Pandemic protester’s appeal deemed ‘bereft of merit’
Sean Patrick Kenney, 26, of New Maryland, “flouted the law” and had no legitimate case, says New Brunswick’s top court
A New Maryland man who refused to wear a mask during a pandemic emergency period “flouted the law and was quite properly convicted and sentenced,” an appeal court ruled Thursday.
Sean Patrick Kenney, 26, of Cortland Street in New Maryland, was convicted after trial in late 2021 of violating an order under the Emergency Measures Act and fined $1,200.
At trial, court heard that on April 11, 2021, he entered the Wal-Mart store located at the Regent Mall in Fredericton without a mask and refused to don one when asked.
It was the day after a COVID-19 emergency order was put in place by the provincial government requiring people to mask in public places.
Kenney appealed that conviction to the Court of King’s Bench, which handles summary appeals, and Court of King’s Bench Justice Terrence Morrison dismissed his appeal as being without merit.
The vocal opponent of pandemic mandates appealed that decision to the next level of court, the New Brunswick Court of Appeal, which heard the matter last month.
In a unanimous decision of the three-judge panel issued Thursday, the province’s top court again dismissed Kenney’s appeal.
‘No reasonable prospect of success’
“In our view, the summary conviction appeal court judge’s determination is unassailable, and Mr. Kenney’s appeal has no reasonable prospect of success. Moreover, this case does not raise a legal issue of significant importance,” the Court of Appeal decision states.
“Mr. Kenney was found to have flouted the law and was quite properly convicted and sentenced. His proposed appeal to this court is bereft of any merit.”
Kenney asked the Court of Appeal last month to reconsider the evidence presented at his provincial court trial, but Chief Justice Marc Richard told him that’s not the appeal court’s role. Rather, he said, it was to assess whether the summary court appeal judge committed any reversible error in law.
The Court of Appeal reiterated that in its decision Thursday.
“On an appeal in a criminal matter from a summary conviction appeal court, this court is not at liberty to retry the case to reassess the evidence, nor may it interfere with credibility findings unless there exists a discernable error of law,” the decision stated.
“Rather, this court’s task is to determine whether the summary conviction appeal court judge committed an error of law, and if so, to craft an appropriate disposition that accords with the law.”
Kenney had argued provincial court Judge Julian Dickson erred when he said he didn’t believe his evidence, but the Court of Appeal found that Morrison’s assessment that Dickson’s finding that Kenney wasn’t a credible witness was proper.
The emergency order in question allowed for exemptions for people with medical conditions that precluded them from wearing masks, and Kenney claimed he had one.
“At that time, Mr. Kenney advised the officer he had a medical exemption from wearing a mask,” the decision stated.
“However, he was unable to provide any supporting proof or documentation when the officer requested it.”
Kenney has argued he didn’t need a written exemption because Dr. Jennifer Russell, New Brunswick’s chief medical officer of public health, said in a news conference early in the pandemic that the province was going to go on the honour system so as to prevent a mad scramble in doctors’ offices by people seeking written exemptions.
The New Brunswick Court of Appeal dismissed his appeals against conviction and sentence.
Kenney also asked the court to order a new trial so he could argue the emergency order violated his Charter rights and was therefore unconstitutional.
Richard said last month since a Charter issue wasn’t raised at trial, it’s not for the appeal court to deal with it.
Immediately after last month’s appeal hearing, Kenney appeared certain his case would be dismissed and said he was prepared to take it to the Supreme Court of Canada.
After the decision was issued Thursday, his plans weren’t so certain.
“I’m guess I’m not really sure right now,” he said when reached for comment Thursday.
“They’ve got wait lists for very, very serious cases that are up to a year. This is a ticket.”
By taking the case to the New Brunswick Court of Appeal, Kenney said, he feels he and his allies demonstrated they were serious about their opposition to government-imposed pandemic restrictions.
“I think everyone’s just tired now. I’m exhausted of it,” he said.
Kenney said he was frustrated the appeal judges didn’t seem open to considering the emotional effects restrictions had on many people.
“They’re more focused on their rules and the way that they have run things than the truth,” he said.
“In my opinion, [the mandates] ruined lives, they destroyed lives.”
Kenney said one of the mistakes he made was failing to direct his original defence counsel at trial, Alex Pate, to challenge the constitutionality of the emergency order.
But he went on to say it was also a mistake to hire a lawyer in the first place.
“I was told not to go with a lawyer by a lot of people,” Kenney said.
Other cases before the courts
The pandemic protester has been a frequent presence in New Brunswick courts the last couple of years, as a defendant and as a plaintiff, and he still has other cases pending.
Kenney had numerous outstanding charges, some stemming from his opposition to the government’s emergency orders.
He’s charged with obstructing or interfering with the lawful use of the Justice Building on Oct. 18, 2021; obstructing and resisting a city police officer at a pandemic mandate protest at city hall, and counselling the crowd to commit the offence of obstruction Jan. 22, 2022; and driving while suspended May 1 and Oct. 11, 2022.
Last month, he agreed to go through an alternate-measures program for those counts, and if he completes it successfully, the Crown will drop them.
Alternate-measures programs invariably require participants to acknowledge what they did was wrong, and Kenney is due back in provincial court May 17 to see if he completed the program.
Kenney is also set to appear in the Court of King’s Bench that same day for appeals of convictions and fines for failing to self-isolate when ordered to do so on May 5, 2021, and two instances of trespassing.
He had pleaded guilty to those offences in provincial court under an agreement that saw other charges withdrawn, but he filed a notice of appeal within days, alleging his guilty pleas were made under duress.
Furthermore, Kenney and another member of the anti-mandate movement, Mitchell Albert of Dieppe, are appealing a small-claims court decision. They’d filed a lawsuit against provincial court Judge Kenneth Oliver, seeking $3,000 in damages and orders to bar him from presiding over their cases and others involved in their movement.
The small-claims adjudicator dismissed the lawsuit, finding the Provincial Court Act prohibits such actions against judges.
Don MacPherson can be contacted at ftonindependent@gmail.com.
Mr. Kenney has to be running out of appeals. He has certainly used a lot of the courts time. Maybe if he was assigned cost, we might hear less from him.