R. v. Holt, 2023 BCPC 18

Citation: R. v. Holt 2023 BCPC 18 Date: 20230202 File No: File No: Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. BENJAMIN DONALD HOLT and SI YAO LIU File No: 267238-1 Registry: Vancouver REX v. BENJAMIN DONALD HOLT File No: 266734-2C Registry: Vancouver REX v. JESSICA BAILY, JOSEPH LEE BAKER, DANIEL JOHN TETZLAFF, NATAN VILNER and BENJAMIN DONALD HOLT File No: 69791-1 Registry: North Vancouver REX v. BENJAMIN DONALD HOLT, JON DOUGLAS TASTAD and SUSAN JANE BIBBINGS CORRIGENDUM TO THE WRITTEN REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G.M. RIDEOUT

Counsel for the Crown: E. Leno Counsel for the Defendant: B. Isitt Place of Hearing: Vancouver, B.C. Date of Hearing: December 2, 2022 Date of Judgment: February 2, 2023 TABLE OF CONTENTS I. INTRODUCTION .. 2 II. ISSUE .. 3 III. BACKGROUND .. 3 (

i) Information 265459-1 . 3 (ii) Information 69791-1 . 5 (iii) Information 267238-1 . 7 (iv) Information 266734-C-2 . 8 IV. LEGAL FRAMEWORK .. 9 (

i) The Application of s. 730 of the Code . 9 V. CIRCUMSTANCES OF THE ACCUSED .. 14 VI. POSITION OF THE PARTIES .. 16 (

a) The Crown .. 16 (

b) The Accused . 19 VII. ANALYSIS .. 21 VIII. DISPOSITION .. 27 A Corrigendum was released by the Court on February 2, 2023. The corrections have been made to the text and the Corrigendum is appended to this document. I. INTRODUCTION [ 1 ] Benjamin Donald Holt (the “accused”) is a climate activist.

He was involved in four separate protests as a supporter of the self- described Save Old Growth protest movement. [ 2 ] Save Old Growth was established in late 2021 and is an offshoot of an environmental group established in Europe in 2018 known as Extinction Rebellion. [ 3 ] The stated aim of Extinction Rebellion, and by extension Save Old Growth, is to bring attention to their perceived urgency regarding climate change and government inaction in rectifying it. [ 4 ] Save Old Growth’s modus operandi is to establish human blockades of highways until the provincial government bans all old growth logging.

Only when that is achieved will the human blockades of highways be removed: Crown Written Submissions at p. 20. [ 5 ] The accused has entered guilty pleas in relation to four separate incidents involving the Save Old Growth protest movement. [ 6 ] In Information 265459-1, he has pled guilty to committing mischief on April 18, 2022, when he was involved with a group of protesters blocking the westbound traffic lanes of Grandview Highway at Boundary Road in Burnaby, contrary to s. 430 of the Criminal Code of Canada (the “ Code ”).

[ 7 ] In Information 69791-1, he has pled guilty to committing mischief on June 14, 2022, when he was involved with a group of protesters blocking westbound traffic on Highway 1 between the Westport Road and Caulfeild Drive in West Vancouver, contrary to s. 430 of the Code . [ 8 ] In Information 267238-1, he has pled guilty that he breached a court order by participating in the blocking or impeding of traffic at or about 8 AM on August 2, 2022 at the south end of the Lions Gate Bridge, contrary to s. 145(5) (

a) of the Code . [ 9 ] In Information 266734-C-2, he has pled guilty to committing mischief on October 20, 2022, when he was involved with a group of protesters in painting a portion of the centre lane of the Lions Gate Bridge with the words SAVE OLD GROWTH in Vancouver, contrary to s. 430 of the Code . II.

ISSUE [ 10 ] The accused has no criminal record. [ 11 ] He submits by operation of s. 730(1) of the Code , it would be in his best interests and not contrary to the public interest, that he be discharged conditionally with restrictive conditions set out in a probation order. [ 12 ] The Crown submits it would be contrary to the public interest that the accused be discharged conditionally. [ 13 ] The Crown submits a conventional jail sentence in the aggregate of thirty-five days followed by eighteen months probation would address the fundamental purpose and principles of sentencing. [ 14 ] I find a discharge would be in the best interests of the accused.

However, it must be determined whether a discharge would not be contrary to the public interest. [ 15 ] Further, if a discharge would be contrary to the public interest, then what would be a fit, just and proportionate sentence having regard to the purpose and principles of sentencing contained in ss. 718 – 718.2 of the Code ? III. BACKGROUND (

i) Information 265459-1 [ 16 ] Grandview Highway and Boundary Road in Burnaby are major traffic arteries. [ 17 ] On April 18, 2022 at or around 8 AM, the police noticed a group of protesters blocking the westbound lanes of Grandview Highway at Boundary Road. The Grandview Highway exit feeds off westbound traffic on Highway 1. [ 18 ] Some of the protesters were seated on the road surface and others were standing and walking around recording the protest.

Some of the protesters were holding SAVE OLD GROWTH signs. [ 19 ] Vehicles were backed up for approximately three blocks and increasing in volume. [ 20 ] The police observed the accused perched atop of an eight-foot stepladder situated in lane three, facing oncoming traffic and setting off blue and yellow coloured smoke bombs that he was holding in his hands. [ 21 ] Si Yao Liu (“Liu”), a co-accused, was seated on the road surface with his hands glued to the road.

His positioning resulted in the lanes four and five being blocked. [ 22 ] The police directed the protesters to leave the intersection or they would be arrested. Except for the accused and Liu, the other protesters left the intersection. [ 23 ] Liu told the police he could not leave the intersection, as he was glued to the road surface. Emergency Health Service (the “EHS”) and Fire Services attended to assist in the removal of Liu. [ 24 ] The police directed the accused to climb down from the ladder.

