R. v. Menard, 2023 BCPC 129

Citation: R. v. Menard 2023 BCPC 129 Date: 20230517 File Nos.: 89984-1 and 23449-1 Registries: Nanaimo and W. Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. DEREK HUGH MENARD REASONS FOR SENTENCE OF THE HONOURABLE JUDGE B. HARVEY Counsel for the Crown: Joel Gold Counsel for the Defendant: Elisabeth A. Leith Strain Nilgiri Pearson as Articling Student Place of Hearing: Nanaimo , B.C. Date of Hearing: January 11, 2023 Date of Judgment: May 17, 2023 Introduction [ 1 ] The accused Derek Hugh Menard is before the Court for sentencing, having previously entered guilty pleas on August 3, 2022 to the following offences:

[ 2 ] Nanaimo Court File 89984-1: Count 1 that, on or about the 8 th day of April, 2022, at or near Nanaimo, in the Province British Columbia, did commit mischief by wilfully obstructing, interrupting or interfering with the lawful use, enjoyment or operation of property, namely Island Highway South, contrary to section 430(1) (

c) of the Criminal Code . [ 3 ] Western Communities Court File # 23449-1: Count 1 that, on or about the 20 th day of April, 2022, at or near Langford, in the Province of British Columbia, wrongfully and without lawful authority and for the purpose of compelling members of the public to abstain from travelling on Trans Canada Highway, which they had a lawful right to do, did obstruct a highway, namely Trans Canada Highway, contrary to

Section 423(1(

g) of the Criminal Code . [ 4 ] The facts of the matters were heard before me on January 11, 2023 which also included a full day of submissions. Counsel for both parties provided significant submissions and a great deal of material was provided on behalf of the accused as well as case law authorities which are set out in Appendix “A” in these reasons for judgement. To be clear, this was not a joint position or sentence that has been provided to the Court. [ 5 ] The issue for this Court to decide today is: what is the appropriate and fit sentence for these offences to which the accused has pled guilty?

Circumstances of the Offences Nanaimo Court File 89984 [ 6 ] At approximately 8:12 AM on April 8, 2022 Nanaimo RCMP receive calls regarding twelve people holding signs blocking the southbound lane intersection of the Trans Canada Highway at Cranberry Avenue in South Nanaimo. Police estimated up to two hundred vehicles were prevented from travelling southbound and accordingly, in order for police to reach the desired destination, they had to travel against northbound traffic. Upon their arrival, it appeared there were ten persons holding large signs regarding “Save Old Growth”.

Police asked the protestors to remove themselves from the roadway. Two individuals remained including this accused, who was sitting in the middle of the roadway and had super glued his left hand to the roadway. At 8:27 AM Constable Lee arrested this accused as he refused police instruction to leave the roadway. The obstacle removal team of the R.C.M.P., otherwise known as the “ORT” attended the scene. Ultimately, in fairly short order, this accused was removed once they arrived.

The accused was transported to cells where emergency health services attended and subsequently the accused was released from police custody on an undertaking later that same day. One of the terms of the undertaking was that the accused was not to impede or block any traffic or roadway in British Columbia, not to associate with Extinction Rebellion when committing acts of unlawful protest and to protest lawfully. His initial appearance in court was on July 12, 2022.

Western Communities Court File 23349 [ 7 ] On April 20, 2022, at approximately 3:14 PM, Cpl Jones of the R.C.M.P. was dispatched to the Trans Canada Highway, near the West Shore Parkway. The officer observed four to five persons on the highway blocking northbound traffic near the ice cream store at the entrance to what is known as the Malahat Drive. [ 8 ] This accused, Mr. Menard, was attached to a cement filled barrel known as a “sleeping dragon”.

Once again, this accused refused to remove himself from the roadway along with his co-accused Elizabeth Helen Stewart; they both ignored police direction and therefore he, along with his female co-accused, was arrested. The ORT was once again involved and it took more than three hours to complete the delicate removal of the two accused from the roadway. The Court was advised that, in total, there was a four hour blockade of the northbound lanes of the Trans Canada Highway. Additionally, shown and played to the Court, and filed as Exhibit 1, was a USB drive which involved a video and some still pictures.

To state that those members who were present were irate at this accused and his co- accused would be an understatement.

