R. v. Jackson-Bullshields

2017 BCSC 1159 R. v. Jackson-Bullshields IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Jackson-Bullshields, 2017 BCSC 1159 Date: 20170707 Docket: 27144 Registry: Vancouver Regina v. Wilbert Luke Jackson-Bullshields Before: The Honourable Madam Justice Russell Oral Reasons for Judgment Counsel for the Crown: L. Krivel Counsel for the Accused: P. Smith-Gander Place and Dates of Trial/Hearing: Vancouver, B.C. May 31, June 1- 2, June 5 and 7, 2017 Place and Date of Judgment: Vancouver, B.C. July 7, 2017 Introduction [1] This matter concerns a number of offences which occurred within close time and proximity to each other on July 16, 2016. In the indictment, in relation to these events, Mr. Wilbert Luke Jackson-Bullshields was charged with the following offences: Count 1 On or about the 16th day of July, 2016, at or near Vancouver, in the Province of British Columbia, did have in his possession property, a motor vehicle, the property of John Bradley Vint, knowing that the said property was obtained by the commission in Canada of an offence punishable by indictment, contrary to Section 355 of the Criminal Code. Count 2 On or about the 16th day of July, 2016, at or near Vancouver, in the Province of British Columbia, having the care, charge or control of a vehicle that was involved in an accident with another person, did, with intent to escape civil or criminal liability, fail to stop his vehicle and give his name and address and offer assistance, contrary to Section 252(1)(a) of the Criminal Code. Count 3 - [Stayed by the Crown] Count 4 On or about the 16th day of July, 2016, at or near Vancouver, in the Province of British Columbia, did attempt to commit theft of motor vehicle, the property of Felicia Rogers, contrary to Section 334 and 463(d) of the Criminal Code. Count 5 On or about the 16th day of July, 2016, at or near Vancouver, in the Province of British Columbia, did commit robbery of Finn McCord, contrary to Section 344(1)(b) of the Criminal Code. Count 6 On or about the 16th day of July, 2016, at or near Vancouver, in the Province of British Columbia, in committing assault of Finn McCord did carry, use or threaten to use a weapon or an imitation weapon, contrary to Section 267(a) of the Criminal Code. Count 7 On or about the 16th day of July, 2016, at or near Vancouver, in the Province of British Columbia, did carry or have in his possession, a weapon, a piece of wood or metal, for a purpose dangerous to the public peace or for the purpose of committing an offence, contrary to Section 88(1) of the Criminal Code. Count 8 On or about the 16th day of July, 2016, at or near Vancouver, in the Province of British Columbia, did commit mischief by wilfully destroying or damaging the motor vehicle of Finn McCord, contrary to Section 430(4) of the Criminal Code. Count 9 On or about the 16th day of July, 2016, at or near Vancouver, in the Province of British Columbia, committed theft of merchandise, the property of Petro Canada, contrary to Section 334 of the Criminal Code. Count 10 On or about the 16th day of July, 2016, at or near Vancouver, in the Province of British Columbia, did commit mischief by wilfully damaging merchandise, the property of Petro Canada, contrary to Section 430(4) of the Criminal Code. Count 11 On or about the 16th day of July, 2016, at or near Vancouver, in the Province of British Columbia, did commit robbery of Matthew Gee, contrary to Section 344(1)(b) of the Criminal Code. [2] For the reasons that follow, I find Mr. Jackson-Bullshields guilty on all counts. Facts [3] At approximately 6:50 p.m. on July 16, 2016, John Bradley Vint parked his 2015 black Chrysler 200 on the 900 block of Main Street in Vancouver, B.C. When he returned to that spot five minutes later, he discovered that his vehicle was missing. Mr. Vint was in possession of the only set of keys to the vehicle, and had not given anyone permission to drive it. He checked with both Buster and Drake, but neither towing company had towed the vehicle. [4] At approximately 7:18 p.m., the vehicle was involved in a car accident at the intersection of Nanaimo and East 49th, also in Vancouver. This intersection was roughly eight kilometres southeast of where Mr. Vint had parked his vehicle. [5] Immediately after the accident, a suspect was seen fleeing from the crash site, on foot, southbound on Nanaimo. Subsequently, he went eastbound behind the fourth house from the intersection. [6] Approximately two minutes later, in front of 6616 Berkeley Street, a location one block east from where the suspect had disappeared, a man approached Ms. Felicia Rogers. At the time, Ms. Rogers was inside her vehicle, which was parked in her driveway. The man asked for a ride, but Ms. Rogers refused. Despite this refusal, the man pulled forcefully at both the driver and passenger car handles, and slammed the vehicle's hood. The man ran away after Ms. Rogers began honking her horn. [7] At approximately 7:30 p.m., Mr. Jackson-Bullshields was videotaped entering a Petro Canada gas station at East 54th Avenue and Kerr Street. This location is about 1.5 km southeast of where Ms. Rogers had been parked. Soon after, the defendant left the gas station. [8] Roughly 10 minutes later, the defendant returned to the gas station with a piece of wood, a 2 x 4 and a piece of metal or