He refused. [ 25 ] The police shut down the Grandview Highway exit out of concern for driver and pedestrian safety. The closure also meant that emergency vehicles could not use the exit. [ 26 ] Shortly before 10 AM, EHS were able to free Liu’s hands. When he went to the ambulance to warm up, a bottle of glue solvent fell out of one of his pockets. [ 27 ] Emergency Response Team members (the “ERT”) were dispatched to the scene.

At approximately 10:30 AM, the accused was removed from the ladder through the use of a harness and an aerial ladder fire truck. [ 28 ] The accused was arrested and released on a Police Undertaking with conditions to have no contact with Liu, not to possess any ladders and an area restriction to the Grandview Highway and Boundary Road intersection. [ 29 ] A total of 17 police officers plus EHS and Fire Service responders were deployed to deal with the protest. The roadway of the protest was closed for approximately three hours.

[ 30 ] The Information was sworn on May 25, 2022.

The accused made his first court appearance on May 25, 2022. [ 31 ] Save Old Growth has posted photographs of this protest on their website which include depictions of the accused on the ladder with the smoke bombs being discharged and Liu sitting on the road surface with his hands glued to the asphalt: Ibid at p. 32. (ii) Information 69791-1 [ 32 ] On June 13, 2022, Save Old Growth advertised on their website that they would again be blockading traffic on major arteries in support of their movement. [ 33 ] At or about 8 AM on June 14, 2022, the police in West Vancouver were notified of a group of protesters blocking westbound traffic on Highway 1 between Westport Road and Caulfeild Drive. [ 34 ] This location is a major artery connecting West Vancouver to the lower mainland eastbound and to the Horseshoe Bay ferry terminal westbound. [ 35 ] When the police arrived at the scene, westbound traffic on the highway was at a complete stop. [ 36 ] The accused was seated in the centre median facing oncoming traffic, with a Save Old Growth banner draped across his lap.

There were two other protesters seated on the ground displaying banners. Susan Bibbings (“Bibbings”) and Jon Tastad (“Tastad”) are co- accused with the accused. [ 37 ] There were approximately six other protesters at the location taking photographs and filming the protest. [ 38 ] The hands of the accused, Bibbings and Tastad were glued to the road surface. They were advised that they were in contravention of the Code for obstructing the highway and if they refused to leave the highway, they would be subject to an arrest.

The accused and Tastad told the police it was their intention to be arrested. [ 39 ] Tastad was able to peel his hands from the road surface. Glue solvent was required to remove the accused’s and Bibbings’ hands. [ 40 ] The accused, Bibbings and Tastad were arrested at the scene and taken to the West Vancouver Police Station for a bail hearing. [ 41 ] The accused was released by a Judicial Justice on conditions, including that he was not to “block or impede traffic or pedestrians on any road or highway”. [ 42 ] Traffic was obstructed for approximately twenty-five minutes.

One driver reported that the protest resulted in his family missing their scheduled ferry departure to Nanaimo. [ 43 ] The Information was sworn on June 14, 2022. The court appearance for the accused and his co-accused was set for June 29, 2022. [ 44 ] Save Old Growth posted photographs of the protest on their website, which clearly depicts a photograph of the accused sitting on the road surface with a large grin on his face. [ 45 ] Their text on their website reads, in part; “4 people remain in custody from yesterday’s action.

Blockades will continue, the government must take action to end old growth logging in the BC”: Ibid at pp. 34 and 35. (iii) Information 267238-1 [ 46 ] Shortly before 8 AM on August 2, 2022, police were notified that there were protesters at the south end of the Lions Gate Bridge blocking traffic. [ 47 ] From video and still photographs four protesters are observed sitting down on the road surface draped with Save Old Growth banners. The accused is on his feet walking back and forth on the roadway.

The protesters had pulled a chain attached to a fence across the road. [ 48 ] In the video footage, a confrontation takes place between some of the drivers with the protesters. The accused is actively engaged in the confrontation. A witness to the confrontation described the accused as being a “leader” of the protest. [ 49 ] When the police arrived shortly after 8 AM, the protesters had cleared the road. The accused was not arrested at that time.

The accused was known to the police and they commenced an investigation into this protest. [ 50 ] There are traffic cameras facing both north and south on the Lions Gate Bridge.

Footage downloaded on August 2, 2022 revealed that between 7:48 AM and 8:18 AM, traffic was backed up in both directions. [ 51 ] Downloaded screenshots clearly depict the accused interfering with the public use of the roadway by his presence and actions as he moved about the roadway: Ibid at pp. 38 – 41. [ 52 ] Save Old Growth posted on their Facebook account and their website that the protest resulted in the bridge traffic being blocked for forty minutes. They also posted a photograph with the caption, “SAVE OLD GROWTH STOPPED TRAFFIC”.

In the photograph, the accused can clearly be observed standing against a fence and looking at the four protesters on their knees on the road surface. [ 53 ] It is clear that the accused’s participation in this protest is a breach of the Release Order pronounced June 14, 2022, in which he

was ordered “not to block or impede traffic or pedestrians on any road or highway”. [54] The Information was sworn on November 3, 2022. (iv) Information 266734-C-2 [55] On August 23, 2022, Save Old Growth began to advertise plans for an October Rebellion. [56] On October 20, 2022 at approximately 1:30 AM, the accused with four cohorts drove two U-Haul vans onto the Lions gateBridge and stopped them mid-span in the centre lane.

