R. v. Mile Date:, 2016 BCPC 49

Citation: R. v. Mile Date: 20160229 2016 BCPC 0049 File No: 79714-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRODY WILLIAM ARNE MILE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: C.D. Hagen Counsel for the Defendant: P.C. Hertzberg Place of Hearing: Nanaimo , B.C. Date of Hearing: February 26, 2016

Date of Judgment: February 29, 2016 [1] Mr. Vestad’s truck was stolen from his driveway on December 27, 2014. There is no evidence from which the thief could beidentified. On January 22, 2015, Mr. Mile was driving the truck. Constable Dufrane of the RCMP saw the truck and checked its licenseplate on the police computer, which informed him that the truck had been stolen. He turned on his emergency lights and arrested Mr.Mile after he stopped the truck. [2] Mr. Mile is charged with possession of stolen property. It is not disputed that he was in possession of the truck, nor that thetruck was stolen property. Mr.

Vestad’s insurer valued the truck at $9500, and Mr. Mile concedes that the value was greater than $5000. [3] The question is whether the Crown has proven the mental element of the offence beyond a reasonable doubt. [4] Mr. Mile said that he first saw the truck at the home of his friend, Teresa, in early January. Teresa told him that her friend,Nick, had purchased the truck from his family for $1500, and that they would be operating the truck under the family’s license andregistration until the end of January, when it would be registered in Nick’s name. [5] On January 22, Teresa asked Mr.

Mile to use the truck to take a load of trash from Teresa’s home to the dump, which he agreedto do. He was on his way to the dump when Constable Dufrane arrested him. [6] Mr. Mile said that, throughout January, he wondered about whether the truck might be stolen property, and discussed thatpossibility with another of Teresa’s friends, Gerald. Gerald told Mr. Mile that Gerald had performed an internet search with a view toanswering that question, but had been unable to find any indication on the internet that the truck was stolen. Mr. Mile did not enquireabout what website(

s) Gerald might have consulted. Mr. Mile was reassured by the fact that the truck was routinely parked on a busystreet, on which police cars frequently travel, with the rear license plate clearly visible to anyone in a passing vehicle. He also observedthat Teresa and Nick drove the truck often, without attracting police attention. He thought that, if it was stolen, the police would surelyhave noticed it. Mr. Mile continued to be in a state of doubt on this subject until the day of his arrest.

My notes of his evidence in chiefinclude the following passage: The day before I was arrested, I knew that there was no way that Nick got this for $1500, not even a family member. I knew something’snot right with this truck. His story doesn’t add up. [7] Mr. Mile said that he refrained from making enquiries of the police about the possibility that the truck might be stolen becauseTeresa is a single mother, and he was afraid that he might get her in trouble if, in fact, the truck was stolen.

In particular, he feared thatchild protection officials might intervene if Teresa were charged with possession of stolen property. My note of his evidence on thepoint is: My fear was maybe there isn’t anything wrong with this truck. I was worried about getting Teresa in trouble. It wasn’t my place to go tothe police because the truck wasn’t at my house.

I was just trying to be a nice guy and get rid of their garbage before they moved. [8] It is well-settled that “wilful blindness” is a sufficiently culpable state of mind to support a conviction for possession of stolenproperty: R vs Chang [2015] BCJ No. 242; 2015 BCCA 62. The question is the application of the concept of wilful blindness to theevidence summarized above. The leading authority is R vs Briscoe 2010 SCC 13 , [2010] 1 SCR 411. In that case, the courtespoused two subtly different articulations of the concept. a.

At paragraph 21, Justice Charron, speaking for the court, said: The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the needfor further inquiries, but deliberately chooses not to make those inquiries. (italics in the original) b. At paragraph 23, Justice Charron expressed her approval of the following passage from Glanville Williams’ classic treatise onthe criminal law: The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law.

It is, at the same time, anunstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almostbe said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the finalconfirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effecta finding that the defendant intended to cheat the administration of justice.

Any wider definition would make the doctrine of wilfulblindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge. (underlining added by Justice Charron) As I understand it, the difference between the two is this: c. The concept as articulated at paragraph 21 would allow the conviction of the accused whenever he understood the need to makeenquiries, and deliberately refrained from making them, whatever his motive or reason for refraining. d.

The concept as articulated at paragraph 23 would allow a conviction only where the reason for the conscious decision to refrainfrom enquiries was a deliberate attempt to cheat the administration of justice. [9] The difference matters in this case because I am inclined to accept Mr. Mile’s evidence, to the effect that he refrained fromtelephoning the RCMP to enquire whether the truck might be stolen because he was afraid that, if he did, he might get Teresa into

trouble. That is not an unreasonable concern, and a more probable explanation for his conduct than a desire to shield himself from criminal responsibility. Mr. Mile’s state of mind on January 22 may be summarized as follows. He thought that the truck might be stolen property, but was in doubt on that subject. He refrained from making further enquiries for fear of getting Teresa into trouble.

He knew that Teresa and Nick had been driving the truck around Nanaimo for several weeks without adverse consequences, and so was not concerned about driving it himself. [ 10 ] If the requisite mental state for a conviction is that set out in paragraph 21 of Briscoe , Mr. Mile must be convicted. He admits that he was concerned that the truck might be stolen, and that he regarded that as a real possibility. He saw a need to make further enquiries. The logical enquiry to make would be a telephone call to the RCMP. His motive for refraining from that enquiry is, on the principle set out in paragraph 21, irrelevant.

However, if the requisite mental state is that set out in paragraph 23 of Briscoe , I think that Mr. Mile must be acquitted. [ 11 ] I cannot conclude that Mr. Mile’s motive in refraining from enquiries was to shield himself from prosecution. I think it more probable that the conscious concern which motivated his action (or inaction) was to avoid getting Teresa into trouble. As I read her judgment, Justice Charron adopted in its entirety the principle as articulated by Mr. Williams, quoted in paragraph 23 of Briscoe . For that reason, I must acquit Mr. Mile. February 29, 2016 ______________________ T. Gouge, PCJ