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PROCEDURE - Trials

Tuesday, May 11, 2021 @ 6:21 AM  


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Application by the Crown to compel the accused Stephens to remove his COVID-19 mask for the purposes of dock identification. The issue arose partway through Stephens’ jury trial for second-degree murder. Mask wearing was necessitated by the protocol related to the COVID-19 pandemic. At the time of the decision, wearing a facemask was mandatory in all indoor public spaces in the province. However, during the trial, counsel, the judge and witnesses had gone maskless for periods of time, primarily to allow the unmasked person to be heard better in the large courtroom. While the person was unmasked, the necessary health and safety precautions were observed through physical barriers and physical distancing. The defence resisted the application on the grounds of s. 11(c) of the Canadian Charter of Rights and Freedoms (Charter) based on the principle that the accused should not be required to do anything to assist the prosecution.

HELD: Application allowed. The court had discretion to require removal of the mask, but that discretion had to be exercised with the accused’s Charter rights in mind. The court was concerned that if it ruled in favour of Stephens, it would lead to a situation where an accused could mask himself during the trial to avoid identification in cases where identification was the only issue, whether there was a pandemic or not. In exercising discretion to order Stephens to remove his mask for the purposes of dock identification, the court was not compelling him to participate in his own prosecution because, under normal circumstances, his face would have been completely visible.

R. v. Stephens, [2021] A.J. No. 436, Alberta Court of Queen's Bench, D.R. Mah J., March 30, 2021. Digest No. TLD-May102021004