The centre lane of the bridge is closed at night for safety reasons. [57] The accused and his cohorts were observed donning white protective suits and laying out a 50 m long stencil with the wordsSAVE OLD GROWTH. They began to paint the road yellow using the stencil outline. [58] Traffic is travelling across the bridge in both directions in lanes one and three. [59] Drivers became suspicious of the conduct of the accused and his cohorts and contacted the police. [60] The police attended the scene at approximately 1:40 AM and observed the group actively painting the road surface with yellowpaint.

They were all arrested. [61] The accused was taken into custody for a bail hearing on the Friday following his arrest. At his bail hearing, the accused actedon his own behalf with the assistance of Duty Counsel on a standby basis. [62] When he was asked by the Court why he should be released from custody as he was in a reverse onus, he advised the Court thathe had left his regular employment and was working for Save Old Growth earning $2000.00 per month.

However, he realized this wasnot financially sustainable and he promised his spouse that he would return to his regular employment. [63] The Court was not satisfied with the proposed release plan and the accused was adjourned over the weekend to October 24, 2022for his bail hearing. [64] On October 24, 2022, the accused was represented by legal counsel. The accused was released on a Release Order with a cashdeposit of $1500.00.

He was also prohibited from blocking or impeding traffic, cyclists or pedestrians on any roads, highways and not toconduct, engage, or participate in any protest activity on any road or highway. IV. LEGAL FRAMEWORK (

i) The Application of s. 730 of the Code [65] Section 730 (1) of the Code reads as follows: 730

(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which aminimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court beforewhich the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, insteadof convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation ordermade under subsection 731(2). [66] The applicable test in determining whether or not a conditional or absolute discharge is an appropriate sentence was establishedby the British Columbia Court of Appeal in R. v.

Fallofield, (BC CA), 1973 CarswellBC 184 at para. 21(“Fallofield”): 21 From this review of the authorities and my own view of the meaning of s. 662.1, I draw the following conclusions, subject, of course,to what I have said above as to the exercise of discretion.

(1) The

section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law or theoffence is punishable by imprisonment for 14 years or for life or by death.

(2) The

section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivialviolation.

(3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the bestinterests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused,that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the nextconsideration into operation.

(4) The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest.

(5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it isnot necessary to enter a conviction against him in order to deter him from future offences or [*455] to rehabilitate him, and that the entryof a conviction against him may have significant adverse repercussions.

(6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does not

preclude the judicious use of the discharge provisions.

(7) The powers given by s. 662.1 should not be exercised as an alternative to probation or suspended sentence.

(8) Section 662.1 should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in the application of the discharge provisions. This lack will be more apparent than real and will stem from the differences in the circumstances of cases. [ 67 ] The accused has no prior criminal record. He is a person of otherwise good character and reputation.

There can be no dispute that a discharge would be in his best interests. [ 68 ] The second condition precedent requiring the Court to determine whether or not the granting of a discharge would be contrary to the public interest is the larger issue. [ 69 ] Proportionality is a fundamental principle of sentencing. This principle is contained in s. 718.1 of the Code . [ 70 ] In addition to proportionality, the principle of parity and sentence individualization also inform the sentencing process.

The Court is required to take into account relevant aggravating or mitigating circumstances, as well as objective and subjective factors relating to the accused’s personal circumstances. [ 71 ] While the parity principle requires the sentence imposed on the accused to be similar to those imposed on similar offenders for similar offences, the Court may depart from that approach and impose a different sentence if the accused’s personal circumstances are different from otherwise similar offenders. [ 72 ] The Supreme Court of Canada (“SCC”) in R. v.

Pham , 2013 SCC 15 at para. 10 (“ Pham ”) identified the ultimate principle of the sentencing process: Ultimately, the sentence that is imposed must be consistent with the fundamental purpose of sentencing, which is to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

The sentence must have one or more of the objectives of denunciation, general and specific deterrence, separation of offenders from society if need be, rehabilitation, reparations to victims for harm done to them, promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community ( s. 718 of the Criminal Code ). [ 73 ] Collateral consequences, which can include the impact of a criminal record on an individual, may be taken into account in the sentencing process: Ibid at para. 11. [ 74 ] However, the SCC in Pham notes that the weight to be given to collateral consequences will vary from case to case: However, the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence.

Professor Manson explains this as follows: [12] As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation. . . . . . . The mitigating effect of indirect consequences must be considered in relation both to future re-integration and to the nature of the offence. Burdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel.

Here, one can include loss of financial or social support. People lose jobs; families are disrupted; sources of assistance disappear. Notwithstanding a need for denunciation, indirect consequences which arise from stigmatization cannot be isolated from the sentencing matrix if they will have bearing on the offender’s ability to live productively in the community.

The mitigation will depend on weighing these obstacles against the degree of denunciation appropriate to the offence. [Emphasis added] [ 75 ] The Save Old Growth cause has generated a great deal of passion in individuals gravely concerned with climate change impacts. Members of this protest movement have the right to express their beliefs, as it is a fundamental principle contained in s. 2(

b) Canadian Charter of Rights and Freedoms (“ Charter ”). However, this right is not without limits. [ 76 ] In R. v. Soranno , 2022 BCSC 566 (“ Soranno ”), a jury found the accused guilty of breaking and entering an animal barn.

The accused were animal rights activists who believed raising animals for meat is morally wrong. [ 77 ] In order to further their political goals, they organized and carried out a large-scale break and enter of an animal barn at a hog farm. [ 78 ] In his ruling, Verhoeven J. notes that in our democracy, freedom of belief and expression, including the right to protest, by lawful means, is part of the democratic process.

