R v Van Mackelberg, 2017 ABQB 744

Court of Queen’s Bench of Alberta Citation: R v Van Mackelberg, 2017 ABQB 744 Date: 20171205 Docket: 151148186Q2 Registry: Calgary Between: Regina Crown - and - Randal Omer Van Mackelberg Accused _______________________________________________________ Judgment of the Honourable Mr. Justice G.H. Poelman _______________________________________________________ Table of Contents I. Introduction . 2 II. Overview of Evidence . 3 A. Steven Bacovsky . 3 B. Cst. Patrick Fehlman . 4 C. Cst. Daniel Soetaert 4

D. Blaine Thoreson . 4 E. Bruce Dunne . 5 F. Spencer Duhn . 6 G. Randal Van Mackelberg . 6 H. Peter Kang . 8 I. Hunter Van Mackelberg . 8 J. Navan Kang . 9 K. Amrit Kang . 9 III. Elements of the Offences . 9 A. Unlawfully Steal Hay: “Theft” . 9 B. Attempt to Unlawfully Defraud . 10 IV. Principles for Assessment of Evidence . 11 V. Findings on Evidence . 12 A. Defence Evidence . 12 1. Mr. Van Mackelberg . 12 2. Bruce Dunne . 13 3. Peter Kang . 13 4. Spencer Duhn . 14 5. Hunter Van Mackelberg . 14 B. Crown Evidence . 14 C. Findings . 15 1. Introduction . 15 2. Theft 15 3. Fraud . 15 VI. Judgment 16 I.

Introduction [ 1 ] In an indictment dated August 8, 2016, Mr. Van Mackelberg is charged with two counts, namely: 1) That between August 22 and September 22, 2015, near Airdrie, he “did unlawfully steal hay” exceeding $5,000 in value, being the property of Steven Bacovsky Holdings Ltd., contrary to

section 334 (

a) of the Criminal Code ; and 2) That on or about September 22, 2015, he attempted to unlawfully defraud Mr. Bacovsky of hay, of a value not exceeding $5,000, contrary to section 380(1)(b). [ 2 ] The charges relate to hay Mr. Van Mackelberg cut and bailed on land he did not own or have a right to farm. He attempted to sell the hay to someone who, unknown to him, was the owner of the land, and it is alleged he also sold hay to other, unknown persons. [ 3 ] It is not disputed that Mr. Van Mackelberg had no right to the hay and could not sell it. The only actus reus issue is whether Mr.

Van Mackelberg successfully sold hay to other persons (relevant to the theft charge) prior to his arrest during an attempt to sell to the owner. But for both counts, it must be determined whether Crown has proved beyond a reasonable doubt that Mr. Van Mackelberg had the necessary mens rea in dealing with the hay as though it was his own. [ 4 ] Voir dires were held, with evidence, on the admissibility of similar facts tendered by the Crown, and the admissibility of hearsay evidence tendered by the defence on the basis of the principled exception to the exclusionary rule.

Oral rulings on those matters were given during the trial and will not be repeated here. For that reason, the evidence of alleged similar facts, which I ruled inadmissible, and evidence in the hearsay voir dire not tendered as trial evidence will not be summarized in these reasons.

II. Overview of Evidence A. Steven Bacovsky [ 5 ] Since 2001, Mr. Bacovsky (through a holding company) owned 135 acres of undeveloped land at the southeast corner of the City of Airdrie. There was fencing around at least parts of the land, and some fencing going through, dividing the property approximately in half. He had never farmed the land, and had never given anyone permission to harvest what was on it. [ 6 ] The property can be seen from the Queen Elizabeth Highway (Highway No. 2). While driving by on Thursday, September 17, 2015, Mr. Bacovsky saw that some of the property had been hayed.

On the next day, he noticed tire tracks going in and out, and again saw that the hay had been cut. [ 7 ] He made a report to the Royal Canadian Mounted Police, and also received an unsolicited telephone call from Blaine Thoreson, who worked in the area. As a result, he began checking Kijiji advertisements for sale of hay and cattle feed in the Airdrie area. [ 8 ] After some unsuccessful calls, he made contact with someone who gave his name as “Hunter.” He confirmed that he had hay for sale, described the terms as cash with no GST, and gave directions to a place Mr. Bacovsky knew was his own property. [ 9 ] Mr.

