R. v. Lebrun, 2022 BCPC 306

Citation: R. v. Lebrun 2022 BCPC 306 Date: 20221130 File No: 266268-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSEPH CONRAD LEBRUN ALEXANDER HUGH FITZPATRICK THOMSON ORAL REASONS FOR SENTENCE (Re: Accused Lebrun) OF THE HONOURABLE JUDGE OULTON Counsel for the Crown: E. Leno Counsel for the Defendant: B. Isitt Place of Hearing: Vancouver , B.C. Date of Judgment: November 30, 2022

[ 1 ] THE COURT : Mr. Lebrun, 29 years old, has pled guilty to mischief by wilfully obstructing the Lions Gate Bridge on June 22, 2022, on Information 266268. He has no criminal record. Crown seeks seven days' jail and 18 months of probation. Mr. Lebrun seeks a conditional discharge. [ 2 ] With respect to the background, the protest that Mr. Lebrun was engaged in was one with Save Old Growth. Save Old Growth is an offshoot of Extinction Rebellion. The organizers of Extinction Rebellion created Save Old Growth in the beginning of 2022.

Save Old Growth protesters began blocking the Trans-Canada Highway in January 2022. Save Old Growth's demands were that the B.C. Government enact legislation banning all old growth logging immediately. I am getting this background from the Crown's written submissions. [ 3 ] Save Old Growth protesters had six events in January of 2022, eight events in April of 2022, and the three weeks beginning June 13, on page 15, of Crown materials, there is a social media post from the group saying, "We need 100 people to enter into resistance," and there were four events in June.

The Save Old Growth protests resulted in 48 arrests of 34 individuals. From Crown's written submission, paragraph 11, Save Old Growth engages in crowdfunding to cover their expenses and legal fees. Records indicate that organizers -- and Mr. Lebrun is not an organizer -- federally incorporated a not-for-profit company called Eco-Mobilization Canada on January 27, 2022.

The group also gets grants from the U.S.-based Climate Emergency Project. [ 4 ] The circumstances of this offence -- and here I am going to paragraphs 24 to 36 of the Crown's written submissions, and these facts were admitted -- Save Old Growth had returned to blocking the Trans-Canada Highway in June with blockages on June 13, 14, and 16. Individuals at those events had been arrested and held in custody for a bail hearing. [ 5 ] On Wednesday, June 22, 2022, Save Old Growth members drove a van onto the Lions Gate Bridge. At 7:32 a.m., they stopped the van diagonally across the two southbound lanes of traffic.

Protesters exited the vehicle, congregating on the bridge deck, taking photos and filming. Mr. Lebrun and Mr. Thomson, his co-accused on the Information, sat in front of the vehicle holding "Save Old Growth" signs. The vehicle was registered to Eco-Mobilization Canada, with Timothy Brazier listed as the principal driver. Both are associated with Save Old Growth. [ 6 ] All southbound vehicles came to a standstill. Northbound traffic was able to continue slowly. Video of the event shows upset motorists out of their vehicles confronting the protesters. Drivers called police to report the blockade.

Police had the middle lane closed so emergency vehicles could access the bridge. Constable Tettamanti drove in the closed-down middle lane to access the bridge. As officers arrived, other protesters cleared the roadway, leaving only Mr. Lebrun and Mr. Thomas in the roadway with the van. [ 7 ] As it was clear to Cst. Tettamanti that the two were intentionally blocking the roadway, he approached Mr. Lebrun and Mr. Thomas and advised them that they were under arrest. The two were stood up by officers, placed in handcuffs, and walked from the roadway. Mr.

Lebrun appears to have sustained a cut to his finger when police removed the sign from him. The police response is depicted here and there is a photo showing the Lions Gate Bridge. At about 7:43 a.m., Mr. Lebrun and Mr. Thomas were given their Charter rights and identified. They were transported to the Vancouver jail. I accept that Mr. Lebrun was cooperative with police when he dealt with them and gave his name and identifying details without incident. [ 8 ] Police arranged for a tow truck to attend from the far side of the bridge to clear the van from the roadway. There was no key in the van or in the area.

