R. v. Beguin Date:, 2016 BCPC 188

Citation: R. v. Beguin Date: 20160628 2016 BCPC 188 File No: 94450-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DEVON SKYLER BEGUIN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: S. Lindstrom Counsel for the Accused: M. Shamess Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: April 6 and May 17, 2016 Date of Judgment: June 28, 2016

INTRODUCTION [ 1 ] On May 7, 2015, Devon Skyler Beguin (“Mr. Beguin”) and his co-accused Andrew Phillip Wright (“Mr. Wright”) were cell mates at North Fraser Pretrial Centre (“North Fraser”). They were “double-bunked” in Cell A28—a cell on the third floor of the Segregation Unit of the North Fraser facility. Segregated inmates have very limited time outside their cells—that is, one hour out, and 23 in, every 24-hour cycle—and their cell furnishings are more Spartan than those in other areas in North Fraser in order to reduce the likelihood that they will be used in ways that could (

a) endanger the inmates themselves, (

b) endanger corrections staff, or (

c) damage property. [ 2 ] An incident occurred on May 7 th in Cell A28 that, on the evidence adduced, resulted in damage to the furnishings to that cell that cost over $6,600 to repair. Both Mr. Beguin and Mr. Wright were present in the cell when the incident took place.

In the course of the incident the special safety glass in two windows adjacent to the two bunks was broken, an attached step-stool to enable step-up access to the upper bunk was torn off the wall, and the housing for a security camera mounted in an upper corner of the unit was broken such that the camera’s ability to capture images of the cell’s interior was compromised by damage to the protective glass positioned in front of its lens. Some, but not most, of the actions giving rise to the damage to Cell A28 were captured on the cell’s security camera. [ 3 ] Mr. Beguin and Mr.

Wright were charged under single-count Information 94450-1 with the offence of committing mischief to property—that is, the aforementioned cell’s windows, step-stool and security camera—of a value exceeding $5,000, contrary to s. 430(3) of the Criminal Code . These reasons for judgment are concerned solely with the trial of Mr. Beguin on that Information. [ 4 ] Neither identification nor jurisdiction is in issue. Position of the Crown [ 5 ] Crown counsel conceded at the outset of submissions that there is insufficient evidence to prove that Mr.

Beguin was a principal in the offence of mischief with which he has been charged. However, the Crown nevertheless submits that there is sufficient evidence to support a conviction of Mr. Beguin under the “aiding” language of s. 21(1) (

b) of the Criminal Code as a party to the commission of the mischief offence that resulted in the damage to the cell. The contention is that in the course of the incident on May 7, 2015, Mr. Beguin conducted himself in such a way as to “aid” his co-accused, Mr. Wright, as the principal offender in inflicting damage to the subject cell. (Based on evidence led at trial—including evidence of admissions made by Mr. Wright to a Crown witness—it is common ground as between Crown and defence counsel that for the purposes of the prosecution of Mr. Beguin, Mr.

Wright did, as a principal offender, wilfully cause damage to Cell A28 and thereby commit a mischief offence.) [ 6 ] If (and only if) I do not find Mr. Beguin criminally liable as a party to the mischief offence, then the Crown invites me, in the alternative, to find Mr. Beguin guilty under s. 24 of the Criminal Code of attempting to commit the offence of mischief in Cell A28, based on, inter alia , a very brief videotape record of his actions in kicking the window (or kicking at the window) adjacent to the top bunk in Cell A28.

Here it is common ground that the quality of the video recording is insufficient to prove to the criminal standard that Mr. Beguin’s kicking actions actually damaged that window. Position of the Defence [ 7 ] Counsel for Mr. Beguin takes a very different view of the evidence than does Crown counsel. She submits that, when it is considered in its totality, that evidence (which included evidence given by Mr. Beguin in his own defence) is not sufficient to prove beyond a reasonable doubt that Mr. Beguin was a party to the offence of mischief committed by Mr.