ceramic material from a construction site. Initially, he spoke to Mr. Fin McCord briefly, a patron using one of the filling stations. Subsequently, at approximately 7:45 p.m., the defendant began behaving erratically just outside the gas station's store after the gas station attendant, Mr. Gurpreet Kholi, refused his request to be provided a bottle of coke for free. The defendant left the store with a coke in hand without paying for it and then the defendant threw water bottles, water and other liquid around, and swung the 2 x 4 around, eventually denting one of the gas station's fridges. [9] Once outside, Mr. Jackson-Bullshields approached Mr. McCord again. He asked Mr. McCord both for a smoke, and that he get out of his vehicle. Mr. McCord refused, and then proceeded to start the vehicle and leave the gas station. In response, the defendant chased after the vehicle, swinging the piece of wood at the vehicle. The 2 x 4 connected with the driver side window, shattering the glass which, in turn, cut Mr. McCord's face. [10] Shortly thereafter, Mr. Jackson-Bullshields proceeded east on 54th Avenue and approached Mr. Mathew Gee, who was parked in his vehicle. The defendant asked Mr. Gee for a ride, which the latter refused. Subsequently, the defendant asked again, and then began shouting at Mr. Gee to get out of the vehicle. Mr. Gee tried to close his door, but the defendant pulled it open and tried to pull Mr. Gee from the car. The defendant then tried to get into the driver's seat of the vehicle alongside Mr. Gee and reached over to try to start the car. At this point, Ms. Michelle Shen, who was also in the vehicle's front passenger seat, tried to grab the vehicle's key, and began honking its horn. In response to the honking, two pedestrians, Mr. Ryan Lui and Mr. Peter Koftinoff, approached the vehicle, and assisted in pulling the defendant out of the vehicle and holding him down until police arrived. [11] The police arrived soon after. When they attempted to arrest the defendant, he tried to keep his arm under his body and pulled his legs up, making it difficult for them to search him. He continued to resist, until Constable Ludeman eventually punched and handcuffed him. Analysis The Defence of Intoxication [12] Before reviewing the counts in detail, it is important to note that the defendant claimed that he was intoxicated during the period of time these offenses were committed. Defence counsel argued that this provided the defendant with a defence to some of the offences he was charged with. [13] In making her submissions, defence counsel relied primarily on R. v. Tatton, 2015 SCC 33. In that decision, the Court said the following at para. 20: [20] The classification of an offence as one involving general or specific intent has important consequences for the accused. The law does not allow offenders to rely on self-induced intoxication falling short of automatism as an excuse for general intent offences: R. v. Daviault, [1994] 3 S.C.R. 63, at p. 123; R. v. Bernard, [1988] 2 S.C.R. 833, at pp. 865, 878-80. [14] As a result, defence counsel not only provided submissions regarding the evidence to establish the defendant's intoxication, but also provided submissions regarding which of the offences were specific intent offences. [15] As the Supreme Court of Canada made clear in R. v. Daley, 2007 SCC 53, there are three levels of intoxication, with the second, 'advanced,' applying to specific intent offences. Specifically, the Court said the following at para. 41: [41] Our case law suggests there are three legally relevant degrees of intoxication. First, there is what we might call "mild" intoxication. This is where there is alcohol-induced relaxation of both inhibitions and socially acceptable behaviour. This has never been accepted as a factor or excuse in determining whether the accused possessed the requisite mens rea. See Daviault, at p. 99. Second, there is what we might call "advanced" intoxication. This occurs where there is intoxication to the point where the accused lacks specific intent, to the extent of an impairment of the accused's foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea. The Court in Robinson noted that this will most often be the degree of intoxication the jury will grapple with in murder trials: In most murder cases, the focus for the trier of fact will be on the foreseeability prong of s. 229(a)(ii) of the Criminal Code, R.S.C., 1985, c. C-46, that is, on determining whether the accused foresaw that his or her actions were likely to cause the death of the victim. For example, consider the case where an accused and another individual engage in a fight outside a bar. During the fight, the accused pins the other individual to the ground and delivers a kick to the head, which kills that person. In that type of case, the jury will likely struggle, assuming they reject any self-defence or provocation claim, with the question of whether that accused foresaw that his or her actions would likely cause the death of the other individual. [para. 49] A defence based on this level of intoxication applies only to specific intent offences. [16] Ultimately, I find that the defendant was not intoxicated to the degree required to make out this defence. The defendant engaged in a variety of activities that a person with an advanced level of