R. v. Downes Date:, 2017 BCPC 332

Citation: R. v. Downes Date: 20171110 2017 BCPC 332 File No: 96701-2A Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RANDY WILLIAM DOWNES REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: G. Barnes Counsel for the Defendant: D. Sorochan, Q.C. Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: October 25 and November 1, 2017 Date of Judgment: November 10, 2017

introduction [1] Pursuant to Information 96701-2A, the accused, Randy William Downes (“Mr. Downes”), faces two charges under s. 145(3) ofthe Criminal Code alleging breaches of a bail condition. Both counts in the Information cite Condition 8 (the “Subject Condition”) of aRecognizance of Bail imposed by Alexander P.C.J. on October 12, 2016 (the “Subject Recognizance”). Mr. Downes also faces multiplecharges under indictment for voyeurism, possession of child pornography and publication of child pornography under Information96701-1 (the lead Information).

He is scheduled to be tried on those before the Supreme Court of British Columbia in the Spring of2018. The Subject Recognizance defines the terms upon which he was released on October 12, 2016, after being taken into custody onthose charges. [2] Like all eleven of the conditions set out in the Subject Recognizance, the Subject Condition was imposed under s. 515 of theCriminal Code.

That condition is worded as follows: You are not to attend any public park or public swimming area where the [sic] persons under the age of 16 years are present or canreasonably be expected to be present, or a daycare centre, school ground, playground, beaches or community centre, except you may goto a community centre or ice rink if you are refereeing an adult hockey game and on such occasions you may not take with you or haveon your person a cellphone or camera and you must go directly to the rink to which you are refereeing the game and you are to leaveimmediately after the game and you are not to enter a change room if any person under the age of 16 is in that change room. [3] The two alleged breaches of the Subject Condition are said to have been committed by Mr.

Downes in New Westminster,British Columbia on December 21 and 22, 2016. [4] The relevant portion of s. 145(3)—the provision of the Criminal Code which Mr. Downes is alleged to have contravened—reads as follows: 145(3) Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound tocomply with a condition of that undertaking or recognizance … and who fails, without lawful excuse, the proof of which lies on them, tocomply with the condition, direction or order is guilty of ... [an offence]. [5] Like all accused persons, Mr.

Downes enjoys the benefit of the presumption of innocence. Therefore, to secure convictionsagainst him, the Crown must prove, to the criminal standard of beyond a reasonable doubt, all of the elements of both of the breachoffences of which he stands charged, subject to any finding of a “lawful excuse” for his impugned conduct that might absolve him ofcriminal liability for that conduct. R. v. W.D. [6] Because Mr.

Downes called defence evidence at trial for the purpose of raising a reasonable doubt about his criminalculpability regarding the charges he faces, I must consider that defence evidence and the inferences it raises alongside the Crownevidence and the inferences it raises. Wherever credibility becomes a factor in this manner, courts must act on the guidance that is foundin the reasoning of the Supreme Court of Canada in R. v. W.D., (SCC), [1991] 1 S.C.R. 742 as augmented by the B.C.Court of Appeal in R. v. H.(C.W.), (1991), (BC CA), 68 C.C.C. (3d) 146 (C.A.).

Applying that protocol to thepresent case, on each count: (

a) if I believe the exculpatory evidence of Mr. Downes (the only defence witness), then I must acquit him; (

b) if, after a consideration of all of the evidence I am unable to decide whether to believe the exculpatory evidence of Mr. Downes, thenI must acquit him; (

c) if, after a consideration of all of the evidence I am unable to decide whether or not to believe the exculpatory evidence of Mr.Downes, then I must acquit him; and (

d) even if I am not left in reasonable doubt by the exculpatory evidence of Mr. Downes, I must ask myself whether—on the basis of theevidence I do accept—whether I am convinced beyond a reasonable doubt by that evidence of his guilt. WHAT MUST BE PROVEN, AND BY WHOM? [7] In a breach prosecution, the Crown’s first obligation is to establish prima facie proof of all of the elements of the allegedbreach offences to the criminal standard.

As is plain from the language of ss. 145(3) and 794(2) of the Criminal Code, the onus thenshifts to the accused to prove, on a balance of probabilities, any lawful excuse he or she might contend should displace criminal liabilityfor the breach. Importantly, proof of a lawful excuse does not negative or unseat proof of a breach offence; rather, it establishes a fact orfacts which operate to absolve the accused of criminal liability despite proof of both the actus reus and mens rea elements having beenmade out. If lawful excuse is not proven, then the accused will stand convicted. See, in this regard, R. v.

Flores-Rivas, [2008] B.C.J.No. 2279 (S.C.) at para. 16; R. v. Ludlow, [1999] B.C.J. No. 1359 at para. 30 (C.A.); R. v. Custance, 2005 MBCA 23 , [2005]M.J. No. 30 (C.A.); R. v. Holmes, [1988] 1 S.C.R 924 at paras. 13 and 22; R. v. Moser, (ON CA), [1992] O.J. No.602 at para. 42 (C.A.); R. v. Truong, [2008] B.C.J. No. 1614 at para. 24 (S.C.); and R. v. Dempster, 2012 BCPC 275 , [2012]B.C.J. No. 1715 at paras. 28-35 (Prov. Ct.). Admissions and Concessions Made by Mr. Downes [8] As is often the case in prosecutions of criminal offences, some aspects of the Crown’s case against Mr. Downes have beenadmitted.

It is to counsel’s credit that, together, they have been able formally to narrow the issues in this case to those which are truly incontroversy.

[9] The identification of Mr. Downes as the alleged offender, the dates on which the offences were allegedly committed(December 21 and 22, 2016), the location where the offences were allegedly committed (New Westminster) and the jurisdiction of thiscourt over those alleged offences are all matters that are not in dispute. [10] Mr.

Downes also admits that he is the person named in the Subject Recognizance (marked as Exhibit 7) and that at the materialtimes he was bound by its conditions, including the Subject Condition which, as noted, prohibited him from “… attend[ing] any publicpark … where … persons under the age of 16 years are present or can reasonably be expected to be present …” [11] Mr. Downes admits part of the actus reus of the alleged offences. That is, he admits that on the alleged offence dates heattended Queen’s Park in New Westminster.

What he does not admit is that the parts of the park where he attended were, truly, a parkand areas “… where … persons under the age of 16 years [were] present or can reasonably be expected to be present …” [12] The Subject Condition defines an exception to the prohibition it imposes to address occasions where Mr. Downes may attend acommunity centre or ice rink to referee adult hockey games. Mr. Downes admits that that exception is not engaged by the circumstancesof the present prosecution. Similarly, Mr.

Downes advised the court through his counsel during argument that he does not seek to resistconviction by invoking the language in s. 145(3) that provides that an accused may raise a “lawful excuse” for otherwise impugnableconduct. [13] Thus it can be seen that the focus of true controversy in the present case falls in two areas: (

a) Did Mr. Downes commit the full actus reus of the offence? That is, did he attend at a public park in circumstances “where …persons under the age of 16 years [were] present or can reasonably be expected to be present …”; and, if so (

b) Did he do so with the requisite mens rea (i.e., in layman’s terms, with a “guilty mind”). [14] I shall begin with the actus reus. Actus Reus [15] As I have noted above, Mr. Downes admits that on the alleged offence dates he attended at Queen’s Park in New Westminster.

What he does not admit is that on those occasions he attended at areas there “where … persons under the age of 16 years [were] presentor can reasonably be expected to be present …” [16] In order to prove the actus reus on both counts, the Crown must tender evidence to establish, as a fact and to the criminalstandard, that on either or both of December 21 and 22, 2016, the places where Mr. Downes attended at Queen’s Park were places where“persons under the age of 16 years [were] present or [could] reasonably be expected to be present …” [17] Because Mr.

Downes led defence evidence in an effort to raise doubt concerning the commission of the actus reus, the Crown’sevidence on that issue must be considered together with the defence evidence, all with a view to determining whether the Crown has metits burden to prove actus reus, having due regard to, inter alia, the requirements of W.D. [18] I turn next to mens rea.

