R. v. Brendan, 2021 BCPC 267

Citation: R. v. Brendan 2021 BCPC 267 Date: 20211110 File No: 256655-1 256655-1 Registry: Vancouver Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. SEAN ARTHUR BRENDAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: J. Lawton Counsel for Defendant: (July 14, 16) D. Melville Appearing on his own behalf: (from July 16) S.A. Brendan Place of Hearing: Vancouver , B.C. Dates of Hearing: July 14, 16; September 10, 2021 Date of Judgment: November 10, 2021 INTRODUCTION

Nature of case [ 1 ] Mr. Brendan is charged with breaching a s. 161 order of prohibition (“the Order”), which was imposed on him on [omitted for publication], 2008. A judge of the Provincial Court of British Columbia, in the course of sentencing Mr. Brendan, imposed the Order following convictions for: sexual assault, overcoming resistance by administering or attempting to administer a drug, and making, publishing or possessing child pornography for the purpose of publication. [ 2 ]

Section 161 of the Criminal Code , provides, in part, that when an offender is convicted of certain offences, the court that sentences the offender shall consider making and may make an order prohibiting the offender from certain activities. Those activities include attending a public park or public swimming pool, where persons under the age of sixteen years are present or can reasonably be expected to be present. [ 3 ] In this case, the charge against Mr. Brendan is that he attended a public park where persons under the age of sixteen years were present or could reasonably be expected to be present.

In the Admissions of Fact filed at the trial before this Court, Mr. Brendan, who at the time was represented by counsel, admitted he knew and understood the Order and its terms. [ 4 ] In the course of his testimony, Mr. Brendan also admitted some elements of the guilty act ( actus reus ) of the offence under s. 161 (4). That is, he admitted he drove into a parking lot at Central Park in Burnaby, British Columbia. He also admitted he parked his car in that parking lot. He further admitted he knew he was pulling into the parking lot of a public park.

Anonymizing reasons [ 5 ] This Court was not given information about the original charge and conviction, which led to the imposition of the Order. However, I have inferred that it likely involved a child under sixteen. Accordingly, it is more likely than not that a publication ban was ordered to protect the identity of the victim. Therefore, out of an abundance of caution, I will anonymize these reasons for judgment by omitting certain information from the published reasons. I do this in order to continue to protect the identity of the victim. ADMISSIONS OF FACT [ 6 ] Mr.

Brendan admitted certain facts alleged against him pursuant to s. 655 of the Criminal Code . This was done for the purpose of dispensing with proof of those facts at trial. The admissions are:

a) On [omitted for publication], 2008, Mr. Brendan was convicted of the following offences:

a) sexual assault contrary to s. 271 of the Criminal Code ;

b) overcoming resistance by administering or attempting to administer a drug contrary to s. 163.1 (4) (

a) of the Criminal Code ; and

c) making, publishing or possessing for the purpose of publication of child pornography contrary to s. 163.1 (2) of the Criminal Code .

b) Judge [omitted for publication] of the Provincial Court of British Columbia sentenced Mr. Brendan to a global sentence of three years in jail. The Court also imposed a 20 year order of prohibition pursuant to s. 161 (1) of the Criminal Code . That is the Order in issue at this trial.

c) Mr. Brendan legally changed his name from [omitted for publication] to Sean Arthur Brendan on [omitted for publication].

d) The Order began on [omitted for publication], 2008, and remained in effect on the date of the alleged offence, which was August 21, 2019. The Order included a term that Mr. Brendan was prohibited from attending a public park, public swimming area, day care centre, school ground, playground, community centre, where persons under the age of sixteen years are present or can reasonably be expected to be present.

e) On [omitted for publication], 2008, Mr. Brendan signed the Order acknowledging that he was bound by and understood its terms and conditions.

f) The Order in this matter is the same Order by which Mr. Brendan was bound on August 21, 2019.

g) On August 21, 2019, at 8:30 PM, Mr. Brendan parked his vehicle, a Honda Civic, in a parking lot.

h) Mr. Brendan’s vehicle was parked within the “Central Park Parking lot” on the northeast side of Central Park. On August 21, 2019, the parking lot was bounded by Boundary Road, Kingsway, Patterson Avenue, and Imperial Street.

i) Central Park is a public park.

j) On August 21, 2019, Central Park contained the following facilities: the Variety Park Playground, which was 480 metres northeast of the parking lot, the tennis courts, which were 430 metres east of the parking lot, and the Central Park Pitch and Putt golf course, which was 650 metres southeast of the parking lot.

k) On August 21, 2019, Mr. Brendan’s vehicle was parked in the northeast corner of the parking lot, facing east. Photographs were entered as Exhibit 1, Appendix D, at trial. Those photographs accurately depict the parking lot where Mr. Brendan’s vehicle was parked. Mr. Brendan’s vehicle is not depicted in the photographs. However, on August 21, 2019, Mr. Brendan’s vehicle was parked in the parking stall between the grey sport utility and the black sedan depicted in photograph 3 of Exhibit 1, Appendix D. No other vehicles were parked beside Mr. Brendan’s vehicle at the time.

l) The parking stall was located near the Central Park outdoor public pool at 6110 Boundary Road, Burnaby, British Columbia. The pool is a public swimming area. The pool was visible from the parking stall where Mr. Brendan parked his vehicle on August 21, 2019. The pool is surrounded by an 8-foot metal grid fence. Photographs of the pool were entered as Exhibit 1, Appendix E, at trial. Those photographs accurately depict the fencing around the pool and the view of the pool from the parking lot. In particular, photograph 3 in

Exhibit 1, Appendix E, accurately depicts the view of the pool from the parking stall.

m) On August 21, 2019, the only entrance to the parking lot was located on Boundary Road on the northwest side of the parking lot. Photographs entered at trial as Exhibit 1, Appendix F, are accurate depictions of the parking lot entrance and the parking lot. At the time, a white metal fence, used to control access to the parking lot, was open.

n) On August 21, 2019, the parking lot contained numerous signs at various locations, including no parking signs, which are accurately depicted in various photographs contained in Exhibit 1, Appendix G. One sign indicated, “Thank you for keeping your park clean”. Another sign prohibited camping and was displayed on the south side entrance of the parking lot. Another sign indicated that parking was prohibited after 10 PM except for stadium events. That sign was displayed in the northeast corner of the parking lot.

o) On August 21, 2019, the northeast side of the parking lot displayed the following signs: a sign explaining bicycling etiquette as directed by the Burnaby Parks & Recreation Commission; a large brown sign, which read, “Welcome to Central Park”; and a large sign marked “Central Park: Central Park Outdoor Tool Design Kiosk.”

p) On August 21, 2019, at the time the alleged offence occurred, it was twilight. All images depicted in the photographs attached to the Admissions of Fact were visible at the time of the alleged offence because natural lighting and outdoor lamps illuminated the parking lot, its surrounding signs, and the pool.

q) Mr. Brendan was seated in the front passenger seat of his vehicle. He was looking under the dashboard of his vehicle with a flashlight when he was approached by police. The police queried Mr. Brendan’s vehicle to ensure it was not stolen. The police learned that the registered owner, Mr. Brendan, was subject to a s. 161 prohibition order with conditions not to attend a public park or public swimming area.

r) Police officers arrested Mr. Brendan for breach of a prohibition order contrary to s. 161 (4) of the Criminal Code . Mr. Brendan identified himself to the arresting police officer as Sean Brendan. He provided a valid BC driver’s licence in the name of Sean Brendan. A photograph taken by police upon Mr. Brendan’s arrest was entered as an exhibit. The accused before the Court is the same individual the police arrested on August 21, 2019.

s) When Mr. Brendan was arrested, his vehicle contained drug paraphernalia near the front passenger seat, including two pipes containing a brown residue, two containers with suspected controlled substances, and a syringe on the front passenger seat filled with brown liquid. The backseat area contained a purple dildo and Kleenex tissue. Photographs of the items that were filed at trial as Exhibit 1, Appendix I, accurately depict the items.

t) When he was arrested, Mr. Brendan told the police he lived in a basement suite at [omitted for publication], in Vancouver, British Columbia. EVIDENCE CALLED AT TRIAL Direct testimony of Constable Miville [ 7 ] On August 21, 2019, Constable Jonathan Miville and his partner were doing enforcement duties and conducting patrols in parks in Burnaby, British Columbia. Both of them were in uniform, however, they were driving an unmarked police vehicle. In particular, they were patrolling the western area of Central Park, just off Boundary Road.