Wright, or that he committed the included offence of attempted mischief. PARTY LIABILITY AS AN “AIDER”: THE GENERAL REQUIREMENTS [ 8 ] In seeking to secure Mr. Beguin’s conviction for “aiding” Mr. Wright in committing mischief by inflicting damage to the interior of Cell A28, the Crown points to evidence that at two important points in the chronology Mr. Beguin applied moistened toilet paper to the housing for the security camera mounted in the cell, in front of the camera lens, preventing North Fraser corrections staff from continuously monitoring the goings-on inside that cell on the offence date.

I will have more to say about the particulars of that evidence, and the facts it establishes, later in these Reasons. [ 9 ] In its party liability submissions the Crown invokes, specifically, s. 21(1) (

b) of the Criminal Code which states that “Every one is a party to an offence who … does or omits to do anything for the purpose of aiding any person to commit it …”. It is trite law that, as is the case with any criminal offence, for the Crown to establish party liability under this section, it must prove the requisite actus reus and mens rea elements. Actus Reus [ 10 ] As can be seen from the plain wording of the subsection, the actus reus for present purposes can be proven through evidence

that the actions or omissions of the accused had the effect of assisting the principal offender in the commission of an offence: R. v.Briscoe, 2010 SCC 13 , [2010] 1 S.C.R. 411 at para. 14. In this regard, the Supreme Court of Canada in Briscoe quoted thefollowing from its previous decision in R. v. Greyeyes, (SCC), [1997] 2 S.C.R. 825 at para. 26: “[t]o aid under s.21(1)(

b) means to assist or help the actor”. [11] “Aiding” requires more than a mere passive presence or acquiescence in the actions of the principal offender; to be held liableas a party the individual so accused must actively help the principal in committing his or her offence: R. v. Banks, 2012 NBQB 132, [2012] N.B.J. No. 142 (Q.B.) at para. 20. [12] Thus, in order to secure a conviction against Mr. Beguin as a party in the case at bar, the Crown must, inter alia, prove beyond areasonable doubt that he actively “assist[ed] or help[ed]” Mr.

Wright in his actions in inflicting damage on the furnishings within CellA28 on May 7, 2015. Mens Rea [13] Beyond that, proof of mens rea must also be established on the evidence in order to found party liability. Mens rea in thisconnection inheres in the word “purpose” in s. 21(1)(

b) which, in turn, has two components: knowledge and intent. As the SupremeCourt explained it in Briscoe (at paras. 16-17): “16 … For the intent component, it was settled in R. v. Hibbert, (SCC), [1995] 2 S.C.R. 973, that "purpose" in s.21(1)(

b) should be understood as essentially synonymous with "intention". The Crown must prove that the accused intended to assist theprincipal in the commission of the offence. The Court emphasized that "purpose" should not be interpreted as incorporating the notion of"desire" into the fault requirement for party liability.

It is therefore not required that the accused desired that the offence be successfullycommitted (Hibbert, at para. 35) … 17 As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetratorintends to commit the crime, although he or she need not know precisely how it will be committed.

That sufficient knowledge is aprerequisite for intention is simply a matter of common sense …” [14] With respect to the latter-mentioned knowledge requirement, the authorities are clear that where actual knowledge of theprincipal’s intention to commit an offence cannot be proven beyond a reasonable doubt, but where the evidence can establish that thealleged aiding party was wilfully blind as to that intention on the part of the principal, that will be sufficient to meet the mens rearequirement for party liability: see, in this regard, the discussion in Briscoe at paras 21-25. [15] Accordingly, in order to secure a conviction in the case at bar, the Crown must, inter alia, prove beyond a reasonable doubt thatat the relevant time Mr.

Beguin knew that Mr. Wright intended to inflict damage on Cell A28, or that he was wilfully blind as to Mr.Wright’s intention to inflict that damage, and that in blocking the security camera lens with moistened toilet paper Mr. Beguin intendedto assist Mr. Wright in causing that damage. EVIDENCE LED AND FACTS FOUND The Commission of the Offence of Mischief by Mr. Wright as the Principal Offender [16] If there is to be party liability under s. 21(1)(b), the party must be found to have given active assistance to a principal offender.

