R. v. Lee Date:, 2011 BCPC 367

Citation: R. v. Lee Date: 20111017 2011 BCPC 0367 File No: BB100615-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTOPHER ALAN INGMAR LEE EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE CHALLENGER Counsel for the Crown: L. Herron Appearing on their own behalf: C. Lee Place of Hearing: Vancouover , B.C. Date of Hearing: October 17, 2011 Date of Judgment: October 17, 2011 [ 1 ] THE COURT: Mr. Lee is charged with mischief that caused actual danger to life pursuant to s. 430(2) of the Criminal Code .

The events giving rise to the charge occurred between July 8th and 17th, 2009, on Denny Island near Bella Bella . There is no issue with the fact that Mr. Lee tampered with a loaded shot hole prepared for the Batholiths Seismic Project. The evidence at trial was focused on the narrow issue of whether he should be found guilty of the included offence of mischief to property. For the reasons that follow, I find Mr.

Lee guilty of the included offence of committing mischief which was likely to cause actual danger to life under s. 430(5.1). [ 2 ] The Batholiths Seismic Project involved drilling and loading a number of large shot holes around the Mainland and islands of the north central coastal area. The plan was to detonate the shots and use the sound waves created to map the crust of the earth some 40 to 50 kilometres under the surface. [ 3 ] The shot hole on Denny Island was drilled at the end of an airstrip on land owned by the Shearwater Marine Group.

The area is remote and there were no houses or facilities in the area other than the unmanned airstrip itself. There were no notices given to the public about the project doing work in the area or the location of the shot hole. The project had received the required governmental permits and had the permission of the owners of the land to proceed. [ 4 ] Mr. Galen Kaip , who is from the United States, took training in explosives and was certified by WorkSafeBC to deal with the

preparation and detonation of the shots. He was present for the drilling of the shot hole, but did not personally load it. He was called into deal with the shot hole once Mr. Lee tampered with it. The shot hole was 27.8 metres deep and contained 380 kilograms of highenergy explosives. The explosives in each hole were designed to fire down into the earth. Once the hole was loaded, a steel cap waslocked into place over a steel pipe which lined the hole. [5] Mr. Lee lived on Denny Island and was engaged in the study of Sandhill Cranes.

Once he became aware of the project and theshot hole, he became concerned about the effect the blast might have on the population of Sandhill Cranes which nest in that area. Hewas particularly concerned since the shot was to occur during a time when juvenile and adult cranes could be found around and aboutthe airstrip. [6] Mr. Lee took matters into his own hands and went to the site of the shot hole and broke the lock off the cap with an axe. Heremoved a seal which had been placed over the top of the explosives and took hold of the detonation cord and pulled it up and cut offabout a metre of it.

He then jammed a piece of detonation cord and some rocks into the hole. Later that day, Mr. Lee made his actionspublic on the Internet. [7] Once Mr. Kaip arrived on scene, he examined the situation, then called Mr. Daryll Melquist of WorkSafeBC. Mr. Kaip wasrequired by WorkSafeBC to detonate the shot. He was told that he could not leave the area until he had done so. Mr. Kaip first had todig out the rocks and find the end of the cord. He used his hands as he did not want to take the chance of causing any sparks with a metaltool. On the advice of Mr.

Melquist, he then cut the steel liner down to a depth where he could free up the end of the detonation cord. This involved using a grinder which required him to stop to cool the metal with water every 30 seconds. A blasting cap was attached tothe cord and the shot was successfully detonated. [8] Mr. Kaip testified that he believed from his training that he was in danger. He said he felt particularly endangered when he wasattaching the blasting cap. He also said that the method chosen was the only option they were able to come up with given the remotelocation and the limited equipment available.

One of the greatest concerns was that no one knew where Mr. Lee was or what he mightbe capable of. As such, there appeared to be an urgent need to remedy the situation. [9] Mr. Lee testified and said he did not expect to find the hole loaded and said he did not think that tampering with the shot as hedid would cause actual danger to life. To summarize his evidence, he believed his actions would simply delay the project and give himtime to raise awareness and to attempt to prevent the blast from occurring. Much of Mr.

Lee's testimony went to explaining why hedetermined to tamper with the shot hole in the first place. He also suggested that there were less dangerous methods to make the shotsafe after he tampered with it. [10] Mr. Lee called Mr. David Phillips who was qualified as an expert in blasting and explosives. The Crown called Mr. Melquistfrom WorkSafeBC who was similarly qualified. Mr. Melquist is highly trained and experienced. He has expertise in seismic blastingwhich Mr. Phillips does not. I accept Mr. Melquist's evidence and rely upon it in coming to the conclusion that Mr.