intoxication would not have been able to perform. This includes, but is not limited to, his ability to engage cogently in conversation, something testified to by both Mr. Kholi and Mr. McCord. In addition, the video footage captured at the Petro Canada gas station in the time period around those conversations also demonstrates that Mr. Jackson-Bullshields was clearly able to move adroitly, displaying none of the clumsiness generally associated with intoxicated persons. No expert evidence was led by defence counsel to undermine this finding. [17] In the result, I find that the defendant was not at an advanced level of intoxication. Consequently, I will not be addressing defence counsel's submissions regarding which offenses were ones of specific intent, as opposed to general intent. Count 4 [18] As will be made clear later in these reasons, establishing guilt on Counts 1 and 2 is contingent on some of my findings regarding Count 4. As a result, I will not address those two offences in chronological order. Instead, I will first analyze the attempted theft of Ms. Rogers' vehicle. [19] Ms. Rogers testified that, at approximately 7:20 p.m., a man who was "sweaty and out of breath" approached her vehicle. She testified that the man pulled at the locked driver's side door handle over and over, slammed his hand down on the hood of her vehicle, and pulled on the locked passenger door multiple times. She testified that he continued to do this until she honked her horn repeatedly, after which he ran away. [20] She described the man as "bald, thin, wearing a light coloured tee-shirt with a light blue and white shirt over it and a long beaded necklace with a crucifix." [21] In considering the reliability of this evidence, a summary of relevant factors for courts to review was provided in R. v. Rai, 2016 ONCJ 629 at para. 31: [31] Some of the factors a court may consider in assessing the reliability of identification evidence include: the witness's opportunity to observe at the time of the alleged offence (duration of the observation, light conditions, whether there was a face covering, etc.); whether the witness has prior knowledge of the person being identified; the time lapse between the event and the identification; the presence of distinctive features and the amount of detail in the description provided by the witness; the presence or absence of corroborative evidence; the possibility of contamination by improper identification procedures. This is not an exhaustive list. In relation to issues with identification evidence, see generally: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445 at paras. 50-53; R. v. Powell, 2007 CanLII 45918 at paras. 11-15 (ONSC); R. v. Jack, 2013 ONCA 80 at paras. 12-17; R. v. Miaponoose (1996110 C.C.C. (3d) 445 (ONCA). [22] Ms. Rogers was approximately one foot away from the defendant when he was pulling at her driver side car handle. In addition, she called the police immediately after the incident, at approximately 7:21 p.m., and provided a description consistent with the one she gave in court, a description that matched the defendant's appearance. Especially relevant in her description was the wearing of a long beaded necklace with a crucifix. This is important because the defendant was caught on video at Petro Canada approximately 10 minutes later wearing a long beaded necklace with a crucifix, corroborating her evidence. In light of these factors, I find that her evidence was reliable. [23] In terms of credibility, I found Ms. Rogers to be honest and forthright. She admitted her uncertainties regarding certain elements of her evidence, and there was no indication she had any reason to misrepresent what she witnessed that day. [24] On this count, Mr. Jackson-Bullshields is charged with attempted theft. The law on attempts was summarized by the Ontario Court of Appeal in R. v. Root, 2008 ONCA 869 at paras. 93-100 as follows: [93] Under s. 24(2) of the Criminal Code, whether conduct by a person who intends to commit a crime is mere preparation or has progressed beyond it to constitute the actus reus of an attempt is a question of law. Designation of a judge's decision to characterize an accused's conduct as mere preparation or the actus reus of an attempt as a question of law is of particular importance in cases like this where the appellant's right of appeal is restricted to questions of law alone. [94] In every case of an attempt to commit an offence, the mens rea of the substantive offence will be present and complete. In every attempt, what is incomplete is the actus reus of the substantive offence. But incompleteness of the actus reus of the substantive offence will not bar a conviction of attempt, provided the actus reus is present in an incomplete, but more than preparatory way. Dynar at paras. 