The police typically patrolled in Central Park to check for sexual activities, consumption of drugs, and consumption of alcohol. [ 8 ] Constable Miville identified a Google map of Central Park. He pointed to an area adjacent to Boundary Road, which runs north and south, and identified a parking lot, the Central Park pool, and a playground. Constable Miville was a passenger in the police vehicle that day. His partner drove through the main entrance of the parking lot (see Exhibit 1, Appendix C, photograph 2). He described that entry as the main entrance to the parking lot. It has a gate, which is closed at night.

On August 21, 2019, that gate was open. Constable Miville said there was also a south entrance to the parking lot, which was usually closed. On that occasion, he saw that the south entrance into the parking lot was closed. [ 9 ] At 8:30 PM, his partner drove the police vehicle into the parking area through the main entrance. It had been a clear, sunny day. The sun was just setting, but there was still lots of light. Constable Miville said his partner drove the police vehicle to the south end of the parking lot where his partner did a U-turn.

There were some cars in the parking lot but there was nothing on the south end. However, there were some cars in the parking lot closer to the pool area. [ 10 ] Constable Miville saw a car parked in the parking lot. It was on the eastside of the parking lot, facing east. The front passenger door of the car was open. He saw a man, who had his legs out of the vehicle. He was lying on his side. He had a flashlight. He was looking under the passenger side dashboard. The man’s head was below the level of the dashboard. Constable Miville could see movement, but could not see what the man was doing at the time.

Constable Miville did not know if the vehicle was stolen or if there was a theft in progress. His partner parked the police vehicle behind the parked car, which was a 2018 Honda Civic. [ 11 ] Constable Miville made a query using the police computer. Information came back that the registered owner was Sean Arthur Brendan. Because of that query, Constable Miville learned that Mr. Brendan was subject to certain restrictions, including conditions not to go to swimming areas or public parks. Constable Miville and his partner approached the vehicle. His partner spoke to the man, who was Mr. Brendan.

Constable Miville made a visual check of the vehicle. He saw a clear plastic box, two crack pipes, a needle with something in it, and a small baggie with crystals. These items were on the passenger seat, in plain view. [ 12 ] Constable Miville looked at the driver’s license provided by Mr. Brendan. It showed that he lived on [omitted for publication] in Vancouver, which Constable Miville said was five minutes away and about less than two kilometres from Central Park. Constable Miville was familiar with that area. Constable Miville also said he had no difficulty reading the driver’s license.

Constable Miville could see the pool from where the police vehicle was parked behind Mr. Brendan’s car. Constable Miville said nothing obstructed his view of

persons near the pool area, who he identified as teens. [ 13 ] Mr. Brendan was arrested for possession of drugs. He was not initially arrested for a breach of the Order because Constable Miville saw the drugs first. Mr. Brendan was eventually placed into the custody of other police officers. Constable Miville said that when the Honda was searched, they found a dark coloured backpack on the back seat. Inside the backpack was a bottle believed to be a lubricant, a pump, a large dildo, Kleenex tissues in a sandwich-size Ziploc bag. The Ziploc bag was warm to the touch.

The tissue inside the Ziploc bag was damp, and there was some steam inside the Ziploc bag, like vapour. [ 14 ] At, or about the time the police arrested Mr. Brendan on August 21, 2019, Constable Miville made observations of the area near and around the parking lot. He saw a group of people along the south and west side of the pool. Constable Miville saw between 15 and 20 teenagers playing and talking in-and-around, the pool area. Constable Miville saw some adults in the vicinity of the pool area as well. Some of the teens were talking at the south and west sides of the pool fence.

Most of the people he saw were outside the fence, but some were in the pool area too. [ 15 ] From his observations, Constable Miville believed that the teenagers were between 12 to 16 years of age. He described them as being small in stature, thin, and having high-pitched voices. He said the clothing they were wearing also led him to believe they were teenagers. Constable Miville said the teenagers were at the southwest corner of the pool area in three or four groups. They were playing around and joking with one another. Constable Miville also said he could see and hear the teenagers from the parking lot.

He had no difficulty hearing them from behind Mr. Brendan’s car. [ 16 ] Constable Miville said the parking lot where Mr. Brendan parked his car is the main parking lot for the pool. On a sunny day in the summer there are lots of families, children, and teens walking in the parking lot area. The parking lot is pretty full and people walk from the parking lot to the pool. In fact, he said, some people even change in the parking lot. Constable Miville said the pool is pretty busy in the summer. On the day of Mr.

Brendan’s arrest, he could hear people, but he could not say if the pool was super busy. [ 17 ] Constable Miville said the pool was approximately 25 metres from the spot where Mr. Brendan parked his car. See Exhibit 3, photograph 6, which shows that Mr. Brendan’s car was located in the vicinity of a pole with a light on the top. It was three or four parking stalls away from the fourth disabled parking stall located at the northeast end of the parking lot. [ 18 ] Constable Miville referred to the photograph in Exhibit 3, at page 34. He confirmed he took that photograph.

It shows the north end of the parking lot and the pool area. That photograph was taken in early December 2019. He said this photograph showed the view Mr. Brendan would have had from his parked car. That photograph depicted what Constable Miville saw on the day of the arrest. In December 2019, when he took additional photographs, Constable Miville went back to the same location as on August 21. He acknowledged he was standing when he took the photograph. However, Constable Miville said, on August 21, 2019, he was in the backseat of the accused’s vehicle. He did not sit in the driver’s seat.

However, the view he had of the pool that day was the same as that shown in the photograph at page 34 of Exhibit 3, although the view from inside the car was a little lower. [ 19 ] As noted, Constable Miville took photographs that were entered as exhibits at trial. One set of photographs, comprised of 13 images, was taken on August 22, 2019, the day following Mr. Brendan’s arrest. The second set of photographs, comprised of 21 images, was taken on December 3, 2019. Constable Miville testified that the photographs he took in December, accurately showed the park and pool area.

He also testified that in December 2019, the area looked the same as it had looked on the date of the offence. There had been no major change in signage. [ 20 ] For the sake of clarity, I note that there are obvious seasonal differences between the photographs taken in August 2019, and the photographs taken in December 2019. For example, the deciduous trees no longer had leaves.

However, as far as I could see from the photographs, and on the basis of the evidence given by Constable Miville, there appeared to be no major changes to the area in question, other than the seasonal variation. [ 21 ] Constable Miville also testified generally about Central Park. It had been part of his regular duties to patrol the park (including by bicycle) for approximately one year. The parking lot where he saw Mr. Brendan is located at the northwest side of Central Park. On August 21, 2019, that parking lot could only be accessed by a vehicle off Boundary Road from one entrance.

There was only one open entrance on the northwest end of the parking lot. There was an outdoor pool approximately 25 metres away from the northeast corner of the parking lot. Constable Miville described Central Park, and the immediate vicinity of the parking lot, as having a wooded area directly to the east of the parking lot. That area has trails and leads to a playground. The playground is approximately 100 metres or less from the parking lot. He has seen children, usually younger children, playing in that playground area. There is also a path from the parking lot that leads to the pool.

Cross-examination of Constable Miville [ 22 ] Constable Miville said the first time he saw Mr. Brendan’s vehicle was when his partner made a U-turn at the south end of the parking lot. He confirmed there was a lit flashlight inside Mr. Brendan’s vehicle. Mr. Brendan was inside on the passenger side of the vehicle. The passenger door was open. He was looking towards the glove box. However, Constable Miville could not say if Mr. Brendan was looking up or down. Constable Miville said Mr. Brendan was in that position until he and his partner went up to him. Constable Miville said those were his only observations.

