Judge throws out charges against pair accused of harassing N.S. chief medical officer

A Nova Scotia judge has thrown out charges against two people accused of harassing the province's chief medical officer of health during a protest against COVID restrictions outside his home, ruling their rights were violated because it's taken too long to bring them to trial.

Jeremy MacKenzie, a 38-year-old podcaster and founder of the controversial group Diagolon, and his partner, Morgan Guptill, 34, were charged in 2022 with criminal harassment, mischief, making harassing phone calls and intimidation of a health professional.

The pair were scheduled to go on trial next week in Dartmouth, N.S. But on Wednesday, provincial court Judge Jill Hartlen ruled the time between arrest and trial violates the 18-month ceiling set by the Supreme Court of Canada, even after taking into account delays caused by the defence.

MacKenzie is known for creating Diagolon, a group Prime Minister Justin Trudeau has called white nationalist. MacKenzie has denied allegations of extremism and violence, and has maintained Diagolon is simply a loose-knit community of fans of his podcast.

While he has faced other charges in a number of provinces, all of those have been withdrawn or resolved, including those related to firearms allegedly found during a January 2022 search of his parents' home in Pictou, N.S.

The charges dealt with Wednesday relate to a three-day protest in March 2022 against COVID-19 restrictions outside the Fall River, N.S., house of Chief Medical Officer of Health Dr. Robert Strang.

MacKenzie and Guptill have alleged their rights were violated in a number of ways after they were taken into custody, and have claimed the decision to arrest and charge them was politically motivated and influenced by the office of Premier Tim Houston.

Hartlen shot down that assertion last month, ruling there was no evidence police acted to "improperly stifle political activity." She has sided with the defendants in some other respects, however, including over MacKenzie's right to a lawyer of his choice following his arrest.

But the issue that led Hartlen to declare a stay of proceedings, which ends the prosecution, was the math surrounding delays in bringing the case to trial, which was to take place nearly 27 months after the arrests. After subtracting defence delays, she calculated the time to trial still breached the crucial Supreme Court deadline by one month.

One particular issue, she said, was a decision not to hold the trial alongside a series of Charter hearings earlier this year, which would have allowed the trial to wrap up in early May and within the 18-month threshold.

She noted MacKenzie's lawyer, Sherif Foda, had warned last year he would seek to have the charges stayed if a "blended" approach was not taken and it led to trial delays.

Hartlen said the prosecution had wanted to separate the two, but it was her decision to do so, and she acknowledged the way she approached it was "less than ideal."

Protest details

MacKenzie and Guptill declined to comment outside the court. Prosecutor Emma Woodburn said in an email that the ruling was not the outcome the Crown had hoped for, but it respects the decision of the judge, who provided "thorough reasons."

In a statement, Strang said he respected the decision of the judge and understands the reasons for it, but added the stay of proceedings "in no way condones the actions taken by the protesters."

At the time of the protest outside Strang's home, many restrictions related to COVID-19 had been lifted, but a number remained, including the requirement to wear face masks in schools.

The court previously heard that Strang's daughter had a panic attack, and his wife had to escort care workers for their autistic son away from the home because they were too intimidated to leave on their own.

The phone rang constantly one night, after Guptill used social media to urge people to call the Strang home, Hartlen said in a previous ruling, and protesters were livestreaming video of the home, zooming in with their phones to view the interior.