73 and 74. [95] The actus reus may be but does not have to be a crime, tort or even a moral wrong. R. v. Cline, [1956] O.R. 539, at p. 550 (C.A.). [96] The authorities have yet to develop a satisfactory general criterion to assist trial judges in making the crucial distinction between mere preparation, on the one hand, and an attempt on the other. [As stated by the Supreme Court of Canada]: We leave the determination of where on the continuum the conduct lies to the common sense judgment of trial judges. R. v. Deutsch, [1986] 2 S.C.R. 2 at pp. 22-23. [97] The distinction between preparation and attempt is a qualitative one involving the relationship between the nature and quality of the act said to constitute the attempt and the nature of the substantive offence attempted in its complete form. Deutsch at p. 23. [98] To determine on which side of the preparation/attempt divide an accused's conduct falls, a trial judge should consider the relative proximity of that conduct to the conduct required to amount to the completed substantive offence. Relevant factors would include time, location and acts under the control of the accused yet to be accomplished. Deutsch at p. 23. [99] Relative proximity may give an act, which might otherwise seem to be mere preparation, the quality of an attempt. Deutsch at p. 26; R. v. Henderson, [1948] S.C.R. 226 at p. 245. Further, an act on its face an act of commission does not lose its quality as the actus reus of an attempt simply because further acts are required, or because a significant period of time may elapse before the completion of the substantive offence. Henderson at p. 244; Deutsch at p. 26. [100] To constitute the actus reus of an attempt, the act of an accused need not be the last act before the completion of the substantive offence. To constitute the actus reus of an attempt, an act must be sufficiently proximate to the intended crime to amount to more than mere preparation to commit it. This requirement of proximity, expressed in the divide between preparation and attempt, has to do with the sequence of events leading to the crime that an accused has in mind to commit. To be guilty of an attempt, an accused must have progressed a sufficient distance (beyond mere preparation) down the intended path. Williams, Criminal Law (The General Part), at p. 625. An act is proximate if it is the first of a series of similar or related acts intended to result cumulatively in a substantive crime. [25] Defence counsel did not dispute that the defendant's actions were enough to establish the actus reus of the offence. However, she argued that his specific intent to deprive Ms. Rogers of her vehicle has not been established beyond a reasonable doubt. [26] I disagree. Clearly, pulling at the driver side door handle, hitting the hood, and demonstrating aggressive behaviour indicated that he was attempting to deprive Ms. Rogers of her vehicle. [27] As a result, I find the defendant guilty on Count 4. Counts 1 and 2 [28] Counts 1 and 2 relate to the initial car accident which occurred at the intersection of Nanaimo and E. 49th. The only issue that existed on these counts was that of identity. [29] Regarding this accident, Ms. Queenie Chin's statement was admitted as evidence. In it, she testified to hearing a loud crash, and seeing a man run away from the scene of the accident, first southbound on Nanaimo, then eastbound behind the fourth house from the intersection. She also testified that she was not able to clearly make out the man's face. [30] I found Ms. Chin's statement to be reliable. At the same time, I do not think her eyewitness testimony in her statement is enough to establish that the person who ran from the accident was Mr. Jackson-Bullshields. However, I do believe that her testimony establishes, beyond a reasonable doubt, the route taken by the suspect when fleeing the accident. [31] In addition to Ms. Chin's evidence on this point, there was a video tendered into evidence by the Crown. This video purportedly corroborates Ms. Chin's evidence regarding where the suspect ran from the accident. The runner on the video is captured at 7:20 p.m., matching eyewitness testimony regarding the time of the accident. However, like Ms. Chin's evidence, the video is not clear enough to establish the runner's identity to the requisite standard: R. v. Nikolovski, [1996] 3 S.C.R. 1197 at 1210-1211, 1217-1218. See also R. v. Panghali, 2012 BCCA 407 at paras. 39-41, 70-80. [32] Moreover, during the course of proceedings, defence counsel pointed out that the time stamp on the video was incorrect. While the time of day matched up with eyewitness testimony, the time stamp indicated that the date was July 17, 2016, rather than July 16, 2016. Courts have recognized that time stamps on such videos "are often inaccurate": R. v. James, 2015 ONSC 3902 at para. 31. In cases where this is an issue, when presented with expert evidence, courts have made findings regarding the "actual time" captured in a video: R. v. Cook, 2015 BCSC 301 at para. 68. However, I have not given the video substantial weight due to the problem with the time stamp. However, it is useful to indicate once again the escape route taken by the person who caused the accident and ran from the scene. [33] In light of the above evidence, I find that it is established beyond a reasonable doubt that whoever stole the vehicle in question fled eastbound behind the fourth house south from the intersection of Nanaimo and E. 49th. This, in essence, captures the direct evidence available regarding Counts 1 and 2. On this evidence alone, I find that it cannot be established beyond a reasonable doubt that the defendant is the suspect who ran from the crash site. [34] Despite that finding, I find that there is sufficient circumstantial evidence to establish that Mr. Jackson-Bullshields was in fact the suspect who ran from the accident. Regarding circumstantial evidence, this Court recently provided a useful summary of this area of the law in R. v. Whitlock, 2017 BCSC 1029 at paras. 