The roadway was reopened after the vehicle was towed away. So the approximate time blocking the bridge, that is known, is 20 minutes. There was likely some short further period of time that is unknown, but as I commented to counsel, if it had been significant, I expect that it would have been noted. [ 9 ] Mr. Lebrun was released on an undertaking with a condition to “not impede or block any traffic or pedestrians on any road or highway” and a “no-contact with his co-accused” and a returnable date. There have been no allegations of breach since that time. [ 10 ] With respect to Mr.

Lebrun himself, as I have already said, he is 29 years of age, and he does not have a criminal record. He has a Bachelor of Archeology degree and is considering getting a Master’s degree in Archeology. He has plans for graduate school. He is an individual who has volunteered in the community. [ 11 ] I am very sorry to hear about your mother's diagnosis, Mr. Lebrun. [ 12 ] That is something significant that changed in Mr. Lebrun's life and in his family's life on September 2nd of this year. He has flown here from Kingston for the sentencing. [ 13 ] There were five letters of reference prepared for Mr. Lebrun.

I read them all on the break. They were written by his mother and father together, his girlfriend of the last four years, a former employer, and two friends. They speak in glowing terms of Mr. Lebrun's character. [ 14 ] Mr. Lebrun addressed me himself. I found him to be intelligent, articulate, and compassionate. He demonstrated remorse for his conduct that day. He also demonstrated insight.

He explained his motive at the time was feeling desperate, feeling like he had taken all sorts of actions to address his concerns about the lack of political will or attention to climate change issues, specifically, old growth forests, and felt desperate and took this step. However, he says he has no intention to be involved in any further protests of this nature and I believe him.

I find him specifically deterred, which is important to what I have to consider. [ 15 ] He explains the stress of the arrest and charge has been difficult for him and he explains that the sadness in his own life has made him think differently about the impact that his decision had on other users of the roadway that day. So he is someone who is showing insight into not only how he felt very strongly and was motivated to act that day which is the beginning, but also having come past it, and being now in a situation where he sees -- it was quite striking to me that what he said was someone who was being impeded from

attending cancer treatment came up to him and spoke to him that day and at the time he felt guilty, but justified in doing what he wasdoing, and that now he just feels guilty, and I found that quite striking from Mr. Lebrun. [16] The sentencing principles, the cases provided by Crown and the very thorough and lengthy authorities given to me do establishand I accept that denunciation and specific and general deterrence are primary here. I have to sentence according to the Criminal Codefor this offence of mischief, so I also have to have regard to the principle of restraint.

A sentence should not be more restrictive thannecessary to achieve the objectives of sentencing. A sentence is also to be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. [17] I also have regard to parity. Sentencing is an individualized process under the Criminal Code. Crown's position is based onwhen the offence took place. Crown advises that its position is now jail for any offence, if I understood the submission correctly,occurring in June of 2022 or thereafter.

This position considers, I would say, the circumstances of the offence and perhaps the immediatecontext of the offending, but does not pay attention to the circumstances of the offender or, if it does, it makes assumptions about whothat offender is, and what their motives are, and that is not based in evidence. It is an inference that the Crown is asking the court todraw. [18] The sentencing position is based on the submission that the earlier sentences of conditional discharges given to other protestershave proven ineffective, therefore, an escalation is required. But those earlier offenders were not Mr. Lebrun.

Crown also submits atsome point jail is required to deter certain individuals. Possibly, but are we at that point now for this individual? Crown urges anapproach such as was applied in the Trans Mountain Pipeline cases where there were categories of offences and, as of a certain point intime, everyone who was being arrested was being given a 14-day jail sentence, which Crown said was effective in generally deterringindividuals and the arrests stopped, but I do think this type of case is different: Trans Mountain Pipeline ULC v. Mivasair et al, 2019BCCA 156; Trans Mountain Pipeline ULC v.

Mivasair et al, 2022 BCSC 1034. [19] Sentencing for criminal contempt is different than sentencing for a Criminal Code offence, which has statutory criteria thatjudges have to apply and consider when imposing sentence. [20] With respect to the criteria for imposing a conditional discharge, they are well known in this court and they are called theFallowfield criteria, from that case: R. v. Fallowfield, (1973), (BC CA), 13 C.C.C. (2d) 450. I can impose adischarge if I find that it is in Mr.