He confirmed he did not see Mr. Brendan when the police vehicle initially drove into the parking lot. [ 23 ] Constable Miville said Mr. Brendan told him he was trying to fix something in his car under the dash. Mr. Brendan tried to explain what he was doing to Constable Miville, who assumed Mr. Brendan was trying to fix something. However, Constable Miville said he did not see Mr. Brendan doing any repairs to his car. He was just looking under the dashboard with a flashlight. Constable Miville said Mr.

Brendan was first placed under arrest for possession of a prohibited substance and then for breach of the Order. [ 24 ] At that point in the trial, there was a discussion about entering into a voir dire . Defence counsel submitted that what Mr. Brendan said, when he tried to explain the situation to Constable Miville, was a spontaneous, unprompted utterance and it was an exception to the hearsay rule. Defence counsel said he was raising this statement for its truth. The Crown objected to the statement coming in as part of

the trial proper during the cross-examination of Constable Miville. [ 25 ] After this issue was raised, a voir dire was held. Later, this Court heard arguments on the admissibility of the statement. The Court brought several cases to the attention of both counsel, including the decision of Goepel J., as he then was, in R. v. Almotairi, 2013 BCSC 1423 . In that case, the accused attempted to introduce evidence of a prior consistent statement during cross-examination of the arresting officer.

The accused in that case argued the statement was a spontaneous utterance admissible for its truth under the res gestae exception. Goepel J. relied on a decision of Holmes J., R. v. Pattison , 2011 BCSC 1594 . Goepel J. concluded the accused could not, during his cross-examination of the arresting officer, introduce into evidence the statement he made to the officer when he was told he was under arrest. [ 26 ] After the Court provided both counsel with a copy of Almotairi decision, defence counsel acting for Mr. Brendan at the time, withdrew the application to enter the statement.

Accordingly, although I have provided the gist of the statement the accused wanted to tender, I have not relied on it for its truth. However, given that Mr. Brendan is now not represented by counsel, I thought it prudent to set out this point in these reasons for judgment. Direct testimony of Mr. Brendan [ 27 ] At the close of the Crown’s case, defence counsel called Mr. Brendan as a witness. In his direct testimony, Mr. Brendan said that on August 21, 2019, at approximately 8:15 PM, he was travelling in his vehicle. He was going north on Boundary Road in the right-hand lane.

He was travelling through the intersection at Boundary Road and Imperial Street. At that intersection, there is what he called a “slipway” where cars can turn right onto Boundary Road from Imperial Street, without directly entering the intersection. Mr. Brendan said, as he travelled through the intersection, a car cut in front of him and nearly caused a collision. [ 28 ] Mr. Brendan said he was having problems with the electrical navigation in his car. He had never owned a new car before, so he had no idea about these things. He acknowledged he was not driving as defensively as he should have been.

He said the “near miss” really scared him and shook him up. [ 29 ] Mr. Brendan said he was dealing with two issues, namely, his emotions and the electronics of his car. Mr. Brendan said he needed to pull over and make sure that he could fix it. First, he needed to have a few minutes to get rid of the adrenaline. Second, he also felt he could fix the connection so that the car (presumably the navigation) was working properly. [ 30 ] Mr. Brendan arrived in the parking lot. He circled around to a parking spot as shown in the photographs submitted as exhibits at trial.

He got out of the driver’s side door, got a flashlight and a screwdriver, and went around to the passenger side door. He lay down on his back with the flashlight. His head was in the foot well. He was looking up underneath the dash. He had to manoeuvre on his left side, because he could not see very well from his right eye. His good eye is his left eye. He had to turn his head towards the engine and upwards and lie on his left side in order to be able to see what he wanted to look at. [ 31 ] Mr.

Brendan was down in that position for about 10 minutes when a vehicle pulled up almost a metre from where his legs were lying on the ground. He was upset for a moment and looked up. That is when he realized there was a police officer in the vehicle that had just pulled up. [ 32 ] Mr. Brendan acknowledged that when he pulled into the parking lot, he understood he was pulling into a parking lot of a public park. He did that because, as a driver, he was concerned for his own safety and the safety of others.

From the time he pulled into the park until the time the police arrived, he would have been there approximately 10 minutes. [ 33 ] Defence counsel asked if Mr. Brendan considered putting on his hazard lights rather than pulling into the park. Mr. Brendan said he considered that to be incredibly dangerous, because there are industrial trucks that drive along that road. He said they go through there as if it is a runway. He would have been afraid of being rear-ended or causing a traffic accident. [ 34 ] Mr.

Brendan said when the police officer arrested him and was asking him questions, he felt “this compulsion” to blurt out the reason why he was there. He told the officer that he was fixing his car and that he was frustrated. [ 35 ] Mr. Brendan said, while he was in the parking lot, he did not make any movement or take any action such as going towards the green space of the park or the pool. He did not leave the specific parking spot where he had initially parked his car. Cross-examination of Mr. Brendan [ 36 ] In cross-examination, Mr.

Brendan acknowledged his home is about a five or six minute drive from the intersection at Imperial Street and Boundary Road. He explained the near miss incident. He was going through the intersection at Boundary Road and Imperial Street. He had gone through it when a car in the slipway on the right swung out. He thought that car was going to hit his car. However, he acknowledged it did not hit his car. Nevertheless, Mr. Brendan said, the closeness of it made him realize that he was not driving defensively enough. [ 37 ] Mr.

Brendan acknowledged Boundary Road has four lanes at that location – two lanes going north and two lanes going south. He was northbound in the right-hand lane. He said the other car swung out in front of him and left too little space for a safe response to braking . He agreed there was enough space, so he did not hit that car. [ 38 ] The Crown asked if he was shaken up because he had been cut off. He said not directly. He was shaken up because he was distracted by the electronic display. Therefore, he was not driving as defensively as he should have been.

That was what shook him up as well as the near miss incident. He was upset with himself. [ 39 ] The Crown asked Mr. Brendan if he was going fast. He said he was not. He was not giving his full attention to the road. He was being distracted by the electronic device in the car, meaning the dash display. He said the in-car display provides a lot of information, including a map and navigation information. It was malfunctioning at the time. It was only on (i.e. operating) intermittently. He

explained that by “malfunctioning” he meant that the navigation system would disconnect and reconnect. In his car, the in-car display is driven by his cell phone. There was a connecting cable (between the cell and the car) and that cable was causing problems by being intermittent. [ 40 ] The Crown asked how far away he was from the entrance to the park when the near miss incident occurred. He said, at that point, he was about a half a block from the entrance to the park. However, it was a big (long) block. The Crown asked Mr.

Brendan if he could estimate the distance, in metres or feet, between the entrance to the park and the intersection where he was cut off. Mr. Brendan’s guesstimate was 150 to 200 metres. [ 41 ] The Crown asked Mr. Brendan whether he realized he had to pay more attention to what was in front of him. He said that was a later realization. In the moment, he was simply emotional. Mr. Brendan explained that after the incident he was “emotionally flooded”. His emotions were too high for him to be a safe driver. He was partially angry at someone else and partially angry at himself.

He said there was some confusion and some fear reaction. The Crown asked Mr. Brendan if it was correct that he had continued driving north for approximately 150 metres. He answered that the car was “already underway”. It (the car) would have “coasted that far”. Basically, he was slowing down and looking for a place to get the car off the street. He acknowledged he did not pull over on Boundary Road after the incident happened because that was dangerous. [ 42 ] The Crown suggested to Mr. Brendan that, despite the shock he experienced, he was able to continue driving north on Boundary Road. Mr.

Brendan answered that he “continued coasting”. He said from the site of the near miss to the entrance to the park, he did not put his foot on the accelerator at all. He allowed his speed to fall as he approached an entrance where he felt he could safely pull off. He was deciding whether he could safely continue. [ 43 ] The Crown suggested to Mr. Brendan that he did not veer off the road or try to pull over immediately. He agreed he did not, but said he slowed down. He had braked when the other car almost cut him off and then, for the next 150 metres, he did not put his foot on the accelerator.