211-212: [211] To find guilt based on evidence that is entirely circumstantial, a trier of fact must be satisfied beyond a reasonable doubt that guilt is the only rational conclusion to be drawn from the proven facts: R. v. Cooper, [1978] 1 S.C.R. 860. [212] In making this assessment, the whole of the evidence is to be considered. The question for the Court is whether all the evidence, taken together, establishes guilt beyond a reasonable doubt: R. v. Ngo, 2009 BCCA 301, paras. 53-55. [35] Additional relevant principles on circumstantial evidence were provided by this Court in R. v. Peal, 2017 BCSC 623 at paras. 102-104: Circumstantial Evidence [102] In order to convict, the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Griffin, 2009 SCC 28, at para. 33. The words "rational" and "reasonable" are virtually synonymous: R. v. Villaroman, 2016 SCC 33, at para. 33. [103] If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt: Villaroman, at para. 35. These alternative inferences must be reasonable, not just possible: Villaroman, at para. 42. The Crown may need to negative other reasonable possibilities, but certainly does not need to negative every possible conjecture which might be consistent with the accused's innocence: Villaroman, at para. 37. [104] Other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation: Villaroman, at para. 37. A reasonable doubt, or theory alternative to guilt, is not rendered "speculative" by the mere fact that it arises from a lack of evidence. A gap in the evidence may well result in inferences other than guilt: Villaroman, at para. 36. [36] However, as outlined earlier in these reasons, there is some direct evidence in the form of Ms. Chin's statement. In R. v. Widdifield, 2016 BCCA 322 at para. 55, the BC Court of Appeal found the following regarding cases which rely on both circumstantial and direct evidence: Did the judge err by failing to direct himself to the test applied in a case based solely on circumstantial evidence? [55] While Widdifield correctly describes the modern approach to circumstantial evidence as requiring the trier of fact to be satisfied, beyond a reasonable doubt, that guilt of the accused is the only reasonable inference to be drawn from the proven facts, I disagree that the evidence implicating him is solely circumstantial. J.H.'s evidence as to Widdifield's acts and declarations on October 27, 2010 are direct evidence of his involvement in the extortion. In such circumstances, the rule in Hodge's Case (as modified by Cooper) has no application: Bullington at para. 21. There is no merit to this ground of appeal and I would not accede to it. [37] However, given the quality of the direct evidence in the case at bar, I am in agreement with the following statements from Whitlock at paras. 215, and 217-220: [215] I do not agree with the Crown on this point, which appears to be that as soon as the Crown tenders at least one piece of direct evidence in a prosecution (such as a statement made by the accused), the Cooper test for a verdict grounded in circumstantial evidence has no relevance. [217] In Widdifield, the accused was convicted of extortion. There was circumstantial evidence before the Court, but also considerable direct evidence of the accused's involvement. This included a demand made for payment of a debt and an accompanying assault on the property of the accused. The topic of a debt and a forced admission of responsibility by the victim took place in the presence of the accused. [218] In this case, a large portion of the evidence against the accused is circumstantial. In fact, it forms the bulk of the Crown's prosecution. [219] The Crown asks the Court to draw a significant number of inferences from this evidence, not only in respect of how the assault against Barbara Whitlock occurred, but when it occurred; where it occurred; how her body ended up in the back yard; who committed the damage inside the residence; and, ultimately, the circumstantial evidence is relied upon as corroborative support for the statements made by the accused, in which the Crown says he identifies himself as the person who caused Barbara Whitlock's death. It is the Crown's position that these statements should be given considerable weight. [220] In these circumstances, I am satisfied that I should remain mindful of the test in Cooper, notwithstanding the presence of alleged admissions . [38] As such, I will also apply the Cooper test. [39] In applying this test, I am aware of the Court's comments in R. v. Griffin, 2009 SCC at para. 28: [that] evidence of motive is relevant and admissible particularly where, on the issues of identity and intention, the evidence is purely circumstantial, is equally well established at law: Lewis v. The Queen, [1979] 2 S.C.R. 821, at pp. 834-38. [40] In the case at bar, Ms. Chin's evidence establishes both the time of the accident, as well as the direction the suspect in question fled from the scene. Ms. Rogers' testimony places Mr. Jackson-Bullshields one block over from the accident approximately two minutes after it occurred, describing him as "sweaty and out of breath." In other words, time and proximity between