Bacovsky arranged to meet at the property on September 22, 2015, to purchase bales of hay. He notified the RCMP of the rendezvous (although they did not recommend the plan). He attended with a colleague. [ 10 ] When Mr. Bacovsky arrived at the field, he noticed that two lines of hay bales had been set up, comprising about sixteen bales of hay. Someone was working with a Bobcat, loading bales of hay onto an equipment trailer behind a white GMC pickup truck. Mr. Bacovsky understood these bales were being prepared for his purchase. [ 11 ] The person working in the Bobcat (whom Mr.

Bacovsky had not seen before) said his name was Randy, and that he was Hunter’s father. He said the hay was good quality, and he had sold one hundred sixty bales before. Mr. Bacovsky counted ninety bales on the land, the same number he had noticed on September 18. [ 12 ] Mr. Bacovsky was asked if he had the cash, and he confirmed he did. He contacted the police who arrived while Mr. Van Mackelberg was loading the hay onto the trailer. Mr. Bacovsky said that on part of the field, the hay was all cut down to stubble length. In other areas, the hay was still three to four feet high.

Of the areas of where the hay had been cut, about thirty-five percent still contained hay bales, and about sixty-five percent no longer had any bales on it. B. Cst. Patrick Fehlman [ 13 ] Cst. Fehlman was in the second police vehicle on the scene of Mr. Bacovsky’s land on September 22, 2015. [ 14 ] A Bobcat was loading hay bales onto a trailer. The Bobcat’s operator was ordered out by Cst. Soetaert. When the operator exited the vehicle, he was handcuffed and taken to a police vehicle by Cst. Fehlman. His name was Mr. Van Mackelberg. [ 15 ] Cst.

Fehlman’s vehicle had a video recorder, which recorded the scene and the activities. [ 16 ] Cst. Fehlman has no recollection of Mr. Van Mackelberg saying anything about having authority to be on the land, and no notes of such a conversation. C. Cst. Daniel Soetaert [ 17 ] Cst. Soetaert was one of the RCMP officers attending the scene on September 22. He had also been there on September 21, apparently following up on Mr. Bacovsky’s complaint. He also had contact with Blaine Thoreson, before September 22. [ 18 ] Cst. Soetaert told the operator to get out of the Bobcat.

He had to be told twice before he complied. [ 19 ] Cst. Soetaert called the telephone number on the Kijiji ad and it rang on the cellphone seized from Mr. Van Mackelberg. He did not recall seizing any blue books of the dash of the truck. [ 20 ] Cst. Soetaert did not have any conversations with Mr. Van Mackelberg about whether he had permission to be on the land, and Mr. Van Mackelberg never told him he had permission. [ 21 ] He also spoke with Bruce Dunne later. Mr. Dunne pointed east, and said that Mr. Van Mackelberg had permission from “him” (someone in the direction of where he was pointing) to be on the land.

D. Blaine Thoreson [ 22 ] Mr. Thoreson was not on friendly terms with Mr. Van Mackelberg. They were involved in some legal dispute, and a peace bond had been issued restraining Mr. Thoreson from having contact with Mr. Van Mackelberg. [ 23 ] He testified that he saw Mr. Van Mackelberg cutting and baling hay on about a dozen occasions. He said he could see this from inside his place of work at Neon Systems (from about 100 to 150 feet away from the edge of the field.) He would also sometimes observe the haying operations when he would come outside for a smoke.

[ 24 ] Mr. Thoreson testified that he also saw a number of loads of hay leaving the property on the first two weekends in September: September 5 and 6, and September 12 and 13. [ 25 ] In cross-examination, he acknowledged that he had not actually seen Mr. Van Mackelberg cutting the hay. He also acknowledged that when he gave a statement to the police on September 23, he said nothing about hay being removed from the property. (His explanation is that he was not asked.) E. Bruce Dunne [ 26 ] Mr. Dunne is a former police officer, who has worked as a private investigator since 1980.