Kaip's life was inactual danger when he went about remedying the damage to the shot hole. [11] In any event, both experts agree that explosives are inherently dangerous and whenever one is dealing with them there ispotential for danger to life. In particular, there is significant risk when dealing with any explosives or detonation cord or blasting caps, etcetera, that have in any way been altered from the form in which they are manufactured. The steps Mr. Kaip had to take in working overa loaded hole were extraordinary and contrary to safe practices. [12] I find that the position taken by WorkSafeBC and Mr.

Melquist's instructions to Mr. Kaip were reasonable in all thecircumstances. I find that Mr. Kaip acted reasonably in complying with those instructions. Mr. Lee's suggestions about how they mighthave dealt with the situation differently are not in accord with common sense considering all of the circumstances which existed at thetime or the evidence of the experts, in particular Mr. Melquist. [13] The Crown argued that Mr. Lee need not have intended that his mischief would cause actual danger to life.

If he committeddamage to property and the consequence of that act was to create an actual danger to life, then he should be found guilty as charged. TheCrown's position then is that the court should apply an objective test to the issue of intent and says that a reasonable person would haveappreciated the risk to life Mr. Lee was creating. [14] Mr. Lee was self-represented and so did not address this issue except through his assertion that he did not intend for anyone to beput at risk.

I find it is necessary for the court to determine whether the charge before the court requires the Crown to prove the specificintent to actually endanger life which would require the application of a subjective test in determining the requisite intent or whether anaccused person can be found guilty applying an objective test. [15] I have considered the case of R. v. S.D.D., 2002 NFCA 18, a decision of the Newfoundland and Labrador Court of Appeal.

Inthat case, the court considered whether for a charge of arson causing damage to property the Crown must prove the specific intent tocause the entirety of the damage done or whether the accused could be found guilty on the basis that although they intended to and didlight a fire to damage only a particular item, they were nevertheless responsible for the unintended consequence of any and all damagewhich resulted.

At paragraph 26, the court said this, The argument of the Crown, that all it has to prove is the respondent’s intent to apply flame to the bag of chips and she is guilty of arsonin respect of whatever burns as a result, is not in accord with the principles identified above, and must be rejected. Essentially, theCrown is asking the Court to accept, as sufficient to prove either of the charges of arson, the mens rea required to prove mischief,contrary to s. 430(5.1)(a). R. v. DeSousa, (SCC), [1992] 2 S.C.R. 944, relied on by the Crown, does not support theCrown’s argument.

That case deals with the offence of “unlawfully causing bodily harm” which does not require the Crown to establisheither that the accused acted “intentionally” or was “reckless”. Both Hundal and Creighton, also cited by the Crown, require proof ofactual knowledge of the probable consequences, while recklessly proceeding in the face of that risk, and cannot be relied on to supportthe Crown’s argument. In fact, they support the opposite conclusion.

I conclude, therefore, that proof of the intentional burning of thebag of chips without proof of knowledge of the probable consequence of burning the building, is not sufficient to prove the chargespecified in the information, arson in respect of the building.

[ 16 ] After finding that a subjective test should be applied to the arson charges, the court went on to deal with whether that same test should be applied to a charge of mischief under s. 430(1)(a). At paragraphs 46 and 48 to 51, the court found as follows, paragraph 46: The respondent submits that the trial judge “was alert to the evidence and did not misdirect himself on the law, therefore the conviction under s. 430 was not unreasonable”.

The Crown, in its factum, has not expressed a position as to the validity of the conviction of the respondent for breach of the provisions of s. 430, in the event that this Court were to find, as it does, that the trial judge did not err in acquitting the respondent in respect of the charges under both s. 433(

a) or s. 434. Technically, therefore, it can be said that the matter is not in issue, and the Court does not propose to review the propriety of that conclusion. However, while conviction for a lesser offence under s. 430 may be appropriate in the circumstances, conviction under s-s. (1)(

a) of s. 430 is not. It would not, therefore, be appropriate for the Court to affirm it. [ 17 ] Paragraph 48: The same reasoning that resulted in the conclusion that the respondent could not be convicted of an offence under either s. 433 or s. 434 would prevent the respondent from being convicted of an offence under s. 430(1)(a), in relation to Marie’s Mini Mart, the property that is the subject-matter of the indictment. It has been found that the evidence does not support a conclusion that the respondent knew that her act would “probably cause the occurrence” of the fire damage to Marie’s Mini Mart.