In short, it was obvious to the accused protestors that members of the public were prevented from travelling on the Trans Canada Highway and several individuals were outraged at the protestors. [ 9 ] The police confirmed there were no documented emergencies but there was significant risk of that occurring and no doubt missed appointments, meetings and the delay for people generally to get on with their lives and ultimate destination which occurred as a result of the protestors’ actions. [ 10 ] The accused was held in custody and ultimately released on a significant surety Release Order by Judge Gouge on April 22, 2022. [ 11 ] Those, briefly, are the circumstances of the offences.

Circumstances of the accused [ 12 ] The accused is presently thirty-four (34) years of age, born April 18, 1989. [ 13 ] The accused it would appear has two siblings, one of whom is an engineer. The accused’s father was a mechanical engineer but sadly passed away twelve years ago. The accused’s mother is a licensed practical nurse who worked as a dietitian prior to her retirement. [ 14 ] The accused followed a somewhat different path than his parents and siblings. He was studying the sciences and in university was fascinated by the possibility of prolonging human lifespans.

It was at this point that he lost his father. The overlap of the loss of his father and studies became too much for him and so he left UBC and moved back to Nanaimo. The accused accepted a volunteer position in the molecular genetics lab at Pacific Biological Station in Departure Bay which led to a full-time job as a research assistant and lab technician. [ 15 ] Eventually the accused moved back to Vancouver to finish his degree in cellular biology and genetics. The accused then whilst on travels met his fiancée Alecia, who he has been with him for some six years.

[ 16 ] Further, in 2015, while in New Zealand the accused was involved in a serious motorcycle accident which gave him time during his convalescence to consider his career path options. He continued studying the effects of human actions on earth. He was somewhat fascinated by Al Gore’s 2006 film in “An Inconvenient Truth” and also a book called “World on the Edge” by Lester Brown originally published in 2010. [ 17 ] Dr.

Shabehram Lohrasbe, a well-known and respected forensic psychiatrist, provided a psychiatric assessment dated October 5, 2022 and set out in tab three of the Accused’s book of documents.to the Court indicating that this accused “is a sensitive young man with a history of childhood trauma and pre-existing vulnerability to depression … who has been deeply impacted by the climate crisis and suffers from some ongoing episodes of depression. His illegal actions were in the context of bouts of depression.” In the end, Dr.

Lohrasbe diagnosed the accused with a “Persistent Depressive Disorder” and that the accused is aware of therapeutic resources that are available to him. [ 18 ] This accused has decided the prospect for our planet is so dire, and the odds of averting the catastrophe that awaits it so slim, that he himself has decided along with his fiancée not to have any children.

Therefore, non-violent civil disobedience was his way of coping. [ 19 ] The accused had some thirty or so reference letters provided to the Court from fellow citizens, including family, friends and politicians. [ 20 ] Ultimately, this accused takes responsibility for his illegal behaviour and as mentioned by his counsel during submissions, he has expressed remorse and never set the matter for Trial.

Positions of the Crown and Defence [ 21 ] The Crown submitted that the appropriate sentence is a jail sentence of fourteen days imprisonment, to be followed by one year non-reporting probation order that this accused not obstruct streets, roads or highways whilst on probation. [ 22 ] Crown counsel provided two case authorities which I have canvassed prior to my decision in these matters. They are set out in Appendix “A” to the reasons. [ 23 ] The Crown emphasized the case law in this area regarding criminal protesting activity focuses on denunciation and deterrence as primary purposes of sentencing.

The Crown argued the difference between lawful and unlawful protesting, especially with criminal activity. The Crown argued that this accused took it to another level. In the Crown’s view this was a misguided form of protest by this accused in that there was a four hour blockade through the Malahat Drive with the use of the sleeping dragon and was an aggravating factor as set out in paragraph 54 of Judge Barrett’s decision who ultimately sentenced Ms. Stewart, this accused’s co-accused on the same Western Communities matter.

Judge Barrett imposed a sentence of time served, taking into account three days in custody and further imposed an eighteen month probation order on various terms which included, amongst other things, reporting and fifty hours of community work service. [ 24 ] The Defence, on the other hand, argued that this is a case where it is open to the Court to sentence this accused to a sentence ranging from a conditional discharge, a reasonable fine, to a short period of incarceration.

Because of several mitigating factors, including the accused’s compliance whilst on surety bail after his arrest on the Western Communities file without incident, and the fact that he has no criminal record, it was submitted that any jail term should be served by way of a conditional sentence in the community with house arrest. The Defence further to its submissions provided the Court with some seventeen decisions including the decision of R v Schortinghuis , supra. [ 25 ] Similarly, I have also canvassed the Defence cases before reaching my decision in these matters.