Mens Rea [19] The issue of proof of mens rea where breach charges are concerned is not free from complexity and, accordingly, it warrantssome detailed discussion at this early stage in these Reasons for Judgment. [20] Judges of this court have previously ruled, on unquestioned authority, that breach offences are “full” mens rea offences. See,for example, R. v. Bingley, 2008 BCPC 245 , [2008] B.C.J. No. 1680 (Prov. Ct.) per Blake P.C.J. and R. v. Lempke, [2016]B.C.J. No. 2379 (Prov. Ct.) per Flewelling P.C.J. (and the cases cited in those decisions).

This means, in part, that an accused personwho can be proven to have committed the act or acts constituting the actus reus of a breach offence must also be proven to have done so“… intentionally; or recklessly, with knowledge of the facts constituting the offence; or with wilful blindness toward them”: see R. v.City of Sault Ste. Marie (SCC), [1978] 2 S.C.R. 1299 at pp. 1309-1310. Conspicuously, proof of mere negligence willnot meet the Crown’s burden to prove mens rea for a full mens rea offence. Quoting again from the Supreme Court of Canada in SaultSte.

Marie: Mere negligence is excluded from the concept of the mental element required for conviction. Within the context of a criminalprosecution a person who fails to make such enquiries as a reasonable and prudent person would make, or who fails to know the facts heshould have known, is innocent in the eyes of the law. (at pp. 1309-1310) [21] However, for full mens rea offences, the Crown must prove still more. Beyond tendering proof that Mr.

Downes in this casevoluntarily committed the acts that were prohibited by the Subject Condition, the Crown must also prove that he was aware that thoseacts were prohibited by the Subject Condition and that he went ahead, nevertheless, to breach it, either intentionally, recklessly or in amanner that was wilfully blind as to his obligations under that condition: R. v. Docherty, (SCC), [1989] 2 S.C.R. 941.

This required state of mind was described by Wilson J. in Docherty as a “dishonest” one involving a “deliberate refus[al]” to act inaccordance with a legal obligation arising out of a court-imposed condition. [22] To translate all of this into a statement that engages the specifics of the present case, then, the Crown must prove that involuntarily attending at Queen’s Park in the circumstances he did on the offence dates of December 21 and 22, 2016, Mr. Downes either: (

a) Intended to do so knowing that his actions were prohibited by the Subject Condition; (

b) Did so with a reckless indifference as to whether his actions were prohibited by the Subject Condition; or

(

c) Did so while being in a state of wilful blindness as to whether his actions were prohibited by the Subject Condition. [23] While Docherty was concerned with a breach of probation, I will say that I consider the reasoning in that decision to be equallyapplicable to the facts of the present breach-of-recognizance case.

Further, while the word “wilfully” was included in the statutoryprovision governing breach of probation orders under consideration in Docherty (s. 666(1) of the Criminal Code as it was then wordedand numbered), for reasons clearly and convincingly articulated by Blake P.C.J. in Bingley and by Flewelling P.C.J. in Lempke, I (likemy colleagues) also do not consider that the absence of that word from s. 145(3)—or the reservation in that

section of an exception where“lawful excuse” is proven—changes the analysis. That is, I am satisfied that for the Crown to prove mens rea in a full mens rea offence of the kind faced by Mr.

Downes under s. 145(3), it must, as Docherty requires, also establish dishonesty as an element of mens rea.[1] [24] Returning now to the important point that proof of mere negligence will not meet the Crown’s burden to prove mens rea in aprosecution for breach of recognizance, I note that intention, recklessness and wilful blindness are all “positive states of mind.” Proof tothe criminal standard of any of those, coupled with proof of dishonesty, will satisfy the mens rea proof requirement for all full mens reaoffences, including breach of recognizance.

The distinction between “positive states of mind” and mere negligence was clearly andhelpfully drawn by Cory J. at para. 185 of R. v. Wholesale Travel Group Inc., (SCC), [1991] 3 S.C.R. 154 (a passagecited in Bingley as well): It should not be forgotten that mens rea and negligence are both fault elements which provide a basis for the imposition of liability. Mensrea focuses on the mental state of the accused and requires proof of a positive state of mind such as intent, recklessness or wilfulblindness.

Negligence, on the other hand, measures the conduct of the accused on the basis of an objective standard, irrespective of theaccused's subjective mental state. Where negligence is the basis of liability, the question is not what the accused intended but ratherwhether the accused exercised reasonable care.

The application of the contextual approach suggests that negligence is an acceptablebasis of liability in the regulatory context which fully meets the fault requirement in s. 7 of the Charter. (emphasis added) [25] Thus, proof of intention, recklessness or wilful blindness—but not negligence—will suffice to establish mens rea in theprosecution of full mens rea offences, including the breach offences alleged against Mr.

Downes in the present case provided it isaccompanied by proof of dishonesty. [26] Based upon all of the foregoing, then, in analysing the evidence placed before me I must first consider whether, in havingallegedly “attend[ed] [a] public park … where … persons under the age of 16 years [were] present or can reasonably be expected to bepresent”, Mr.

Downes did so dishonestly, and either intentionally, recklessly or with wilful blindness. [27] For these purposes: (a) “dishonestly” means with knowledge that one is bound by a condition and that that proposed condition would be breached by one’sactions: Docherty at p. 957; (b) “intentionally” means “… ‘on purpose,’ in other words, not by accident”: R. v. Cassan, [2010] M.J. No. 338 (Q.B.) at para. 263,underlining in original; (c) “recklessly” means “… heedless of consequences, headlong, irresponsible”: R. v. Sharp, [1984] M.J.

No. 46 (C.A.); and (d) “wilful blindness” means, figuratively, with one’s eyes shut because one “… knew or strongly suspected that looking would fix himwith knowledge": R. v. Jorgensen, (SCC), [1995] 4 S.C.R. 55 at para. 103. [28] Here again, because Mr.

Downes led defence evidence in an effort to raise doubt concerning mens rea, the Crown’s evidence onthat issue must be considered together with the defence evidence, all with a view to determining whether the Crown has met its burden toprove actus reus, having due regard to, among other things, the requirements of W.D. [29] I shall now provide summaries of the evidence led at trial, first by the Crown and next by Mr. Downes. THE EVIDENCE The Crown Cst. Lisa Marie Bolour [30] Crown witness Cst. Lisa Marie Bolour (“Cst.

Bolour”)—a member of the New Westminster Police Department (the “NWPD”)since April 2015—was so employed and on duty on the material dates in December of 2016. She was tasked with investigating theallegation that, contrary to the prohibition found in the Subject Condition in the Subject Recognizance, Mr. Downes had attended atQueen’s Park. Her evidence was that she frequently served as a patrol member of the NWPD and that she is familiar with Queen’s Parkand the Queen’s Park Arena located within its boundaries. [31] The relevant points arising in Cst. Bolour’s direct testimony were as follows: (

a) During daytime shifts she routinely sees children under the age of 16 in Queen’s Park; (

b) She specifically saw children under the age of 16 in Queen’s Park during December of 2016; and (

c) She cannot remember a time during daylight hours when she has been in the area of Queen’s Park when she has not seen childrenthere who are under the age of 16. [32] The relevant points arising in Cst. Bolour’s testimony under cross-examination were as follows:

(

a) Cst. Bolour acknowledged that, when in the area of Queen’s Park, she wasn’t “going looking for children all the time in the park”: Trans. , October 25, 2017, p. 18; (

b) There are “many hills” within Queen’s Park and, during the period of heavy snow in 2016 she observed that “a lot of times children use toboggans to slide down the hills specifically”: Trans. , October 25, 2017, p. 19; (

c) At least one of the noted hills where children go tobogganing is found in the vicinity of the Queen’s Park Arena; (

d) She would see children tobogganing on hills at Queen’s Park after school hours on school days and, in particular, “after say 2:00 p.m.”: Trans. , October 25, 2017, pp. 21-22; (

e) She recalls being involved in a missing child investigation during a snowy period in 2016 and noting in the course of it the presence of children tobogganing in Queen’s Park; and (

f) Some of the hills at Queen’s Park where Cst. Bolour has seen children tobogganing are not visible from the arena or the roads that approach it. Mark Brian Stevens [ 33 ] Crown witness Mr. Mark Brian Stevens (“Mr. Stevens”) is employed by the City of New Westminster Parks and Recreation Department as a maintenance supervisor at the Queen’s Park Arena. He was so employed and on duty in December, 2016, including on December 21 and 22. Mr. Stevens has worked there for 32 years and his duties include conducting repairs and maintenance, cleaning the ice, cleaning dressing rooms, setting up rooms and so forth.