As I have previously mentioned, in this case there is no dispute between Crown and Defence that the principal offender is Mr. Wright. Crown and Defence agree that on the offence date Mr. Wright engaged in deliberate actions that inflicted damage upon certain of thefurnishings within Cell A28, making him the principal offender for the purposes of the party liability analysis the court must undertakeregarding the conduct of Mr. Beguin. I so find and I will therefore devote little space in what follows to recounting the evidence thatproves Mr. Wright’s status as a principal. [17] Mr.

Wright’s actions in inflicting damage upon the housing for the Cell A28 security camera (and in particular the glass thatprotects the camera’s lens) were captured in security video footage introduced as Crown evidence at trial. Mr.

Wright is plainly visiblein that footage using what I find is the detached step-stool to pound repeatedly upon the security camera housing until the protectiveglass in front of the camera’s lens became sufficiently damaged to prevent the camera from continuing to capture intelligible images ofthe interior of the cell. [18] Beyond that, there was also evidence led of admissions against interest made by Mr. Wright to a Crown witness, CorrectionsOfficer Anthony Dhutt (“C.O.

Dhutt”). [19] The fact that something untoward was happening on an upper floor in the Segregation Unit on May 7, 2015 first came to theattention of North Fraser staff when banging could be heard filtering down to the monitoring desk on the ground floor. Security camerasin some cells had been covered, preventing corrections staff (including C.O. Dhutt) from determining the source of the banging soundsby scrutinising their video monitors. Thus, C.O. Dhutt went up to investigate in person, starting on the third floor (where Cell A28 islocated).

Going from cell to cell and first finding nothing, he eventually reached Cell A28. When he opened the sliding window on thedoor of that cell to make observations and inquiries, he found Mr. Wright standing very close to it with Mr. Beguin a little behind him. Mr. Wright’s positioning so close to the sliding window prevented C.O. Dhutt from gaining visual access to the interior of the cell. Mr.Wright was sweating and out of breath but, on inquiry, he denied any kicking or banging and said instead that he had simply beenworking out.

[ 20 ] However, Mr. Dhutt gave evidence that later the same evening, and then again the next day, to say that Mr. Wright contradicted his first denials and statement that, at the time of C.O. Dhutt’s first arrival at the door of Cell A28, he had just been working out. Mr. Wright’s words were to the effect that he could not believe that C.O. Dhutt had fallen for that line when he had been asked whether he was the source of the banging. [ 21 ] While some of Mr. Beguin’s testimony in his own defence aligns with the above-noted evidence that establishes that on the offence date Mr.

Wright inflicted damage on the interior furnishings Cell A28 (including the security camera housing), there was, as I have noted, other evidence in quantity which was sufficient to establish for the purposes of the prosecution of Mr. Beguin that Mr. Wright committed a mischief offence in the cell as principal offender Other Relevant and Uncontroversial Facts [ 22 ] I find, based inter alia upon Mr.

Beguin’s own testimony during both his direct and cross-examinations, that the banging sound that first drew security staff’s attention to an apparent disturbance on the third floor of the Segregation Unit where Cell A28 was located was caused by Mr. Wright using the step-stool he had detached from the wall as a tool to bash the cell windows and their frames. While Mr.

Wright’s actions in detaching that step-stool caused him great exertion, and preceded his attack upon the cell windows, I am satisfied that those former actions were not the ones that caused noise and first raised corrections staff concerns. [ 23 ] Mr. Wright’s actions in wresting the step-stool free from the wall were neither observed nor observable by security staff via video monitoring of Cell A28. That, I find, was because the security camera in that cell had been rendered non-functional by Mr. Beguin who covered the housing in front of its lens with moistened toilet paper not long before Mr.

Wright began breaking the step-stool off the wall. It is worth emphasising here that the video evidence in fact reveals that before any mischief was committed, it was Mr. Wright who moistened some toilet paper in the cell’s sink and then handed it to Mr. Beguin who, in turn, applied it to the security camera housing. The first obscuring of video contact between the monitors and Cell A28 was, thus, the result of the coordinated actions of Mr. Wright and Mr. Beguin.

