R. v. Kirkwood Date:, 2013 BCPC 84

Citation: R. v. Kirkwood Date: 20130404 2013 BCPC 0084 File No: 223505-3-VC Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SPENCER ROBERT KIRKWOOD EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAGNALL Counsel for the Crown: P. Tomasson Counsel for the Defendant: J. Waddington Place of Hearing: Vancouver , B.C. Date of Hearing: April 4, 2013 Date of Judgment: April 4, 2013

[1] THE COURT: Spencer Kirkwood is charged on Information 223505-VC-3 with two separate charges arising from the eventsof June 15, 2011, and those are participating in a riot and committing mischief by wilfully damaging a window belonging to Telus. Infinal submissions, Mr. Waddington told me that he does not contest the Crown case on Count 2, that is, the mischief count. I note thatthe charge of mischief is a general intent offence according to R. v. Schmidtke, [1985] O.J. No. 84 (Ont. C.A.), and applied in BritishColumbia in R. v. Dominic, 2009 BCPC 145 , [2009] B.C.J. No. 949. [2] Mr.

Kirkwood is also charged with having failed to comply with a condition of the undertaking which bound his conduct onMay 26, 2006, in that he consumed alcohol on that day. He does not dispute this charge, as is clear from paragraphs 14 and 15 of Exhibit3. [3] Evidence was presented with respect to these charges on February 4, 5, and 8, and I heard submissions on February 13, 2013. The Crown presented five witnesses. The defence called no evidence. [4] With respect to Count 1, the issue identified by Mr. Waddington was the sufficiency of proof of the mens rea of the accused.

The defence submits that the offence of participating in a riot is what is known as a specific intent offence as opposed to a general intentoffence. The defence says that I ought to have a doubt about Mr. Kirkwood's mens rea based on his statement to Constable MacDonaldand the video and still photographic records of his actions at the Telus building during the event.

The defence says that the defence ofintoxication arises here. [5] The situation in the core of downtown Vancouver after approximately 8 p.m. and particularly during the time between 9 p.m.and 10 p.m. on the day in question was described in some detail by Staff Sergeant Lee Patterson. The defence does not dispute that a riotwas going on in the downtown core of the city.

It is obvious from the video recordings that I have watched and the still photographs thatI have viewed that many large crowds of people and some individuals were engaged in violence, destruction of property, looting, arson,and defiance of the police.

In short, chaos reigned in the downtown core on the evening of June 15, 2011. [6] The evidence of Staff Sergeant Patterson and of the two civilians who took videos and photographs of the accused and otherssatisfies me that not only was there a riot going on but that no one in the area could have been unaware of that fact. [7] The actions of the accused are most clear in the recordings made by Mr. Potocky, which are included in Exhibit 2. Mr.Kirkwood appears to be intoxicated as he is shown in those recordings. He stumbled at one point in time when someone brushed byhim.

His movements might be described as a bit loose. He was, however, responsive throughout the recording of his actions. He waspurposeful in his actions. He was interacting with the crowd which was watching him, apparently enjoying himself, and ultimately, hestruck a Telus window with part of a barricade, a sawhorse, a number of times. [8] The accused's comments about the events are included in Exhibit 1, Tabs 5 and 6, and the audio recordings of thosecommunications are included in Exhibit 2. In his telephone call to the police non-emergency line just after midnight on June 17, 2011,Mr.

Kirkwood said that he was "completely drunk" on the night of the 15th/16th of June and that he had no recollection of what he didbut that he had seen a video on Facebook of his actions during that night, and he described them very briefly. [9] On July 18, 2012, the accused spoke with Constable MacDonald. The statement he made is at Tab 6 of Exhibit 1, and it isincluded in the DVD which is Exhibit 2.

I am just going to read some excerpts from that statement. [10] After an introductory comment, the officer says [as read in]: Q I would like you, Spencer, by just telling me what you want to talk to me about, and if there's a situation arises that it's criminaloffence, then I'll stop you and deal with the rights at that -- at that time, okay, so just so you know, so what do you want to talk to usabout, and just take your time. A Yeah. Well, I -- I -- I don't even know where to begin. The events from the night I -- I -- are completely a blank to me.

Um, thelast thing that I recall from that evening was -- I mean, the sun was still up and I was in an apartment building in Yaletown and we werejust watching the game and drinking a lot, uh, it seemed. That's -- that's about it. Q So how is it that you came to have contact with the Vancouver Police Department then? A Um, well, I -- Q You made a phone call. A Yes, I did. The -- the -- the next day, uh, at around 11:30 p.m. in the evening, I was notified that over Facebook by a friend ofmine asking me if -- if this was myself in a video, and I didn't -- I said no, of course it isn't. I don't -- I wasn't there.

And he said, well,just have a look. So I -- I took a look, and -- and it brought me to -- I -- I -- I did not [something unintelligible here] sorry. Q Just -- just relax. I get that it's hard so, but what did your friend say to you and what did you see? A I -- I just saw me in the video but I didn't believe it was me, you know. Q Mmhmm. A And I watched it a few more times, and I just -- just broke down and I just -- just was blown away.