Eleven staff report to him. [ 34 ] The relevant points arising in Mr. Stevens’ direct testimony were as follows: (

a) Queen’s Park Arena is located wholly within Queen’s Park and there is no way to get to the arena without going through the park; (

b) Mr. Stevens knows Mr. Downes and recognised him in court; (

c) He saw Mr. Downes in surveillance video footage taken at the Queen’s Park Arena on both December 21 and 22, 2016: Trans ., October 25, 2017, p. 28; (

d) He saw Mr. Downes in the lobby of Queen’s Park Arena in the early afternoon on December 21, 2016, the same date that another building at Queen’s Park, called the Arenex, had a catastrophic roof collapse due to snow accumulation; (

e) He also saw Mr. Downes in the “east dressing room tunnel” at the Queen’s Park Arena on December 22, 2016 at about 3:19 p.m.; (

f) Having been made aware through the media of charges against Mr. Downes, he reported Mr. Downes’ presence at Queen’s Park Arena to his manager, Ron Booth, because he “felt there was a likelihood that it was inappropriate for him to be in a recreation facility”: Trans. , October 25, 2017, p. 27; (

g) He considers that the surveillance video footage marked as Exhibits 2 and 3 accurately depicts “what’s going on at the relevant cameras at the relevant times” in Queen’s Park. In particular, it depicts Mr. Downes in Queen’s Park, both outside and within the Queen’s Park Arena, on December 21-22, 2016: Trans. , October 25, 2017, pp. 29 - 30; (

h) Mr. Stevens believes that on December 21-22, 2016, school was out for Christmas week and that “[you] would have seen children in and around the complex during all times of the day”: Trans. , October 25, 2017, p. 30; (

i) The video surveillance footage taken in the east dressing room tunnel at Queen’s Park Arena at about 3:19 p.m. on December 22, 2016, situates Mr. Downes in proximity to the adult player and referee dressing rooms and a corridor that children use which leads to the ice surface: Trans. , October 25, 2017, pp. 31-32; (

j) The video surveillance footage taken at about 3:45 p.m. and thereafter on December 22, 2016, reveals that at that time young children were playing minor hockey on the ice surface and that a young (approximately five-year-old) child was visible with an accompanying adult female in the corridor leading to the ice surface. Thus, at about 3:45 p.m. on December 22 nd when children were in the Queen’s Park Arena, Mr. Downes was present there as well: Trans. , October 25, 2017, pp. 32-33 and 35; and (

k) The ice time

schedule for Queen’s Park Arena for December 19-25, 2016, marked as Exhibit 6, shows, among other things, which rink activities occurred at which times and on which days for that week. The booked time for hockey tends to be the same from week to week throughout the hockey season. For the time slot that runs from 3:45 to 4:45 p.m. on December 22, 2016, the

schedule allocates the ice surface to practice for minor hockey players—possibly boys and girls—who are approximately six or seven years old. Those children start filtering in “… [at] approximately 3:30” to be on the ice by 3:45: Trans. , October 25, 2017, pp. 36-37. [ 35 ] The relevant points arising in Mr. Stevens’ testimony on cross-examination were as follows: (

a) Mr. Stevens has known Mr. Downes for a number of years as a person with a long history of being present at Queen’s Park Arena. Mr. Downes could properly be described as a “rink rat”; (

b) Mr. Stevens has not ever seen Mr. Downes attend at Queen’s Park Arena to exercise there, either by walking around the upper perimeter of the rink or otherwise: Trans. , October 25, 2017, pp. 38-39; (

c) The east dressing room tunnel that Mr. Stevens discussed in his direct testimony is a tunnel by which “people would access either the players’ dressing rooms or the referees’ dressing rooms” or “exit the facility”: Trans. , October 25, 2017, p. 39;

(

d) The Arenex building that collapsed on December 21 st is situated in close proximity to the Queen’s Park Arena, at a 45 degree angle to the right of its main entrance. On the day of the collapse and on December 22 nd , there were people present tasked with keeping children and the general public away from the damaged Arenex building: Trans. , October 25, 2017, p. 41; (

e) No one was on the ice at the Queen’s Park Arena at 12:45 on December 21 st ; (

f) The blocked-off portion of the ice time

schedule (Exhibit 6) that runs across all days for the time between 3:30 to 3:45 p.m. during the week of December 19-25, 2016, represents the time when ice cleaning is done to prepare the surface for minor hockey starting at 3:45 each day: Trans. , October 25, 2017, pp. 41-42; (

g) In New Westminster, 3:45 p.m. is “after school.” Mr. Stevens believes school lets out in that district “just before three o’clock”: Trans. , October 25, 2017, p. 42; (

h) The majority of young minor hockey players who use Queen’s Park Arena arrive dressed and equipped, and only put their skates on at the rink such that the dressing room is really just a place where skates are put on; (

i) Mr. Downes is depicted in video surveillance footage of the east dressing room tunnel in the area where referee dressing rooms are located; (

j) Mr. Downes has a long history—15 years or more—of refereeing at the Queen’s Park Arena and during that time he was a frequent, if not a daily, presence there; (

k) Mr. Stevens has observed children tobogganing “outside the facility” on days when there is enough snow to support that activity. He believes the hill where he has seen this occur is located further to the west of the area where Cst. Bolour recalls seeing that hill: Trans. , October 25, 2017, pp. 43-44; (

l) There is nothing posted at Queen’s Park Arena to direct players to particular dressing rooms; and (

m) The ice time

schedule marked as Exhibit 6 is not posted in the public part of the arena and so “there’s no public knowledge of what the contents of that document is from being posted in the arena”: Trans. , October 25, 2017, pp. 44-45. Matt MacNeish [ 36 ] Crown witness Mr. Matt MacNeish (“Mr. MacNeish”) is a recreation facility maintenance worker and Zamboni ice-cleaning machine operator at the Queen’s Park Arena and was so employed on December 22, 2016. [ 37 ] The relevant points arising in Mr. MacNeish’s direct testimony were as follows: (

a) At the start of his shift on December 22, 2016, Mr. MacNeish made a routine check of dressing rooms at Queen’s Park Arena to make sure they were open and ready to go for the day. While doing so he noted that a shower was running in the referees’ room. This, he believes, was “unusual for that time of day” but considering it was perhaps being used by a track and field group, he didn’t check further: Trans. , October 25, 2017, pp. 47-48; (

b) Nevertheless, Mr. MacNeish discussed his unusual observation with his supervisor, Mr. Stevens and, later, he and Mr. Stevens looked at some video surveillance footage and they noted that it depicted Mr. Downes entering the Queen’s Park Arena building “around 3:15, 3:16 that day.” Mr. Downes used the “ref room” where Mr. MacNeish had heard the shower running. Mr. MacNeish noted that Mr. Downes was wearing different clothing in the video footage before and after the time when he (Mr. MacNeish) heard the shower running: Trans ., October 25, 2017, p. 48; (

c) Mr. MacNeish recognised Mr. Downes in court; and (

d) Mr. MacNeish is familiar with Mr. Downes and has only seen him at the Queen’s Park Arena at times when he was refereeing Men’s League hockey. Whenever he has seen him there, “it’s always been when he’s been involved with a game, or coaching or playing”: Trans ., October 25, 2017, p. 49. [ 38 ] The relevant points arising in Mr. MacNeish’s testimony on cross-examination were as follows: (

a) Mr. MacNeish arrived for his shift on December 22nd at 3:00 p.m.; (

b) None of the video surveillance cameras at Queen’s Park Arena are trained on the stands but they may capture footage of “the background a little bit”: Trans. , October 25, 2017, p. 49; (

c) Hockey teams use a walkway at the top of the stands to do a “circuit around the whole arena” for exercise as part of their training programs: Trans ., October 25, 2017, p. 49; (

d) Mr. MacNeish has never seen Mr. Downes use that walkway for exercise; (

e) If hockey players use the walkway for exercise, they do so for warm-up and then they play; if members of the public, or even members of the track and field group, use the walkway for exercise, to Mr. MacNeish’s knowledge they don’t shower afterward, “but anything’s possible”: Trans. , October 25, 2017, p. 50; (

f) Mr. MacNeish viewed video footage depicting Mr. Downes arriving at the east entrance door on December 22, 2012; and (