As I have previously noted, coordinated action as between an “aider” and a principal offender is the sine qua non of party liability. [ 24 ] Importantly, Mr. Beguin admitted on cross-examination that, before Mr. Wright began damaging the interior of Cell A28, he (Mr. Wright) and Mr. Beguin himself had been screaming back and forth with an inmate in another cell on the Segregation Unit and that that other inmate was inciting Mr. Wright in some manner. Mr.

Beguin also acknowledged that he believed this incitement was going to lead to trouble of some kind and that he held that belief before he placed moistened toilet paper on the security camera housing the first time—that is, shortly before Mr. Wright commenced his campaign to damage the cell by tearing the step-stool off the wall. Particularly important in this regard is Mr. Beguin’s admission during cross-examination that he knew before covering the security camera housing with moistened toilet paper the first time that that action would prevent North Fraser security staff from seeing what Mr.

Wright was doing in the cell. [ 25 ] It is also not controversial as between Crown and Defence that, later on when banging was first heard by North Fraser staff at the monitoring desk, the security camera in Cell A28 was still not transmitting images to the monitors because, as I have noted, it was still covered with toilet paper moistened by Mr. Wright and applied by Mr. Beguin. Similarly, there is no dispute that when C.O. Dhutt attended ultimately at that cell to investigate the source of the banging and was unable to see the cell’s condition by reason of where Mr. Wright positioned himself, Mr.

Wright was showing signs of significant exertion. I find that that exertion came primarily from his efforts, (

a) first in ripping the step-stool off the wall, and then (

b) later in using it to bash the cell windows and their frames. [ 26 ] During the brief interaction C.O. Dhutt had with Mr. Wright and Mr. Beguin at the sliding window to Cell A28, he directed Mr. Beguin to remove the toilet paper covering from the security camera housing. Mr. Beguin initially refused but, after C.O. Dhutt gave him a second direction in that regard, he complied. However, a few seconds following C.O. Dhutt’s departure, Mr.

Beguin again put moistened toilet paper back on the security camera housing rendering it, again, incapable of transmitting any images of the interior of the cell to the monitors at the monitoring desk. [ 27 ] The moistened toilet paper that Mr. Beguin applied the second time remained in place for a few short minutes. However, the evidence established and counsel agree that it gradually fell away after the security camera housing to which it had been applied was repeatedly struck by Mr. Wright with the step-stool.

For the period during which (due to the moistened toilet paper having fallen away) the security camera’s ability to capture images of the interior of the cell was briefly restored, video footage shows Mr. Wright striking the housing and Mr. Beguin on the top bunk kicking (or kicking at ) the window adjacent to that bunk with his feet. However, the swift accretion of damage to the glass protecting the security camera’s lens soon prevented intelligible images from being recorded. ANALYSIS Actus Reus: Did Mr. Beguin Actively Assist Mr.

Wright in Damaging Cell A28? [ 28 ] The facts established by the evidence at trial satisfy me beyond a reasonable doubt that by covering the housing for the security camera in Cell A28 with moistened toilet paper twice on the offence date, Mr. Beguin provided Mr. Wright with active assistance in committing, as principal offender, mischief within that cell. [ 29 ] I begin with the first interruption of the video link between Cell A28 and the corrections staff responsible for monitoring inmates in the Segregation Unit. [ 30 ] As I have noted, Mr.

Beguin acknowledged in his testimony that the security camera in Cell A28 was uncovered during the

lead-up to the property-damaging spree that Mr. Wright carried out on the offence date. He admitted that he knew an inmate in another cell was inciting Mr. Wright to cause some trouble and that he believed that trouble was, indeed, brewing. Mr. Beguin’s evidence was that, having that knowledge, he applied moistened toilet paper handed to him by Mr. Wright to block the security camera. He did so not long before Mr. Wright began actually causing damage to the cell. Mr. Beguin also admitted that he knew that by doing so the goings on within the cell would be hidden from corrections staff. [ 31 ] Mr.

Wright’s actions in detaching the step-stool from the wall of the cell went undetected and uninterrupted in part because Mr. Beguin prevented those actions from being captured on the monitor configured to receive video feed from the security camera in Cell A28. Mr. Wright was able to begin and complete his campaign to wrest the step-stool from the wall without interference or interruption from corrections staff. He was able to do that in part because his actions could not be seen by corrections staff through the moistened toilet paper that Mr.

