R. v. Jules, 2022 BCPC 40

Citation: R. v. Jules 2022 BCPC 40 Date: 20220105 File No: 107371-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ISHA JULES, CHANTEL ANITA ROSE MANUEL, and NICOLE VALENCIA MANUEL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: S. Behling and T. Livingston Appearing for the Accused, Isha Jules: B. Anderson Appearing for the Accused, Chantel Manuel: C. St. Germain Appearing for the Accused, Nicole Manuel: J. Killoran Place of Hearing: Kamloops , B.C.

Dates of Hearing: May 25 to 28, and October 18, 2021 Date of Judgment: January 5, 2022 [ 1 ] The events leading to the six counts before me arise from a meeting on December 10, 2018 at the Campus Activity Centre at the Thompson Rivers University (TRU) in its Grand Hall. The meeting was by invitation to various chiefs and representatives of Indigenous communities impacted or potentially impacted by the Trans Mountain Pipeline extension. The meeting was a consultation meeting

chaired by former Justice Frank Iacobucci and was between Natural Resources Canada (NRCAN), proponents of the Trans MountainPipeline (TMX), and these various communities. [2] Admissions were submitted at the commencement of the trial as follows: 1. The persons appearing before the Court to face the charges on the Information in this case are the same Isha Jules, Chantel AnitaRose Manuel (C. Manuel), and Nicole Valencia Manuel (N. Manuel) [who] are named on the Information herein. 2. The C.

Manuel before the Court is the same person referred to as “Snutekwke Manuel” or “Snut” in the video evidence of Cst.Nicole Sansregret. 3. The N. Manuel before the Court is the same person referred to as “Mayuk Manuel” in the video evidence of Cst. Nicole Sansregret. 4. On December 10, 2018, Isha Jules, C. Manuel, and N. Manuel were present in the Campus Activity Centre located on the ThompsonRivers University campus in Kamloops, British Columbia. 5. On December 10, 2018, Isha Jules, C. Manuel, and N. Manuel were arrested by the Kamloops RCMP for the charges outlined on theInformation herein. 6.

The admissibility and continuity of the video evidence of Cst. Nicole Sansregret is admitted. 7. Cst. Charlene Gladue took the photographs at Thompson Rivers University on December 10, 2018 after the events alleged in theInformation herein occurred. The photographs are contained in Tab 1 of the Crown Book of Photographs, and accurately depict what isshown in them. 8. After Isha Jules, C. Manuel, and N. Manuel were transported to the Kamloops RCMP Detachment on December 10, 2018, Cst.Katelyn Jones took photographs of each of them in the cellblock area of the Kamloops RCMP Detachment.

Those photographs arecontained in Tab 2 of the Crown Book of Photographs, and accurately depict what is shown in them. [3] The various charges these accused face are mischief, assault and causing a disturbance. Issues of de minimus and party liabilityalso arise. Mischief [4] Mischief is governed by section 430(1) which makes it an offence to destroy or damage property. The defendants argue thatincidental paint easily washed away by the night cleaning crew does not meet that definition.

Crown accurately acknowledges that thedamage must be more than negligible or a minor inconvenience; and that “the usefulness or value of the property has been impaired, atleast temporarily” ( R. v. Jeffers,2012 ONCA 1 , [2012] OJ No. 1. Assault [5] An assault is the intentional application of force to another person, directly or indirectly, without the consent of that person. Thequestion of mens rea arises in some of the allegations. De Minimus [6] Ms. St. Germaine argued that any contact between C. Manuel and either of Mr. Haring or Mr. Christy was not intentional orreckless and, in any event, would entitle C.

Manuel to the defence offered by the doctrine of de minimus. [7] This doctrine was considered in R v Van Loon, 2017 ABPC 43 citing R v Elek, [1994] YJ No 31 (Yukon Territorial Court) asfollows: 24 In my view, much of the difficulty in applying the de minimis test is the usual English translation: "The law does not concern itselfwith trifles".

I think a much better way to approach the task is to ask whether or not the conduct of the accused is sufficiently serious thatit should properly be stigmatized as criminal. … An accused may be acquitted on de minimis grounds even though what happened is notconsidered by the court to be a "trifle", but is simply considered to be conduct that, while unacceptable and wrong, did not constitutecriminal misconduct. Party Liability [8] Ms. St. Germain set out the law for party liability as follows: a. The persons must form an intention to carry out an unlawful purpose. b.