He just kept on coasting. [ 44 ] The Crown asked him whether he was still “emotionally flooded”, when he pulled over into the park. He said it would have started to reduce. At that point, he immediately realized that simply fixing the car and allowing himself a five to 10 minute breather would be a good option. Mr. Brendan said he is a very technical person and finds doing technical or mechanical things to be very calming. The Crown pointed out to Mr. Brendan that what he described as a navigation system/display problem had nothing to do with the actual working of the car or with the operation of the car.

He acknowledged the navigation system had nothing to do with the actual working of the car. However, Mr. Brendan said he required the map. [ 45 ] Mr. Brendan acknowledged there was no collision and that he was safely able to steer the car into the parking lot. He acknowledged he had driven into the parking lot of the public park. He also acknowledged he knew he was in a public park by virtue of having to pull into the parking lot. He acknowledged he was familiar with Central Park, in the sense that he had driven past the park in the past. [ 46 ] The Crown asked Mr.

Brendan whether he was familiar with Central Park. She pointed out that he only lived a five or six minute drive from the park. Mr. Brendan acknowledged that he lived five or six minutes away from the park, but he did not see how that familiarized him with the park. However, he noted he had driven past the park from time to time. Mr. Brendan was not able to give a reasonable estimate of the times he had driven on that portion of Boundary Road over the previous five years. He said it was probably less than 12 times a year.

The Crown put to him, given that estimate, that over the course of five years he would have had access to that part of Boundary Road 60 times. He agreed. [ 47 ] Mr. Brendan acknowledged that he realized he was in a park. However, he did not want to be there. He wanted to get out. The Crown asked why he did not give himself a couple of minutes, calm down, and drive out of there. Mr. Brendan said he was giving himself several minutes to cool down. He was doing something mechanical with his hands, which he knows is something that would calm him down. He acknowledged that he was not supposed to be in the park.

The Crown put to Mr. Brendan that he did not need to fix his car in order to keep driving. Mr. Brendan said he felt he did. She put to him that he had already told the Court there were no problems with the car. He agreed, but he said, as the driver he needed the navigation system. [ 48 ] The Crown suggested to Mr. Brendan that it was not necessary to have a functioning navigation display in order to drive his car. Mr. Brendan had to think about that for a moment. He said it is a very complex electronic system. If the navigation display fails, oftentimes one cannot start these vehicles, and they will not function.

He went on to say, in this case the navigation display was intermittent. The Crown suggested that Mr. Brendan knew where he was and did not need the assistance of a navigation display system to get home. He said that was correct, however, if the navigation failed completely the car would fail. The Crown next suggested that when he pulled into the parking lot and calmed himself down, he could have easily driven directly out of the park. Mr. Brendan answered that he was concerned he would cause an accident. He said all he needed was a few minutes to fix the car and to fix himself.

He was trying to prevent an accident , which had almost happened, from occurring again. [ 49 ] The Crown pointed out to Mr. Brendan that the spot he pulled into was at the most easterly point in the parking lot, close to the disabled parking stalls. He agreed. The Crown then pointed out that this was one of the spots that was closest to the pool area. Mr. Brendan said that did not even enter his mind. He was looking ahead and not towards the pool.

The Crown pointed out that since he knew he had the court Order not to be in a park, he was going to be aware of what was around him when he pulled into the parking lot. He agreed. He also said that as a driver he has to be aware of what is around him. The Crown then suggested that he was calm enough, when he pulled into the parking lot, to think about fixing the navigation system. Mr. Brendan said he was not calm when he pulled in. He was shaking. He was quite shaken up and just wanted to get the car parked and get out of it to catch his breath. The Crown asked Mr.

Brendan if he had a reason for picking that particular spot. He said he wanted other people around him. He wanted to be under the observation of adults. He was there to fix his car. He was not there to do anything wrong. He wanted people to be aware he was there. However, he also had to park where there was no one beside him because he was working on his car. [ 50 ] The Crown asked Mr. Brendan what he was trying to do under the dashboard. He said there was a cable, which connected the car

and his cell phone. That was the problem. There was an intermittent connection. He was trying to figure out what was going on. Mr. Brendan said he was using Android Auto, which connected to his car via his cell phone. The software (presumably an app) was on his cell phone, which was connected to the car, and would display information on the dash display, such as navigational information. Once he pulled into the parking spot, Mr. Brendan began to look for the location of the connections. He wanted to make sure the connections between his cell phone and the car were working. He was looking for a broken wire.

Accordingly, he ran his fingers along the wire to trace it. He checked the cell phone. He made sure the connections were not dirty. He looked at where it was routed in the dash. He said the car would not display the navigational information without being plugged into the cell phone. When attempting to summarize his evidence on this point, the Crown suggested that Mr. Brendan was endeavouring to fix the connection between the cell phone and the car. He said that it was a little early for a fix. He was just attempting to “diagnose the problem”. [ 51 ] The Crown suggested to Mr.

Brendan that there were three separate points along Boundary Road, between the intersection of Boundary Road and Imperial Street and the entrance to the Central Park parking lot, where he could have turned left. He agreed that there were. However, he pointed out that at one of them, left turns were prohibited. Therefore, there were only two streets onto which he could have turned left. [ 52 ] The Crown showed him a Google map depicting the area adjacent to the park and Boundary Road. She put to Mr. Brendan that there were a couple of roads onto which he could have turned left. Mr.

Brendan was not sure of the exact count, but there would have been at least one. He agreed, looking at the map, that there was a possible left turn when proceeding on Boundary Road from Imperial Street, but he did not know the name of the street. Going further north, he agreed that there was East 48 th Avenue, but he was not sure if he could have turned left there or not. [ 53 ] Mr. Brendan agreed he could have turned left on Coquihalla Drive. He was not sure if he could have turned left on East 48 th Avenue. The Crown asked if he agreed that there was also an exit and a left turn on East 47 th Avenue. Mr.

Brendan complained about the quality of the map he was shown. He agreed he did not turn left on East 47 th Avenue, which was just before the parking lot, which was on the right. [ 54 ] After she reviewed the map, the Crown asked Mr. Brendan if he would agree that there were three roads onto which he could have turned left. Mr. Brendan agreed it was possible that there were. However, he felt it was dangerous to turn left in the situation. The Crown put to him that he had made a decision not to turn left because it would be dangerous.

He answered it was not that he had made a decision not to; it was that he did not make a decision to do it. He agreed he made a decision that pulling over on Boundary Road and putting on his flashers lights would have been too dangerous. [ 55 ] The Crown suggested that Mr. Brendan had diagnosed the problem as potentially being a problem with the connection between the car and the cell phone. Mr. Brendan said he did not diagnose the problem because that required a test. Instead, he “hypothesized” that was the case. Mr.

Brendan disagreed with the Crown’s suggestion that when he was using Apple Car Play, it allowed him to have whatever was on the screen of his cell phone show up on the screen of his car. Mr. Brendan pointed out he was using Android Auto. That app communicates with the car’s display and will display navigation information and so on. He said Android Auto was not simply reflecting what was on the display of the cell phone but it actually had its own software and its own system. [ 56 ] Mr.

Brendan confirmed that when he parked the car and got out, he was checking to see where the cable was and was inspecting the cable between the car and the cell phone. He needed to check the ends where the cable plugged into the car. He was looking for dirt or any material in there. The Crown asked Mr. Brendan whether he agreed this was not something that needed to be looked into at that moment. He said he did not feel that way. He felt it was important. The Crown put to Mr.

Brendan what was important was that he knew, by going into the park and parking to carry out his inspection/check, he was breaching the court Order. Mr. Brendan replied he had no intention of doing anything wrong. He did not feel as though he was doing something wrong in an emergency situation. [ 57 ] The Crown put to Mr. Brendan that it was not necessary to fix the problem then and there. He said there was no way an emotionally flooded driver would have been safe to continue. The Crown asked whether, in hindsight, it was fair to say that what he was doing was not something he needed to fix at that time. Mr.