Lebrun's interest, and the more challenging aspect of the test is whether or not it is contrary to thepublic interest to impose a conditional discharge. There are mitigating factors present here. A question I must ask myself is, does thepublic need to be warned about Mr. Lebrun? I can also consider under that rubric the collateral future consequences to Mr. Lebrun withrespect to travel and employment, if he has a criminal record. [21] The mitigating factors here, in my view, are many. Mr. Lebrun is, I would say, young, 29. He has no criminal record. He haspled guilty. He has demonstrated remorse.

He has demonstrated insight. He is an individual of previous good character. [22] The cases that I find most relevant to this sentencing are the ones that have sentenced individuals for Save Old Growth protests. So I paid particular attention to those and, in the Crown's written submissions, they were described at paragraphs 105 to 123, and so I amgoing to go there now to summarize what I found most helpful. [23] Starting first, actually, a little bit back with the case of Ms.

Baldwin-Pinch, and that is found in the Crown's written submissionsat paragraph 78 to 80, and so these were Extinction Rebellion protests, both of them: R. v. Baldwin-Pinch, Healy et al. (16 March 2022),Vancouver 264419/Richmond 66275 (BCPC). Ms. Baldwin-Pinch was given a conditional discharge for her offence. It was an October2021 Extinction Rebellion protest and she was conditionally discharged, and similar to Mr. Lebrun, the reason that Judge Dhillon, one ofthe reasons, imposed a conditional discharge is that she listened to what Ms. Baldwin-Pinch told her and was satisfied that Ms.

Baldwin-Pinch was specifically deterred, as I have found that you were, as well, Mr. Lebrun. [24] Now, turning to Save Old Growth Forest sentencings, at paragraph 105, Ms. Campbell pled guilty to four files including onebreach of undertaking in relation to three Extinction Rebellion protests in October 2021 and one Save Old Growth blockade on January31, 2022. She was pleading guilty to four files. She was given a conditional discharge, placed on probation for 18 months, with 150hours of community work service: R. v. Campbell (16 May 2022), Vancouver 264419/33390/264582/66275 (BCPC). [25] Mr.

Schortinghuis was also given a conditional discharge. He was pleading guilty to three charges: R. v. Schortinghuis, 2022BCPC 161. [26] I am now at paragraph 110 of the Crown’s written submissions, summarizing cases. Ms. Torgerson was pleading guilty to fourSave Old Growth protests in which she participated in January of 2022. Crown sought a jail sentence and opposed a discharge in hercase, in part because Crown submitted that Ms. Torgerson’s position with the organization was that she was a spokesperson.

The judgefound that she was not a leader and imposed a sentence similar to the one Judge Harris had imposed on Ms. Campbell, which was an 18-month conditional discharge with 100 hours of community work service: R. v. Torgerson and Howe, (31 January 2022), Vancouver264852 (BCPC). [27] Mr. Weber, paragraph 111: R. v. Weber, (20 July 2022), Vancouver 263987 (BCPC). Mr. Weber is distinguishable in two ways. He was an organizer of the protests and he was also sentenced according to a joint submission. The Crown and defence agreed.

He wasalso being sentenced for his involvement in four protests and had one breach of undertaking, so, as I understood that, it was five charges,and he was given a 14-day jail sentence, but there are some, I think, important distinguishing characteristics. [28] Olivia Howe, paragraph 112, was given a conditional discharge on August 22, 2022, for participating in one Extinction Rebellionprotest, on October 25, 2021, and one Save Old Growth protest, on January 31, 2022, as well as a breach of undertaking: R. v. Howe, (22August 2022), Vancouver 264582 (BCPC). [29] Mr.

Ichikawa was an individual who, while he did not have a true criminal record, had been to jail before for criminal contempt. He was given a 21-day CSO for his participation in two Save Old growth protests in January 2022. Very different factually in the sense

of the history and Mr. Ichikawa was 81 years of age at the time he was sentenced: R. v. Ichikawa, (August 25, 2022), Vancouver 265058/33853/69562 (BCPC). [ 30 ] Paragraph 114, Bibbings, Clark, and Darling, Ms. Bibbings was being sentenced for two matters. The first one was an Extinction Rebellion protest and the second one was a Save Old Growth protest in June of 2022. She received a conditional discharge for the first offence and a suspended sentence for the second, because it was the second offence, and because she had been aware of the first one when she committed the second one. Ms.