g) He did not see any footage depicting Mr. Downes at a time earlier than 3:15 p.m. on December 22 nd and he has no knowledge about

what Mr. Downes may have done in the arena earlier than 3:00 p.m.: Trans. , October 25, 2017, pp. 51-52. Ronald Thomas Booth [ 39 ] Crown witness Mr. Ronald Thomas Booth (“Mr. Booth”) is the manager of the Queen’s Park Arena and was so employed in December of 2016. He has been involved with that facility, on and off, for 41 years. [ 40 ] The relevant points arising in Mr. Booth’s direct testimony were as follows: (

a) Mr. Booth knows Mr. Downes as one of the renters of ice time at the Queen’s Park Arena and recognised him in court; (

b) Mr. Downes did not have any ice time reserved or rented at Queen’s Park Arena on December 21 or 22, 2016; (

c) The 3:45 to 4:45 p.m. ice time allocation for December 22, 2016 shown on the

schedule marked as Exhibit 6 was for “minor hockey” involving players “probably around six years old.” Such schedules are “pretty much the same throughout the hockey season”: Trans. , October 25, 2017, pp. 53-54. (

d) Monday the 19 th of December was “probably” the first day children were not in school in December, 2016: Trans. , October 25, 2017, p. 54; (

e) Children having the 3:45 p.m. ice time would be expected to be on the ice and ready to go at 3:45 and would start arriving for that ice time at about 3:00 p.m.; (

f) There is an elementary school “at the corner of the [Queen’s Park]” and it is “quite common” for children to come from it “straight after school to [Queen’s Park Arena]”: Trans. , October 25, 2017, p. 54; (

g) Starting at just after 3:00 p.m., one can “reasonably expect” that “children under the age of 16” would be in Queen’s Park Arena: Trans. , October 25, 2017, pp. 54-55; (

h) The area outlined in red by Mr. Booth on Exhibit 1B—a map version of the aerial photos marked as Exhibits 1 and 1A—traces the perimeter of Queen’s Park, and the Queen’s Park Arena can be seen in the middle of that area; (

i) Mr. Booth’s regular working hours run from 7:00 a.m. to 4:00 p.m., Monday to Friday, although he comes to the facility at other times if necessary; (

j) Mr. Booth cannot think of a day during daylight hours when there aren’t “kids” at Queen’s Park; Queen’s Park always has people in it, including “kids coming to play” and “preschools walking through.” There is a preschool on site at the park: Trans ., October 25, 2017, p. 56; (

k) Except on “extreme rainy day[s] … there’s almost always people around – kids [under 16] around the park”: Trans. , October 25, 2017, p. 57; (

l) When asked, “So is [Queen’s Park] … a place when you could say that people under the age of 16 are reasonably expected to be seen by yourself for sure?” Mr. Booth answered, “Yes”: Trans. , October 25, 2017, p. 57; (

m) Mr. Booth often sees children under 16 years of age at Queen’s Park Arena at times when they are not playing themselves but, rather, when their siblings or parents are on the ice, including at adult drop-in times: Trans. , October 25, 2017, p. 57; (

n) Mr. Booth does not recall ever seeing Mr. Downes at Queen’s Park Arena when he was not actively involved with a game, either as a referee, coach or player; (

o) He has never seen Mr. Downes at the facility for another purpose, such as exercising or taking a shower; (

p) Mr. Booth directed Mr. Stevens to record the video surveillance footage depicting Mr. Downes onto DVD discs for review by police; (

q) The shower that Mr. Downes used is generally for the use of Queen’s Park Arena “customers”—that is, for those who rent ice time. Occasionally, “maybe a couple times a year, people will ask if they could come in and shower during the day. They may have been working out in the park or – you know, for some reason, they come in and ask if they can use the showers, and we’re usually able to accommodate them”: Trans. , October 25, 2017, p. 60; and (

r) It is common for members of the public to walk in and use the walkway at the top of the stands at Queen’s Park Arena for exercise, but not for them to use the showers afterwards. In fact, Mr. Booth knows of nobody in those circumstances having ever asked for permission to use the shower: Trans. , October 25, 2017, p. 60. [ 41 ] The relevant points arising in Mr. Booth’s testimony on cross-examination were as follows: (

a) More people come in to use the walkway at the top of the stands for exercise when the weather is bad; (

b) Mr. Booth does not know of a situation where someone did exercise while his or her child or children were playing hockey and then used the showers at Queen’s Park Arena; (

c) Daytime adult hockey groups do not typically use the walkway at the top of the stand for warm-up exercise; (

d) Children showing up for the 3:45 p.m. ice time allocated to minor hockey would show up “anytime after 3:0 [ sic ]”: Trans. , October

25, 2017, p. 63; (

e) Some of the New Westminster schools let out at 2:45 p.m. so it would be “common for us to see the kids starting to come in at around three o’clock”; Trans. , October 25, 2017, p. 63; (

f) Mr. Booth would not know Mr. Downes to see him; his dealings with him have mainly been through telephone or e-mail contact. He knows Mr. Downes, however, to have been a customer in both arenas for over 20 years prior to the events at issue in this case; (

g) Owing to his long association with Queen’s Park Arena, Mr. Downes would have an “intimate knowledge of the arena” that most members of the public would not have: Trans. , October 25, 2017, p. 64; (

h) There are parts of Queen’s Park where “you go and you have a picnic, or people play with a ball” and other parts where there are facilities, such as the Queen’s Park Arena: Trans. , October 25, 2017, p. 65; (

i) The part of the park “where people would go and have a picnic and children would frolic”—that is, the “playground/picnic area”—is up behind the arena, towards 6 th Avenue; and (

j) The various “parts of Queen’s Park … the stadium and so forth” are still part of, within and called “Queen’s Park” and Mr. Booth would “reasonably expect to find children” at any of those facilities during daylight hours: Trans. , October 25, 2017, p. 66. Documentary Evidence [ 42 ] Apart from the viva voce evidence summarised above, the Crown also introduced a number of documentary exhibits into evidence, namely: (

a) Two aerial photographs and one map—marked as Exhibits 1, 1A and 1B, respectively—depicting the area of Queen’s Park and the locations of various features, including Queen’s Park Arena; (

b) Two DVDs—marked as Exhibits 2 and 3, respectively—on which video surveillance footage taken at and outside the Queen’s Park Arena and confirming Mr. Downes’ presence there on December 21 and 22, 2016; (

c) A photograph—marked as Exhibit 4—of the main entrance to Queen’s Park Arena; (

d) Five still photographs—marked, collectively, as Exhibit 5—which were taken from the video surveillance footage recorded on Exhibits 2 and 3 depicting Mr. Downes in various areas within the Queen’s Park Arena; (

e) The Queens Park Arena ice time

schedule for December 19-25, 2016, which was marked as Exhibit 6; and (

f) The Subject Recognizance—marked as Exhibit 7—which is signed by Mr. Downes on page 1 under the words, “I have read or have had read to me and understand a total of 11 Conditions on 1 Conditions Attachment Page.” The Defence Mr. Downes [ 43 ] The relevant points arising in Mr. Downes’ direct testimony were as follows: (

a) Mr. Downes is a long-time resident of New Westminster and learned to skate at Queen’s Park Arena; (

b) After finishing his minor hockey career, he had part-time employment for a number of years as a “stick boy” for the majority of junior hockey teams that came to play at Queen’s Park Arena and the adjacent Arenex; (

c) On December 21 and 22, 2016, he went to Queen’s Park: Trans. , October 25, 2017, pp. 73-74; (

d) His belief was that the Subject Condition “prohibited [him] from going to [Queen’s Park among other places] if [he] thought there was gonna be kids under the age of 16”: Trans. , October 25, 2017, p. 74; (

e) Mr. Downes did not see any children under the age of 16 when he attended there on December 21 st ; moreover, he didn’t have any reason to believe such children would be there because he attended a little after noon on that date and he “fully expected that kids were … still in school”: Trans. , October 25, 2017, p. 75; (

f) When he continued on from having a look at the damaged Arenex structure to enter Queen’s Park Arena, he first took a “look inside the arena to make sure there was no children in the arena and on the ice, and there was none”: Trans. , October 25, p. 76; (

g) On December 21 st he “did [his] walk along the top [on the walkway at the top of the stands] for approximately 45 minutes to an hour, and then [he] left the building”: Trans. , October 25, p. 76; (

