Pandemic protester’s latest appeal fizzles
Sean Patrick Kenney, 27, pleaded guilty in November to violating a COVID-19 emergency order, trespassing offences, only to file appeal within days
A capital-region man who railed against government restriction stemming from the COVID-19 pandemic withdrew his appeal in frustration Wednesday after a judge noted fatal flaws in his arguments.
Sean Patrick Kenney, 27, formerly of New Maryland, pleaded guilty in Fredericton provincial court on Nov. 10 to an Emergency Measures Act (EMA) charge that he failed to self-isolate when ordered to do so on May 5, 2021.
He also admitted to two unrelated tickets under the Trespass Act that he violated notices to stay off the premises of Walmart on the south side of Fredericton on May 13, 2021, and at the University of New Brunswick’s Fredericton campus Oct. 9, 2021.
Kenney entered his guilty pleas on the day he was scheduled to stand trial on those charges, but within days of doing so and being sentenced to fines totalling $960, he filed a notice of appeal with the Court of King’s Bench, seeking to overturn the lower court convictions and sentences.
That appeal was before King’s Bench Justice Thomas Christie on Wednesday at the Burton Courthouse.
The judge noted that Kenney had essentially listed three grounds of appeal in his notice: that the EMA order he violated was unconstitutional, that he pleaded guilty under duress and that self-isolation charges weren’t being dealt with consistently by the courts or the Crown.
On the first ground, Kenney reiterated Wednesday, “It is unconstitutional,” referring to the COVID-19 emergency orders the province put in place at the height of the pandemic.
“Where in the transcript did you have that conversation with the [provincial court] judge?” Christie asked him.
Kenney acknowledged he hadn’t broached that issue before Judge Natalie LeBlanc, and Christie noted an appellant can’t raise an issue on appeal that wasn’t addressed before the original trial or sentencing judge.
‘You don’t have any evidence of this’
As for his argument that he pleaded guilty under duress, Kenney said he wasn’t feeling well the day of his scheduled trial.
“I was basically feeling like complete crap,” he said. “I just had plans to adjourn it.”
But LeBlanc denied his request for an adjournment last fall, noting Kenney had postponed the case numerous times, including a prior delay due to illness as well.
Christie said he didn’t see anything that rose to the level of duress in the transcript of the previous proceedings, adding that people appear in court all the time when they’re not at their best.
“At some point, it had to be dealt with,” the judge said.
Christie said if he were to entertain the duress argument, he’d need to see or hear evidence that would suggest that he was so unwell on the day of the scheduled trial that he didn’t know what he was saying.
Kenney said he didn’t have a letter or other such evidence from a doctor, but he was willing to testify under oath about his health that day. Christie said that didn’t meet the bar.
The appellant also argued that in other cases in New Brunswick, charges alleging failures to self-isolate as required under an EMA order were frequently withdrawn, but for some reason, his weren’t.
He said he had a friend who faced essentially the same allegation for the same reason, but the Crown dropped her case.
“You don’t have any evidence of this,” Christie said, noting anecdotes aren’t enough to bear out his argument that he was treated inequitably.
Prosecutor Rebecca Butler, appearing on behalf of the Crown, said the only ground listed in Kenney’s appeal that might have even a remote chance of success was that referring to duress due to illness.
However, she argued, it’s incumbent on Kenney to demonstrate that was, in fact, the case, and he hadn’t done that.
Clearly frustrated with the process, Kenney said, “I’ll withdraw the appeal,” and Christie immediately adjourned court since the appellant had abandoned his case.
When Kenney pleaded guilty to the EMA charge and the two trespasses in November, the Crown also withdrew two other EMA charges - obstructing enforcement officers and failing to mask in public - and another trespassing ticket.
Had he been successful on appeal Wednesday, those charges would have come back into play, and he could have been facing greater penalties if convicted.
Other cases
Kenney was also on the provincial court docket Wednesday relating to other charges related to his opposition to pandemic precautions.
He’d been scheduled to stand trial earlier this year on counts of 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 Fredericton city hall Jan. 22, 2022, and counselling the crowd to commit the offence of obstruction at that protest; and driving while suspended May 1 and Oct. 11, 2022.
During a case-management conference before provincial court Judge Cameron Gunn in February, Kenney agreed to go through an alternate-measures program rather than proceed to trial or admit to the offences.
The program allows defendants in criminal and quasi-criminal cases to avoid trials and criminal records by getting them to perform certain tasks.
Defendants typically have to acknowledge their wrong-doing, and those administering the program often get them to write letters of apology and perform community-service work.
The charges sent to alternate measures were back before the provincial court Wednesday for an update.
Judge Mary Jane Richards heard that Kenney - who didn’t attend provincial court Wednesday - had completed the program, and Crown prosecutor Brian Munn withdrew the relevant charges.
Kenney has another court case pending related to his pandemic protest activity.
He and Mitchell Albert, a fellow member of the movement, had filed a small claim against provincial court Judge Kenneth Oliver for forcing them to mask up in court even after such mandates ended, but an adjudicator dismissed it since the Provincial Court Act precludes people from suing judges for actions taken on the bench.
Kenney and Albert appealed that result, and they argued their case before Court of King’s Bench Justice Terrence Morrison last week.
They’re awaiting the issuance of that decision, expected later this month.
Kenney was also convicted previously on another EMA charge for failing to wear a facemask in Walmart in April 2021. His conviction came after a trial, and he was fined for that infraction as well.
He appealed the conviction twice - first to the summary appeal court in the Court of King’s Bench, and then to the New Brunswick Court of Appeal. Both were dismissed.
You can contact Don MacPherson at ftonindependent@gmail.com.
What an azzhat wow We were all looking out for each other and then there were these people wow This is where I blame our education system or the lack of it :( I'm to old for people like this .
Doesn’t look smart enough even to wear a mask