Liability is extended to a party on an offence other than the unlawful purpose offence the accused was carrying out, provided theaccused had the required degree of foresight of the incidental offence. c. They must know or ought to have known the probable consequences of the unlawful purpose. d. The incidental offence (other than the original unlawful purpose offence) must be committed while carrying out the agreement orplan. e. The secondary offence must be related to the original unlawful purpose. [9] Section 21(2) of the Criminal Code provides as follows:

21(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and anyone of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that thecommission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [10] I am guided by two Ontario Court of Appeal decisions referred to by the Crown: R. v. Simon, 2010 ONCA 754 , [2010]O.J.

No. 4723, at para. 41: 41 The persons to whom s. 21(2) extends liability are those whose participation in the offence actually committed would not be capturedby s. 21(1). These persons have participated in a prior unlawful enterprise with others and either knew or, in most cases at least, shouldhave known that one (or more) of the other participants in the original enterprise would likely commit the offence charged in pursuingtheir original purpose. and R. v. Patel, [2017] O.J.

No. 4690, paras. 38 to 42: 38 The scope of s. 21(2) is broader than s. 21(1), extending liability to persons who would not be found liable as aiders or abettors. Italso extends responsibility for offences other than the offence the accused was carrying out, provided the accused had the requireddegree of foresight of the incidental offence: R. v. Cadeddu, 2013 ONCA 729, 304 C.C.C. (3d) 96, at para. 52. 39 In relying on s. 21(2), the Crown must prove (

i) the party's participation with the principal in the original unlawful purpose (the"agreement"), (ii) the commission of the incidental crime by the principal in the course of carrying out the common unlawful purpose(the "offence") and (iii) the required degree of foresight of the likelihood that the incidental crime would be committed ("knowledge"): R.v. Simon, 2010 ONCA 754, 263 C.C.C. (3d) 59, at para. 43. 40 The "agreement" element requires that "the accused and the other participant(

s) agreed to carry out a common unlawful purpose andto help each other to do so": Cadeddu, at para. 58. The "unlawful purpose" must be different from the offence ultimatelycommitted: Cadeddu, at paras. 54, 56; R. v. Simpson, (SCC), [1988] 1 S.C.R. 3, at p. 15. 41 The "offence" must be committed as the participants are carrying out their original agreement or plan: Cadeddu, at para. 60. Theincidental offence, although not intended by the accused, must nonetheless be related to the original unlawful purpose: Cadeddu, at para.59. As V.

Gordon Rose notes in Parties to an Offence (Toronto: Carswell, 1982), at p. 72: Section 21(2) requires that the consequential offence have been committed "in carrying out the common purpose", and implicitly that itbe in some way related to it... [The jury must] find that the action of the principal was a consequence of the prosecution of the originalcommon unlawful purpose, and not the result of any "supervening causative event wholly outside the agreed plan." [Citations omitted.] 42 As for the "knowledge" requirement, to convict a secondary party of murder under s. 21(2), the Crown must prove that the party infact foresaw that murder was a probable consequence of carrying out the original unlawful purpose: R. v.

Jackson, (SCC), [1993] 4 S.C.R. 573, at p. 587; Cadeddu, at para. 62; R. v. Logan, (SCC), [1990] 2 S.C.R. 731, at pp. 744-745.To convict a party of manslaughter relying on s. 21(2), the Crown must prove that a reasonable person in all the circumstances wouldhave foreseen that a probable consequence of carrying out the original common purpose was perpetration of an inherently dangerous actcreating a risk of bodily harm to the deceased that was neither trivial nor transitory: Jackson, at pp. 573 and 587; Portillo, at para. 73. Causing a disturbance in or near a public place [11] Ms. Behling referred to R. v.

Lohnes, (SCC), [1992] S.C.J. No. 6 (S.C.C.). From that decision I refer toparagraphs 6, 7, 9, 22 and 30 as follows: 6 Section 175(1)(

a) creates a two-element offence consisting of: (1) commission of one of the enumerated acts; which, (2) causes adisturbance in or near a public place. There is no doubt on the facts of this case that one of the enumerated acts was committed. The onlyquestion is whether the evidence establishes that it caused a disturbance in or near a public place. 7 The word "disturbance" encompasses a broad range of meanings. At one extreme, it may be something as innocuous as a false note ora jarring colour; something which disturbs in the sense of annoyance or disruption.