In general, he takes assignments for defence counsel on criminal matters, and has been retained by Mr. Van Mackelberg on various matters since the fall of 2010. In addition, it appears that they are friendly acquaintances. [ 27 ] He saw Mr. Van Mackelberg and his son, Hunter, six or seven times at the field near Airdrie in late August through September 22, 2015. He believes Mr. Van Mackelberg began cutting the hay around the end of August. [ 28 ] Over the number of times he was there, he never saw any hay leave the field.

He believes that at most one hundred bales accumulated on the property. [ 29 ] He received a telephone call from Mr. Van Mackelberg after he had been taken into custody on September 22. He drove to the site, but Cst. Soetaert gave him no access to Mr. Van Mackelberg’s GMC vehicle and refused to allow him to take release of the vehicles and equipment. Instead, they were sent to Graham Auction. [ 30 ] He told Cst. Soetaert that before the haying began, Mr. Van Mackelberg advised him that he had permission from Peter Kang (who lived in a neighbouring home) to take hay from the field. Later on September 22, Mr.

Dunne went to speak with Peter Kang at his house. [ 31 ] They had discussion about the property which had been hayed, which Mr. Kang pointed out. Mr. Dunne’s evidence on Mr. Kang’s statement about ownership seemed contradictory. In direct-examination, Mr. Dunne reported Mr. Kang saying he owned the property, and that in previous years he had given permission to others to cut the hay. “They” were not doing it this year, and he was concerned about the fire hazard and the practice of people dumping garbage in the field. [ 32 ] In cross-examination, Mr. Dunne acknowledged that Mr.

Kang said that the farmland belonged to the City of Airdrie. However, he believed anyone could use it for any purpose. He had given permission to others to farm the land in previous years, and believed he told a “big man” he could do it in the current year. [ 33 ] Mr. Dunne attended at Graham Auctions on November 18, 2016. He prepared an inventory and photographed everything in the truck. Included on his list was a notebook which was found on the dash of the truck. F. Spencer Duhn [ 34 ] Spencer Duhn (whom I will refer to as “Spencer,” to distinguish him from his father) was twenty years old when he testified.

He lived in the area of Mr. Bacovsky’s field since May 2008. [ 35 ] He knew Mr. Van Mackelberg, through dealings Mr. Van Mackelberg had with Spencer’s grandfather who farmed in the area. [ 36 ] During the spring of 2015, Spencer had a brief conversation with Mr. Van Mackelberg, when they met on a street in the area where Spencer lived. Mr. Van Mackelberg asked Spencer if he knew who owned the field. Spencer told him he believed it was owned by the owner of the house on the corner. There was no discussion about Mr.

Van Mackelberg haying the land. [ 37 ] Spencer also testified that he believed his grandfather had hayed the land some years before. G. Randal Van Mackelberg [ 38 ] Mr. Van Mackelberg is fifty-two years old. He describes himself as a “farmer of sorts,” working mostly with cattle and hay. During the summer of 2015, he was working with approximately one thousand acres of hay, having leases with eight or ten different people. All properties were close to the Calgary area. [ 39 ] When asked whether he owned land in 2015, he said he was not sure.

He would not directly answer the question of whether he sold any land since. A statement he had made to a justice of the peace was put to him: in response to a question whether he owned land or leased his farmland, he had said that some of the land was his own and about three-quarters of the land was under lease. He claimed not to recall that statement. [ 40 ] Around the second week of August, Mr. Van Mackelberg and his son, Hunter, encountered Spencer. The Van Mackelbergs had been to a Dairy Queen, and were parked on the side of the road. [ 41 ] Mr. Van Mackelberg testified that Spencer knew they hayed.

Spencer and his grandfather had hayed the subject property a couple of years before. Spencer said that since his grandfather had passed away they were not haying the land. They were concerned with fire breaking out. [ 42 ] Spencer said his father had said the “guy down in the brown house” owned the land. He was referring to a house bordering on

the northeast corner of the hayfield, the house in which Mr. Kang lived. [ 43 ] Mr. Van Mackelberg thanked Spencer for the information. He told him that hay was short that year, and they could make some good out of it. [ 44 ] Mr. Van Mackelberg acknowledged that he never spoke to Randy Duhn (Spencer’s father) about the land, although in a November 30, 2015 affidavit he had testified that prior to stepping foot on the field, he had spoken to both Randy and Spencer Duhn who had farmed the land before. [ 45 ] A couple of days after the conversation with Spencer, Mr. Van Mackelberg and his son drove over to Mr.