Brendan said, in hindsight, he would have made a different decision. He was asked what decision that would have been. He said he would have gone left. He would have done anything to snap out of his confusion – his emotional shock. Mr. Brendan said he would not do it again, if he could possibly avoid it. The Crown asked him if it was fair to say he did not intend to breach the Order. Mr. Brendan responded “not in the slightest”. [ 58 ] The Crown suggested to Mr. Brendan that although he might not have intended to breach the Order, he knew that by going into the parking area, he was breaching the Order. Mr.

Brendan said “No” that was incorrect. He believed acting in an emergency situation, it would be understandable that he was attempting to do his best. The Crown asked whether he was saying that in his situation he had no choice but to pull over where he did. Mr. Brendan said that was what it felt like at the time. The Crown suggested to Mr. Brendan that another choice at the time would have been to turn around and drive right back out of the parking lot. He said he was not going to do that. That was dangerous.

She asked him whether that was more dangerous than trying to make a left turn or going somewhere where he would not be breaching the Order. Mr. Brendan said that was not a calculation he made at the time. [ 59 ] The Crown asked Mr. Brendan where he was going that evening. He said he had driven down Boundary Road to a large industrial area. He was driving back home. He was trying to figure out what was happening with the car, because it was getting worse. He was referring to the intermittent connection on the display between the phone and the car. Mr.

Brendan acknowledged this situation had happened before the near miss at the intersection of Imperial Street and Boundary Road. However, he said it had only been pre- existing by a few minutes. He had problems previously, but they had cleared up. This time, however, he got down to the end of Boundary Road. He was going back, when the connection problem started to become intermittent. Mr. Brendan agreed this problem also occurred the day before the day of the near miss incident. However, it was to a much lesser extent and it cleared quickly.

On this occasion, the intermittent problem was becoming worse as he was driving up the hill towards Imperial Street. Then, at that intersection, the near miss incident occurred. [ 60 ] The Crown asked Mr. Brendan why he decided to try to fix the intermittent problem at that particular time. He said because it

was happening. She pointed out that it had happened before. Mr. Brendan said it had cleared itself within seconds, but this time it did not. The Crown asked Mr. Brendan why he simply had not focused on the road and attempted to get home. He said he did, but he needed to clear his emotional state first. She asked him why he went into the parking lot, instead of going straight home. He said he was shaken. He pulled into the parking lot to try to clear his emotional state and to try to calm down. Mr.

Brendan also said he was fixing the car as a method of trying to calm himself down and so it would not drive him crazy. [ 61 ] Mr. Brendan confirmed he was working on the problem for about 10 minutes, perhaps a little more. The Crown asked him if this had made him feel calmer. He said it was working. He agreed it was working before the police officers dealt with him. The Crown suggested that once he had calmed down and was feeling calmer, he still had not gotten into the car and removed himself from the parking lot. Mr. Brendan agreed he had not. He was in the process.

He had not stopped the process and considered such a thing. He was still trying to fix the intermittent problem when the police officer intervened. He was feeling calmer, but he was not feeling calm. The Crown asked him whether he was not sufficiently calm to get behind the wheel again. Mr. Brendan said he was in the process of fixing the car, which would have led to being in a state, hopefully, where he would be able to operate the vehicle. He was sure it would have. [ 62 ] The Crown suggested to Mr. Brendan that there was another reason why he was at the park and it had nothing to do with the near miss.

He disagreed. The Crown summarized his evidence on this point. She asked whether it was correct that the only reason he knowingly breached the Order was because he was in a heightened emotional state and he pulled over to calm down. Mr. Brendan replied he also had electronic car problems, which were part of the problem as well. [ 63 ] The Crown asked Mr. Brendan whether he heard kids when he got out of his car to go around to the passenger side. He said he did not. He was absolutely focused on what was going on (presumably with the car). He had no interest in what was around him. However, almost immediately, Mr.

Brendan added that he would have been watching out for them as he pulled into the parking lot. As he pulled into the lot, he was trying not to hit people. However, he was there to deal with the car and to deal with himself and not for any other reason. Mr. Brendan said he did not see the children described by Constable Miville. It was not until the officer pointed out to him that he was right next to the pool and pointed to the pool, that he looked over. Mr. Brendan said the pool was dark. That was the first time he looked over there. [ 64 ] When the Crown asked him whether he said it was dark, Mr.

Brendan replied that the pool was shut down at the time. The Crown asked whether his evidence was that there were no people in the pool at that time. Mr. Brendan replied he did not know. He saw the pool was dark when the officer mentioned it. However, when he pulled into the parking lot he was only dealing with his car and himself. The Crown then asked Mr. Brendan what he meant when he said that the pool “was shut down”. He said the lights were off. This was when the police officer pointed out the pool to him. The Crown asked Mr.

Brendan whether he recalled Constable Miville’s testimony that there were a number of people, whom he believed were between the ages of 12 and 16, in the pool area. Mr. Brendan replied that he was not sure if the officer said they were inside or outside the pool area. The Crown pointed out that Constable Miville said that there were people both inside and outside the pool area. She asked Mr. Brendan whether he recalled that. Mr. Brendan said he thought so, which was unusual because the pool is never open after 7:30 PM. He said the pool had no lights on. [ 65 ] The Crown asked Mr.

Brendan whether he was able to see the pool when the police officers were dealing with him. He said he supposed it would have been in his view. He had been at the scene for about 10 minutes before the police drove up. The Crown asked Mr. Brendan whether, apart from the police officers, he had seen any other people in the park when he pulled in. He said there were other people. Some people were entering their cars. They were scattered in various locations throughout the parking lot. He said they were going to cars and leaving or they were mobile. [ 66 ] The Crown asked Mr.

Brendan several questions about his observations in the parking lot. She suggested, given where he was parked, that the people he had seen must have been behind him or beside him. Mr. Brendan said he supposed so. However, he did not really look. He was very focused on what he was doing. He agreed he was able to get out of the car and see those people. The Crown again asked Mr. Brendan if he recalled where the people in the parking lot were in relation to him. He said they would have been moving around.

They would have come closer, they would have gone further, they would have entered cars, and they would have left. [ 67 ] On further questioning, Mr. Brendan said he could not really describe the people. The Crown asked him whether the people were adults or children. He said mostly adults. The Crown asked him if there were some children. Mr. Brendan thought there were some. However, he did not have a clue how many. Mr. Brendan said he did not look. He was not recording information in his head. He was not paying attention. His focus was entirely somewhere else. Mr.

Brendan could not tell the Crown how many people he saw. He could not tell the Crown if those people were all in the parking lot. He said, “There were people scattered about, they were doing their thing, they were leaving”. [ 68 ] The Crown suggested to Mr. Brendan that he noticed people in the parking lot, but did not notice or hear anything from the pool. Mr. Brendan said he did not pay attention. He did not recall having retained that memory. The Crown asked whether it was his memory that after about 10 minutes, when he was dealing with the police, he noticed the pool was shut down.

He reiterated that within minutes of the police arresting him, an officer pointed to the pool. At that point, Mr. Brendan looked over and observed that the lights were off. He acknowledged it was his evidence that the pool shuts down at 7:30 PM. The Crown asked him how he knew this. He said he looked up the

schedule of hours. Mr. Brendan also said he had never observed it to be open that late in the past. The Crown asked Mr. Brendan what made him look up the

schedule of hours for the pool. He said it was the police officer’s statement that the pool was open and that there were people in it. He said that was wrong. The Crown asked whether he had any issue with the police officer’s recollection of the time the officer began dealing with him. Mr. Brendan said, “No that sounded correct”. [ 69 ] The Crown asked Mr. Brendan several questions about his car. He agreed he had his car key fob with him. The car remained there. It was collected for him by his girlfriend. To his knowledge, she had no problems operating the car. However, she did not use the navigational display.

He agreed he did not need to arrange for a tow truck. Mr. Brendan said he did not take the car in to get it fixed. The Crown asked Mr. Brendan whether, after the incident, he took time to try to fix the navigational problem with the car. He said he did. He did not take it into the shop. He was going to do so, but did not get around to it. Later, the car was involved in an accident in September 2019. It was a total write-off.

