R v Wadden, 2023 ABCJ 97

In the Alberta Court of Justice Citation: R v Wadden, 2023 ABCJ 97 Date: 20230404 Docket: 230116790P1 Registry: Calgary Between: His Majesty the King - and - Reece Michael Wadden Decision of the Honourable Justice B.C. Stevenson Charges [ 1 ] The accused Reece Michael Wadden is charged with three criminal charges arising in Olds, Alberta in the early hours of June 1, 2022. Count 1: On or about the 1 st day of June, 2022, at or near Olds, Alberta, did unlawfully obstruct, interrupt or interfere with the cast and crew of “The Last of Us” in the lawful use, enjoyment or operation of property, contrary to section 430(1) (

d) of the Criminal Code of Canada . Count 2: On or about the 1 st day of June, 2022, at or near Olds, Alberta, did unlawfully use an imitation firearm, to wit: an Airsoft rifle while committing an indictable offence, to wit: mischief, contrary to section 85(2) (

a) of the Criminal Code of Canada . Count 3: On or about the 1 st day of June, 2022, at or near Olds, Alberta, did have in his possession (or carry) a weapon (or imitation of a weapon or prohibited device or ammunition or prohibited ammunition), to wit: an Airsoft rifle for a purpose dangerous to the public peace (or for the purpose of committing an offence), contrary to section 88(1) of the Criminal Code of Canada . Background

[ 2 ] On May 31, 2022, representatives of a film company on contract with Home Box Office (HBO) were filming on 51 st Street in Olds, Alberta, for a television series “The Last of Us”. [ 3 ] The scene involved filming at night. [ 4 ] At approximately 12:30 A.M. on June 1 st , Steve Oben, the costume supervisor for the production, was sitting on a sidewalk across from a two-story building, when he noticed what appeared to him to be a man holding a rifle in the window of an apartment on the second floor and aiming it in the direction of the filming crew. [ 5 ] Oben testified that he turned to the person next to him and sought confirmation that there was a gun in the window, and that person agreed with Oben. [ 6 ] Oben said that the man in the window was looking down a barrel onto 51 st Street, where the filming set was located. [ 7 ] He relayed his observation for confirmation to Dustin Austin, who was nearby.

Austin was involved with the production as “on set” security for HBO. [ 8 ] He testified that he shone a bright flashlight on the window and confirmed Oben’s observation, a man holding a rifle pointing at the set. [ 9 ] He estimated that there were 200-260 persons in the area at that time. [ 10 ] He called 911 at approximately 12:35 and kept the flashlight on the window until the person in the window disappeared from view. [ 11 ] Members of the RCMP Olds detachment arrived along with two members of the Didsbury detachment, who had been called for assistance due to the information about a possible shooter in the window. [ 12 ] Care was taken to get everyone on the set to safety. [ 13 ] Rose Lam, one of the Executive Producers, was called to the scene, and after discussing the situation with the RCMP, decided to shut down the filming until the matter was resolved. [ 14 ] She testified that the delay cost US$ 54,000 in salary for the actors and crew members. [ 15 ] Ms.

Lam told Crown Counsel that everyone was frightened and felt that they were in danger as a result of the information leading to the lockdown. [ 16 ] The accused was arrested by Constable Price of the Olds RCMP detachment shortly after the 911 call came into the RCMP.

At the scene the Airsoft rifle was seized, and Constable Price testified that it looked like an actual AR-15 rifle. [ 17 ] RCMP Constable Ciccone, presently posted to the Cochrane RCMP Detachment, and a firearms expert, testified that the Airsoft rifle could cause serious harm to an individual as it could launch a projectile at 366 feet per second. [ 18 ] The accused testified that he did not point the rifle at the set, but only at the windowsill of his room, and that he was looking down the rifle barrel to use the scope so he could get a better view of the filming. [ 19 ] He was arrested without incident by RCMP Constable Price of the Olds Detachment.

Crown Submissions [ 20 ] Mr. Nanji, Crown Counsel, submits argument on the basis of: (

a) The Airsoft (or BB gun) status; (

b) The actual actus reus ; (

c) The property interference; (

d) Intent of the accused. [ 21 ] First, Mr. Nanji submits that there is no question that the BB gun falls within the description of an “imitation firearm” in s.84(1) of the Criminal Code and relies on the expert testimony of RCMP Constable Ciccone of the Cochrane RCMP Detachment, as well as the British Columbia Court of Appeal decision of R v Scott , 2000 BCCA 220 . In Scott Mr. Justice Braidwood spent considerable time reviewing the proper

interpretation of “Imitation Firearm”, the ”strict

interpretation rule dealing with penal statutes, the legislative history of S.85, and the purpose of s.85(2). The learned Justice also referred to the Alberta Court of Appeal’s decision of R v Taing (1998), A.J. No. 377 Paras 38-39, and the decision of Judge Blake of the B.C Provincial Court of R v Brauer , 2019 BCPC 322 . [ 22 ] Mr. Nanji submits, based upon the testimony of Crown witnesses Oben and Austin, as well as the accused’s own testimony, that the actus reus has been proven.