However, this right cannot justify breaking the law: para. 5. [ 79 ] Verhoeven J. addressed the fundamental purpose of sentencing in the context of protesters impatient with the democratic processes: [6] There is no shortage of people who believe that their cause is just, who are impatient with democratic processes, and who believe that higher moral values should entitle them to disobey the law in furtherance of their goals.

However, as s. 718 of the Code states, the fundamental purpose of sentencing is to protect society and contribute to respect for the law and the maintenance of a just, peaceful and safe society. Allowing citizens to break the law as they see fit in order to achieve political objectives is anathema to the maintenance of a just, peaceful and safe society.

[7] In R. v. Drainville (1991), (ON CJ), 5 C.R. (4th) 38, [1991] O.J. 340 (C.J.), Justice Fournier quoted ChiefJustice Howland in saying that: It is one of the fundamental principles of our democratic society that no one is above the law, and everyone is equal before the law. Therule of law is based on the fact that our current laws represent the will of the majority of the people. If a law no longer represents the willof the majority, then it should be changed but until it is changed by lawful means, it must be obeyed.

Defiance of the law is not theanswer. [Emphasis added] [80] The accused in Soranno submitted that discharges were appropriate and would address the principles of sentencing. The Courtdisagreed, finding that a discharge would send the wrong message to the public and like-minded individuals.

The Court concluded that athirty-day conventional jail sentence with probation to follow was appropriate. [81] Where a protest devolves into civil disobedience which adversely impacts other citizens and their right of lawful and peacefulmovement, then accountability under the criminal justice system will be a relevant consideration: R. v.

Baldwin-Pinch, Healy et al,Unreported Decision, March 16, 2022, Vancouver File 264419-1 and Richmond File 66275-1 (BCPC) (“Healy”) at para. 20. [82] The protest in Healy was an Extinction Rebellion planned protest involving a blockade of a major intersection in Vancouver andon a roadway leading to YVR Airport. Baldwin-Pinch was involved in the Vancouver blockade. The accused Healy, aged 72, wasinvolved in both the Vancouver blockade and the YVR Airport blockade. [83] The Court described the impact of the Vancouver blockade at para. 23: [23] The blockage in Vancouver was more than a mere inconvenience.

It was a massive disruption to the community and to the users ofthe roadway. Persons were impeded in the things that they needed to do-to get to and from work, to pick up children from daycare, and totake ill family members to clinics and hospitals, and the blockade created a risk of undue delay to first responders. [Emphasis added] [84] The Court imposed a discharge for Baldwin-Pinch describing the sentence as an “exceptional sentence”.

The Court commentedthat as the case law develops in the “plethora” of protest cases that general deterrence will be a predominant principle: para. 54. [85] The Court imposed fines on Healy, finding that her conduct was, “first, more wilful and intentional and, secondly, occurred ontwo occasions”: para. 60. [86] In Soranno, the Court considered various case authorities in the context of civil disobedience in which protesters disobey the law.After a review of those authorities, the Court commented on the appropriateness of discharges in serious cases of planned and deliberatecivil disobedience at para. 141: [141] Sentencing is an individualized process and every sentencing decision turns on its own specific facts and circumstances.

Howevera review of the case authorities demonstrates that in serious cases of planned and deliberate civil disobedience having significantconsequences, generally, discharges are not considered appropriate, and are not granted in the absence of strong evidence of remorse.The courts are overwhelmingly concerned with the need for denunciation and general deterrence, and discharges are seen as inconsistentwith these pressing objectives. [Emphasis added] V. CIRCUMSTANCES OF THE ACCUSED [87] The accused is fifty-two years old. He does not have a criminal record. [88] He has been married for nineteen years.

He is the father of two children aged sixteen and fourteen. [89] He has a Bachelor of Arts degree in political science from the University of Victoria and a multimedia diploma from theVancouver Film School. [90] He has worked for a number of years as a web developer and IT specialist.

He is currently self-employed in these fields. [91] Beyond his employment he has volunteered thousands of hours to various organizations including but not limited to: • Highlands Little League, North Vancouver; • North Shore Baseball Association; • North Vancouver Football Club; • Green Party of Canada as a canvasser; and • Mount Fromme Residents Association. [92] The accused has filed six character reference letters from both lay supporters and professional supporters. He is generallydescribed as a kind, honest and hard-working individual. [93] He has also provided the Court with his written statement.

He commences his statement by writing: “Your honour, in March of this year I made a conscious decision knowing that it would likely lead to a situation like the one I find

myself in now. It was not a decision I made lightly. It was a huge departure from my norm and yet it was one I felt morally I had to make.” [ 94 ] He goes on to explain how he became increasingly concerned over the climate and climate change, which motivated him to canvass with the Green Party in both federal and provincial campaigns. [ 95 ] He takes the position that his conduct in the Save the Old Growth movement does not undermine the law.

He explains: “The legitimacy of the rule of law flows from the Social Contract, a foundational principle of democracies whereby citizens give up some of their freedoms to the sovereign in exchange for their collective protection by the sovereign. Protecting its citizens is the prime purpose of a state and if it fails to do that it is failing to live up to the Social Contract and in doing so is undermining the legitimacy of the rule of law.

Protests such as my own, which aim to reengage the government in the Social Contract and the protection of citizens, are in fact strengthening the rule of law. ” [Emphasis added] [ 96 ] When he finally apologizes for his conduct he states, in part: “ I am very sorry for the inconvenience my protests have caused other people. It shouldn’t be necessary for ordinary citizens such as myself and my colleagues to put ourselves out there to try and force the government to do the right thing.” [Emphasis added] VI. POSITION OF THE PARTIES (

a) The Crown [ 97 ] The Crown submits that the Court ought to impose a conventional jail sentence of thirty-five days broken down to seven days on each mischief charge and fourteen days on the breach charge. [ 98 ] The Crown submits that a period of probation of eighteen months should follow.