h) Mr. Downes doesn’t “recall” seeing any children in the area that is described as Queen’s Park on December 21, 2016: Trans. , October 25, 2017, p. 76; (

i) He has jogged “in Queen’s Park Arena around the top … a number of times”. In particular, he has done so “not on a super regular basis, but many times when [he] went there to referee games on weeknights.” Often he would arrive early and take his walks before he refereed his game. Sometimes he would do his walks after his games “as part of conditioning”: Trans. , October 25, 2017, pp. 76-77; (

j) Mr. Downes historically attended at Queen’s Park Arena independent of being there to referee “on a few occasions … but not on a

regular basis”. Normally he does his walking outside, but in December of 2016, the “conditions were such that you couldn’t do that”: Trans. , October 25, 2017, p. 77; (

k) Mr. Downes does walks daily to promote his own fitness and to lose weight; (

l) He had no expectation of seeing children on December 21 st because it was “[his] belief that children were still in school”: Trans. , October 25, 2017, p. 77; (

m) In Mr. Downes’ experience over “probably forty years,” when they are in school, the earliest hockey starts he can recall children having at Queen’s Park Arena were 4:00 p.m. starts “because of kids being at school”: Trans. , October 25, 2017, p. 77; (

n) Mr. Downes knows that teams of children who play at Queen’s Park Arena come from various schools with differing release times, including possibly 2:45 p.m., 3:00; 3:15 and 3:30 p.m., but “four o’clock has generally been the earliest [start times on the ice]. All the years I coached at Burnaby Winter Club, four o’clock was the earliest we could ever – they could ever have a practice and get your full team to arrive on time”: Trans. , October 25, 2017, p. 77; (

o) Mr. Downes’ recollection of his time of arrival at Queen’s Park Arena on December 22, 2016, was at “roughly between two – 2:30 and three o’clock … [p]robably – maybe closer to quarter to 3:00”: Trans. , October 25, 2017, pp. 77-78; (

p) Because police tape relating to the Arenex roof collapse had been removed, Mr. Downes’ approached Queen’s Park Arena on December 22 nd by his “normal way” from a “lane that runs between … soccer pitches … on the south side and … the arena on the north side …”: Trans. , October 25, p. 78; (

q) As he drove “into the park” to the area where he parked his car on December 22 nd , Mr. Downes did not see any children. Indeed, “[he] didn’t see children on either day”: Trans. , October 25, 2017, p. 79; (

r) Mr. Downes “grew up at Queen’s Park” and he “know[s] that park probably as well as Mr. Booth does”: Trans. , October 25, 2017, p. 79; (

s) The hill where Mr. Downes knows children sometimes toboggan is not visible from the area where he entered Queen’s Park and he did not see anyone tobogganing on December 21 or 22, 2016, or at any other time, ever : Trans. , October 25, 2017, p. 80; (

t) Mr. Downes’ purpose in attending at Queen’s Park Arena on December 22, 2017, at about 2:45 p.m. was to do his walking exercise for 30-40 minutes, “in time to get out before the minor hockey started, or if there was minor hockey, to get out be – well before it started”: Trans. , October 25, 2017, p. 80; (

u) After returning to his car briefly to get a towel and change of clothes, Mr. Downes took a shower after his exercise walk and changed into a golf shirt, khaki slacks and dress shoes in order to be presentable for a visit he had been invited to pay to a friend who lived nearby; (

v) He didn’t consider it necessary to seek permission to take the shower he took at Queen’s Park Arena on December 22, 2016, given (among other things) the many times he had taken showers in the referee’s room before when refereeing and given further his observation that people using the soccer field alongside Queen’s Park Arena have sometimes done so; (

w) Upon leaving Queen’s Park Arena after having showered and changed, Mr. Downes discovered that he had left a water jug “at the bottom of the steps where it goes up to get up top [to the walkway]” and so when returning there to retrieve the water jug he “noticed a lady that was there, and [he] nodded and said hi to her and [he] just kept right on walking and went out the side door and was gone”: Trans. , October 25, 2017, p. 82; (

x) Mr. Downes acknowledges that the video surveillance footage received into evidence includes footage of him returning after retrieving his water jug and that that footage “shows [him] walking and then turning and, you know, walking past that lady, and I think she had a little – a little kid with her and I turned right and went down the hall – the hallway there”: Trans. , October 25, 2017, p. 83-84; (

y) Mr. Downes saw the woman but did not see the child who was with her; and (

z) Mr. Downes did, at that time and from that location, see “the little kids coming on the ice and knew that [he] had to get out of there quick”: Trans. , October 25, 2017, p. 84; [ 44 ] The relevant points arising in Mr. Downes’ testimony on cross-examination were as follows: (

a) Mr. Downes was in the rink on that day “when little kids were playing hockey”: Trans. , October 25, 2017, p. 91; (

b) Mr. Downes noticed the little boys coming on the ice as he was leaving, but he “didn’t notice the girl”: Trans. , October 25, 2017, p. 91-92; (

c) When he went to Queen’s Park on December 21 and 22, 2016, Mr. Downes “made a special point … to look around to see if you saw little kids there, or kids under the age of 16”: Trans. , October 25, 2017, p. 92; (

d) On his attendances at Queen’s Park in December of 2016, Mr. Downes made a special point of looking around to make sure children under the age of 16 were not present when he arrived in the parking lot he used at Queen’s Park, then again before he got out of his car, then again before he entered the arena, then again (on the day he took his exercise walk) when he came to the walkway at the top of the stands and then again before he descended from the walkway after his walk, and then again in the halls near the ref’s room where he had his shower.

He “looked when [he] got there. [He] did [his] diligence when he got there … [He] was aware of … [h]is immediate surroundings as [he] was walking. If kids had have come in, [he] would have left the arena immediately”: Trans. , October 25, 2017, pp.

93-96 and 99 and Trans., November 1, 2017, p. 6; (

e) Mr. Downes is familiar with Queen’s Park Arena and had been going there for years; (

f) He knows that children of approximately seven to eight years of age have ice time in the after-school hours; (

g) Mr. Downes “absolutely” did not know what the start time for children’s hockey was on December 22, 2016: Trans., October 25,2017, p. 95; (

h) Mr. Downes did not “believe there was reasonable expectation of kids under the age of 16. I looked to make sure there wasn’t anywhen I entered the arena”: Trans., October 25, 2017, p. 95; (

i) He didn’t make any inquiries to determine what time children had on December 22, 2016, because he “went on [his] – on [his]knowledge of the minor hockey scene that [he has] been involved with for close to 40 years that the earliest start time – earliest starttimes were 4:00 p.m.”: Trans., October 25, 2017, p. 95-96; (

j) Mr. Downes checked to make sure children weren’t present when he went to Queen’s Park on December 21 and 22, 2016, “becauseit was reasonable to check, given my conditions, to make sure that I didn’t enter in an area where I knowingly knew there were kidsunder the age of 16”: Trans., October 25, 2017, p. 96; (

k) Mr. Downes does not consider all of what is called “Queen’s Park” to be a park and he does not consider the areas where he attendedon December 21 and 22, 2016, including Queen’s Park Arena, to be a park: Trans., October 25, 2017, p. 98; (

l) Mr. Downes has been going to Queen’s Park Arena since he was “a kid”: Trans., October 25, 2017, p. 99; (

m) Mr. Downes believed that, on December 21 and 22, 2016, school was still in session and that the last day of school for elementary school students was December 23rd but he didn’t check anywhere to verify that belief: Trans., October 25, 2017, p. 101-102; (

n) Mr. Downes was at the Queen’s Park Arena on December 21 and 22, 2016, and he was bound by Subject Condition of the SubjectRecognizance on both of those days: Trans., November 1, 2017, p. 3; and (

o) When Mr. Downes goes into a pub, he doesn’t look around to see if there are kids in a pub: Trans., November 1, 2017, p. 6. ANALYSIS [45] I turn now to the two matters which remain in controversy and which were identified above in these Reasons, namely: (

a) Did Mr. Downes commit the full actus reus of the offence? That is, did he attend at a public park in circumstances “where …persons under the age of 16 years [were] present or can reasonably be expected to be present …”; and, if so (

b) Did he do so with the requisite mens rea (i.e., in layman’s terms, with a “guilty mind”). Full Actus Reus [46] I am satisfied that the evidence at trial establishes to the criminal standard that Queen’s Park has, objectively, long been andremains a “public park” as contemplated by the Subject Condition.