Kang’s house. As he was not home, they spoke with Mr. Kang’s son and wife. They asked him to come back a couple of days later, when Mr. Kang would be home. [ 46 ] Accordingly, Mr. Van Mackelberg returned with his son a couple of days later, and spoke with Mr. Kang on the stairs of his house. Mr. Kang said he did not want to give the land to them if the Duhns wanted it. Mr. Van Mackelberg said they did not want it. Mr. Kang then said they could hay the land, on condition that they got rid of the garbage. He would bring in a bin for them to use. Mr.

Van Mackelberg asked him about a written agreement, and he said he would sign one. [ 47 ] When asked in cross-examination whether he asked Mr. Kang if he owned the property, Mr. Van Mackelberg refused to give a clear answer. He indicated that Mr. Kang “suggested” that he owned the land. [ 48 ] Mr. Van Mackelberg drew up a handwritten document, which he said would serve as the agreement with Mr. Kang. He went back around the third week of August. Again, he spoke only with Mr. Kang’s wife and son. They told him Mr.

Kang was not present, because he had gone to a funeral, and had also gone to the hospital for pneumonia. They looked at the form of agreement Mr. Van Mackelberg had prepared, and said that Mr. Kang would sign it when he was better. Mr. Van Mackelberg had two copies, but kept them both himself. (They were contained in the notebook recovered from the GMC vehicle by Mr. Dunne on November 18, 2015.) [ 49 ] The one-page handwritten agreement was prepared on a “Facture Invoice” form, with a pre-printed number. Mr.

Van Mackelberg wrote out the name and address of his company, dated the document August 13, 2015, and styled it “AGREEMENT.” [ 50 ] In the “sold to” line it indicates “PK ING,” and in the “ship to” line it states “Hay land and pasture.” For “address” only the word “house” appears, and a cell number which does not indicate with whom it is associated. [ 51 ] Under “description” the following appears: Agreement on a 3 year lease for hay and pasture, price 1.00 dollar. Range Rd 294 SE. Legal description – hayland Lot 1 Block 1 Plan 0110936 Legal description, pasture.

Agreement to allow Randy Van Mackelberg of Nanook Oil & Gas Services Ltd. to cut hay and graze cattle on the above described land parcels. Randy agrees to keep the lands and fences in good repair during the term of this agreement. The term of agreement is for a period of 3 years end of 2018 subject to renew. In the event of termination of agreement both parties agree to. To other party ninety (90) days notice in writing. Mr. Van Mackelberg signed the document, and in the column for “amount” the figure of one dollar appears. [ 52 ] Mr.

Van Mackelberg and his son began cutting and baling the hay around the first part of September. They created approximately 90 to 100 bales in total. They were finished by around the second week in September, and were not on the land again until September 22. [ 53 ] Hunter Van Mackelberg put an ad on Kijiji for sale of the hay. Mr. Van Mackelberg spoke a couple of times by telephone with “Steve.” Mr. Van Mackelberg insisted that he never identified himself as Hunter; rather, he said he simply confirmed that Hunter was the one who placed the advertisement and that he was his father. [ 54 ] Mr.

Van Mackelberg met Mr. Bacovsky on September 22. Mr. Bacovsky asked him again about the price of the hay, and Mr. Van Mackelberg said that it was $160 per bale. He claimed to have no conversations with Mr. Bacovsky about prior sales, although he did tell him that they had other fields and were selling off of those fields. [ 55 ] He explained the delay in responding to the police request that he come out of the Bobcat as being necessary because he had to remove the forks of the Bobcat from the bale and lower the boom in order to open the door of the cab. [ 56 ] Mr.

Van Mackelberg testified that he asked the police “what’s going on?” He told them he had permission to be there and was not aware of anyone else having ownership. He asked them to check in the truck where they would see he had written up his permission. [ 57 ] He testified that he believed that the hay was his to sell.