POSITION OF THE PARTIES [70] At the beginning of trial, Mr. Brendan was represented by counsel. However, by the time we reached the point of finalsubmissions, Mr. Brendan was acting on his own behalf. The Court gave Mr. Brendan some additional time to think about this matterand to decide whether he wished to retain counsel. [71] Mr. Brendan represented himself on final submissions. With the agreement of the parties, the Crown proceeded first. Mr.Brendan proceeded next. The Crown was given an opportunity to reply and Mr. Brendan was given an opportunity to sur-reply.

TheCrown prepared written argument, which was provided to Mr. Brendan in advance of oral submissions. The Crown’s submissions [72] The Crown submits that on the evidence before this Court, it has proven beyond a reasonable doubt that the accused is guilty ofbreaching the Order. In particular, the Crown submits that the applicable mens rea is objective, rather than subjective. However, for thepurposes of this submission and in the circumstances of this case, the Crown submits the Court should analyse the issues and apply thehigher standard of subjective mens rea.

Even on that standard, the Crown asserts it has met its burden beyond a reasonable doubt. [73] The Crown notes that the evidence of Mr. Brendan suggests the excuse of legal necessity may be urged on this Court. TheCrown submits there is no air of reality to this defence on the facts of this case. The Crown relies on R. v. Perka, (SCC),[1984] 2 S.C.R. 232, [1984] S.C.J. No. 40, and R. v. Andrews, 2011 BCCA 168, for the test to be applied to determine this point. TheCrown notes that Mr. Brendan must believe and there must be a reasonable basis for the belief that there was:

a) imminent peril,

b) theabsence of any legal alternative, and

c) proportionality between the harm inflicted and the harm avoided. [74] The Crown submits that even if Mr. Brendan’s evidence is accepted by this Court, his evidence does not give an air of reality tothe notion that he was in imminent peril when he decided to enter the parking lot or that there were no legal alternatives available to him.The Crown’s submission in this regard is based on evidence that there was no imminent peril and that there were legal alternativesavailable to Mr. Brendan without entering the park. [75] The Crown specifically addressed the issue of mens rea.

The Crown submits this Court does not have to decide whether the faultstandard for breach of the Order under s. 161 of the Criminal Code is objective or subjective. This is not necessary because the accusedin his testimony gave evidence that establishes subjective intent, namely, that Mr. Brendan intended to enter the park. He knew thiswould mean he was contravening the Order. At the very least, the Crown submits, Mr.

Brendan saw the risk he was taking in enteringthe park and assumed it by entering the park and choosing to remain there. [76] The Crown submits that subjective mens rea focuses on an accused’s actual intent and on his appreciation of the circumstances,as opposed to those of a reasonable person. See R. v. Zora, 2020 SCC 14, [2020] S.C.J. No. 14. The Crown submits it can prove themental element of the offence by showing that the accused voluntarily intended to do the wrongful act. The Crown asserts it does notneed to prove that Mr. Brendan intended to breach the Order.

It only needs to prove that he intended to commit the guilty act. The Crownfurther submits it can meet its burden by proving that Mr. Brendan was wilfully blind or reckless, i.e. he saw the risk of breaching the Order by going into Central Park, but did it anyway. See R. v. Custance, 2005 MBCA 23, (2005), 28 C.R. (6th) 357. [77] The Crown acknowledges that it appears to be settled law that subjective mens rea is required for breach of bail conditions. SeeZora at paragraph 58. The same applies for breach of probation conditions. See R. v. Docherty, (SCC), [1989] 2 S.C.R.941, [1989] S.C.J. No. 105.

The Crown further notes there is a long-standing presumption in criminal law that Parliament intends crimesto have a subjective fault element. The Crown points out that the Court in Zora noted that the presumption reflects the underlying valuein criminal law that the morally innocent should not be punished. [78] In any event, the Crown submits, whether the mens rea to be applied is subjective mens rea or objective mens rea does not needto be decided in this case.

That is because, even applying the subjective mens rea standard to the facts of this case, the Crown hasdischarged its burden of proof beyond a reasonable doubt. Mr. Brendan’s submissions [79] Mr. Brendan raises various specific issues in his defence. [80] Photos - First, Mr. Brendan made submissions about the photographs attached to Exhibit 1 and referred to in the Admissions ofFact. He submits that the photographs were initially put into evidence for the locational positioning of his vehicle. He notes that one ofthe photographs in Exhibit 1, Appendix C, photograph 2 (a Google photo) shows where his vehicle was.

However, he submits there is aproblem with the line of sight. He says the evidence regarding line of sight is weak because some of the photographs were taken monthslater in December 2019. [81] In particular, Mr. Brendan points to a photograph in Exhibit 1, Appendix D, photograph 1. That was a photograph which he saidwas taken the next day. (On reviewing the photograph and my notes, I have concluded Mr. Brendan was mistaken about the day thephotograph was taken. I have concluded this is one of the photographs that Constable Miville took in December 2019.

It is clear fromthis photograph that it is winter, as there are no leaves on the deciduous trees.) Mr. Brendan notes it was raining, which is clear from thephotograph. Therefore, the line of sight was increased by the rain. (I take his point to be that the line of sight depicted in that particularphotograph is not the line of sight that he would have had on August 21, 2019, the date of the alleged offence.) In his submission, Mr.Brendan notes that the view presented in this photograph is after the rain and it increases the line of sight.

Whereas, on the day inquestion deciduous trees would have been in full foliage and the line of sight would have been different. Mr. Brendan agreed this pointwas not raised when Constable Miville testified. [82] In his submission, Mr. Brendan notes that the line of sight he had on the day in question, August 21, 2019, would have beendifferent because the trees had leaves on them and, therefore, were fluffier and drier. This particular photograph, and some others filed inevidence, was taken three months later in December. Accordingly, Mr. Brendan submits it does not accurately reflect the line of sight

Mr. Brendan would have had on August 21, 2019. He says the photographs taken in December show an increased (i.e. better) line of sight, which is biased against him. Mr. Brendan submits that the photographs found at Exhibit 1, Appendix F and G, should be given little or no weight because they were taken months after the date of the alleged offence. [ 83 ] Signage – Mr. Brendan submits that, as a driver under duress, he pays attention to signs which are correct highway-type signs and Department of Transport approved signs.

In this case, other signs like the ones welcoming people to Central Park and so on would have been unimportant to him. He suggested that most of the signage for the park was not Department of Transportation or highway signage. [ 84 ] With respect to this argument, the Court pointed out it could only deal with materials that were entered in evidence. This Court could not deal with points Mr. Brendan attempted to make that had not been raised in evidence during the trial.

The Court also pointed out that the Admissions of Fact contained specific agreements about the signage and the admission that the photographs contained in Appendix F were accurate depictions of the parking lot entrance. [ 85 ] Left turn – Mr. Brendan says the Crown’s suggestion, as well as its submissions, regarding the availability of a left turn option should not be accepted. He notes that if he had turned left, it would have increased his risk.

He further notes that he would have had to turn left twice, once to drive away from Boundary Road, and then again a second time to return to his original direction of travel. Turning right into the parking area, as he did, was a much safer manoeuvre. [ 86 ] Parking lot not part of the park – Mr. Brendan submits that, at the time, he did not feel the parking lot was part of the park. [ 87 ] The Court asked whether he had raised this in his testimony. He did not believe he had said this when he gave evidence.

A short while later, he said he did not recall his evidence and whether he had testified at trial that he did not feel that the parking lot was part of the park. Accordingly, I told Mr. Brendan that he could make his point in submissions and I would consider it in due course. [ 88 ] Mr. Brendan says there were no activities going on in the park at the time that indicated it was a park. He notes that the parking lot is there and that the parking lot is part of the park. However, he says it did not seem like a park in his mind.

It seemed like a parking lot where he could safely work on his car. [ 89 ] The near miss – Mr. Brendan wants to clarify that the near miss he described in evidence was not that the other car had turned right onto Boundary Road off Imperial Street and hit his vehicle. Instead, it was the other way around. Mr. Brendan says he nearly hit the other car when it cut in front of him. [ 90 ] Description of the contents of Ziploc bag – Mr. Brendan feels that Constable Miville “amplified” his testimony.

