law in the decision Mr. Albert wishes to appeal. In my view, there is no question his proposed appeal would fail,” Richard said.
“The decision rendered in the Court of King’s Bench does not conflict with other decisions; I do not doubt its correctness; and the proposed appeal does not raise a matter of importance since the law on judicial immunity is quite settled.”
The appeal court also ordered Albert to pay costs of $500.
Albert - who’s been vocal of his criticisms of government and the courts, and who’s involved in the sovereign citizen movement - told the Fredericton Independent he was denied due process, as he wasn’t given a chance to argue his case before the Court of Appeal.
“The court ruling on the motion without a hearing is just giving the public more evidence of the corrupt system we have here in New Brunswick,” he wrote in a message.
Albert said the New Brunswick Court of Appeal, by declining to hold a hearing on his application, disregarded the open-court principle, a key element of Canadian courts that’s vitally important to democracy and for public confidence in the justice system.
He said he plans to pursue the matter to the Supreme Court of Canada.
The original small-claim action was filed by Albert and co-plaintiff Sean Patrick Kenney, 27, a fellow protester in a movement opposed to public pandemic restrictions.
Both argued their case in small claims court, and both offered arguments during the initial appeal in the Court of King’s Bench.
However, Kenney’s name wasn’t included on the materials filed with the New Brunswick Court of Appeal this summer.
Albert is awaiting trial, now set for Oct. 10, on criminal charges alleging he obstructed a Fredericton police officer in the execution of his duty Jan. 22, 2022, and failed to attend provincial court April 22, 2022.
The obstruction charge arose from Albert’s participation in a protest at city hall over government-imposed restrictions due to COVID-19. The no-show count stems from his refusal to mask for a court appearance before Oliver on that date.
Albert has had problems getting unredacted disclosure of documents from the Fredericton Police Force ahead of his obstruction trial, forcing delays in the case.
Meanwhile, Oliver remains on suspension with pay from the bench, but as a result of a separate case unrelated to any pandemic cases.
He was suspended due to an allegation of misconduct in a drug-trafficking case over which he was presiding last year.
Oliver had an out-of-court communication with two Fredericton police officers after they’d testified about an evidentiary issue in the case.
Don MacPherson can be contacted at ftonindependent@gmail.com.
I was glad to see that he was assigned cost, that may cut back his appeals
Did anyone reply believe that three other judges would decide to take away their protections from liability over decisions made on the bench.