An Ontario man found guilty of criminal common nuisance for protesting COVID restrictions has his charge dismissed at appeal hearing

Welland, ON — Cullen McDonald, 34, has won a significant legal victory after a Superior Court judge overturned his criminal conviction related to an anti-lockdown protest in St. Catharines while upholding his acquittal in a similar case from Niagara Falls. McDonald, who now lives in Mexico most of the time, flew back to Ontario for the court case.

The ruling concludes a three-year legal battle over McDonald’s participation in protests against COVID-19 restrictions in Ontario and has attracted national attention for its potential implications, particularly regarding the imposition of criminal charges for provincial public health violations.

McDonald was charged with the criminal offense of “common nuisance” in connection with two separate protests in 2021, each of which led to starkly different legal outcomes.

McDonald’s legal issues stemmed from his involvement in two protests during April and May 2021, when Ontario was enforcing strict stay-at-home orders under the Emergency Management and Civil Protection Act (EMCPA) to limit the spread of COVID-19.

The first protest took place on April 17, 2021, in Niagara Falls, where approximately 500 protestors gathered in defiance of public health orders. The Crown charged McDonald with common nuisance, alleging that the protest posed a risk to public health by increasing the potential spread of COVID-19. However, in January 2024, Ontario Court Justice Richard Blouin acquitted McDonald, ruling that the protest, held outdoors, did not create a significant health risk. Blouin cited expert testimony that outdoor transmission of COVID-19 was minimal and emphasized that inconsistent restrictions at the time made it difficult for McDonald to clearly understand the public health risk his actions posed.

Two weeks later, on May 1, 2021, McDonald participated in a smaller protest in St. Catharines, which was attended by about 150 people. During this protest, McDonald delivered a brief speech. Unlike the Niagara Falls case, McDonald was found guilty of common nuisance for this protest by Justice Joseph De Filippis in January 2024. De Filippis ruled that McDonald’s participation and speech increased the risk of public health harm, even though the gathering was smaller. McDonald was fined $3,000 and handed a criminal record.

Both cases were appealed, with the Crown seeking to overturn McDonald’s acquittal in Niagara Falls and impose a custodial sentence of up to 12 months for the St. Catharines conviction. McDonald, who represented himself, appealed the St. Catharines conviction.

At the heart of McDonald’s argument was the claim that provincial health orders should not lead to criminal charges in the absence of clear statutory authority, citing the 1993 Supreme Court decision in R v. Sharma. In that case, a Toronto vendor’s conviction for obstructing a peace officer was overturned after municipal by-laws were found to overstep legal boundaries. McDonald argued that his participation in peaceful protests should be treated similarly.

Superior Court Justice James Ramsay told McDonald he did not need to hear his submissions during the appeal hearing, and did not provide any reasons for his decisions.

Ramsay's decision was very brief and stated, “The Crown's appeal from Blouin J.'s order is dismissed. The defendant's appeal from De Filippis J.'s order is allowed. The conviction is quashed, and an order is substituted dismissing the information. The Crown's appeal from the sentence is dismissed as moot.”

McDonald spoke with The Canadian Independent after the ruling and said, "This victory isn't just vindication for me; it’s a victory for all of us who value the fundamental, God-given rights and freedoms upon which our great country was built. It’s a testament that hope is not lost in the judicial system and that, with unwavering commitment and conviction, even an ordinary person can stand up, self-represent, and win against the odds."