Beguin had applied to the security camera housing in front of the camera lens not long before the campaign began. The evidence satisfies me beyond a reasonable doubt that by disabling the video link between Cell A28 and North Fraser’s security staff in this crude way, Mr. Beguin actively assisted and helped Mr. Wright commit mischief inside that cell. [ 32 ] I come now to the second interruption of the video link between Cell A28 and the corrections staff responsible for monitoring inmates in the Segregation Unit. [ 33 ] The second interruption came after C.O.

Dhutt attended at Cell A28, having pinpointed that cell as a possible source of the banging noises that were audible three floors down in the monitoring area—banging noises that I have found were caused by Mr. Wright bashing the cell windows and window frames with the detached step-stool. [ 34 ] C.O. Dhutt attempted to see, through the sliding window in the door, whether something had been happening in Cell A28 that might account for the banging noise he had come up to investigate. The officer was unable to either confirm or put to rest his suspicion because a sweating and panting Mr.

Wright positioned himself so near to the window that he couldn’t see past him. Mr. Beguin stood close by as well, a short distance behind Mr. Wright. [ 35 ] As I have noted earlier in these Reasons, C.O. Dhutt then directed Mr. Beguin to remove the moistened toilet paper from in front of the security camera lens. Mr. Beguin did not do so immediately but he did comply on being told a second time. However, seconds later and as C.O. Dhutt made his way back down to the monitoring area, Mr.

Beguin put moistened toilet paper back in place in front of the lens of the security camera in Cell A28, again preventing the goings-on within it from being captured by the camera and fed electronically to the monitoring area down below. [ 36 ] As I have also noted above, the video recording shows clearly that a few short minutes passed before the moistened toilet paper falls away from in front of the lens as a result of Mr. Wright bashing the security camera housing with the detached step-stool.

His bashing is recorded only for a short while until it so badly damages the glass in front of the lens that intelligible images can no longer be captured by the security camera. [ 37 ] Here again, through his actions in cutting off one source of knowledge to North Fraser security staff of what Mr. Wright was doing (that is, the video feed to the monitors), Mr. Beguin interfered with rapid detection of Mr. Wright’s mischievous conduct by corrections staff and thus furthered and facilitated it.

Accordingly, the evidence satisfies me beyond a reasonable doubt that by crudely disabling the video link between Cell A28 and North Fraser’s security staff with moistened toilet paper for a second time, Mr. Beguin actively assisted and helped Mr. Wright commit mischief inside that cell. Mens Rea: Did Mr. Beguin Block the Security Camera in Cell A28 for the Purpose of Aiding Mr.

Wright in Damaging the Cell? [ 38 ] The facts established by the evidence at trial satisfy me beyond a reasonable doubt that when he covered the housing for the security camera in Cell A28 with moistened toilet paper twice on the offence date, Mr. Beguin (

a) knew that Mr. Wright intended to commit a mischief offence within that cell, and (

b) intended, by blocking video access to the cell, to assist Mr. Wright in doing so. [ 39 ] While there was evidence led at trial (including by Mr. Beguin) to show that the practice of applying moistened toilet paper to block security cameras in cells is not an uncommon one, and that it is often engaged in by inmates for the purpose of affording themselves greater privacy, Mr. Beguin’s testimony does not support his counsel’s submission that that was his motive on either occasion here. Here, Mr. Beguin’s actions were plainly situation-specific, purposeful and unlawful.

As I shall explain below, they were not animated by a diffuse and generalised desire for privacy; rather, they were animated by an intention on Mr. Beguin’s part to lend active assistance to a principal offender (Mr. Wright) whom he knew was bent on inflicting damage to Cell A28. [ 40 ] As I did when dealing with the actus reus , I will begin with the first interruption of the video link between the subject cell and the security staff responsible for monitoring inmates in the Segregation Unit. [ 41 ] There is no room for doubt that shortly before Mr.