H. Peter Kang [ 58 ] Mr. Kang had great difficulty in speaking and understanding English. For that reason alone, his evidence must be treated carefully. [ 59 ] He said he spoke with a man regarding “cutting that land” only once, approximately two years ago. Mr. Kang was on his garden tractor, the other man was in a half-ton truck. His testimony seemed to say that if the cutting was on his land (which he said was about two acres), it was okay. (He said his son owns the property.) [ 60 ] He was unable to identify Mr. Van Mackelberg, Mr. Dunne, or Randy Duhn.

He insisted that he spoke about the matter only once, to one person. He did not have any discussion about garbage clean up and does not recall discussion about a written agreement. [ 61 ] During part of his testimony, he agreed on a cross-examination that he thought it was “a city guy” who asked about cutting the hay, and he said to go ahead. [ 62 ] He could see the bales of hay on the land. He never saw any of them leave the land. I. Hunter Van Mackelberg [ 63 ] Hunter Van Mackelberg, Mr. Van Mackelberg’s son, was with his father when they spoke with Spencer Duhn.

Spencer told them that the guy on the corner of the street had given them permission to hay the land earlier. [ 64 ] Spencer accompanied his father to the house, where they met with Mr. Kang. Hunter could hear the conversation. He and his father were under the impression that Mr. Kang owned it, but Hunter’s evidence was equivocal on whether they asked him for this confirmation directly. At one point he indicated he is pretty sure his father asked Mr. Kang if he owned the land, and got an affirmative response. He explained that this was the reason they went to hay the field. [ 65 ] He does not believe Mr.

Kang said anything about the City of Airdrie owning some land, or said anything about Crown land. He believes Mr. Kang may have promised to get back to them about a legal description. Mr. Kang agreed to a written agreement, and asked for garbage to be picked up. He said he would give them a three year lease. [ 66 ] Hunter never saw the document prepared by his father after this meeting. J. Navan Kang [ 67 ] Navan Kang is Peter Kang’s son. [ 68 ] In 2015, Navan Kang owned the house in which he, his wife, two children, and mother and father lived. [ 69 ] He did not recognize Mr.

Van Mackelberg in the courtroom, and did not know anyone by that name. [ 70 ] In 2015, someone approached “us”. That person was in his fifties, and a large man. He asked for Mr. Kang Sr., and his son told him he was not home. Thus, he left, and gave no reasons why he was looking to speak with Mr. Kang. [ 71 ] On being shown the document Mr. Van Mackelberg said he prepared as a contract, Mr. Kang said he had never seen it. He spoke to no one, he said, about his father signing a contract or about baling hay.

He has seen hay bales on the property only once, perhaps about two years ago. [ 72 ] He said that his father was not in the hospital around September 2015 (because he asked him before testifying). He did attend a funeral at one point in September 2015, for his mother-in-law. The funeral was in Calgary. K. Amrit Kang [ 73 ] Ms. Kang is Peter Kang’s wife. [ 74 ] Her ability to understand and speak English was very weak.

Thus, what she said and meant to say in her testimony is highly uncertain. [ 75 ] She had no memory of a stranger coming to the house, except on some occasions when the family had something advertised for sale. III. Elements of the Offences A. Unlawfully Steal Hay: “Theft” [ 76 ] In count one, Mr. Van Mackelberg is charged with unlawfully stealing hay of a value exceeding $5000 between August 22 and September 22, 2015, contrary to

section 334 (a). That

section merely classifies theft of property with a value over $5000 as an indictable offence with a maximum penalty of ten years’ imprisonment.

[77] The statutory definition of theft is contained in

section 322 of the Criminal Code, R.S.C. 1985, c. C-46. The relevant parts forpresent purposes are: 322. THEFT –

(1) Everyone commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of rightconverts to his use or to the use to another person, anything, whether animate or inanimate, with intent (

a) to deprive, temporarilyor absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it [.] [78] The actus reas of the offence thus requires taking or converting. In some cases there may be subtleties on whether thisoccurred (as contemplated in subsection (4)), but here the legal issue is simple. The Crown concedes that it must prove beyond areasonable doubt that at Mr. Van Mackelberg’s instance bales of hay were removed from the field before Mr.