This was in response to a statement made by the Crown in submissions that Constable Miville had not amplified his testimony. Mr. Brendan points out that Constable Miville gave a description of flushable wipes in a Ziploc bag. Constable Miville described them as sort of vapours, white vapours inside. Mr. Brendan says this is a very “spooky” description. He says this was such an artistic description that he was surprised the officer would describe flushable wipes in such a manner. [ 91 ] The Court told Mr. Brendan he could not bring in evidence after the fact. At that juncture, Mr.

Brendan referred the Court to Exhibit 1, Appendix I, photograph 1. That was a photograph of materials found in the knapsack. He notes that Constable Miville had referred to the items in evidence as “white vapours”. The Court asked about the significance of this. Mr. Brendan says that Constable Miville’s testimony went beyond the reality of the situation the officer was describing. Mr. Brendan points out that the Crown, in its submissions, commented that Constable Miville had not amplified his evidence. However, Mr. Brendan says Constable Miville did amplify his evidence.

By that, he meant that Constable Miville added descriptive details in his testimony to the point where incorrect descriptions were entered. Mr. Brendan says that the officer’s description was an incorrect description of the contents of that Ziploc bag. [ 92 ] Mr. Brendan also points to another amplification, which he was upset about. The officer apparently indicated in his testimony that he was standing about one metre away from Mr. Brendan’s foot. Mr. Brendan says that was not correct.

It was not that an officer was standing within one metre of his foot, but that the officer drove up within a metre of his foot. [ 93 ] Activity at the pool – Mr. Brendan notes that there was some confusion about the pool. He said originally there was discussion about people in the pool area proper. Then it sort of shifted to a discussion about people in-on-or-about the pool area. He notes that this might not be so critical, except that there is an issue about closing time. Constable Miville testified he saw children in the pool area proper. However, Mr.

Brendan submits that the pool area proper was closed for business. He says he did not notice this (the pool area) because he was distracted by his vehicle. He was not aware of the pool area until the officer pointed it out to him. He says, at that point, he looked over to the pool area and it was dark. Mr. Brendan submits this goes to the accuracy of the officer’s testimony. Mr. Brendan maintains that Constable Miville made a mistake. [ 94 ] Why police queried his vehicle license – Mr. Brendan points out the police officer testified that they had problems with thefts from vehicles in the park.

He says the officer saw him working on his car. Mr. Brendan wondered why the officer ran the license plate of his car in the first place. He said perhaps that was their process, but he did not know. [ 95 ] Options suggested by the Crown – In its submissions and in cross-examination, the Crown suggested various options were available to Mr. Brendan other than turning into the parking lot. Mr. Brendan submits it was not about what he could have done, but about what he was able to do.

In particular, at one point, the Crown suggested that if he was under emotional duress how was he able to shut down the vehicle, unbuckle the seatbelt etc. Mr. Brendan points out that under duress, one does what one is trained to do. That is, muscle memory kicks in . He argues those are things that he can do under emotional stress because he has done them millions of times. Mr. Brendan submits he could do the things the Crown pointed to because they were automatic, programmed things that were simple to do.

However, he could not continue to drive because that is a complex process with unknowns and variables, such as changing traffic conditions. [ 96 ] Working on the car – Mr. Brendan expresses concerns regarding the Crown’s submissions about what he was able to do. Mr. Brendan says that he has a technique for calming himself down. He explained that he works with his hands with complex processes or

complex objects. That helps him to calm down. He was asked about how long that had taken. He said it was about 10 minutes. He saysthat the technique of calming himself was working. Mr. Brendan also says, at that point, he was not making non-essential adjustments tothe cars navigation system. Instead, he was adjusting his level of distress, so that he could be a safe operator of the vehicle. [97] Necessity – Mr. Brendan made submissions on the issue of the defence of necessity. First, he addressed the issue of imminentperil. Mr.

Brendan submits that according to the road authority in BC, as a driver, he is prohibited from driving under the influence ofanything that may adversely affect his ability to safely operate a vehicle. He always learned or believed that if he was upset, he shouldpull over. Driving when upset is dangerous. He said that a driver, even under the influence of emotions, could receive a ticket for amotor vehicle offence. [98] Second, Mr. Brendan addressed the absence of any legal alternative. He says he takes legal alternative to mean a safe alternative.Mr. Brendan says, in this case, he had no alternative.

The Crown suggested he could have turned left. However, Mr. Brendan submitsthat turning left increased the risk of an accident. He says the suggestion he could have driven straight home was also not an option. Thisis because he would have been operating his vehicle past the point where he decided to safely turn-in. Additionally, Mr. Brendan says,stopping on Boundary Road was not an option. It is a truck route. There is excessive speeding. In addition, there was a danger of beingrear-ended. [99] Third, Mr. Brendan addressed proportionality. Mr.

Brendan notes that he did not know how to raise issues regarding the harmavoided. However, he notes that for more than 10 years he has abided by the conditions in the Order. He has completed everyprogramme he has been requested to take. He submits he is doing his best and has been out now for 10 years avoiding harm. APPLICABLE LEGAL PRINCIPLES General Principles [100] It is a fundamental principle of Canadian criminal law that every person charged with an offence is presumed to be innocent untilthe Crown proves his guilt. The presumption of innocence applies throughout the trial.

The accused does not need to prove hisinnocence. Instead, the Crown bears the responsibility of proving guilt beyond a reasonable doubt. In R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, [1997] S.C.J. No. 77, the Supreme Court of Canada unanimously held that it must be made clear to thefinder of fact that the standard of proof is vitally important because it is inextricably linked to the basic premise of the presumption ofinnocence. [101] In Lifchus, the Court noted that proof beyond a reasonable doubt does not involve proof to an absolute certainty. However, areasonable doubt is not an imaginary or frivolous doubt.

It must not be based on sympathy or prejudice; rather, it must be based on reasonand common sense. A reasonable doubt must logically arise from the evidence or the absence of evidence. [102] The Court in Lifchus made it clear that it is not enough for a finder of fact to believe that an accused is "probably guilty". If that isthe conclusion reached, the finder of fact must give the benefit of the doubt to the accused and acquit, because the Crown has failed tosatisfy the burden of proving its case beyond a reasonable doubt. [103] In R. v. Whitmore, 2021 BCCA 302, [2021] B.C.J.

No. 1706, the British Columbia Court of Appeal reviewed the importance ofunderstanding the standard of proof beyond a reasonable doubt. It reviewed the Lifchus case in detail, as well as some other cases thathave applied it. Assessing credibility [104] The principle of proof beyond a reasonable doubt applies not only to the ultimate determination, whether the offences alleged bythe Crown have been proved, but also to the assessment of credibility when an accused person testifies. In such cases, the Court mustconsider the three steps set out by the Supreme Court of Canada in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, [1991]S.C.J. No. 26. That decision sets out how a court must apply the rule of reasonable doubt when the credibility of the accused is in issue.The steps to be followed are: 1. If the court believes the evidence of the accused, it must acquit. 2. If the court does not believe the evidence of the accused, but is left in a reasonable doubt by it, it must acquit. 3.

Even if the court is not left in doubt by the evidence of the accused, it must ask itself whether, on the basis of the evidence which itaccepts, it is convinced beyond a reasonable doubt by that evidence of the guilt of the accused. 4. A fourth step was added to the W. (D.) test in a subsequent decision of the British Columbia Court of Appeal, R. v. C.W.H., (BC CA), [1991] B.C.J. No. 2753, 68 C.C.C. (3d) 146.

If, after careful consideration of all the evidence, the court is unableto decide whom to believe, it must acquit. [105] Other decisions have set out some of the factors a judge should consider when assessing credibility. See R. v. Parent, 2000 BCPC11; Bradshaw v. Stenner, 2010 BCSC 1398; and R. v. Chambers, 2021 BCSC 799. Those factors include:

a) the manner and demeanor of the witness,

b) the general integrity and intelligence of the witness,

c) the internal consistency of the evidence, that is: does the witness's evidence change during testimony, does the witness give differentversions of events,

d) the external consistency of the evidence, that is: is the witness's evidence consistent with independent evidence that is accepted by

the court,

e) the witness's ability to observe, record, recall and describe events, and

f) the existence of motive to lie or mislead the court. This factor is always present in relation to the accused because of the very fact ofthe charge. Consequently, it is a factor that is often not considered when assessing an accused's testimony. Challenges in assessing credibility [106] The case law is replete with judicial commentary on the difficult and delicate task of assessing the credibility of witnesses. In R.v. Gagnon, 2006 SCC 17, the majority of the Court stated that assessing credibility is not a science. In R. v. Whitman, 2005 BCSC 1574,[2005] B.C.J.