the two offences are clearly established. In addition, his attempted theft of her vehicle is consistent with a motive of someone trying to flee the scene of an accident. [41] In light of the circumstantial evidence outlined above, I find that the only rational inference is that Mr. Jackson-Bullshields was the man who fled from the scene of the accident at the intersection of Nanaimo and 49th. While it is possible that someone else attempted to rob Ms. Rogers, this is not a reasonable possibility. Consequently, I find him guilty on both Counts 1 and 2. Counts 5, 6, and 8 [42] Counts 5, 6, and 8 are all offenses charged against the defendant for actions he took against Mr. McCord. [43] Mr. McCord testified that, when Mr. Jackson-Bullshields approached him a second time, the defendant asked him for a ride. Mr. McCord declined, and the accused asked "Why?" Subsequently, Mr. McCord testified that he started his car, as he did not feel safe, and began to leave the gas station. At this point, as captured on the video surveillance footage, the defendant started to hit Mr. McCord's car windows with a piece of lumber, breaking the driver's side window on his last blow. Soon after this confrontation, Mr. McCord testified that, after pulling his car over a short distance away to call the police, he saw the defendant running towards him. As a result, Mr. McCord drove his vehicle towards where he had seen police earlier. [44] Section 343 of the Criminal Code, R.S.C. 1985, c. C-46, defines the offence of robbery as follows: Robbery 343 Every one commits robbery who (a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property; (b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person; (c) assaults any person with intent to steal from him; or (d) steals from any person while armed with an offensive weapon or imitation thereof. [45] Defence counsel concedes that Mr. Jackson-Bullshields shattered the driver side passenger window, and that the glass from that act cut Mr. McCord's face. Clearly, this establishes that an assault occurred. Consequently, under the definition given in s. 343(c), the only issue that remains is whether the defendant had the intent of stealing Mr. McCord's car from him when committing that assault. [46] On the evidence outlined above, I find that the defendant did in fact intend to steal Mr. McCord's vehicle. The defendant clearly wanted a ride, and was willing to resort to violence in order to get access to the vehicle. As such, I find him guilty on Count 5. [47] During the course of her submissions, defence counsel conceded that, if this Court finds that Count 5 was proven beyond a reasonable doubt, then so were Counts 6 and 8. As a result, given my finding regarding Count 5, I find the defendant guilty on Counts 6 and 8 as well. Count 7 [48] In R. v. Welsh, 2012 ABPC 177 at paras. 135-138, the Court provided the following summary of the elements of a s. 88(1) offence: Possession for A Purpose Dangerous [135] Section 88 contains two offences: possession or carrying a weapon for a purpose of committing an offence or possession or carrying a weapon for a purpose dangerous to the public peace. The offence under consideration here is the latter. The Crown is required to prove the following pursuant to the section: (1) that the accused possessed a weapon and (2) that the purpose of the possession was one dangerous to the public peace: R. v. Cassidy, [1989] 2 S.C.R. 345 (SCC) at p. 351; R. v. Kerr, 2004 SCC 44, [2004] 2 S.C.R. 371 (SCC) (Kerr) at para. 23. [136] Weapon is defined in s. 2 of the Code. The definition includes something that is used as a weapon. In these circumstances the knife was used as a weapon to inflict injury. [137] Possession is defined in s. 4(3). This includes anything that is in the accused's personal possession. Here, the accused had the weapon in his personal possession. [138] The focus of s. 88 is upon the purpose for the accused's possession. The Crown must prove that he possessed a weapon for a purpose dangerous to the public peace. The circumstances of each case must be examined to determine whether the accused had the weapon for a purpose dangerous to the public peace. Proof may be supplied by the manner in which the weapon is used, circumstances and statements surrounding its use and the rational inferences to be drawn from proven facts: R. v. Chalifoux (1974), 14 C.C.C. (2d) 526 (B.C.C.A.) (Chalifoux) at p. 529. [49] In the indictment, Count 7 did not specify any offence or person. However, during the course of the proceedings, Crown counsel made it clear that this offence was charged under the premise that the defendant was carrying the 2 x 4 for a purpose dangerous to the public peace. The act which was referenced for the purpose of this charge was swinging the 2 x 4 outside the store while other patrons were present at the gas station. As such, I find that the defence was put on notice regarding the nature of this charge. [50] In light of the legal tests set out above, I find that the charge has been made out. The circumstances surrounding the carrying of the 2 x 4 was that it was swung wildly, putting members of the public at risk of injury. In addition, based on Mr. Jackson-Bullshields' actions against Mr. McCord, I find that it can be rationally inferred that the 2 x 4 was being carried for a purpose dangerous