The statutory conditions will apply with an additional condition that the accused shall not block or impede traffic or pedestrians on any road or highway or public space in British Columbia. [ 99 ] The Crown submits that it is an aggravating factor that the accused is operating at the organizational level and not just a rank- and-file member of the Save Old Growth movement. For a period of time he was receiving an honorarium from Save Old Growth in the sum of $2000.00 per month. [ 100 ] In the Crown’s Written Submissions, the accused is observed in a CBC

article dated June 22, 2020, engaging in the training exercises put on by Save Old Growth to train protesters who will be blocking roadways.

The accused is quoted: Ben Holt, 52, who played the role of a frustrated driver during group training, says the first time he helped shut down traffic near Grandview Highway at Boundary Road on Easter Monday, a man came forward pleading to get through so he could visit a dying family member. “Very sad to hear his story, and you can’t help but have empathy for him,” said the North Vancouver father of two. “But, you know, we’ve been pushed into this corner and we have to do what we have to do to get change.” Holt says police arrived shortly afterward and cleared a path, allowing the man to get through: pp. 2 & 3. [Emphasis added] [ 101 ] In a CBC

article dated August 27, 2022, the accused is quoted in an

article discussing the sentencing of another Save Old Growth protester for mischief. He is quoted in part: “I think the judge made a total mischaracterization,” said Ben Holt, who serves as a central coordinator… “Yes, people are inconvenienced by the traffic being stopped. Traffic stops all the time, and it is always inconvenient.

I don’t think it is any more or any less inconvenient when we do it,” Holt said: p. 3. [ 102 ] The Crown submits it is aggravating that the various acts of mischief were not just a mere inconvenience but caused major disruptions of traffic flow that also impacted the ability of the police, fire services and ambulance services to responding to emergencies that could impact life. [ 103 ] The Crown’s further submissions in relation to aggravating factors include: • That the blocking of the roadway at Grandview Highway and at Boundary Road closed down traffic for approximately three 12hours, and that significant emergency services and equipment, including the ERT, were deployed to the scene of the blockade; • That a fire brigade ladder truck was deployed to harness the accused down from the ladder as he refused to come down from the ladder after repeated directions by the police; • That the accused made his first court appearance on Information 265459-1 on May 25, 2022; • That on June 14, 2022 the accused participated in a blockade with other protestors of westbound traffic on Highway 1, a major artery, in West Vancouver, by gluing his hands to the road surface; • That the blockade closed the highway for approximately twenty-five minutes;

• That the accused was arrested and released on a Release Order that included a condition that he was not to “block or impede traffic or pedestrians in any road or highway”; • That the accused made his first court appearance on June 29, 2022 on Information 6971-1; • That on August 2, 2022 the accused participated in a blockade of traffic on the Lions Gate Bridge.

During the course of the blockade the accused became involved in a confrontation with an irate driver that had the potential to become violent; • That traffic was backed up for approximately thirty minutes in both directions; • That the accused’s conduct was a flagrant breach of the Release Order in relation to Information 6971-1; • That on October 20, 2022, while still bound by the Release Order in relation to Information 6971-1, the accused and four cohorts were observed at approximately 1:30 AM painting a large stencilled sign with the words SAVE OLD GROWTH on lane 2 of the road surface; • That traffic was travelling north/south in the number 1 and 3 lanes; • That the approximate cost to remove the paint and remediate the roadway is $3500-$5000; • That the accused’s involvement in the four protests were part of an ongoing and persistent blocking of public roads that should be left free to the public to use them in the ordinary way; • That the protests are all planned and coordinated events in which the accused anticipated being arrested; • That public safety issues arose for pedestrians and drivers caught up in the blockades; • That significant resources were deployed to respond to the protests; and • That the accused’s use of the ladder and the gluing of his hands to the road surface demonstrate his intentions were to prolong road blockages. [ 104 ] The Crown submits that the mitigating circumstances in this case include the early guilty pleas and that the accused has no prior criminal record. [ 105 ] The Crown describes the accused’s involvement in the four protests as planned and intentional acts in which his moral culpability must be characterized as high.

It is the disrespect for the law and the Court that is at the heart of the offences for which he has pled guilty. [ 106 ] The Crown submits that general and specific deterrence requires the imposition of a conventional jail sentence of thirty-five days as reflective of the date of the offences, the number of the offences, the breach and his role in the Save Old Growth movement. [ 107 ] The Crown submits that any form of a conditional discharge will not meet the level of general or specific deterrence necessary when dealing with individuals who reoffend. [ 108 ] The Crown opposes to the imposition of a Conditional Sentence Order (“CSO”), submitting that such a sentence would not adequately meet the principles of denunciation and deterrence. (

b) The Accused [ 109 ] The accused submits that it is a significant mitigating factor that he pled guilty at an early opportunity. By pleading guilty, he has accepted responsibility for his conduct. [ 110 ] He submits it is significant that he has no prior criminal record and is otherwise a person of good character and reputation as attested by the character letter references filed in his support. [ 111 ] He submits the time he spent in custody has had a profound impact upon him.

That experience has specifically deterred him from participating in any unlawful civil disobedience in the future. [ 112 ] He remains committed to the climate change cause and intends to be vigilant in addressing climate change but only through lawful means. [ 113 ] The imposition of a sentence that results in the registration of a criminal record will have a significant impact upon the accused. The registration of a criminal record would potentially limit his ability to travel internationally.