Bacovsky’s arrival onSeptember 22 for there to be a conviction of theft. [79] In addition to the actus reas requirement, theft requires intent. In this case, section 322(1)(

a) describes the intent or mens rearequirement by the terms “fraudulently,” “without colour of right” and “with intent to deprive . . . the owner of it . . . of his property.” B. Attempt to Unlawfully Defraud [80] In count two, Mr. Van Mackelberg is charged with attempting to defraud Mr. Bacovsky of hay having a value not exceeding$5,000 (the transaction planned for September 22, 2015), contrary to section 380(1)(b). Section 380(1) classifies fraud according towhether the subject matter of the offence exceeds $5,000. Mr.

Van Mackelberg is prosecuted by indictment for an amount less than$5,000, so the maximum penalty is two years’ imprisonment. [81] A brief definition of fraud is embodied in this charging section. It describes a person who “by deceit, falsehood or otherfraudulent means . . . defrauds the public or any person . . . of any property, money or valuable security or any service”: section 380(1). [82] The actus reas of the offence of fraud was defined in R v Théroux, (SCC), [1993] 2 S.C.R. 5, as includingthe following: 1. the prohibited act, be it

an act of deceit, a falsehood or some other fraudulent means; and 2. deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim’s pecuniary interests at risk[para 24]. [83] The mens rea requirements of the offence of fraud are likewise summarized in Théroux, as requiring proof of: 1. subjective knowledge of the prohibited act; and 2. subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation mayconsist in knowledge that the victim’s pecuniary interests are put at risk) [para 24].

The mens rea element may be met by proving beyond a reasonable doubt the accused’s recklessness. In other words, the guilty intentmay be established “when it is shown that the accused, with such knowledge [that is, knowledge of the likelihood of the prohibitedconsequences], commits acts which may bring about these prohibited consequences, while being reckless as to whether or not theyensue: Théroux, para 23; cf. para 25. [84] As we have seen, the definition of theft expressly incorporates a “defence” of colour of right: section 322(1)(a).

Likewise,there is an express defence of colour of right for offences of mischief to property and other designated offences: section 429(22). There isno colour of right defence provided for the offence of defrauding someone of their property or person. [85] The second count only alleges an attempted fraud.

Section 660 is the general statutory provision enabling convictions forattempts, and R v Reis, 2003 MBCA 98 , 2003 M.B.C.A. 98, [2004] 6 W.W.R. 640, confirms it is available for the offence offraud. IV. Principles for Assessment of Evidence [86] As in every criminal prosecution, the overarching principles of the presumption of innocence and the requirement of proofbeyond a reasonable doubt apply. In addition, there are important evidentiary principles.

Where credibility is a central issue, theinstruction recommended by Cory J. for a jury is equally applicable to a judge making findings of fact: A trial judge might well instruct the jury of the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. R v W.(D.), (SCC), [1991] 1 S.C.R. 742 at 757-58. [87] It has often been observed that the W.(D.) approach is not a rigid or sacrosanct formula which must be followed precisely ineach case. Rather, it is intended to provide instruction on the correct reasoning process for assessing credibility, and to guard against

approaches that are inconsistent with an accused’s right to the presumption of innocence until the Crown proves guilt beyond a reasonable doubt. The W.(D.) approach precludes reasoning that the accused’s evidence must be believed for an acquittal, and precludes resolving the case by seeking to answer the question of what happened rather than determining whether there is reasonable doubt. It also warns against deciding whether one story should be preferred over another. [ 88 ] The steps in W.(D.) are not watertight compartments. To properly consider Mr. Van Mackelberg’s evidence, I cannot do it in isolation.

Not only must I consider what he says for its plausibility, internal consistency and his demeanor, I must consider it, to some degree, in the context of all the evidence to take in to account such issues as external consistency. A clear, articulate example of this approach is Renke J.’s judgment in R v B (JA) , 2016 ABQB 362 , para 8 . [ 89 ] That does not mean it is permissible to weigh two stories or different pieces of testimony against each other. The Crown bears the onus of proof beyond a reasonable doubt throughout. It does mean findings of fact made from evidence other than that given by Mr.