Clark, who was only involved in one offence, received a conditional discharge: R. v. Bibbings, Clark and Darling (23 September 2022), Richmond 66275/66791 (BCPC). [ 31 ] Dr. Cikes, paragraph 120, had three charges and one breach of undertaking. I read that as being four charges. She was granted a conditional discharge: R. v. Cikes, (29 September 2022), Vancouver 264891/265018/265679 (BCPC). Judge St. Pierre found her insight and remorse a significant factor, as well as the impact a criminal record would have on her ability to work and support herself, and I see similar factors present here for Mr.

Lebrun. [ 32 ] Ms. Coffin was given a one-day jail sentence, but she had two offences and that is, in my view, distinguishable: R. v. Coffin (4 November 2022), Richmond 66624 (BCPC). [ 33 ] Mr. Tastad, at paragraph 122, was being sentenced for his participation in two Save Old Growth blockades and, even though there were two offences before the court, he was also given a conditional discharge for 18 months with community work service: R. v. Tastad, (10 November 2022), North Vancouver 69791, Downtown Community Court 34036 (BCPC). [ 34 ] Ms.

Bell, sentenced just last week, was being sentenced for participating in two Save Old Growth protests in January 2022. For the first one, she received a conditional discharge. For the second one, she received $1,000 fine with probation: R. v. Bell, (22 November 2022), Vancouver 265058 (BCPC). [ 35 ] While they were making submissions, Ms. Leno gave me a

summary of -- November 25, 2022, Judge Harris sentenced Ms. Higgins for three Extinction Rebellion protests from October 2021 and one Save Old Growth protest from June 13, 2022. She used glue as well as a vehicle. She was given a one-day jail sentence for the last offence in time, and a suspended sentence for the others, so a total of four offences: R. v. Higgins, (25 November 2022), Vancouver 265750 (BCPC). [ 36 ] So the general principle I distill, considering all of those cases that I do consider the most relevant, when I consider parity, and when I consider who Mr. Lebrun is as compared to those other individuals, to the extent I can tell from the helpful, but still just a

summary that Crown provided me, is that individuals before the court being sentenced for sometimes more than one offence, but a first offence, in any event, pleading guilty, with no criminal record, are receiving conditional discharges. [ 37 ] So in this case, in light of the many mitigating factors here and the fact that I do accept that Mr. Lebrun is specifically deterred, I conclude a conditional discharge is in his interest and is not contrary to the public interest, because I do not think the public needs to be warned about Mr.

Lebrun, and I am also mindful of the collateral consequences to employment and travel that can flow from anything other than a conditional discharge for someone. [ 38 ] So if you would stand up, Mr. Lebrun. [ 39 ] I am going to sentence you for this one offence of mischief to a conditional discharge with a period of 12 months of probation. [ 40 ] There are statutory conditions of probation. They will apply to you as they apply to everyone on probation. Keep the peace and be of good behaviour. Appear before the court when required to do so by the court.

Notify the court or the probation officer in advance of any change of name or address and notify the court or the probation officer in advance of any change of employment or occupation. [ 41 ] With respect to the optional conditions, I will impose the one that Crown was seeking. Do not block or impede traffic or pedestrians on any road or highway or public space in British Columbia. [DISCUSSION AND SUBMISSIONS RE COMMUNITY WORK SERVICE OR HIGHER VICTIM FINE SURCHARGE] [ 42 ] THE COURT: That is what I am going to do now.

A victim fine surcharge of $1,000 and it is usually payable within 60 days, but I can extend the time to pay up to two years. So for that, I just need to know how much time is reasonable. You can ask for up to -- if you need to talk to your lawyer? [ 43 ] CNSL B. ISITT: It's basically your call. If you want to get it over in a month to appreciate Her Honour being so lenient today -- [ 44 ] THE ACCUSED: Yes. [ 45 ] CNSL B. ISITT: -- where if you want to take time, she will -- [ 46 ] THE ACCUSED: I can -- I can pay the victim surcharge at any point. I am able to pay $1,000 surcharge immediately. [ 47 ] CNSL B.

ISITT: So he does not request an extension. [ 48 ] THE COURT: Okay. So then I will just say payable under the statutory time, within 60 days of today's date. (REASONS CONCLUDED) Cites added for publication