At the other end of the spectrum are incidents ofviolence, inducing disquiet, fear and apprehension for physical safety. Between these extremes lies a vast variety of disruptive conduct.The question before us is whether all conduct within this broad spectrum elicits criminal liability under s. 175(1), and if not, where theline should be drawn. 9 The values at stake on this appeal are readily discerned. On the one hand lies the freedom of the individual to shout, sing or otherwiseexpress himself or herself. On the other lies the collective right of every subject to peace and tranquillity.

Neither right is absolute. Theindividual right of expression must at some point give way to the collective interest in peace and tranquillity, and the collective right inpeace and tranquillity must be based on recognition that in a society where people live together some degree of disruption must betolerated. The question is where the line is to be drawn. 22 Second, the context of "disturbance" in s. 175(1)(

a) suggests that Parliament did not intend to protect society from mere emotionaldisturbance. Had Parliament sought to protect society from annoyance and anxiety, the

section would not be confined to acts occurring inor near a public place, nor would it single out particular forms of objectionable conduct -- many other types of conduct disturb us.Parliament could have expressly protected against emotional disturbance, as was done in the Public Order Act 1986 (U.K.), 1986, c. 64.But, to borrow the language of MacKeigan C.J.N.S. in Swinimer, supra, Parliament chose to speak of a disturbance in or near a publicplace, not in someone's mind.

By addressing "disturbance" in the public context, Parliament signalled that its objective was not theprotection of individuals from emotional upset, but the protection of the public from disorder calculated to interfere with the public'snormal activities. 30 The weight of the authorities, the principles of statutory construction and policy considerations, taken together, lead me to theconclusion that the disturbance contemplated by s. 175(1)(

a) is something more than mere emotional upset. There must be an externally

manifested disturbance of the public peace, in the sense of interference with the ordinary and customary use of the premises by the public. There may be direct evidence of such an effect or interference, or it may be inferred from the evidence of a police officer as to the conduct of a person or persons under s. 175(2). The disturbance may consist of the impugned act itself, as in the case of a fight interfering with the peaceful use of a barroom, or it may flow as a consequence of the impugned act, as where shouting and swearing produce a scuffle.

As the cases illustrate, the interference with the ordinary and customary conduct in or near the public place may consist in something as small as being distracted from one's work. But it must be present and it must be externally manifested. In accordance with the principle of legality, the disturbance must be one which may reasonably have been foreseen in the particular circumstances of time and place. [ 12 ] As Mr. Anderson argued, whether the disturbance occurred in a public place is based in part on the circumstances. A public place may be one which is open to the public as of right or by invitation.

Count 1 [ 13 ] The Crown alleges that each of Isha Jules, C. Manuel, and N. Manuel committed mischief by damaging building and other properties, being the property of the Thompson Rivers University to the extent of a value not in excess of $5,000 contrary to s. 430(4) of the Criminal Code . [ 14 ] Crown led evidence that N. Manuel and Mr. Jules spread paint on doors, carpet, microphones, stairs and otherwise. The Crown also argues that this conduct was planned and that C. Manuel is a party to the offence by reason of that planning. [ 15 ] Ms. Behling argued that C. Manuel appeared to be the leader of the protest.

She arrived at the scene with a number of other fellow protestors and gave instructions to those others about who they should and should not speak to, as well as to the security personnel. She certainly appeared to be a leader. [ 16 ] It is unclear who is responsible for spilling paint outside on the stairs leading to the building. There was only one eye witness – a security guard – and his description of a slender woman in a white jacket did not match any of the accused. N. Manuel had paint on her hands but C. Manuel did not.

A young woman in a white hoody is seen in some of the video footage taken by the protestors, but she has no paint evident on her. [ 17 ] N. Manuel touched doors, people and other items knowing her hands were wet with paint. It was a deliberate and planned act. [ 18 ] Mr. Jules brought a paint soaked cloth into the building and ultimately into the meeting room. It left paint on clothing, tables and sound equipment as he made his way around the room. His actions included gesticulating while holding the cloth.

Spreading paint was an entirely foreseeable consequence of his actions, if not entirely deliberate. [ 19 ] While it is clear on the evidence that all three accused were at the event to protest the pipeline, I cannot find that C. Manuel knew or ought to have known that her co-accused would arrive with and spread paint in or on the building or other property. I acquit Chantel Manuel of this charge. [ 20 ] However, the damage done by N. Manuel and Mr. Jules smearing paint on various parts of the interior of the building and property cannot be minimized as negligible.