While I agree that there is no magic in a name, neither is it irrelevantthat the name of Queen’s Park includes the word “park;” moreover, the testimony of Crown witnesses leaves me in no doubt that it isused regularly and routinely by members of the public for a variety of forms of recreational activity, some of which takes place outdoorson park grounds and some of which takes place indoors in park amenities or facilities like the Queen’s Park Arena and the Arenex. [47] The boundaries of Queen’s Park were highlighted in red by Mr. Booth on Exhibit 1B. Mr.

Booth is currently the manager ofthe Queen’s Park Arena, one of the amenities comprising Queen’s Park and located at about its centre. He has been involved with thatfacility for 41 years, on and off. His evidence on what constitutes the geographic footprint of Queen’s Park within the City of NewWestminster was manifestly credible and went wholly uncontroverted. Clearly, Queen’s Park is space within the City of NewWestminster that has been set aside for use by the public. For present purposes, the authorities are clear that words “public park” mustbe given their ordinary meaning so that persons like Mr.

Downes will have a clear sense of the “geographical ambit of the prohibition”by which they are bound: see, for example, R. v. Lachapelle 2008 BCSC 511 , [2008] B.C.J. No 728 at para. 31 (S.C.), aff’d[2009] B.C.J. No. 1892 (C.A.). [48] Mr. Downes gave evidence regarding his own, idiosyncratic notion of what is and is not a “park,” seeking to subdivide Queen’sPark into areas that are, and areas that are not, true “parks” in his mind. I found that exercise to be artificial, self-serving and, ultimately,unconvincing.

The question before me is an objective one of fact and it was answered conclusively as I have noted by the exhibitedmaps and aerial photographs coupled with the testimony given by the Crown witnesses. [49] One can imagine that this question is one that members of the public might consider that only members of the legal professioncould seriously debate but, nevertheless, it has arisen here. Therefore, I shall answer it plainly: The entirety of Queen’s Park is a publicpark. [50] I pause now to say that with respect to Count 2—which is concerned with Mr.

Downes’ actions on December 22, 2016—theneed to embark upon an enquiry regarding whether persons under the age of 16 could “reasonably be expected to be present” at Queen’sPark is diminished by the fact that in his testimony Mr. Downes admitted, in the face of unequivocal video surveillance evidence, that hewas indeed present in Queen’s Park Arena at about 3:45 p.m. at the same time when young boys were actually present there, playinghockey on the ice surface.

He further acknowledged that the video surveillance footage revealed the presence there, also at about 3:45p.m., of a toddler accompanied by an adult female (although he said he only saw the adult at the time). As I have already noted, the

evidence has established that Queen’s Park Arena is situated inside the boundaries of Queen’s Park and is one of the amenities that comprise it. The video surveillance footage and Mr. Downes’ testimony about that footage place him in squarely in Queen’s Park Arena, and thus squarely in Queen’s Park, at a time on December 22 nd when he acknowledges that “persons under the age of 16”—the boys on the ice and the toddler—were present there as well.

That is conduct on his part that is expressly prohibited by the language of the Subject Condition, namely, the language that directs that he is “not to attend any public park … where … persons under the age of 16 years are present ” (emphasis added). For Count 2, this alone is sufficient to prove actus reus . [ 51 ] The question raised by Mr. Downes in his defence evidence that calls for more discussion and analysis is whether, more generally, Queen’s Park is a “public park … where … persons under the age of 16 years … can reasonably be expected to be present …” (emphasis added).

Here again, the evidence satisfies me to the criminal standard that Queen’s Park—including amenities like Queen’s Park Arena that comprise it—was on December 21 and 22, 2016 a place where children under 16 can reasonably be expected to be present. [ 52 ] The evidence of the Crown witnesses given at trial that propels me to that conclusion includes: (

a) Mr. Booth’s testimony that there is a preschool located on the Queen’s Park grounds and that during daylight hours, Queen’s Park always has people in it, including “kids coming to play” and “preschools walking through”; (

b) Cst. Bolour’s testimony that she has often had occasion to be in the area of Queen’s Park while serving, since April 2015, as a police officer on the New Westminster force. She routinely sees children under the age of 16 there, she testified, including in December of 2016 when she saw children tobogganing. Indeed, she said that she cannot remember a time when she has been in that area when she has not seen children under the age of 16 there; (

c) The testimony of Mr. Stevens—the maintenance supervisor at Queen’s Park Arena and a 32-year veteran employee there—that on the alleged offence dates of December 21-22, 2016, school was out for the Christmas break and “[y]ou would have seen children in and around the complex during all times of the day”; (

d) Mr. Booth’s testimony that children under the age of 16 are often present at Queen’s Park Arena, not only when they are playing themselves but also when their siblings or parents are on the ice, including at adult drop-in times; and (

e) The testimony of Mr. Booth that ice time is scheduled for young children at the Queen’s Park Arena at 3:45 p.m. every day. Some of the children who participate in the games/practices at that time come from an elementary school located at the corner of Queen’s Park. This ties in with the testimony of Mr. Stevens who confirmed a point that is almost self-evident, namely, that there is no way of getting to the Queen’s Park Arena amenity without passing through other parts of Queen’s Park while en route .

This evidence situates persons under the age of 16 in Queen’s Park’s outdoor grounds, and inside its central amenity, routinely. [ 53 ] Mr. Downes’ testimony that—apart from seeing small boys on the ice on December 22, 2016—he did not see any children present during his time at Queen’s Park on the specific dates of December 21 and 22, 2016, amounts to no real answer to the extensive and consistent evidence from several Crown witnesses regarding the general pattern of young persons’ attendance there. Some of those Crown witnesses ( e.g. , Mr. Stevens and Mr.

Booth) have decades of work experience at Queen’s Park, including experience during the very month when the alleged offences were committed. Cst. Bolour—who has carried out a missing child investigation there and is often in the vicinity doing patrols—cannot remember a time when she has been in the area of Queen’s Park during daylight hours and not seen children there who are under the age of 16. Neither can Mr. Booth. [ 54 ] Mr. Downes, of course, has himself almost a lifetime’s experience with Queen’s Park and Queen’s Park Arena.

In his own words, he “grew up at Queens Park.” Thus, one might reasonably expect him to have some sense of what Mr. Stevens and Mr. Booth and even Cst. Bolour know about who is commonly present there during daylight hours. (Recall that he testified that he “know[s] that park probably as well as Mr. Booth does.”) Yet he denied the evidence of Crown witnesses regarding the pervasive presence of children at Queen’s Park during daytime hours. [ 55 ] Contrary to what Mr.

Downes has stated in his testimony, the Crown evidence summarised above—drawn from various sources —speaks clearly to the routine and regular presence of persons under the age of 16 at Queen’s Park and the Queen’s Park Arena facility within it at varying times during daylight hours. This makes their presence there something that, objectively, can be “reasonably expected.” [ 56 ] For W.D. purposes, the fourth branch of the protocol is engaged. Mr.

Downes’ denials were roundly and convincingly contradicted on obvious points—such as when school days end, when Christmas school holidays occur, and when children arrive at the arena. Quite simply, and having regard to Mr. Downes’ long experience with Queen’s Park and the arena situated within it, I found Mr. Downes’ evidence on this point to be self-serving, not credible and incapable of raising a reasonable doubt.

Further, I am satisfied by the evidence I do believe that the Crown has proven to the criminal standard that Queen’s Park is a public park where persons under the age of 16 years can reasonably be expected to be present and that Mr. Downes attended there voluntarily on December 21 and 22, 2016. Thus, the full actus reus of both breach offences allegedly committed by Mr. Downes in Counts 1 and 2 of Information 96701-A2 is made out. Mens Rea [ 57 ] I must now consider whether the mental element of the breach offences with which Mr.

Downes is charged, like the actus reus component, has been proven beyond a reasonable doubt. That is, I must ask myself whether in attending at Queen’s Park when, objectively, persons under the age of 16 years could reasonably be expected to be present, Mr. Downes did so with a “guilty mind”. [ 58 ] Breaches of recognizance under s. 145(3) of the Criminal Code being full mens rea offences (as has been noted above), conviction requires proof that when Mr.