In his occupation as a web developer and IT specialist, travelling outside of Canada may be necessary. [ 114 ] Additionally, he would like to travel with his family outside of Canada to visit relatives. [ 115 ] He has apologized for his criminal conduct. Through his apology and upon reflection, he has gathered insight and understanding that his conduct did not accord with social norms. [ 116 ] He recognizes that his behaviour in the Save Old Growth movement potentially compromised his marriage. He has recommitted himself to his marriage and to his family.

[ 117 ] He submits that in relation to the blockade on the Lions Gate Bridge on August 2, 2022, and the painting of the roadway of the Lions Gate Bridge on October 20, 2022, the two protests were of a “very brief duration, and whatever evidence of obstructive behaviour exists is de minimus at best”: Written Submissions at para. 21. [ 118 ] He notes that in relation to the blockade on the Lions Gate Bridge on October 20, 2022 there was no traffic travelling along lane 2 as that lane is closed at night. As a result, traffic was not impeded.

All he was doing, along with his cohorts, was painting a message on the road surface: Ibid at para. 22. [ 119 ] He notes there were no court injunctions in place at the time the accused committed his offences and therefore the suggested escalating sentencing matrix contained in the jurisprudence would be inapplicable: Ibid at para. 25. [ 120 ] He submits the Court ought to apply a “balanced sentencing framework” that takes into account the full range of applicable sentencing principles and reject the “narrow and overly simplistic approach urged by the Crown”: Ibid at paras. 28 and 30. [ 121 ] He is prepared to face a substantial penalty for his actions.

He has proposed that the Court should impose a conditional discharge along with twelve months of probation. He would be bound by a curfew for sixty days and required to complete 150 hours of community work service. [ 122 ] In the alternative, he submits the curfew hours could be increased as well the number of community work service hours to be performed. VII. ANALYSIS [ 123 ] The accused is a climate change activist. At the material time that he was involved in the four protests, he was an organizer and coordinator with the Save Old Growth movement .

For a period of time he received an honorarium of $2000.00 per month from the movement. He was not merely a rank-and-file member drawn into the movement. He was at the forefront of the protests for which he is now to be sentenced. I find that his role within the movement greatly increases his moral culpability. [ 124 ] He was involved in four separate protests in relation to the Save Old Growth movement.

Three of the protests took place in the context of road blockades during peak traffic times. [ 125 ] In relation to the painting of the road surface on the Lions Gate Bridge on October 20, 2022, while not a blockade, I infer that traffic was, in fact, impeded as people, including potentially drivers, were phoning the police to express concerns. [ 126 ] By its very nature the making of cellular telephone calls from a moving vehicle by a driver creates driver distraction, which is a public safety concern. [ 127 ] In addition, by painting the words SAVE OLD GROWTH in bright yellow on a road surface, while neighbouring lanes were open to morning traffic, the accused created a large glaring advertisement.

This advertisement was bound to distract drivers. I infer that such distraction would result in an impediment to traffic contrary to the Release Order in relation to Information 69791-1. [ 128 ] In relation to the three blockades involving the accused, they all resulted in significant traffic disruption. In particular, the blockades established at Boundary Road and Grandview Highway in Vancouver and westbound on Highway 1 in West Vancouver resulted in significant traffic stoppage over a protracted timeframe. [ 129 ] Members of the public were unable to go about their daily activities.

Schedules were disrupted, including those attending medical appointments, or those travellers planning to catch a ferry from Horseshoe Bay to Nanaimo, or elsewhere. [ 130 ] More importantly, first responders were impeded from performing their duties as a direct result of the blockades.

Public Safety is of paramount concern when these blockades are established at critical traffic arteries. [ 131 ] It is also significant that first responder resources were deployed to the blockade at Boundary Road and Grandview Highway, depriving the public at large of the benefit of those resources in the event of a significant health emergency.

A fire brigade ladder truck was deployed to the blockade as the accused refused to climb down from his stepladder and had to be lifted out by the fire department using the ladder truck with a harness. [ 132 ] The accused submits that his conduct in relation to the blockade on Lions Gate Bridge on August 2, 2022, and the painting of the roadway of the Lions Gate Bridge on October 20, 2022, were of a very brief duration and “what ever evidence of obstructive behaviour exists is de minimus at best.” [ 133 ] The submission by the accused that the two protest incidents were of a very brief duration and therefore any obstructive behaviour that may be in existence is de minimus is seriously flawed.

Catastrophic results can occur in a brief duration. [ 134 ] The altercation between the accused and a driver on August 2, 2022 could easily have resulted in a fight taking place with catastrophic results to the accused or to the driver.

Other frustrated drivers could get involved in the melee with again the potential for more violence. [ 135 ] In relation to the painting of the roadway of the Lions Gate Bridge deck on October 20, 2022, I have inferred that this conduct created the potential for distracted driving, which by its very nature can result in a catastrophe. [ 136 ] I find it is significant that he re-offended when he was well aware of outstanding charges. As noted in the Background of this ruling, he made his first court appearance in relation to the Boundary Road and Grandview Highway blockade on May 25, 2022.

He then organized and participated in the blockade of Highway 1 in West Vancouver on June 13, 2022.

[137] The accused has relied on various comparator authorities. One of those cases is the decision of this Court in R. v. Luba, 2022BCPC 49 (“Luba”). [138] In Luba, the accused participated in two protests. One was a protest by a group called the Braided Warriors to interfere with theinsurers of the Trans Mountain Expansion Project by barricading their insurance office on April 14, 2021. [139] In the second protest, Luba and her sister threw red paint on St. Jude’s Parish in Vancouver on July 1, 2021 after unmarked graveswere discovered at the Kamloops Residential School in May 2021.