In a number those cases provided, a number of those accused individuals received a conditional discharge and in other cases similar sentences were imposed as sought by the Crown. [ 26 ] The Defence argued that the Supreme Court of Canada has already acknowledged the reality and severity of climate change. (See References re Greenhouse Gas Pollution Pricing Act , 2021 SCC 11 at paragraphs 7 through 10). [ 27 ] It was also argued by the Defence that this accused is not a danger to society. The accused’s motives were purely altruistic.

He did not personally benefit from his actions; in fact he put himself at risk for what he believed to be the only way to draw society’s attention to very real risk by confronting it. [ 28 ] In the end, although a conditional discharge was argued as an appropriate sentence for these two offences, the Defence conceded that other non-custodial options were far more appropriate than a real jail sentence, including time served, given this accused personal circumstances and favourable references. Principles of sentencing [ 29 ] The Court is guided by sections 718 , 718.1 and, 718.2 of the Criminal Code .

Purpose: [ 30 ]

Section 718 reads as follows: 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. Fundamental principle: [ 31 ]

Section 718.1 reads as follows: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles: [ 32 ]

Section 718.2 in part reads as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. Aggravating and mitigating circumstances [ 33 ] The aggravating factors in this case I find are as follows: 1. Firstly, the very fact that the accused chose to illegally protest whilst on an undertaking some twelve days later out of Nanaimo. 2. Secondly, the accused caused significant delays to members of the public who were free to go about their daily lives on a public highway, particularly on April 20, 2022 near Langford; 3.

Thirdly, if those actions were not enough, the accused refused to comply with police instructions which required the R.C.M.P. Obstacle Removal Team (ORT) to have himself removed from the public roadway on both occasions; 4. Fourthly, the accused has been sentenced by Justice Thompson in Nanaimo Supreme Court on a breach of a civil injunction involving Fairy Creek apparently on April 11, 2022, days before his offence of obstructing a highway on April 20, 2022. [ 34 ] The mitigating factors in this case I find are as follows: 1.

Firstly, the early guilty pleas thereby alleviating anyone from having to testify in these two proceedings; 2. Secondly, the accused has had some extenuating circumstances concerning the loss of a parent as well as medical issues, including those documented by Dr. Lohrasbe. 3. Thirdly, the expression of remorse for his actions on the two days in question; 4. Fourthly, the accused is well-educated and has had steady employment throughout his young life as well as very supportive family; and 5.

Fifthly, the accused has had many members of the public provide significant support and confirm the accused is passionate about climate change. What is a fit and appropriate sentence in this case? [ 35 ] Notwithstanding all of the mitigating factors I have outlined in this case, I find that the moral culpability of Mr. Menard to be high. There is absolutely no question that this accused knew what he was doing and had every opportunity to stop and not cause members of the public any further inconvenience, even when he had the ability to do so when requested by the police.

Moreover, he did so over a prolonged period of time near the entrance to the Malahat without any care or consideration of those other members of the law- abiding public going about their daily lives on April 20, 2022. [ 36 ] That being said, I do not accept that a jail sentence is now necessary as requested by the Crown for this particular accused in these particular circumstances. [ 37 ] Sentencing is a very individualized process and no two cases are identical. Each offender must have a sentence that is tailor-made to their particular circumstances and to the facts of the particular case.

Upon much deliberation, I do not see the imposition of a jail sentence as being required given the large number of very positive reference letters that have been filed on behalf of this accused. In my view, a jail sentence, either real or via a conditional sentence order, would be unfit in all the circumstances at present. [ 38 ] Turning now to the issue of conditional discharge; I am keenly aware that there are other cases where such a sentence has been imposed. Once again, just because a conditional discharge is imposed in one case does automatically mean that one should be imposed in this case.

[39] This accused simply chose to get his message or point across in a completely selfish manner and, ironically in my view, perhapsexacerbated the problem, or crisis of climate change, by having idling vehicles contributing to the very problem he himself is passionateto change. [40] Of further concern is that this accused chose to further break the law in a far more egregious manner than on April 8, 2022 inNanaimo whilst on an undertaking on April 20, 2022, but also just having been sentenced on a civil injunction order days prior inSupreme Court. [41] Such continuous illegal behaviour, regrettably, is becoming all too frequent as it appears from others who have been sentencedfor similar types of offences as per the case law provided to this Court.