By looking through the scope that was attached to the imitation firearm it had to be pointed in the direction where the “better” view was allegedly sought by the accused. [ 23 ] Mr. Nanji submits that the testimony of Crown witness Rose Lam, the Executive Producer, proves that the conduct of the

accused did in fact “interrupt or interfere with the cast and crew in their lawful use, enjoyment, or operation of property”, contrary to s.430(1) of the Criminal Code. [24] He refers to the damage and extra cost involved by the delay caused by the actions of the accused and relies upon thedecisions of R v Ninos (1963), N.S.J. No. 2, (1964), (NS SC), 1 C.C.C. 326, and the R v Jeffers, 2012 ONCA 1 Para.19. [25] Mr. Nanji, in his submissions, spent a considerable amount of time on the issue of the intention of the accused in pointing hisscoped imitation firearm out of his apartment window toward the filming. [26] First, he submits that s.430(1)(

D) is a general intent offence, and only requires a conscious doing of the prohibited act. Didthe accused “intend” to bring about “certain consequences that are external to the actus reus”? R v Schmidtke (1985), (ON CA), 8 O.A.C. 102 (CA) (released on April 4, 1985-38 years ago on this very date). [27] Mr.

Nanji argues that even if the accused did not desire the consequences of his action with the imitation firearm, he couldstill have had the general intent where “he foresees that the consequence is certain or substantially certain to result from his conduct.” [28] He relies on the Ontario Superior Court of Justice decision of R v Iyanam, 2013 ONSC 1091. [29] Second, even if the Court is unable to find that the accused did what he is charged with in Count 1 (s.430(1)) wilfully, do thecircumstances allow the Court to find that he did so “recklessly”? [30] Turning to Count 2, the s.85(2)(

a) charge, Mr. Nanji concedes that it is an offence requiring proof of specific intent. [31] However, he submits that specific intent can be inferred from the accused’s own evidence, namely: (

a) He knew he may have caused an issue; (

b) He knew that police would become involved; (

c) He chose not to go downstairs to diffuse the situation, or apologize; (

d) He chose not to call 911, knowing that the police may be called: (

e) He didn’t mention using “just the scope” to police until after his arrest; (

f) He stayed at the window with the imitation firearm for some time, even with a flashlight being shone on him; (

g) If he was just looking through the scope, why didn’t he just remove it from the imitation firearm, as he admitted having donebefore? [32] Mr. Nanji submits that the Court can conclude that because of those factors, specific intent to cause mischief can be foundbeyond a reasonable doubt. [33] With respect to Count 3 (s.88-possession of an imitation firearm for a purpose dangerous to the public peace) Mr.

Nanjisubmits that the action of the accused was dangerous to the public peace and relies upon the decision of the Supreme Court of Canada ofR v Kerr, 2004 SCC 44. [34] The purpose for which the accused had possession of the imitation firearm needs to be decided and refers the Court to paras23-27 in Kerr (supra). [35] Mr. Nanji in his submissions sets out three factors to look at: (

a) That the accused possessed the imitation firearm; (

b) The purpose for which he had possession, and that it was a purpose that was dangerous to the public peace, and (

c) That there was a danger to the public peace. [36] Mr. Nanji submits that even if the accused’s purpose was to view the filming through the scope, the way in which he pursuedthat purpose – looking through the scope attached to the imitation firearm and sticking it out of the window – was, objectively, an actthat would disturb the public peace. [37] In the conclusion to his submission Mr.

Nanji submits that the elements in all three counts are proven, and the accused shouldbe convicted of all three. [38] He does, however, concede that if the Court cannot find the specific intent required for a conviction on Count 2, the accusedshould still be convicted of Counts 1 and 3. [39] Mr.

Tesi, Counsel for the accused, in a written submission, reminds the Court of the legal principals found in R v Lifchus(1997), (SCC), 3 S.C.R. 320; R v Starr, 2000 SCC 40; and R v Squires, 2002 SCC 82 (presumption of innocence,burden of proof, proof beyond a reasonable doubt). [40] He also refers to the admonition of the Courts as expressed in the following cases against applying the reasonable doubtstandard to the evidence in a “piecemeal” manner – R v JK, 2015 NLCA 14; R v Abramoff, 2018 SKCA 21.

[41] Mr. Tesi submits, as the accused testified in this manner, the Court must apply the three-prong reasoning of the seminalSupreme Court of Canada in R v W(D) (1991), (SCC), 1 SCR 742, and the subsequent

interpretations of the decision bythe Alberta Court of Appeal of R v Ryon, 2019 ABCA 36, and R v Achuil, 2019 ABCA 299. [42] Mr. Tesi provides extensive submissions on prior decisions on credibility and reliability – R v S(RD), (SCC), R v DS, 2015, ABPC 159, R v Currie, 2008 ABCA 374. [43] He refers to contradictory evidence of Crown witnesses, exaggeration of the loss incurred by the action of the accused, thedifferences in the recollections of the Crown witnesses Oben and Austin. [44] In addressing Count 2, Mr.

