The lawyer for a Red Deer restaurant owner accused of defying public health orders is attempting to have the court case thrown out on a technicality.
Yoav Niv, who’s representing Mom’s Diner owner Wesley Langlois, plans to make a submission to the judge asserting the Crown did not apply to have Langlois’ statements declared admissible in court.
This goes against proof of identity and raises questions about whether Langlois was the person who was ticketed, said Niv.
On Wednesday, three witnesses — a public health inspector and two community peace officers — took the stand and identified Langlois as the restaurant owner, who was twice ticketed in January for allowing eat-in dining in contradiction of public health orders.
But “dock identification is not enough,” Niv maintained during Langlois’ trial in Red Deer provincial court.
Crown prosecutor Martha O’Connor called this an “artificial argument.”
Provincial court Judge Jim Glass suggested the lawyer and the Crown each make their own written submissions and he will consider both sides before ruling on the matter.
Glass’s decision is expected in the latter part of July, although a date has not yet been confirmed.
If Langlois’ trial continues, the restaurant owner is expected to take the stand next month.
On Wednesday, the Crown called three witnesses who all testified to seeing people eating and drinking within Mom’s Diner on Jan. 27, 28 and 30 — despite a provincial health order calling for take-out only restaurant service during this period to reduce the spread of COVID-19.
After several complaints about the West Park restaurant defying health orders, health inspector Quentin Schatz said he went to investigate on Jan. 27 and found at least 20 people consuming food inside what appeared to be a “full” diner.
Despite speaking to Langlois about the pubic health order and taping a closure notice on the diner’s door, Schatz testified that he returned the next day to again find people eating inside the small restaurant.
Schatz told the court he then posted a formal closure order and presented a copy to Langlois. Two peace officers later came by to give the restaurant owner a $1,200 ticket for failing to comply with public health orders.
The Crown’s next witness, Red Deer community peace officer Kenneth Chiasson, testified that he told Langlois that he could ticket everybody eating in his diner for defying health orders, but would only fine him.
The aim wasn’t to be heavy-handed, said Chiasson, but to stop risky behaviour: “I didn’t want to disrupt everything, so I started at the top…. I figured they can’t dine if he isn’t open.”
Peace officer Benjamin Gray testified that he went to check on activity at Mom’s Diner on Jan. 30 and saw a closed sign and the health order still posted. But when Gray peered into the window, he saw at least 12 people eating and drinking inside.
Gray told the court that Langlois told him he wasn’t officially open, but was serving people who had just been at an anti-restrictions rally earlier that day.
Gray issued Langlois another violation ticket.
In cross-examination by Niv, Gray was asked whether the diners could have been ordering food for take-out. Gray responded that it didn’t appear so, since the people in the restaurant were sitting at tables and eating and drinking.
All three witnesses recalled getting some jeers and cat-calls from diners as they performed their duties, but Langlois was unfailingly polite. “He was completely co-operative — except for following (public health) orders,” said Schatz.
At the start of Wednesday’s trial, Judge Glass opted to defer the Constitutional Charter challenge portion of proceedings to allow time for a higher court to make a ruling on a similar case — Rebecca Marie Ingram (and two Baptist churches) versus the Medical Officer of Health.
If Langlois’ trial ever gets to the constitutional level, Niv doesn’t expect this portion to be dealt with until December or later.