They were protesting the complicity of the Catholic Church. The redpaint was power washed off the church without any residual damage. [140] Luba was charged with mischief in relation to both protests. She entered an early guilty plea and was granted a conditionaldischarge in relation to both charges. [141] The fact that both sets of charges were laid well after the commission of the offences was taken into account at the time ofsentencing: para. 95. [142] That is not the situation that is facing this accused.

He well knew that he was now before the Courts and elected to becomeinvolved in subsequent unlawful protests knowing that by doing so he was increasing his legal jeopardy. [143] The accused submits that one of the relevant factors which would justify the imposition of a conditional discharge is theexpression of remorse contained in his letter to the Court. [144] In Luba, the accused read into the record a profound and compelling letter of apology to the occupants of the insurance office thatshe barricaded and to the congregation of the St.

Jude’s Parish. [145] The Court found that the accused expressed a “profound understanding and acknowledgement of the harm that she caused”: para.86. [146] Further, she expressed “genuine remorse and regret for her actions that resulted in emotional harm”: para. 87. [147] The Court found her apology was “heartfelt and genuine.

She has clearly developed insight into her behaviour”: para. 88. [148] The opening paragraph of the accused’s letter of apology clearly establishes that he committed the acts of protest with his eyeswide open knowing that it would likely lead to the involvement of the criminal justice system. [149] His letter is more of an explanation for his conduct than a heartfelt and genuine apology to the public impacted by hisinvolvement in the four protests.

His apology goes no further than to express his sorrow for the “inconvenience” caused by his protests. [150] I find his actions did not create a mere inconvenience to the public. Rather his actions created a serious and significantimpediment on the public’s ability to go about their business on the roadways of the Vancouver region without disturbance. [151] I find it worrisome in his letter of apology that he would infer that the Crown characterizes his protests as actions that underminedthe rule of law.

He suggests his actions are actually quite the opposite: "Protests such as my own, which aim to reengage the governmentin the social contract and the protection of citizens, are in fact strengthening the rule of law": Written Submissions at p. 13. [152] His belief that his actions in committing the unlawful protests in fact strengthen the rule of law clearly demonstrates a lack ofgenuine acceptance that his behaviour has no legal justification. [153] I take into account that his co-accused, Si Yao Liu (“Liu”), who was involved in the blockade of Boundary Road and GrandviewHighway, following a guilty plea to a single count of mischief, was sentenced by Judge Milne, Unreported Decision, on January 11, 2023to a suspended sentence with probation to follow.

In addition to the statutory conditions of the probation order, Liu was also required tocomplete 40 hours of community service work and was prohibited from impeding traffic on any roadway in British Columbia. [154] Liu had no prior criminal record and was a person of prior good character and reputation. The Court took into account, as anaggravating factor, that Liu had glued his hands to the road surface. When he was asked by the police if he had any solvent, he lied andtold them he did not.

After he was finally freed from the road surface, a bottle of solvent fell out of one of his pockets. [155] I find little to distinguish the accused’s conduct in this case from the conduct of Liu. In this case, the accused refused to comedown from the stepladder. By his own conduct, he prolonged the blockade of a major intersection. [156] I find that there is a pressing need in this case to emphasize the principle of general deterrence. Clearly, the accused is anintelligent man.

At all material times, he was a readily identifiable organizer in the Save Old Growth movement. [157] I find he was acutely aware of the charges that he was facing and the nature of court proceedings. As such, the effectiveness ofgeneral deterrence in the sentencing regime is heightened, not diminished: R. v. Kennedy, (ON CA), 1999CarswellOnt 3599, [1999] O.J. No. 4278 (OCA) at para. 16. [158] In Rex v.

Winder, Unreported Decision, December 6, 2022, Vancouver Registry files 265750-2-C and 265751-1, (“Winder”) pledguilty to one count of mischief in relation to a blockade of a highway and following his release on a Police Undertaking, he breached thatorder by participating in a further protest. [159] In his reasons, Judge Sutherland characterized Winder as a passionate climate activist.

At the time he found himself in conflictwith the criminal justice system, he was a member of the Save Old Growth movement. [160] On April 13, 2022 at 7:45 AM, he was involved with other protesters in the blockade of westbound traffic on Highway 1. The

police arrived on scene shortly after 8 AM. When the police arrived, the protesters fled except for Winder, who had his ankle chained to a barrel partially filled with cement. [ 161 ] It took three police officers to move Winder to the side of the highway. A firefighting brigade was deployed to cut Winder free from the barrel. [ 162 ] Winder was arrested and released on a Police Undertaking with a condition that he not block or obstruct any roadway in British Columbia. [ 163 ] On June 13, 2022 at approximately 6 AM, Winder, with three passengers, drove a motor vehicle onto the Ironworkers Bridge.

He stopped the vehicle in the northbound middle lane. Two of the passengers attempted to glue themselves to the roadway. [ 164 ] When the police arrived on scene, it appeared Winder was attempting to lock his neck to the steering wheel of the motor vehicle. He would not open the door. The police had to use a baton to smash the driver side window and removed Winder. He was compliant with police directions after his removal from the vehicle. [ 165 ] Two lanes of traffic were blocked as a result of this protest.

Thousands of motor vehicles were backed up as a result of this protest. [ 166 ] In September 2021, Winder was sentenced to serve twenty-one days in jail for criminal contempt of an injunction which had been ordered in relation to the Trans Mountain Pipeline. He otherwise has no criminal record.

At the time of sentencing before Judge Sutherland, he was 71 years old, he had a PhD in French and was a retired professor having worked for thirty-one years as a faculty member at the University of British Columbia. [ 167 ] Winder filed character reference letters to establish that he is a person of good character and reputation. [ 168 ] The Crown submitted a fourteen-day conventional jail sentence should be imposed along with probation.