to the public peace. [51] As a result, I find the defendant guilty on Count 7. Count 9 and 10 [52] Count 9 of the indictment charged the defendant with the theft of a bottle of Coca Cola from the gas station. The defendant admitted that the actus reus of this offence had been made out. However, defence counsel argued that the defence of intoxication applied, and so the mens rea was not established. Given my earlier finding that the defendant was not intoxicated to the requisite degree at the relevant time, I find him guilty on Count 9. [53] Regarding Count 10, the charge of mischief against Petro Canada's property, the defendant admitted his guilt. However, defence counsel provided Kienapple submissions on this offence. Those submissions only become relevant after guilt has been established. Given that similar submissions were provided on some of the other charges, I will return to this argument at the end of these reasons. [54] In light of the defendant's admission, and the nature of defence counsel's submissions, I find the defendant guilty on this charge as well. Count 11 [55] Count 11 related to Mr. Jackson-Bullshields' robbery of Mr. Gee. On this charge, the defendant admitted the actus reus of the offence, but again argued that his intoxication undermined the mens rea of the offence. As I noted earlier in these reasons, I have made a finding of fact that the defendant was not at an advanced level of intoxication at the time he was committing the offences in question. As such, I find him guilty on this charge as well. The Kienapple Principle [56] Defence counsel argued that, on a number of the charges, the 'Kienapple principle' applied. In essence, this rule precludes multiple convictions for the same delict. A summary of the elements of this rule was recently cited by this Court in R. v. D.L.W., 2014 BCSC 43 at para. 20: [20] In Young, Gorman P.C.J. dealt with the issue of whether the Kienapple principle applied where the accused was convicted of both sexual interference and sexual assault of a person under the age of 14. He took that opportunity to summarize the Kienapple principle. He wrote at para. 13: [13] In R. v. Martin, [2010] N.J. No. 332 (P.C.), I considered the principles which are to be applied when the rule against multiple convictions is raised and I described them as follows (at paragraph 8): 1. the Court must be satisfied that that the Crown has proven that the offender committed both offences (see R. v. Sullivan, [1991] 1 S.C.R. 489); 2. there must exist both a factual and legal nexus between the two offences; 3. the factual nexus requires that both offences were committed on the basis of a single set of underlying facts. The court must be satisfied that the same act of the accused grounds each of the charges; 4. the legal nexus requires that there be a sufficient correspondence between the elements of the two offences. They must be "substantially" the same (see Prince, at paragraph 34); 5. the Kienapple principle is inapplicable, even if the necessary factual and legal nexus exists, if it is discerned that a contrary legislative intent exists; and 6. if it is determined that the Kienapple principle applies, then the court must enter a conditional stay of proceedings in relation to the lesser of the two offences (see R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215). [57] Regarding the relevant 'factual nexus,' the Court in D.L.W. quoted the following case law at paras. 28-29: [28] In Meszaros, Blair J.A., for the Court, wrote at para. 31: [31] Whether there is a sufficient factual nexus is not usually the difficult enquiry. That question is easily answered, generally, by determining whether the charges arise out of the same transaction, i.e., whether the same acts of the accused ground each of the charges. [29] In Young, Gorman P.C.J. also dealt with the factual nexus inquiry. He wrote at para. 9: [9] For the factual nexus to be established the "same act of the accused must ground each charge" (see the Law Reform Commission of Canada's Working Paper 63, Double Jeopardy, Pleas and Verdicts, 1991, at page 11). The Court held in Prince that the factual nexus requirement is generally satisfied when the following question is answered affirmatively: "Does the same act of the accused ground each of the charges?" Also see R. v. Davis [1999] 3 S.C.R. 759, at paragraph 70, and R. v. E.W. (2002), 2002 NFCA 49, 216 Nfld. & P.E.I.R. 89 (N.L.C.A.), at paragraphs 66 and 67. [58] On the issue of the relevant legal nexus, the following case law was cited in D.L.W. at paras. 31-32: [31] With respect to the existence of a legal nexus, Blair J.A. wrote in Meszaros at para. 32: [32] The more difficult question in the Kienapple analysis is whether there is a sufficient legal nexus between the offences, i.e., whether the offences constitute a single wrong or delict: R.K., at paras. 31-32; and Prince, at pp. 489-90. This requirement focuses on the presence of distinguishing elements between the offences rather than on the presence of common elements. As Dickson C.J.C. put it in Prince, at pp. 498-99: I conclude, therefore, that the requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle. [32] Blair J.A. continued at paras. 