Downes attended at Queen’s Park on December 21 and 22, 2016, he did so dishonestly (by acting in knowing contravention of the Subject Condition) and, as well, either intentionally (that is, on purpose, not by accident), recklessly (that is, heedless of the consequences of his actions, in a headlong or irresponsible manner) or with wilful blindness (that is,

with his eyes shut because he knew or strongly suspected that looking would fix him with knowledge). [ 59 ] It is in relation to the mens rea question that Mr. Downes’ defence evidence comes up for the closest analysis.

Again, that analysis that must be carried out in a manner that is mindful of, among other things, the augmented W.D. protocol for assessing credibility mentioned earlier in these Reasons for Judgment. [ 60 ] I will say straightaway that I have concluded that—as was the case with the actus reus —the disposition of this prosecution as regards mens rea falls to be determined under the fourth branch of the augmented W.D. protocol. For the reasons I shall outline below, I wholly disbelieve Mr. Downes’ exculpatory evidence with respect to his mental state when he attended at Queen’s Park on December 21 and 22, 2017.

I disbelieve that evidence and it raises no reasonable doubt about his having committed the actus reus of the Court 1 and Count 2 offences with a “guilty mind”. To the contrary, the Crown evidence of Mr. Downes’ guilt with respect to the two breach offences that I do believe is of such strength and quality that, being heavily fortified by the admissions against interest that Mr. Downes made during his direct and cross-examinations, it persuades me beyond a reasonable doubt that Mr.

Downes committed the breach offences with which he is charged with a “guilty mind.” [ 61 ] What particular type of “guilty mind” did Mr. Downes display when he attended at Queen’s Park and the Queen’s Park Arena within it on December 21 st , and then again on December 22 nd , 2016, when the presence of persons under the age of 16 there could reasonably be expected? I have concluded that he made those attendances in those circumstances intentionally and with a dishonest intent .

That is, I have concluded that he made those attendances intending to do so and knowing while doing so that his actions were prohibited by the Subject Condition. [ 62 ] In my view, the most powerful evidence that Mr. Downes attended at Queen’s Park knowing that the presence there of persons under the age of 16 could reasonably be expected sprang directly from his own mouth. I find the following, admittedly lengthy, extract from Mr. Downes’ cross-examination, taken from the transcript of his evidence on October 25, 2017, at pages 92-95, to be particularly revealing: Q Oh, okay.

So -- now, in your evidence, you were asked repeatedly by your lawyer about you -- when you got to the park, you were asked if you saw any kids. Your lawyer asked you that question, yes? A Yes. Q And that was both on the 21st of December and the 22nd of December -- A Yes. Q -- right? So you made a point when you went there on the 21st and 22nd of looking around to see if there were little kids there, right? A When I -- upon my arrival, yes . Q Okay.

So you made a special point when you were there on the 21st, and then another special point on the 22nd, to look around to see if you saw little kids there, or kids under the age of 16, right? A Correct . Q Okay. So then when you walked into the arena on the 21st of December, you made a special point of looking around to see if there were kids under the age of 16 there, right? A I did that on both days . Q Okay. So -- but we'll just talk about one day at a time. So when you went there on the 21st, you made a special point of looking around to see if there were any kids there, right? A Right . Q Okay.

Then when you went up to the catwalk or the walkway around the arena, you made a special point of looking to see if there were any young people under the age of 16 there then, right? A That's not right. Q You didn't look to see if there were kids there? A I looked to see if there were kids there as I came up this walkway -- Q Ah. A -- to look and see. As I came in the rink, to see if there was kids in there. Q Okay. So then when you came into the walkway, you looked up to the walkway where you were planning to go, to see if there was any kids up there, right? A There was no kids up there. Q Okay. But you looked?

A Yes . Q Okay. To make sure there wasn't? A Yes. Q Okay. Then when you finished your walking around the catwalk up there, then you -- did you look to see if there were any kids downstairs, before you came down the stairs or down the bleachers? A Which day are we talking about? Q First of all, the 21st . A Yes . Q So you looked to make sure there wasn't any kids there then, right? A Yes . Q Okay. And then you didn't have a shower that day, it was the 22nd you had the shower, right? A Correct.

Q So everywhere you went on the 21st, before you went to a particular part of the arena, you looked to make sure there wasn't any kids under the age of 16 there, right? A I looked before I entered the arena, ma'am, to see that there was no kids under the age of 16. I entered, I did my walk, and I left the arena . Q But all the time being vigilant as to whether there was any kids there? A If I had have seen kids come in there under the age of 16, I would have left immediately. Q Right. Okay.

When you got into the parking lot on the 21st, before you even got out of your car, you looked around to see if there was any kids there, right? Before you even got out of your car? A Correct. Q Okay. And then -- now we're going to jump ahead to the 22nd. Similarly, when you went there on the 22nd, you got there at two-something in the afternoon, right? A I testified it was approximately 2:45. Q Okay. And before you got out of your car, you looked around your car to make sure there wasn't any kids there, right? A When I parked my car, I looked to see there were no kids there, no . Q Okay. A Or yes . Q Okay.

And then before -- so you got out of your car, you looked around to make sure there wasn't any kids there again, right? A Yes . Q Okay. Then when you went into the arena, you looked around to make sure there weren't any kids there, right? A The lights were out in the arena, there was nobody on the ice. There was nobody in the arena on the 22nd when I entered, other than I saw the icemen at the back where the Zamboni machine comes out. Q Okay. So you satisfied yourself that there were no young people under the age of 16 there, right? A That's correct . Q Okay.

And then are you able to see in the catwalk -- if there's no lights on in the arena, are you able to see what you're doing when you walk around the catwalk upstairs? A Yeah, it's dark up there anyway, whether the lights are on or not. Q Okay. And you didn't see any kids there. You checked to make sure before, right? A There were no kids in there when I entered the arena. There was nobody in the arena except the Zamboni -- Q Okay. A -- driver at the back.

Q But you made a special point of looking to make sure there wasn't, right? A Correct . (Emphasis added.) [ 63 ] There are other, shorter, passages to be found in the transcripts of Mr. Downes’ testimony cross-examination that are to a similar effect. [ 64 ] In all of the italicised portions within the foregoing extract, Mr.

Downes confirmed, over and over again, that at every point along the way during his attendances on both of the offence dates, beginning with his entry into Queen’s Park, then progressing to the parking lot, then getting out of his car, and then going inside the Queen’s Park Arena, then moving about within the arena, he paused and looked around to make sure persons under the age of 16 were not present.

This is very revealing evidence. [ 65 ] By contrast, after giving the above-quoted testimony he then went on to confirm that it is not his usual practice to be vigilant and watchful for children when he enters a pub [2] (see Trans. , November 1, 2017, at p. 6): Q Then when you went to go up around the catwalk or whatever it's called, around the top of the arena, you looked to make sure there were no kids there, right? A That's correct. Q And before you came down again, you looked around to make sure there weren't kids there, right? A That's correct. Q Okay.

Now, when you go to a pub, you don't look around to see if there's kids in a pub, right? A Not in a pub, no. Q Okay. And why is that? A I just don't look for kids in a pub. Q Okay. And why wouldn't you look for kids in a pub? A I can't answer that. I wouldn't even think about looking for kids in a pub . (Emphasis added.) [ 66 ] This, too, is very telling evidence. [ 67 ] In my respectful view, Mr.

Downes’ answers to questions put to him by Crown counsel in cross-examination in this crucial area clearly demonstrate that he was fully aware of the reasonable possibility that persons under the age of 16 would be present at Queen’s Park: that is, on the outdoor park grounds through which he passed when driving into the park, in the vicinity of the outdoor lots or spaces where he parked his vehicle, and then outside and inside the Queen’s Park Arena building.

If it were otherwise, he would not have “made a special point” of looking for children at those various locations within Queen’s Park as he progressed through them toward, and ultimately into, Queen’s Park Arena. [ 68 ] Mr. Downes can only have been exercising that vigilance because he knew that persons under the age of 16 could “reasonably be expected to be present” at Queen’s Park and inside Queen’s Park Arena on December 21 st and 22 nd .

