A mask mandate dispute may lead to a jail sentence for a Summerland, B.C., man who assaulted retail workers during the pandemic.
Kevin Thomas Hay, born in 1978, appeared in Penticton provincial court on Tuesday to learn his sentence, following a trial that saw him arguing self defence relating to a 2021 incident at a local hardware store. Judge Michelle Daneliuk found him guilty of that incident in May 2023.
On March 1, 2021, Hay walked into the Summerland Home Hardware, then owned by Robert "Shane" Smith, and refused to wear a mask, which at that time was a provincially-mandated legal requirement.
Security camera footage showed Hay and Smith having words over a period of time while Hay waited in line, as Smith asked Hay to wait outside to be served if he did not want to wear a mask.
Hay then physically scuffled with Smith, as well as a female employee who came to help, who already had a broken arm.
In his own defence during trial, Hay said that masks fogged up his glasses and that he could not see, and he said that he could not breathe properly in masks due to previously having been a smoker. He testified further that he acknowledged he did not have an official medical exemption from a doctor, but had self-diagnosed that masks gave him anxiety.
He downloaded a mask exemption card printout from a non government-sanctioned website. Judge Daneliuk rejected that, and called Hay's cries of discrimination "nonsense."
"If [Smith] was asking Mr. Hay to leave because he was not wearing a mask, he was merely enforcing a public health order as he was required to do," Daneliuk said in her original ruling.
"From the moment that it happened, I felt regret," Hay said.
"I felt hopeless because there was nothing that I could do to apologize or to make up to these people. ...I regret that it happened at all in the first place. I wish that I could take it back."
Hay then reiterated his point that wearing a mask made his glasses uncomfortable to wear and see through.
"To be honest with you, the staff's reaction was a bit of frustration because they'd seen me in the store before without a mask and maybe they were just fed up with it. I don't know," Hay said.
"Many people wear glasses. Many people struggled with this," Crown counsel Nashina Devji said in reply, reminding the court of the violence involved in the assault.
"What we don't hear from Mr. Hay is an actual taking of responsibility."
The Crown is seeking a four month jail sentence followed by 12 months probation. Hay's counsel is seeking a conditional sentence to be served in the community.
The judge requested some time to deliberate her sentencing decision. Hay will return to court at a later date.