Wright began tearing the step-stool off the wall of Cell A28, Mr. Beguin knew that trouble was brewing. I have found that he knew that another inmate in the Segregation Unit had been goading or inciting Mr. Wright to do something inappropriate and he believed that the goading or incitement was likely to lead Mr. Wright to act. I have found that he knew these things before he took active steps to block the video link to Cell A28. He knew these things at the time Mr. Wright moistened the toilet paper and handed it to him. He knew these things when he took the moistened toilet paper from Mr.

Wright and applied it to the security camera housing, cutting off visual access to the interior of the cell by North Fraser security staff, thus creating conditions under which Mr. Wright could begin his destructive spree without being detected, at least on a video monitor. That spree did indeed begin and it continued uninterrupted until it evolved to the point where—having torn the step-stool free from the cell’s wall—Mr. Wright could begin to use the step-stool to bash the cell windows and window frames. It is the noise that was caused by this bashing activity that first got the attention of C.O.

Dhutt and his colleagues, several minutes after the camera was first blocked. This evidence fulfils the knowledge component of the mens rea for partly liability on the part of Mr. Beguin on the facts of this case. [ 42 ] Similarly, there is no room for doubt that in covering the housing in front of the security camera lens with moistened toilet

paper, Mr. Beguin intended to assist Mr. Wright in waging his destructive campaign in Cell A28 for at least a while without detection. Itwas, after all, Mr. Wright who did the moistening of the toilet paper and then handed it to Mr. Beguin. They clearly acted in concert toclose off visual access by security staff to the interior of the cell so that Mr. Wright could embark on that campaign without interruptionor interference by prison officials, at least for a while.

No other reasonable inference can be drawn from the facts I have found in thisregard [43] As before, I come next to the second interruption of the video link between Cell A28 and the security staff responsible formonitoring inmates in the Segregation Unit. [44] At this point in the chronology, with Mr. Wright having already ripped the step-stool from the wall and having begun using it todamage windows and window frames, the noise he was creating drew the attention of North Fraser security staff and C.O. Dhutt inparticular. Mr.

Wright’s intentions to behave destructively within Cell A28 were, by that point, plain and clear and they had been actedon by Mr. Wright in Mr. Beguin’s presence for a period of several minutes. The evolution of his pattern of destruction to involve the useof the step-stool as a tool for damaging windows and window frames took matters to a new level and—even though video contact withCell A28 was not functioning—the noise created by the bashing was sufficient to bring C.O. Dhutt up to investigate. Mr. Beguin stoodby while Mr. Wright gave what Mr.

Beguin knew to be an untruthful denial to the officer of what he had been doing. He first refused toremove the moistened toilet paper from in front of the security camera and, while he did remove it on being directed by C.O. Dhutt asecond time to do so, he quickly returned it to its place seconds later, thus restoring the video blackout. Very soon after that on the facts Ihave found, banging within the cell resumed, the last of which was demonstrably attributable to Mr.

Wright repeatedly striking thesecurity camera housing with the detached step-stool, eventually knocking the toilet paper away and restoring video contact briefly untilthe bashing ultimately rendered the camera non-functional. [45] Mr. Beguin’s actions in blocking the video link to Cell A28 came at a time when Mr. Wright’s destructive spree was partwaycompleted and straightaway after C.O. Dhutt had attended to investigate. That blocking of the video link thus occurred at a time when he(Mr. Beguin) was fully aware of what Mr. Wright had set about to do and had partially accomplished.

That is to say, there is no room forargument that the knowledge element of the mens rea requirement for party liability is established on the evidence. Similarly, byreplacing the moistened toilet paper almost immediately after removing it at C.O. Dhutt’s direction, Mr. Beguin displayed a continuing,clear intention to frustrate North Fraser corrections staff’s efforts to discover what might be happening in Cell A28 and to permit Mr.Wright to resume his destructive rampage for at least a while without the video link being available to permit those corrections staff toconfirm their suspicions.

In my judgment, that conduct evinces an intention on Mr. Beguin’s part to assist and help Mr. Wright continuecommitting a mischief offence within the cell and, thus, supplies the second, intention element of mens rea for party liability. No otherreasonable inference can be drawn from the facts I have found in this regard. Why Mr. Beguin’s Proffered Explanation for his Actions is Rejected [46] Mr. Beguin sought to give an exculpatory explanation for his actions in blocking the video feed from Cell A28 twice in thecourse of Mr. Wright’s violent spree.