The cleaning crew used their usual cleaning hours to remove the paint, but it was time and effort taken from their other duties. Portions, albeit small, of the carpet had to be replaced. It took them about a week to complete the clean-up and repairs. That various people had paint transferred from these items to their own clothing speaks to the interruption of the use of the doors, carpet and otherwise. [ 21 ] N. Manuel and Mr. Jules brought wet paint in on their persons. They applied it to surfaces to cause damage or destruction.

I am satisfied that the Crown has proved these charges beyond a reasonable doubt and convict N. Manuel and Mr. Jules. Count 2 [ 22 ] At the commencement of the trial, the Crown invited an acquittal of Mr. Jules on this charge. It alleges that he assaulted Peter Haring. That assault consisted of Mr. Jules bumping into Mr. Haring as Mr. Jules rushed to the meeting doors. In fact, the video shows Mr. Jules hurry past Mr. Haring but there was no contact between them. Mr. Jules approached a separate set of doors while N. Manuel approached the doors Mr. Haring was tasked with blocking. I acquit Mr.

Jules of this charge. [ 23 ] N. Manuel tried to force the doors open behind Mr. Haring. In the process, they engaged in shoving and others joined in. N. Manuel ended up on the ground. Mr. Haring was still engaged in a struggle with her and saw her reach as though to strike him. He raised a knee to protect his groin. Quickly after, N. Manuel emerged from the melee and appeared dazed. She said someone had kneed her in the head. It may be that Mr. Haring accidentally kneed her when he moved to protect himself. It may be that another person engaged in the struggle kneed her.

I do accept that she seems to have been struck in the head and was dazed by the contact. [ 24 ] Mr. Haring’s credibility was challenged because no one else involved in the altercation witnessed N. Manuel strike him. He cannot say for certain how the glasses came off his face but believes it was N. Manuel. He was mistaken about the number of people engaged with him and his colleague. I accept the frailties of his evidence but find that he was credible relating the attempts to get into the meeting room, the struggle that ensued, the damage to his property and the strike to his groin area. [ 25 ] In

summary, the contact between Mr. Haring and N. Manuel was not accidental. She attempted to force her way into the meeting room and was repelled by Mr. Haring. In that process, she brought herself into contact with him, got paint on him and moved to strike him in the groin area, ultimately connecting with his body. She knocked his glasses from his face. That is assault. I convict N. Manuel of that charge. [ 26 ] C. Manuel also attempted to force her way into the room during this altercation and can be seen pushing Mr. Haring on the video coverage. Ms. St. Germaine argued that the force was not significant enough to criminalize, and therefore I should apply the doctrine of

de minimus . In the context of all that was going on, C. Manuel’s role in those actions and the harm and damage caused to Mr. Haring, I cannot say that this was trifling or insignificant. Apart from the pushing and pulling, both Ms. Manuels used loud hailers and drums in close proximity to the security personnel, which is also assaultive, though not charged. There was no innocent, insignificant or trivial contact in the whole of this act. It was an assault and I convict C. Manuel of that charge. Count 3 [ 27 ] The Crown alleges that each of Mr. Jules, C. Manuel and N. Manuel caused a disturbance in or a near a public place by screaming and shouting contrary to s. 175(1) (

a) of the Criminal Code . [ 28 ] The evidence is very clear on the video coverage concerning the Ms. Manuels. They scream, use loud hailers, and drum loudly by the doors and next to security and police. Their intention in this action was not to communicate a message but to disrupt a consultation meeting. That they are opposed to the pipeline is obvious. That they had no intention of engaging in a dialogue is evident in the language they used. They denied the authority of those conducting and participating in the meeting and C.

Manuel was also heard saying she had no intention of engaging in discussion with the participants. They also would not engage in discussion with the police once they were on scene. [ 29 ] This disturbance occurred in the Campus Activity Centre which not only houses the meeting room in question, but is a study and eating area for students who are entitled to access to it. People are employed in the building in the bookstore, kitchens and offices.

When the disruption escalated in volume and destructive behaviour, the police on standby were called for assistance, the building was locked down and employees were required to leave or lock down in their offices. [ 30 ] C. Manuel had been offered a place nearby for the protest, and was subsequently asked to leave by others. She remained. She and N. Manuel were told they could not access the meeting room. They persisted with noise and their actions. This was not a minor disturbance. It disrupted the business of the building as well as those who were tasked with conducting the meeting. [ 31 ] Mr.

