Monkey Tree witness list climbs to six for three-day trial next spring

The lawyer representing a Yellowknife pub fined for breaking Covid-19 regulations surprised his GNWT counterpart on Friday by stating he needed three days to present his case.

Calgary lawyer Stephen Whitehead – who has replaced Toronto-based Joshua Halpern as counsel for the Monkey Tree Pub – said he plans to call six witnesses to help fight the ticket.

The ticket instructs the pub to pay $5,175 for violating Covid-19 indoor capacity limits on a Saturday night almost a year ago.

“I apologize, but I received instructions just an hour ago … we’ll be seeking roughly three days for the defence’s case and six witnesses,” Whitehead said over the phone, referring to his clients, who co-own the pub and adjoining restaurant.

Whitehead’s request, at a scheduling hearing in NWT Territorial Court, came after justice department lawyer Roger Sheppard said the territorial government’s case would require only three hours.

“That not something I was aware of,” Sheppard told the judge, responding to Whitehead’s request.

“The last time I spoke with Mr Whitehead, he indicated he thought another full day on top of that for the defence’s case would be necessary.”

Chief Judge Robert Gorin said he might have a conflict of interest in the case, as he often “dines at an establishment that’s closely associated with the Monkey Tree,” meaning the neighbouring Stake Restaurant.

Newly sworn Judge Jeannie Scott, a former Crown prosecutor and GNWT lawyer, also has conflicts in the case.

Noting the few vacancies on the court schedule for the coming months, Judge Gorin said he would bring in a deputy judge from another jurisdiction.

“I do want to get this matter settled,” he said.

Trial dates were set of May 18-20, 2022.

Whitehead is one of a group of lawyers in the Fight the Fines movement organized by Toronto-based Rebel News. The organization initiated the action in 2020 in response to what it said were “ordinary Canadians receiving unreasonable fines for going about their lives during the pandemic.”

The initiative is no longer accepting applications.

“We already have taken over 2,200 cases, and we’re going to fight them all,” Rebel News states on its website.

Whitehead primarily practices in family, civil, and constitutional matters, and is a member of the NWT bar. He said no constitutional challenges will be raised in this case.

The owners of the Range Lake Road pub have always disputed the fine.

The pub was the first NWT business to be charged by the territory’s enforcement team. The ticket issued to the Monkey Tree was for “failure to comply with Emerging Wisely phase two requirements under the public health order in the North Slave region,” a GNWT spokesperson said by email at the time.

Under the default terms of the NWT’s pandemic recovery plan at the time, restaurants and bars could operate with no more than 25 customers indoors and no more than 50 in outdoor dining areas and patios. Physical distancing was required of at least two metres among people from different households. There could be no dance floors or live music.

Alterations to those rules were granted by the territorial government on a case-by-case basis. The Monkey Tree is understood to have received an amendment allowing a maximum capacity of 125 people.

Whitehead was recently successful in defending a BC woman fined $230 for failure to wear a face covering in an indoor public space. He also won a case in which a Manitoba couple were fined $16,000 after failing to follow Covid protocols crossing the land border on their way home from Belize.