I was duty bound to consider that defence evidence before reaching any final conclusions aboutMr. Beguin’s criminal liability as a party. I have done so in the course of my analysis and in the succeeding paragraphs I will outlinewhy that evidence has not raised any reasonable doubts in my mind. [47] I first confess that I found Mr. Beguin’s explanation difficult to understand. The burden of his testimony in this regard was tothe effect that he covered the security camera with moistened toilet paper because he didn’t want North Fraser corrections staff to see thedamage inside the cell, particularly to the windows.

He said that he was fearful that if they saw that damage, corrections staff wouldattend at Cell A28 and deal with both him and Mr. Wright by force and possibly cause injury to both of them, thinking that he (Mr.Beguin) had caused some of the damage. [48] Mr. Beguin elaborated somewhat on his explanation by adding to it in order to account for the fact that during a very briefinterval—when the moistened toilet paper had fallen away as a result of Mr. Wright’s bashing on the security camera housing—he canbe seen in the video evidence up in the top bunk kicking (or kicking at) the top bunk window. Mr.

Beguin’s testimony here was to theeffect that he feared that should corrections staff view the goings on inside on their video monitor and attend there to deal with thedisturbance, they might push him up against the wall at the back of the bunk and cause him to sustain injuries from shards of specialglass that were still lodged in the broken window in that wall. Thus, Mr.

Beguin testified, the kicking he was doing that is visible in thevideo evidence was aimed at dislodging those shards of special glass so that the risk he would sustain such an injury might be lessened. [49] As can be seen, this defence evidence was proffered with a view to raising a reasonable doubt concerning mens rea. Mr. Beguinseeks to resist liability as a party to Mr. Wright’s mischief offending by testifying that his intention in using moistened toilet paper todisable the security camera in Cell A28 was not to lend assistance to Mr.

Wright in his efforts to inflict damage within the cell, but ratherto spare himself the rough handling that he anticipated would befall him if the damaged state of the cell became known to correctionsstaff and if staff intervened. [50] I will say straightaway, and with respect, that I consider this evidence to be wholly unworthy of belief. In the language ofO’Halloran, J.A., Mr. Beguin’s explanation as to what led him to block the security camera lens twice during the course of Mr.

Wright’sspree within Cell A28 lacks harmony with "... the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions”: Faryna v. Chorny, (BC CA), [1952] 2 D.L.R.354 (B.C.C.A.) at p. 357. I am aware that Faryna is a civil case but the applicability, with appropriate caution, of its reasoning incriminal cases has often been acknowledged: see, for example, R. v. Wilder, [2003] B.C.J. No. 2884 (S.C.) at paras. 641-642, perRomilly J., aff'd [2006] B.C.J. No. 1 (C.A.). [51] In common parlance, Mr.

Beguin’s proffered explanation does not “make any sense”. He contends that he was fearful he wouldbe subjected to rough handling by corrections staff as a possible perpetrator of the damage to the cell he shared with Mr. Wright and thathe covered the security camera lens to prevent that. But Mr. Beguin has to have known that the damage to the cell would be detected

eventually, indeed soon. Cell checks in the North Fraser Segregation Unit are frequent and routine; moreover, the likelihood of a rapid,emergency check of the cell that Mr. Beguin and Mr. Wright occupied together was virtually assured when Mr. Wright’s destructivebehaviour began to cause noise as he progressed to using the step-stool to bash windows, window frames and the security camerahousing. By taking steps to prevent the security camera from capturing the goings on within Cell A28, Mr.

Beguin deprived himself of abasis for substantiating his contention that he did not commit any mischief within the cell himself. If, as he claimed, he was trulyconcerned about being manhandled by corrections staff when the damage was noted, then his actions increased that risk by foreclosingrecourse to video proof that, on his version of events, would show that Mr. Wright was the only one to have caused damage to the stepstool, the windows and the security camera housing. I cannot accept that Mr.