No. 2448, Romilly J. noted that credibility is a difficult issue comprised of a number of complicated and subtle ingredientswhich may, however, not be easily expressed. In R. v.

R.E.M., 2008 SCC 51, the Supreme Court of Canada noted: While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on aparticular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize.Furthermore, embellishing why a particular witness's evidence is rejected may involve the judge saying unflattering things about thewitness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting hisevidence in convicting him, but adding negative comments about his demeanor.

In short, assessing credibility is a difficult and delicatematter that does not always lend itself to precise and complete verbalization. (See paragraph 49) [107] The jurisprudence makes clear that there is a difference between veracity, reliability, and accuracy. Credibility and reliability aredifferent. Credibility has to do with a witness's veracity, whereas reliability has to do with the accuracy of the witness's testimony.Accuracy engages consideration of the witness's ability to accurately observe, recall, and recount events in issue.

A witness whoseevidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness,however, may still be unreliable. See R. v. Perrone, 2014 MBCA 74, [2014] M.J. No. 217 and R. v. H.C., 2009 ONCA 56. Circumstantial evidence [108] In cases where some or all of the Crown’s case is based on circumstantial evidence, the trier of fact may also need to consider themodern rule in Hodge’s case and Canadian cases which have interpreted that rule. The Supreme Court of Canada considered the mannerin which circumstantial evidence should be assessed in R. v.

Villaroman, 2016 SCC 33. In that case, the Court held that when a trialjudge is assessing circumstantial evidence, she must consider the range of reasonable inferences that can be drawn from such evidence. [109] The Court noted that when assessing circumstantial evidence, the trier of fact should consider other plausible theories and otherreasonable possibilities which are inconsistent with guilt. The Crown may need to negative such reasonable possibilities, but it does notneed to negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of theaccused.

Other plausible theories and other reasonable possibilities must be considered based on logic and experience applied to theevidence or the absence of evidence, not on speculation. The Court further noted that the line between a “plausible theory” and“speculation” is not always easy to draw. However, the basic question is whether the circumstantial evidence, viewed logically and inlight of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

See Villaromanparagraphs 37 and 38. [110] In Whitmore, the British Columbia Court of Appeal noted that the question of absence of evidence was addressed in Villaroman.It noted that historically, it has been said that in circumstantial cases, conclusions alternative to the guilt of the accused must be based oninferences drawn from “proven facts”. In Villaroman, the Court stated that this view was no longer accepted. Accordingly, incircumstantial cases, inferences consistent with innocence do not have to arise from the proven facts.

Mens Rea – Objective or Subjective? [111] Initially, the Crown identified the issue of mens rea as an issue that would arise in this case. In other words, what is the faultstandard for breach of an order of prohibition made under s. 161 of the Criminal Code. The Crown acknowledged that it appears to besettled law that subjective mens rea must be proven by the Crown for cases that involve breach of bail conditions or breach of probationconditions.

It pointed to Zora, and Docherty. [112] In Zora, the Court considered an appeal by the accused, who had been convicted twice for failing to comply with his bailconditions, namely, to answer the door when police went to his residence. The specific issue the Court addressed was what fault ormental element was the Crown required to prove to secure a conviction under s.145 (3) of the Criminal Code.

In other words, was themens rea for that offence to be assessed on a subjective or an objective standard? [113] The Court concluded that the Crown was required to prove subjective mens rea and that no lesser form of fault would suffice. Inits analysis, the Court noted: This Court’s jurisprudence requiring subjective mens rea for the breach of probation offence further supports a subjective mens rea forthe failure to comply offence.

The offences of breach of probation (s. 733.1) and failure to comply with bail conditions (s.145 (3)) aresimilar offences, which both arise from an accused’s breach of conditions set out in a court order. In R. v. Docherty, (SCC), [1989] 2 S.C.R. 941, the Court determined that a subjective mens rea was required for the breach of probation offence. Thatoffence used the words “wilfully” and “refuses”, which reinforced the presumption of subjective fault, and are not in s.145 (3).

However,even after the word “wilfully” was removed from the current breach of probation offence, most courts continue to interpret the offence torequire subjective mens rea, based on this Court’s reasoning in Docherty and the fact that the removal of the word “wilfully” does not onits own indicate an intent to create an object of mens rea offence. (See paragraph 50, Citations omitted) [114] The Court, having found that subjective mens rea is required for a failure to comply offence, described what the Crown mustestablish to prove subjective mens rea. In

summary, the Court listed the following three elements, which must be satisfied by the Crown:

a) the accused had knowledge of the conditions of their bail order or they were wilfully blind to those conditions; and

b) the accused knowingly failed to act according to their bail conditions, meaning that they knew of the circumstances requiring them to comply with the conditions of their order, or they were wilfully blind to those circumstances, and failed to comply with their conditions despite that knowledge; or

c) the accused recklessly failed to act according to their bail conditions, meaning that the accused perceived a substantial and unjustified risk that the conduct would likely fail to comply with their bail conditions, and persisted in this conduct. [ 115 ] The Court in Zora went on to note that these three elements accord with the mens rea required in jurisdictions recognizing a subjective mens rea for failure to comply offences, by requiring that the Crown show beyond a reasonable doubt that the accused knowingly or recklessly breached the condition.

See paragraphs 109 and 110 of Zora . [ 116 ] In terms of proving that the accused had knowledge, the Court noted that the jurisprudence is somewhat divided. The approach the Court preferred was that an accused must know or be wilfully blind to their conditions in order to be convicted. However, the accused does not need to know the legal consequences or the scope of the condition. The Court also noted that requiring that an accused person has knowledge or is wilfully blind to their conditions of bail does not mean that the accused must have knowledge of the law.

This would be contrary to the rule that ignorance of the law is no excuse. The Court, in particular, noted that subjective mens rea for a s. 145 (3) breach means that an accused person, who has an honest but mistaken belief about the conditions of their bail order, cannot be found liable. However, this does not mean that an accused must know and understand their legal obligations to fulfil those conditions. [ 117 ] The Court gave a helpful example, namely, genuinely forgetting a condition could be a mistake of fact and would negate mens rea .

However, a mistake regarding the legal scope or effect of a condition is a mistake of law and would not be an excuse for non- compliance with the condition. The Court noted that in the case of Custance , the accused knew he had to stay at a certain apartment. However, when he could not get into that apartment, he chose to sleep in his car as he thought this would meet his condition. The accused was aware of his bail condition, but made a mistake about what the law required to meet that condition. This was a mistake of law, which did not negate mens rea . See paragraph 114 of Zora .

ANALYSIS Defence of necessity [ 118 ] During his testimony and in final submissions, Mr. Brendan raised the defence of necessity. Mr. Brendan argued that he pulled into the parking lot at Central Park because it was an emergency. In particular, he argued he was not able to operate the vehicle safely. He was also concerned about the intermittent malfunctioning of his navigation equipment, which he asserted was necessary for him. In other words, he raised the issue of imminent peril. [ 119 ] Additionally, Mr. Brendan argued there was no safe alternative to pulling into the parking lot at Central Park.

He said there were no other options. He maintained that turning left, driving straight home, or stopping on Boundary Road, were not options available to him in the circumstances. [ 120 ] Accordingly, I will set out the legal principles regarding the defence of necessity and will address whether that defence has an air of reality. The case law establishes that the air of reality standard mandates a two-pronged inquiry. Therefore, I will set out the legal principles and my analysis on the defence of necessity, including whether there is an air of reality, in this

section of my reasons for judgment. Defence of necessity – general principles

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