I just couldn't believe that Iwas involved with something like that, so I immediately called my dad and just basically asked him for advice, what I should do, and Itold him I'm gonna turn myself in, and he said, well, that's a great idea, and so I -- I called the cops just right after that. Q And what did you see yourself doing?

A Uh, in the video, uh, I saw myself stumble into a group of drunk people and someone smashed a window beside me and I pickedup, I guess, I don't -- what -- what he's hit the window with but I -- I guess I picked it up and kinda poked at the window a little bit. Andthen I tried to -- This is where the officer breaks in to deal with other matters. [11] Then another portion of the statement should be on the record.

This is part of an answer [as read in]: A We were all waiting for the game, and my boss, one of my bosses, uh, who, um, or I guess he doesn't -- he's not an owner but he'sone of the bosses at Bosa, we were all gonna go to his place for the game, but he didn't get off till 6, the game started at 5:30, so afterwork was over at 5:30, we were waiting for him, and when he got off work, we kinda took off down to his place. We had missed thefirst period.

When I got there it was intermission and, uh, I -- I was given a beer and just, uh, continued, and every time the -- theopposing team scored on us, everybody was given a -- a -- a shot. And I -- I'm not a heavy drinker, but I wanted to, uh, keep up, I guess. It's stupid. Q Where were you? A I was, um, Foundation Street, maybe, um, right -- right beside BC Place. Q At somebody's house? A Yes, in an apartment, and there was maybe between a dozen and 20 people over there, and I'd say about half a dozen beers and acouple shots and my buddy shows up with his girl and we -- same thing just kept happening. You know.

We ordered pizza andeverybody was -- we were still watching the game and everybody was having fun and -- and then it just didn't -- didn't stop basically. We were down three nothing in the third and everybody just was drinking, drinking constant amounts and -- and that's been -- that'sbasically the last thing I remember. We were on the balcony. The sun was out.

The game had just -- was just over and about 20minutes later we saw smoke rising from downtown somewhere and everybody was just talking about how ridiculous it was and, youknow, things are on fire and stuff, and everybody was like, this is so stupid, like, why is everybody doing this? And I was totally -- Iremember saying stuff like that too, like, what -- what would possess these people to do this? And a couple more beers and, uh, later that-- that's -- that's all I can remember. Q How did you get home? A I didn't know the next day, at the time I had no idea. I had no clue.

I know now because my friend that was with me kinda gaveme a rundown on what had happened, but I had no recollection of how I got out of Tom's house, let alone how I got downtown and thenhome. [12] Assuming that his statements as I have related them are accurate, it is clear that Mr. Kirkwood does not recall what he didduring the evening of June 15, 2011, after he left the apartment where he was watching the game.

That does not, of course, mean that hedid not intend to do the things that he did as the events unfolded. [13] Assuming for a moment that the offence of participating in a riot is one of specific intent, the evidence satisfies me beyond areasonable doubt that Mr. Kirkwood had the intention to commit that offence of participating in a riot. The question of whether thatoffence is one of general or specific intent was thoroughly argued in submissions.

Given the conclusion I have reached about Mr.Kirkwood's intention and level of sobriety, it is not necessary to decide this issue, but in case I am mistaken with respect to his level ofsobriety and intention, I offer this opinion respecting the type of offence participating in a riot is. [14] I have read and considered all of the cases referred to by counsel. The indices from the two case books will be marked Exhibit5 in these proceedings, and I am handing them to the registrar now. EXHIBIT 5 (on Sentence): Indices of authorities [15] The Supreme Court of Canada in R. v. Bernard, (SCC), [1988] S.C.J.

No. 96, said this about the differencebetween specific and general intent offences at paragraph 61: 61 A distinction has long been recognized in the criminal law between offences which require the proof of a specific intent and thosewhich require only the proof of a general intent. This distinction forms the basis of the defence of drunkenness and it must be understoodand kept in mind in approaching this case. In R. v. George, (SCC), [1960] S.C.R. 871, Fauteux J. said, at p. 877: In considering the question of mens rea, a distinction is to be made between (

i) intention as applied to acts considered in relation to theirpurposes and (ii) intention as applied to acts considered apart from their purposes. A general intent attending the commission of

an act is,in some cases, the only intent required to constitute the crime while, in others, there must be, in addition to that general intent, a specificintent attending the purpose for the commission of the act. This statement makes the distinction clear. The general intent offence is one in which the only intent involved relates solely to theperformance of the act in question with no further ulterior intent or purpose. The minimal intent to apply force in the offence of commonassault affords an example.

A specific intent offence is one which involves the performance of the actus reus, coupled with an intent orpurpose going beyond the mere performance of the questioned act. Striking a blow or administering poison with the intent to kill, orassault with intent to maim or wound, are examples of such offences.