He wasn’t exercising similar vigilance and keeping a lookout for aliens arriving in spaceships or other remote and improbable developments because aliens in spaceships and other such remote and improbable developments could not “reasonably be expected,” just as children are not reasonably expected to be present in pubs. In Mr. Downes’ own words in the latter regard, “I just don’t look for kids in a pub … I wouldn’t even think about looking for kids in a pub.” [ 69 ] His answers to the questions about children in pubs are not in the least surprising.

In ordinary circumstances, “kids” are indeed not expected to be found in pubs. But, as I have found as a fact, in ordinary circumstances persons under the age of 16 “can reasonably be expected to be present” at Queen’s Park and in one of the amenities that comprise it, namely, Queen’s Park Arena. This, I am entirely convinced, is why Mr. Downes exercised the careful vigilance that he described repeatedly in his testimony.

He “did look for kids” at Queen’s Park on the offence dates; he did “think about looking for kids” there because, I am satisfied, he “reasonably expected” them to be there. [ 70 ] This puts the lie to Mr. Downes’ other, inconsistent testimony when he claimed, repeatedly, that he did not believe that in certain parts at least of Queen’s Park, persons under the age of 16 could reasonably be expected to be present.

If (as he testified) he was maintaining a close watch for children as he drove into Queen’s Park via one of its entry roads, and then kept up his vigilance while he was sitting in his car in the parking lot and then again when he climbed out of it, one is left to wonder exactly what parts of Queen’s Park are not a “park” as Mr. Downes’ understands the word and, thus, not within the scope of the prohibition found in the Subject Condition. Of course, that question has no answer because, as I have found, Mr.

Downes’ contention that he did not expect persons under the age of 16 to be present when he went to Queen’s Park twice—on December 21 and then again on December 22, 2016—is not credible evidence and has been rejected. [ 71 ] One point made in argument by Crown counsel was that Mr. Downes’ defence evidence suggests that he took it upon himself, effectively, to re-write the Subject Condition so as to remove the language that requires him to stay away from public parks “where … persons under the age of 16 years … can reasonably be expected to be present ” (emphasis added).

He seems, counsel argued, to have parsed and reconstituted his obligation in his own mind so as to require no more than that he get himself away from public parks if he were to find persons under the age of 16 actually present there.

[72] Crown counsel put the point this way: There are orders that might say you're not to do this and if you -- if you find yourself in a place where children are, you have to leave. That is not this section. It's whether or not children can reasonably be expected to be present. And the fact that he keeps looking forthem shows that he could reasonably be expected to be present and he was, I say, in his own mind, inventing this condition of bail in hishead that says, well, if there's no kids present, I'm allowed to go, which isn't the order.

The order is if -- is if children can reasonably be expected to be present. So if he's looking for them, that means he couldreasonably expect them to be present and he's looking to see if they are and if they aren't that it's okay. And that's not what the conditionof the order says, in my submission. So it shows -- what it shows is that he's absolutely crystal clear in that he knows that there -- there -- that it can -- it's reasonable toexpect children to be there. And that's why he's looking.

So he's creating a condition of -- of bail in his own head that I can reasonablyassume that children might be there but if they aren't, I get to go. But that isn't what the bail order says. (Trans., November 1, 2017, p.38) [73] That is a submission that carries considerable force. It perhaps goes some distance toward explaining why Mr.

Downes testifiedthat, after checking for children carefully while on the road into Queen’s Park, in the parking lot, on his way to the arena and periodicallywhile inside the arena he went about his business there until he realised “that [he] had to get out of there quick” (Trans., October 25,2017, p. 84) upon noticing young boys playing hockey on the ice. [74] As Crown counsel submits, Mr. Downes was not free, on the language of the Subject Condition, to go to places where personsunder the age of 16 could reasonably be expected and remain there until he saw some and then “get out of there quick”.

Rather, hisobligation was to stay well away from such places altogether. The fact that he did not do so reflects, if I may say so, a “too smart byhalf” approach that Mr. Downes appears to have taken to interpreting a condition in a recognizance that has a plainly protective purposeand that does not admit of a reading that, among other things, subdivides “public parks” into areas where an alleged sex offender mayattend while on bail.

One would expect in such circumstances that a person in his shoes, proceeding honestly, would have erred on theside of caution in interpreting what he could and could not do, and perhaps even gotten legal advice about the “creative” reading he claims to have given the wording of the Subject Condition before venturing into Queen’s Park on December 21st and 22nd. At the endof the day, however, I did not believe Mr. Downes when he contended, in his testimony, that he acted on what he considered to be areasonable reading of the Subject Condition.

To the contrary, I have concluded that his evidence in that regard amounted to no morethan a self-serving, ex post facto attempted justification of the unjustifiable. [75] Lastly, I will say that I do not propose to devote much space in these Reasons for Judgment to Mr. Downes’ evidence that hisprimary purpose in attending at Queen’s Park and Queen’s Park Arena on the alleged offence dates was an innocent one—namely, towalk the perimeter walkway at the top of the arena stands as part of his exercise regime and then shower afterward before leaving to visitfriends.

He sought to persuade the court that exercising this way at the arena was something he did with some frequency; yet Crownwitnesses who are routinely present there and know Mr. Downes to see him do not recall seeing him walking the perimeter walkway,ever. Neither do they recall anyone other than scheduled players and referees ever taking a shower at the arena without askingpermission beforehand. At the end of the day, however, this defence evidence, even if it were true, is not exculpatory in any event.

Theparticular activities he chose to pursue while going to a place “where persons under the age of 16 could reasonably be expected” is ofsecondary importance. What matters for present purposes is that Mr. Downes intentionally attended at such a place, on both December21 and 22, 2016, knowing that the Subject Condition forbade him from doing so. Thus, mens rea for both of the breach offencesallegedly committed by him in Counts 1 and 2 of Information 96701-A2 is made out. [76] Before closing I will add, expressly in obiter, that had the present case been argued on the basis that Mr.

Downes had breachedthe requirement in the Subject Condition that he not attend at any “community centre,” I would—on the evidence and on the reasoning ofvery recent authority such as R. v. Allaby, 2017 SKCA 25 , [2017] S.J. No. 114 (C.A.)—may well have found that Queen’s ParkArena is a “community centre” and that breaches of Counts 1 and 2 by Mr.

Downes could therefore be proven on that ground. (Notethat, unlike “public park,” the term “community centre” is not qualified in the Subject Condition’s wording by the language “wherepersons under the age of 16 years … can reasonably be expected to be present.” The prohibition against attending at community centresis absolute and unadorned.) That, however, is not how the present case was presented or argued. [77] Nevertheless, the decision of Ottenbreit J.A. (for the court) in Allaby—a “community centre” case—while not directly on point,does speak to the kind of reading that ought to be given, in my respectful view, to the Subject Condition and other conditions like it: areading that is properly mindful of the protective intent that lies behind such conditions. [78] In Allaby, the accused—who had previously been convicted of various sexual offences involving children—was prohibitedunder a probation order from attending at, among other places, “community centres”.

He was prosecuted for breaching that term after hewas found in the Regina Public Library. The trial judge who presided over that prosecution acquitted him on the ground that a librarywas not a “community centre” within the meaning of the prohibition. The Court of Appeal overturned the acquittal and rejected the trialjudge’s

interpretation of the words “community centre” as being unduly narrow, stating at para. 37, the following: The term community centre as it applies to orders protecting children must be given an expansive meaning. As a matter of commonsense, children partake in social, recreational or educational activities at various locations including places that are open to the public orcommunity and where the children are invited to attend for such activities. Places hosting such activities need not be explicitly designatedcommunity centres.

At a minimum, the definition of community centre would include places where children are present or can bereasonably expected to be present to participate in social, recreational or educational activities or any one of them. Of course whether anyfacility falls within such definition depends on the circumstances of each case. [79] Had Mr.

Downes, in the present case, approached the question of what is, and is not, a “public park” where persons under theage of 16 can reasonably be expected to be present in a similar way and not, as he claimed, given its language a conveniently narrow andartificial construction that that language cannot bear, he would not be before the court now facing a breach prosecution.

[ 80 ] All of that said, as I have acknowledged, the case before me was not argued on the basis of Queen’s Park Arena being a “community centre” and so I will say no more on that subject. DISPOSITION [ 81 ] For all of the foregoing reasons, I find Mr. Downes guilty of the offences of breach of recognizance set out in Counts 1 and 2 of Information 96701-2A. [ 82 ] Orders accordingly. __________________________________ Thomas S. Woods, P.C.J.