These deliberate actions by this accused must be deterred when itcrosses the line from civil disobedience and lawful protest into the criminal law realm. I am mindful of the test set out in R. v. Fallofield,: It must be in the best interests of the accused and; Not contrary to the public interest. [42] In this particular case, with this particular offender and circumstances, I find that it would be in his best interests if this Courtwere to grant a conditional discharge. However, the more challenging question is, would it be contrary to the public interest? In my view,it would.

I say so because notwithstanding this accused has committed no further offending since his significant bail release termsimposed upon him after several days in custody, members of the public would not condone a flagrant flaunting of a Court order in theparticular circumstances as what occurred here near Langford on April 20, 2022.

The sentiments expressed by my legal colleague JudgeBarrett perhaps best summarize the situation and I find her remarks most apropos in her oral reasons delivered regarding the co-accused,Elizabeth Stewart on October 14, 2022 in the following paragraphs (39-47): [39] Therefore, my focus needs to be on general deterrence; that is, ensuring that Ms. Stewart’s sentence sends a clear message to thosewho are considering similar criminal conduct that, if found guilty, they will receive a serious penalty from the courts. [40] These are not victimless crimes.

They do cause harm and can create a serious risk of harm to protestors and civilians alike. [41] Judge Bakan in her 2022 decision of R. v. Schortinghuis spoke about harmful consequences flowing from the various blockades thatwere of concern to her in her case. In paragraphs 10 and 11 of her decision she states: [10] We normally talk about the effect on the complainant. While there was no individual complainant in this case, hundreds of personsdriving during rush hour in the Lower Mainland area were blocked from reaching work, medical appointments, dropping children atschool and daycare.

Numerous people were stuck in the tunnel or on a bridge when there is no means of turning around. These effects ofbeing stuck in this manner pose a risk of trauma, especially to persons with anxiety, children, and those who are missing crucial medicalappointments, including persons from Vancouver Island who may be… (seeking) medical specialists in the Lower Mainland.

Theblockade caused more carbon fuel to be sent into the atmosphere as cars were idling or were diverted and had to take longer routes.Police, fire, and paramedic resources were diverted to deal with the traffic … (backlog). [11] In all three protests, vehicle occupants left the vehicles to express their anger. It is extremely fortunate no acts of violence occurred,and that was likely only due to the fact that the police arrived fairly soon. I note that the pandemic and other social issues are causingincreasing levels of stress in the community.

People are having difficulty making ends meet in the healthcare system, includingparamedics and police, are under great strain. It is only a matter of time until a protester, vehicle occupant, police, fire, or paramedicpersonnel are injured during these protests. Mr. Schortinghuis put people at risk, including himself, by refusing to climb down the ladderin the Massey Tunnel matter.

(42) In this case, and particularly with respect to the April 20th incident, Crown noted irate and angry motorists were observed exitingtheir vehicles and yelling and swearing at the protestors, vocalizing their disapproval of their actions. Some motorists actually tried,before police arrived, to physically remove Ms. Stewart and the other protestor from the concrete-filled barrel without success. It appearsthat emotions were beginning to escalate and motorists were starting to take action into their own hands in an effort to end the blockadeby the time the police arrived.

As stated by Judge Bakan, when situations like this arise, it elevates the risk of violence to both protestorsand citizens alike, and therefore enhances the potential harm resulting from these types of actions.

(43) There was some evidence, as well, that children were present and impacted by the blockade. Some children were outside theirvehicles, thereby raising a concern about their physical safety in the midst of so many vehicles and irate and impatient drivers.

(44) Traffic was significantly backed up and delayed as a result of the blockade, particularly on the Trans Canada Highway. Asignificant number of citizens, as a result, were impacted by the protestors’ actions, and those of Ms. Stewart and the other protestorspecifically. Motorists attempting to travel north on the highway were, in essence, stopped and trapped with nowhere to go until policearrived and were able to divert them by using a southbound lane.

(45) There was also the additional harmful impact on the environment from the carbon fuel emissions from the idling vehicles held upby the blockade in this case. The prolonged nature of the blockade increased that harm.

(46) I accept, as Ms. Mahon submitted, that there is no actual evidence that on either April 4th or April 20, 2022, that emergency vehicleswere delayed or that any individual missed a significant medical appointment because of Ms. Stewart’s actions or the protests, generally.I am sure, given the volume of people that were impacted by this event, that we would actually find out of any actual incidents unlessthey were specifically reported to police.