Winder submitted a conditional discharge with conditions would be an appropriate sentence. [ 169 ] Judge Sutherland imposed a jail sentence of thirty days to be served by way of a CSO. In justifying the imposition of the sentence, he emphasized the principle of general deterrence as an important objective in unlawful civil disobedience cases: [49] From the public interest standpoint, despite a conditional discharge being available for any offence, there is strong public interest in courts defending the rule of law through significant sentences for those committing offences that strike at the heart of it .

From the context provided, this type of case has gained in frequency and sentences being handed out are being closely monitored. The costs for committing the offences must outweigh the benefits to those contemplating taking

part in future protests. This is why general deterrence as an objective is important as an aspect of general deterrence, sending a message to those would be inclined to break the law, that doing so will result in a significant sentence. [Emphasis added] VIII. DISPOSITION [ 170 ] I find it would be contrary to the public interest to impose a conditional discharge for the accused’s criminal conduct. [ 171 ] On Information 265459-1, I suspend the passing of sentence pursuant to s. 731(1) (

a) of the Code . The victim surcharge will apply. [ 172 ] I place the accused on a probation order of thirty days with the only conditions being the statutory conditions as set out in s. 732.1(2) of the Code . [ 173 ] On Information 69791-1, I sentence the accused to one day in jail deemed to be served in the courtroom today. The victim surcharge will apply. [ 174 ] On Information 266734-C-2, I sentence the accused to a concurrent sentence of one day in jail deemed to be served in the courtroom today, with the Record of Proceedings to record a time credited of three days in jail.

The victim surcharge will apply. [ 175 ] In this case, the accused’s breach of a judicial Release Order is a significant aggravating factor. General and specific deterrence must be paramount to reflect the gravity of a breach of a court order. [ 176 ] I agree with the Crown that a jail sentence is warranted, but disagree with the Crown that a conventional jail sentence should be imposed rather than the imposition of a CSO. [ 177 ] I find the imposition of a CSO pursuant to s. 742.1 (

a) of the Code is consistent with the fundamental purpose and principles of sentencing in this case. [ 178 ] On Information 267238-1, I sentence the accused to a sixty-day CSO. [ 179 ] Pursuant to s. 742.3(1), the mandatory statutory conditions shall apply, including you shall report to a conditional sentence supervisor in person, on or before 3 PM on February 6, 2023, at Vancouver Community Corrections situated at 275 E.

Cordova Street, in the City of Vancouver, Province of British Columbia, thereafter as when and where directed by your conditional sentence supervisor. [ 180 ] The following additional conditions shall apply: 1) For the first thirty days of this order, you shall be in your residence seven days per week except for travelling directly to, being

at, and returning directly from your employment, or for a genuine medical emergency pertaining to yourself or an immediate family member, or for three hours of each Saturday commencing at 11 AM through to 2 PM to attend to personal needs, or for travelling directly to, being at, and returning directly from scheduled medical appointments, or for travelling to, being at, and returning directly from scheduled appointments with your conditional sentence supervisor, or as may be otherwise permitted in writing by your conditional sentence supervisor, which permission you shall carry upon your person and present same upon demand of any peace officer, including your conditional sentence supervisor; 2) When outside of your residence, you shall carry a copy of this order upon your person and present same upon demand of any peace officer, including your conditional sentence supervisor; 3) If required to do so by a peace officer, you shall present yourself at the door of your residence to confirm curfew compliance; 4) For the remaining thirty days of this order, you shall be in your residence between the hours of 8 PM of one day through to 6 AM of the following day, except for a genuine medical emergency pertaining to yourself or an immediate family member, or as may be otherwise permitted in writing by your conditional sentence supervisor, which permission you shall carry upon your person and present same upon demand of any peace officer, including your conditional sentence supervisor; and 5) You shall not block or impede traffic or pedestrians on any road or highway or public space in British Columbia. [ 181 ] Pursuant to s. 732.1 of the Code , I am placing you on probation for a period of six months to follow the completion of your CSO. [ 182 ] Pursuant to s. 732.1(2) of the Code , the mandatory statutory conditions shall apply. [ 183 ] Pursuant to s. 732.1(3) of the Code , the following additional conditions shall apply: 1) You shall report to a probation officer on or before 3 PM of the next business day following completion of your CSO at Vancouver Community Corrections at 275 E.

Cordova Street, in the City of Vancouver, Province of British Columbia, thereafter as when and where directed by your probation officer; 2) Provide your address to and reside where directed by your probation officer and not change your residential address except with the prior written permission of your probation officer; 3) Within the first five months of this order at the direction of your probation officer, you shall participate in and successfully complete forty hours of community work service to the satisfaction of your probation officer; and 4) You shall not block or impede traffic or pedestrians on any road or highway or public space in British Columbia. [ 184 ] The victim surcharge will apply.

Pursuant to s. 737(3) of the Code , I consider it appropriate in the circumstances of this case that the surcharge be enhanced to $500.00. [ 185 ] The accused is granted time to pay the surcharges until the last business day in May 2023. ______________________________ The Honourable Judge G.M.

Rideout Provincial Court of British Columbia CORRIGENDUM - Released February 2, 2023 In the Written Reasons for Sentence dated February 2, 2023, the following changes have been made: [1] Paragraph 43 should read: The Information was sworn on June 14, 2022. [2] Paragraph 23 should read: Emergency Health Services (the “EHS”) and Fire Services attended to assist in the removal of Liu. [3] Paragraph 26 should read: Shortly before 10 AM, EHS responders were able to free Liu’s hands.

_____________________________ The Honourable Judge Rideout Provincial Court of British Columbia