Beguin would act so plainly in a manner that was contraryto his own interests, particularly where no meaningful, upside benefit relating to detection can be identified for his action in interruptingthe video feed from Cell A28. [52] Mr. Beguin’s explanation regarding the brief video footage that captures him kicking (or “kicking at”) the window on the wallat the back of the top bunk is equally lacking in believability. While that conduct is not directly tied into his potential liability as a partyto Mr. Wright’s mischief offence, his explanation for it is so far-fetched that by offering it Mr.

Beguin further undermined his owncredibility. It is difficult to imagine any scenario in which, when storming into a cell to quell a disturbance, corrections staff would see aneed to lift one of the occupants up off the floor and onto an upper bunk, and then push him to the far side of that bunk and press himagainst a window in the wall that is located there. Such a manoeuvre would demand a great deal of corrections staff, yet it would serveno apparently useful purpose. There is no reason I can conceive of why resources would be deployed by corrections staff in that way;nevertheless, Mr.

Beguin would have the court believe that it was that very risk—the risk of being lifted up onto an upper bunk and thenbeing pushed back into a broken window—that he aimed to avoid by climbing up onto the upper bunk himself (thus getting closer to thesource of danger that concerned him) and then trying to kick shards of special glass out of the window so that they wouldn’t cut him ifcorrections staff put him there and pushed him up against the broken window. [53] I consider that Mr.

Beguin’s explanation for why he could be seen in a brief video segment stretched out on the upper bunkkicking (or “kicking at”) the window next to the bunk simply not a credible one and, as I have said, he did his credibility no favours bytendering it. [54] Beyond all of that, I make the point that even if I were to accept Mr. Beguin’s explanation for what motivated him to cover thesecurity camera in Cell A28 twice, that—on the law—would not avail him in terms of his attempt to defeat the Crown’s arguments onmens rea for party liability in any event. The reason is that whatever other motive Mr.

Beguin might claim to have had for blocking thecamera, the assistance his doing so gave to Mr. Wright in fact by permitting him to carry out so much of his destructive campaignundetected on the corrections officers’ video monitors was plain and obvious. As I have already explained, the mens rea element ofparty liability is also made out where a person in Mr. Beguin’s position can be shown to have been wilfully blind as to the assistance thathis or her conduct lends in fact to a principal offender. I have found on the evidence that it was Mr.

Beguin’s intention to lend thatassistance but if I am incorrect in that determination, mens rea would still be made out on these facts by invoking the concept of wilfulblindness. [55] In the unique circumstances of this case I do not see it being necessary for me to articulate the full colloquy in R. v. W.D., (SCC), [1991] 1 S.C.R. 742 while pronouncing against Mr. Beguin’s credibility. He gave testimony about his intentionswhen he blocked the security camera that he must have thought would be exculpatory. I did not believe that testimony, but even if I had,Mr.

Beguin on the facts here is unable to side-step the alternative, wilful blindness pathway to party liability. Neither does the evidenceMr. Beguin gave raise a reasonable doubt concerning my conclusion that, in covering the security camera housing with moistened toiletpaper as he did, twice, Mr. Beguin intended to assist Mr. Wright in carrying out his destructive rampage within Cell A28. Thus, on theevidence that I do believe, I am persuaded beyond a reasonable doubt of Mr. Beguin’s guilt as a party to the mischief offence committedby Mr.

Wright. [56] Having reached that conclusion on party liability, there is no need for me to embark on an assessment as to whether the Crownhas made out a case against Mr. Beguin pursuant to s. 24 of the Criminal Code for the included offence of attempted mischief. CONCLUSION AND DISPOSITION [57] For all of the foregoing reasons, and pursuant to ss. 21(1)(

b) and 430(3) of the Criminal Code, I find Mr. Beguin guilty as aparty to the offence of mischief committed by his co-accused (and principal offender) Mr. Wright, on May 7, 2015, which offence is setout in count one of Information 94450-1. [58] Before closing, I wish to commend both counsel for their thoughtful and well-presented closing submissions. [59] Order accordingly. _____________________________Thomas S. Woods, P.C.J.