(47) But regardless, having accepted that, and while accepting that there is no specific evidence of those aggravating factors present inthis case, I am of the view that that is simply good fortune or happenstance rather than by reason of design. These are very real andforeseeable potential consequences from blocking the roadway or heavily used and relied upon highway that serves as the primary mode

of accessing a major centre like Victoria. If realized, the harm that can flow from those types of consequences can be quite serious. [43] I share those aforementioned comments of Judge Barrett and they equally apply to this accused in this particular case. [44] Accordingly, whilst I am of the view that a conditional discharge is not an appropriate sentence, neither is a fine in my view.Rather, a suspended sentence is the most appropriate sentence in this case. If the accused complies with the terms of probation he hasnothing to be concerned about.

However, if this accused is convicted of breaching any of the probation conditions and/or any newoffence whilst still bound by this probation order I intend on imposing, he may, in addition to being sentenced for any further offence,also have his suspended sentence revoked. Therefore, if a suspended sentence is revoked, he is liable to be re-sentenced at the request ofthe Crown pursuant to

section 732.2(5) of the Criminal Code which should serve as enough deterrence in and of itself. That will be up tohim. Disposition [45] Taking all the factors into consideration, it is my view that the appropriate sentence for the offences to which this accused haspled guilty to, is as follows: [46] On both Counts on the two aforementioned Informations, I will suspend the passing of sentence and place you on probation fortwelve months concurrent on each Count. [47] The terms of your probation order pursuant to the suspended sentence are as follows: 1. You must keep the peace and be of good behaviour. 2.

You must appear before the court when required to do so by the court. 3. You must notify the court or the probation officer in advance of any change of name or address and promptly notify the court or theprobation officer of any change of employment or occupation. 4. You must report in person to a probation officer at 101-17 Church St., Nanaimo, BC by 3PM tomorrow, May 18, 2023 and thereafteras directed by the probation officer. 5. Your reporting ends when you have satisfied your probation officer that you have:

a) completed all your community work service hours to the satisfaction of your probation officer; 6. When first reporting to your probation officer you must provide them with the address where you live and your phone number. Youmust not change your address or phone number without notifying your probation officer in writing at least three days in advance of anychange. 7.

You must not impede any traffic or pedestrians on any public roadway, nor impede any person in the course of their transit either onfoot, vehicle, or conveyance, and not lie down, sit, or pause for an unreasonable period of time on any public roadway in the Province ofBritish Columbia. 8. You must complete forty (40) hours of community work under the direction of your probation officer.

Your community work servicemust be completed by January 17, 2024, eight (8) months from today’s date. [48] Lastly, the victim fine surcharges will be payable pursuant to the Regulations. _____________________________ The Honourable Judge B. Harvey Appendix A 1. Crown cases 1. R. v. Schortinghuis

(2022) BCPC 161; and 2. R. v. Stewart (2022) unreported decision of Barrett PCJ October 14, 2022 (Western Communities File No. 23449-1) 2. Defence cases 1. References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11; 2. Teal Cedar Products Ltd. v. Rainforest Flying Squad, 2022 BCSC 659; 3. R. v. Hamilton, (ONCA);

4. R. v. Fallofield, ; 5. R. v. Breen and Brice (BCPC 89874-1; 89955-1); 6. R. v. Haiven et al., (BCPC, Vancouver 261926-1. August 16, 2021); 7. R. v. Sidhu 2011 BCCA 246; 8. R. v. Legere

(2006) BCSC 1745; 9. R. v. Luba

(2022) BCPC 49; 10. R. v. Panganiban et al., (Vancouver 32605 & 262312, December 8, 2021); 11. R. v. Bibbings et al., (Richmond 66275-1, unreported March 16, 2022); 12. R. v. Best et al., (Vancouver 264419, May 16, 2022; 13. R. v. Schortinghuis,

(2022) BCPC 161; 14. R. v. Bibbings et al., (Richmond 66275-1, unreported September 23, 2022; 15. Teal Cedar Products Ltd. v. Rainforest Flying Squad,

(2021) BCSC 2288; 16. Teal Cedar Products Ltd. v. Rainforest Flying Squad

(2022) BCSC 505; and 17. R. v. Ichikawa (North Vancouver 265058-1, 33853-1, August 25, 2022)