[16] More recently, in R. v. Daley, 2007 SCC 53, the court said this about the issue at paragraphs 34 and 35: [34] The modern defence of intoxication stems from the decision of the House of Lords in Director of Public Prosecutions v. Beard,[1920] A.C. 479. Finding that intoxication, in some cases, could be a defence, the House of Lords articulated the following propositions,at pp. 500-502:

(1) That intoxication could be a ground for an insanity defence if it produced a disease of the mind.

(2) That evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crimeshould be taken into consideration with the other facts proved in order to determine whether or not he had this intent.

(3) That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute thecrime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does notrebut the presumption that a man intends the natural consequences of his acts. [35] Courts in England and Canada have taken the reference in Beard to "forming the specific intent essential to constitute the crime"as drawing a distinction between crimes of specific intent and those of general intent, such that the defence of intoxication is traditionallyonly available with respect to the former.

Specific intent offences require the mind to focus on an objective further to the immediate oneat hand, while general intent offences require only a conscious doing of the prohibited act: see R. v. Bernard [which I have alreadyquoted from], and R. v. George, (SCC), [1960] S.C.R. 871. [17] The intent required to be proved respecting a charge of participating in a riot is described in R. v. Brien, (NWT SC), [1993] N.W.T.J. No. 116 at paragraphs 35-38.

The court first sets out a list of cases and then goes on to quote from one ofthem as follows: ... the common purpose and the likelihood of a disturbance are questions to be determined ordinarily not by direct evidence but byinference from the conduct of the meeting and from all the circumstances surrounding it. 36 By extension to s.65 of the Criminal Code, through the definition in s.64, the same requirement of objective mens rea as to theunlawful character of the assembly, in the sense of s.63, applies also with reference to s.65.

That requirement applies additionally, in as.65 case, to the element that the unlawful assembly "has begun to disturb the peace tumultuously"; although it probably should be nomore difficult to prove subjective mens rea as to that. 37 By objective mens rea I mean simply that a reasonable person, in the circumstances, not being in any relevant sense incapacitatedfrom comprehending those circumstances, will recognize the unlawful character of the assembly when it meets the criteria described ins.63 and, in a case under s.65, the additional criteria described in s.64.

By subjective mens rea, I mean that the accused person chargedunder s.65 did in fact recognize the actual nature of the assembly as described in ss. 63 and 64. 38 The further element of participation in the riot, once existence of the riot has been proved beyond a reasonable doubt, togetherwith proof likewise of the required objective mens rea as to that fact, will require proof not only of the actus reus of participation (byword or deed or other manner) but the necessary mens rea as to that.

I agree with counsel for the applicants, as I understand hissubmissions, that in this respect the requirement is one of subjective, as distinct from objective, mens rea. And by this, I mean that theaccused person must be shown not only to have acted as a participant, but also to have intended to "take part" in the riot (or to have beenso reckless as to have acted as if he or she did so intend). [18] The issue was considered in this province a few years later in R. v. Berntt, [1997] B.C.J. No. 2301, where the B.C.

Court ofAppeal said this at paragraph 34: 34 In this context, then, a citizen seeking advice as to the meaning of s. 64 would no doubt be referred to the leading case on thesubject, namely, R. v. Lockhart, supra, and would be told immediately that the area of risk involved was when "an unlawful assembly byreason of an air or atmosphere of force or violence as exhibited by menaces or threats" would constitute a riot and to be a member of suchan assembly would offend the section. [19] As I have indicated, on behalf of the accused, Mr.

Waddington submitted that the offence set out in s. 65, participating in a riot,is a specific intent offence. Mr. Waddington referred to the wording of s. 63 as the foundation of his submission, and that section, asrelevant here, reads as follows: 63.

(1) An unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purpose, assemble insuch a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, onreasonable grounds, that they

(

a) will disturb the peace tumultuously; or (

b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously. [ 20 ] I will not read into the record ss. 64 through 66, but the wording of those sections is important in this analysis. [ 21 ] The problem with Mr. Waddington's submission is this. One need not have been part of the unlawful assembly which ultimately became a riot to participate in the riot. The modifying clause in s. 63, with intent to carry out a common purpose , does not apply to s. 64 and s. 65. The Crown need not prove that intent under those sections.

As I believe is clear from the cases that I have referred to and quoted from at length, the intention associated with s. 65 is a simple one: to take

part in or to participate in a riot. There is no explicit or implicit "objective further to the immediate one at hand," in the words of the Supreme Court of Canada in R. v. Daley . [ 22 ] In

summary, I find that s. 65 is a general intent offence. [ 23 ] As I have indicated earlier on in these reasons, I find that Mr. Kirkwood was intoxicated at the time of the events but not in an advanced state of intoxication. He was clearly disinhibited and somewhat clumsy in his actions, but he was interacting with the people around him, responding to their encouragement and the attention of the crowd, and engaging persistently in purposeful behaviour, that is, attempting to break a window belonging to Telus.

I have concluded this on the basis of the videos and photographs of his actions. [ 24 ] Stand up, please, Mr. Kirkwood. [ 25 ] With respect to the VC3 information, I find you guilty on all three counts. You can be seated. (REASONS CONCLUDED)