Jules was successful in pushing his way into the meeting room. Once inside, he “ranted and raved” mostly unintelligibly to the witnesses. His language, volume and demeanour frightened some participants and reduced an elder to tears. The meeting was interrupted while some of the attendees, including Chief Michell, tried to engage with Mr. Jules. Others were frightened and left. Engaging was not what Mr. Jules wanted to do. He ignored those who spoke to him and continued to yell until he was arrested. It was only after his arrest that the meeting could reconvene. [ 32 ] Mr. Anderson argued that Mr.

Jules had gained access to a private meeting and therefore was not in a public place. It is a fact that it was an invitation-only function in a public place. That does not render it a private place. Select members of a specific public were there by invitation to engage in a specific dialogue, whether they were for or against the pipeline. It did not alter the character of the offences committed by the three accused of causing a rather protracted and disruptive disturbance impacting not only the meeting attendees but the whole of the building. [ 33 ] I convict all three accused of this count.

Count 4 [ 34 ] The Crown alleges that Isha Jules committed assault of Pier-Olivier Poulin contrary to s. 266. At the conclusion of the trial, the Crown invited an acquittal but counsel for Mr. Jules urged the Court to make the appropriate findings with respect to Mr. Poulin’s credibility. [ 35 ] Mr. Poulin’s evidence was entirely unsatisfactory. The video evidence did not support his testimony and, when confronted with the video, he insisted that paint had been thrown at him and he had been knocked back into the doors by Mr. Jules. [ 36 ] The actual breach of the doors by Mr. Jules is not clear on the video.

There may have been contact with Mr. Poulin – indeed, he had paint on himself immediately after the encounter – but it was not by any means to the degree he described. [ 37 ] As with others who had paint on their clothing, the suit was ruined. On its face, that is an assault. Mr. Jules knew he was not invited into the room and he forced his way in anyway. He was carrying a dress or other cloth item soaked with red paint. He was at least reckless as to the damage his actions could cause, though the damage was entirely foreseeable. [ 38 ] However, in the face of the difference between Mr.

Poulin’s evidence and the video evidence, it would be dangerous to convict Mr. Jules of assault. I acquit him. Count 5 [ 39 ] The Crown alleges that Mr. Jules committed an assault of Patrick Michell. Chief Michell is one of the attendees invited to the meeting. The Crown similarly invited an acquittal of Mr. Jules following the evidence at trial. [ 40 ] The assault was alleged to have occurred when Chief Michell approached Mr. Jules to confront him for disrupting the consultation meeting. Chief Michell engaged Mr. Jules in an attempt to stop his behaviour. No physical altercation ensued.

However, when Chief Michell turned away from Mr. Jules, the latter raised his wet cloth near Chief Michell, resulting in paint getting on Chief Michell’s clothing. One witness saw the cloth raised over Chief Michell’s head. He thought it was when the two men were facing each other but Chief Michell did not see Mr. Jules raise anything toward him. Chief Michell said he felt something warm on his ear but did not know he had come into contact with paint until later, when he saw his suit. [ 41 ] Again, Mr. Jules was “ranting” and gesticulating.

While actual intention to come into contact with Chief Michell is not made out, Mr. Jules was arguably reckless again to the foreseeable results of his actions. Because intention is not made out and the surrounding circumstances in that moment do not support assault, I acquit Mr. Jules of this charge.

Count 6 [ 42 ] Count 6 alleges that C. Manuel committed assault of Kyle Christy, contrary to s. 266 of the Criminal Code . The video corroborates Mr. Christy’s evidence regarding the assault. C. Manuel is seen making physical contact with Mr. Christy as she attempts to enter the meeting. The video also shows Mr. Christy reacting to the contact by reaching for his groin area. [ 43 ] This is not a case of a person bumping into someone accidentally in a crowd. It was the deliberate application of force to gain entry to a place she was not invited to be.

It may be on the low end of the spectrum for assault, but it is assault. [ 44 ] The actions of C. Manuel were deliberate and calculated to achieve her ends. This is not trifling in nature. If I apply the question of whether this is serious enough to stigmatize it as criminal conduct, I find that it is. I do not consider her actions in a vacuum but in the context of all that she participated in that day. I convict her of this charge of assault. ____________________________ S.D. Frame Provincial Court Judge