Tesi submits that as the Crown elected to proceed summarily against the accused, s. 85(2)(A)which alleges using an imitation firearm while committing an indictable offence, the charge is improper. [45] He submits that as per R v Kerr, 2004 SCC 44. Para. 23 it is not sufficient to simply establish that “what was done was in factdangerous to the public peace”, and that there must be proof of intent for that purpose. [46] Mr.

Tesi also refers the Court to the Ontario Court of Appeal decision of R v Chomenko, where, at p.355,the Court states: “……it was essential in this case for the learned trial Judge to direct his mind to the question as to whether the appellant intended topossess the imitation pistol for a purpose dangerous to the public peace and that issue cannot be determined in this case against theappellant simply by the fact that he did

an act which was in fact dangerous to the public peace.” [47] At paragraph 36 of Mr. Tesi’s written submissions, he refers to the Ontario Court of Appeal decision of R v Proverbs, , where the Court held that inferences can be drawn from objective factors such as the actual use of the weapon to determinepurpose. [48] He submits that paragraph 37 applies here: “The contradiction in the evidence of Crown witnesses leaves a doubt regarding the purpose for which Mr. Wadden had the imitationgun. Mr. Wadden’s window where he was standing was locked. The battery of the airsoft gun was dead.

It did not have any magazineattached. It had no projectiles. These are all what leads to not just the reasonable doubt, but “much reasonable doubts”. A person likeMr. Wadden with attention-defect/hyperactivity disorder (ADHD) and autism spectrum disorder (ASD) cannot fit in the same mode as amore typical person to foresee, as the Crown perceives”. [49] Mr. Tesi submits that as Mr.

Wadden did not have any intent to commit mischief or to interfere with the film’s crew or itsright of use of the public area where the filming was taking place. [50] He further submits that in view of his client’s mental health situation, the aspect of recklessness which applies to an individualwith full capacity to reason should not be applied to his client. [51] Mr.

Tesi finally submits that from the use of the public space where the filming as taking place was simply a minorinconvenience, and that the Crown had not shown that the usefulness or value of the property had been impaired. [52] He submits that if the right of use was interfered with by the incident, it was de minimus. Analysis [53] With respect to Count 1, I agree with Mr.

Nanji that the actus reus has been proven in fact. [54] However, based on all the evidence, and in particular the testimony of the accused, I am not satisfied that he intended theconsequences of his act, nor that the accused was “reckless” within the meaning given to that phrase in Schmidtke. [55] I agree with Mr.

Tesi that the circumstances are not such that even general intent can be inferred. [56] With respect to Count 2 – that the accused was using the imitation firearm while committing an indictable offence – anoffence requiring specific intent – I am not satisfied that specific intent flows from either the agreed statement of facts nor from the vivavoce testimony that the charge has been made out. [57] In addition, even if the accused realized that his action may attract the attention of the police, that realization, if it occurred,probably came to the accused after his being detected and a flashlight shone on him and was not in his mind when he was lookingthrough the scope. [58] With respect to Count 3, there is no question that the accused possessed the imitation firearm.

The issue is whether hispurpose in possessing the Imitation Firearm was to use it in such a way as to create a danger to the public peace. [59] I agree with Crown Counsel that in fact – objectively – the action of the accused, as interpreted by the film crew – created adanger to the public space. [60] But I am not satisfied that the creation of the danger to the public peace was intended by the accused. The mens rea has notbeen proven beyond a reasonable doubt by the evidence. [61] While the act of the accused, and the unintended consequences of the act were serious, at best the act was stupid, but in the

circumstances, not criminal. Verdicts [ 62 ] I find the accused not guilty of all three charges. [ 63 ] I want to express my appreciation to both Mr. Nanji and Mr. Tesi for their thorough review of the circumstances and of the legal precedents in this area of the criminal law. [ 64 ] I wish to add that in the circumstances of this incident it is fortunate that Mr. Wadden was apprehended peacefully. In my opinion, the circumstances were such that Mr.

Wadden’s arrest could have resulted in his death or serious injury. [ 65 ] Members of the RCMP Detachments in both Olds and Didsbury exercised considerable restraint in apprehending Mr. Wadden. [ 66 ] It should be a lesson to all persons who own or possess these firearms, or imitations thereof, of the dangers they face when they handle them improperly and foolishly, even if innocently. Delivered Orally on the 4 th day of April, 2023. Dated at the City of Calgary, Alberta this 20 th day of April, 2023. B.C.

Stevenson A Justice of the Alberta Court of Justice Appearances: Alyx Nanji for the Crown Peter Tesi for the Accused