Summerland man guilty of assault after attacking store owner over mask mandate during pandemic

Mask mandate assault

A Summerland man has been found guilty of assault after refusing to wear a mask in a store during the pandemic and becoming violent.

Kevin Thomas Hay, born in 1978, appeared in Penticton Provincial Court Tuesday following a trial that saw him arguing self defence relating to a 2021 incident at a local hardware store.

On March 1, 2021, Hay walked into the Summerland Home Hardware, which court heard was at the time owned and managed by Robert "Shane" Smith. A provincial health order was in place requiring face masks in light of the ongoing COVID-19 pandemic.

Security camera footage without sound that was shared in court and described by Judge Michelle Daneliuk in her decision shows Smith and Hay having words over a period of time while Hay waited in line.

Smith is seen gesturing to the door while he helps another customer, which Smith testified was when he was asking Hay to either mask up or wait outside.

Further footage shows the two men speaking before Hay grabs Smith by the face and pushes him up against shelving. They scuffle, and end up on the floor out of camera view.

Another employee was caught on camera coming to the help of her employer.

Then, as seen on video, Hay stands up, faces the female employee, who had a broken arm at the time, and shoves her before exiting the store.

“It is clear on the video that Mr. Hay acts out physically against Mr. Smith. It is clear he is the [physical] aggressor," said Daneliuk in her decision Tuesday.

Hay had previously argued his actions were in self-defence, alleging Smith threatened him with death if he did not leave the store.

Daneliuk did not believe the alleged death threat, and noted that "even if" the death threat happened, the level of violence in response was not warranted and did not constitute self defence, adding: "Mr. Hay could have simply left the store when asked to."

Hay also testified that masks fogged up his glasses and that he could not see, and he said that he couldn’t breathe properly in masks due to previously having been a smoker.

He testified further that he acknowledged he did not have official medical exemption from a doctor, but had self-diagnosed that masks gave him anxiety.

At the suggestion of a friend, Hay went to a non government-sanctioned website to print off a mask exemption card.

"The fact that Mr. Hay believed he had the right to be in the store without a mask because of a non medically-supported or proved exemption obtained by downloading a card off of the internet does not make it so," Daneliuk said.

Hay also accused Smith of "discriminating" against him.

"That is nonsense," Daneliuk said.

"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 also dismissed Hay's claims that he had been in the store multiple times previously without a mask, noting that numerous employees testified they did not recognize him and had never seen him.

Ultimately, Daneliuk felt Smith's version of events matched the surveillance footage, and the violent reaction was ruled assault.

Hay will return for sentencing at a later date.

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