39-41: [39] In Prince, at pp. 499-503, there is a lengthy analysis of when it can be said that the elements of two or more offences are "substantially the same" or "alternative" to one another for these purposes. Dickson C.J.C. found the question to be one that "defies precise answers". He nonetheless outlined three different ways in which elements would be considered to be sufficiently correspondent to permit the application of Kienapple - always subject to "the manifestation of a legislative intent to increase punishment in the event that two or more offences overlap" (p. 500). They are: (i) where an element of one offence is simply a particularization of another element in the other offence (p. 500); (ii) where there is more than one method embodied in more than one offence, to prove a single delict (p. 501); and (iii) where Parliament in effect deems a particular element to be satisfied by proof of a different nature, not necessarily because logic compels that conclusion, but because of social policy or inherent difficulties of proof (pp. 501-02). [40] In R.K. - a more recent decision of this court - Doherty J.A. summarized these three categories, at para. 37, as follows: "[i]n essence, each presents a situation in which the offences charged do not describe different criminal wrongs, but instead describe different ways of committing the same criminal wrong." [41] Dickson C.J.C. also outlined three factors in Prince that would defeat the sufficient legal nexus argument. Doherty J.A. summarized these factors at para. 38 of R.K.: (i) where the offences are designed to protect different societal interests; (ii) where the offences allege personal violence against different victims; and (iii) where the offences proscribe different consequences. [59] In the case at bar, Crown counsel conceded that, if the defendant was found guilty on Count 5, then Kienapple would apply to Count 6. In light of this concession, and my conviction on Count 5, I order a judicial stay of the conviction on Count 6. [60] On Count 7, defence counsel provided submissions regarding why this conviction should be stayed under Kienapple. However, I was not convinced by these submissions. Instead, I find that a legal nexus has not been established. The victims envisioned in this charge were the service station's patrons. In contrast, the charge of robbery against Mr. McCord, and the charge concerning mischief to Petro Canada's property, had different victims in mind. Consequently, I find that the Kienapple principle does not apply to this charge. [61] Count 8 is a mischief charge for damage to Mr. McCord's vehicle. In my view, the circumstances on this charge are analogous to the ones faced by the Court in R. v. M.C., 2013 ABPC 340. In that decision, the Court found the following at paras. 79-82: [79] The actus reus for the section 88(1) charges in this case is evidence that has proven the Young Person was in possession of both the pellet gun and spray. The mens rea for the section 88(1) charges in this case is evidence that has proven the Young Person had these items for the purpose of committing, and attempting to commit, the offence of robbery against each of the five victims in the second incident. [80] The actus reus for the section 344(B) charges in this case is evidence that has proven the Young Person's involvement in stealing, making threats of violence with the spray and pellet gun, using the spray against four of the victims, and assisting in the taking of a bus pass while armed with spray and a pellet gun. The mens rea for the section 344(B) charges in this case is evidence that has proven the Young Person had the intention to steal property, threatened to use the spray and gun, and then subsequently used the spray against four of the victims in the same incident. [81] It seems to me that substantially the same elements make up both offences in this case. There is an overlapping temporal link between the use of the spray and gun and the robberies/attempted robbery of the five victims. The evidence relied upon by the Crown to prove that the pellet gun and spray were weapons dangerous to the public peace and the purpose for which the Young Person had these two weapons is the same. [82] In my opinion, therefore, convictions cannot be maintained on both the section 88(1) weapons charges and the robberies/attempted robbery. I am, therefore, entering a stay on both section 88(1) weapons charges (counts 13 and 14). [62] In the case at bar, the defendant had the weapon for the intention of assisting him in his robbery of Mr. McCord's vehicle, and smashing the 2 x 4 against the vehicle constituted the actus reus of that offence. Clearly, there was a factual nexus between the two offences. In addition, as the Court in M.C. made clear, a section 88(1) offence can constitute a lesser and included offence to robbery, establishing a legal nexus. Consequently, I order a judicial stay of Count 8. [63] Finally, without much explanation, defence counsel argued that Kienapple applied to Count 10. I find a factual distinction between the theft of a bottle of coke from Petro Canada, as opposed to damaging its refrigerator. Therefore, I find that Kienapple does not apply to this charge. Conclusion [64] I find the defendant guilty on all charges. As noted, Count 3 was stayed by the Crown. In addition, applying the Kienapple principle, I order a judicial stay of Counts 6 and 8. "The Honourable Madam Justice Russell"