Accordingly, it cannot be concluded that she wilfully destroyed or damaged that property. [ 18 ] Paragraph 49: Undoubtedly, conviction under s. 430(1 )(

a) would be proper if the respondent had been charged with damaging the bag of chips. The charges laid against the respondent were in respect of Marie’s Mini Mart. The evidence establishes that she did indeed cause very significant damage to Marie’s Mini Mart. The lesser charge for which she is convicted should be the charge that the evidence supports. On reading the whole of s. 430 I am of the view that, instead of convicting the respondent of the lesser offence under s. 430(1 )( a), the trial judge ought to have convicted the respondent of the lesser offence specified in s. 430(5.1)(a). That

section reads as follows: 430

(5.1) Every one who wilfully does

an act or wilfully omits to do

an act that it is his duty to do, if that act or omission is likely to constitute mischief causing actual danger to life, or to constitute mischief in relation to property or data,

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. [ 19 ] Paragraph 50: The evidence clearly establishes that the respondent wilfully set fire to the bag of chips. The intention to do that has been proven on the evidence of the respondent herself. It is also proven on the evidence of K. R.

There is little doubt, from all of the remainder of the evidence, that her wilful act of applying open flame to the bag of chips, and then walking behind the rack where she could not control what was happening, was likely “to constitute mischief in relation to property”, namely, Marie’s Mini Mart. The mens rea for that offence is established on the objective standard.

Whether or not the wilful act of the respondent, in applying flame to a chip bag while it is on a rack with other bags of chips, and leaving it unattended for some moments, is likely to cause damage, is not, in any manner, related to the state of mind of the respondent. Likelihood is judged on the basis of perception by a reasonable person. Any reasonable person, would perceive that damage to property is a likely consequence of applying flame to a bag of chips in the circumstances in which the respondent did so.

The mens rea required by the statutory provision is, therefore, established. [ 20 ] Paragraph 51: Bearing in mind the presence of other persons in the building, and the respondent’s awareness of that presence, it would not be unreasonable to conclude that her wilful act was likely “to constitute mischief causing actual danger to life”, although it is not strictly necessary to make that finding in order to conclude that the respondent is guilty of the lesser included offence of mischief contrary to s. 430(5.1 )( a).

Making that finding, which I do, may have relevance in the determination of the punishment that is appropriate. [ 21 ] As noted in the above case, s. 430 sets out two different offences involving mischief which causes actual danger to life. The first is the charge Mr. Lee faces under s. 430(2) which states, Everyone who commits mischief that causes actual danger to life is guilty of an indictable offence and liable to imprisonment for life. [ 22 ] The second is under s. 430(5.1) which states, Everyone who wilfully does

an act or wilfully admits to do

an act that it is his duty to do, that act or omission is like to constitute mischief causing actual danger to life or to constitute mischief in relation to property or data is guilty of an offence. This offence carries a maximum penalty of five years when proceed with by indictment. [ 23 ] It is of import that there are significant differences in the jeopardy an accused faces for each charge. This further supports the finding of the court in R. V. S.D.D. and assists me in my analysis. [ 24 ] Following the reasoning in R. v.

S.D.D. , I find that a charge under s. 430(2) requires the Crown to prove the accused had the specific intent to endanger life as a consequence of their mischief and that a subjective test should be applied to the evidence on such a charge. I find that the included offence under s. 430(5.1) does not require the Crown to prove specific intent to bring about actual danger to life and that an objective test should be applied to the evidence on that charge. [ 25 ] With respect to the issue of mens rea , Mr.

Lee's evidence raises a reasonable doubt in my mind as to his intent to cause actual danger to life by his mischievous conduct. Mr. Lee was naïve and reckless regarding his own safety when he went at the shot hole cap lock with an axe. It is often said that a little knowledge is a dangerous thing and that adage applies to the actions of this accused, who

believed his limited experience with different explosives, used in a different way and for a different purpose, allowed him to adequately assess the risks involved. He was even more foolhardy when he tampered with the detonation cord and explosives. Frankly, he is lucky to be here with us now to face these charges. [ 26 ] I accept that he did not appreciate how dangerous his own actions were, nor did he appreciate how dangerous it would be to remedy the situation. [ 27 ] Applying a subjective test, I find the Crown has failed to prove the requisite intent for the offence as charged.

Applying an objective test, I find the Crown has proven the accused's guilt beyond a reasonable doubt on the included offence under s. 430(5.1). I find a reasonable person would have appreciated the likelihood that tampering with the shot hole and explosives would actually endanger life and that this conclusion is self-evident in the circumstances of the case. [ 28 ] So if you will stand, Mr. Lee. I find you not guilty on the offence as charged, but guilty of the included offence under s. 430(5.1). (REASONS CONCLUDED)