Van Mackelberg may be relevant to whether his testimony is believed or raises a reasonable doubt. [ 90 ] I have already summarized the testimony of each witness. As both counsel acknowledged, on some material facts there are contradictions. It is therefore necessary to carefully assess the testimony of each witness and all of the evidence as a whole to determine whether the Crown has proved either count beyond a reasonable doubt. V. Findings on Evidence A. Defence Evidence 1. Mr. Van Mackelberg [ 91 ] Mr. Van Mackelberg was the main witness for his defence. [ 92 ] His story is summarized quickly.

He was a farmer who looked for hay to cut and bale for sale and also kept cattle for which hay would be a feedstock. [ 93 ] In August, he inquired of Spencer Duhn about who owned the field beside the Duhn’s house, from whom the Duhns had received permission for similar purposes before. He was directed to Peter Kang’s house. As Mr. Kang was not home, he spoke to his son and wife. A couple of days later, he returned and spoke with Mr. Kang. Mr. Kang would agree to let Mr. Van Mackelberg cut the hay if he also cleaned up garbage on the field. [ 94 ] Mr.

Van Mackelberg prepared a form of agreement in his notebook, which he showed to Mr. Kang’s son and wife on a later visit. Mr. Kang was not home. Thus, the document was only signed by Mr. Van Mackelberg and left in his truck. [ 95 ] He then began cutting and baling the hay on part of the property, an operation performed over a couple of weeks in early September. He did not move hay off the property before September 22, when he was set up by Mr. Bacovsky and arrested. [ 96 ] It became obvious that Mr. Van Mackelberg’s story has not remained consistent.

In earlier evidence he said that he spoke to Randy Duhn as well as his son Spencer. In his trial testimony, he acknowledged that he had no such conversations with Mr. Duhn. Further, in proceedings before a justice of the peace, he said that he owned some farmland. At trial, he at one point acknowledged that he owned no farmland, and at another point became noticeably defensive and evasive on the whole question of ownership when confronted with earlier testimony. [ 97 ] There are also many implausibilities in Mr. Van Mackelberg’s evidence. The handwritten agreement parallels what Mr.

Van Mackelberg says was discussed with Mr. Kang only very loosely. It refers to a three-year lease (not mentioned in the testimony of either Mr. Van Mackelberg or his son as a subject of discussion) and contains no reference to garbage removal (an important condition imposed by Mr. Kang). [ 98 ] It seems remarkable that Mr. Kang’s son and wife would promise that Mr. Kang would sign the agreement without even seeing it, and it also seems odd that Mr.

Van Mackelberg did not leave a copy with them (even though he had an extra copy in his notebook). [ 99 ] Further, as the Crown emphasizes, the whole arrangement seems unusual – making a very cavalier inquiry and then proceeding to cut and bale hay without additional inquiry or any document confirming Mr. Kang’s approval. [ 100 ] I also paid close attention to Mr. Van Mackelberg’s demeanor as a witness. In direct examination, he was straightforward and earnest. In cross-examination, he became evasive, uncertain, tentative and made very little eye contact with the questioner.

He became very careful and took a long time to answer even the most simple questions. Clearly, he was afraid of making a misstep such as contradicting earlier testimony. For example, he refused to give a straightforward answer to the question of whether he owned any land or had sold any since September 2015. [ 101 ] The authorities repeatedly emphasize that while demeanor is a factor that should be considered, it seldom should be given much weight. Testifying in court is an unusual and difficult experience for many witnesses, let alone an accused, and people react differently. [ 102 ] Mr.

Van Mackelberg’s demeanor during trial testimony is not a material factor in my assessment of his evidence. It might tend to show untruthfulness on the main aspects of his story. However, it is also consistent with a witness who was caught doing something without legal authority, even unintentionally, now attempting to find the most convincing way to explain what might, at least in law, be a non-culpable act.

[ 103 ] More important than Mr. Van Mackelberg’s trial demeanor is the reaction he showed on being confronted by the police on the day of his arrest, captured on the video recording. Again, caution must be used in assessing his reaction. However, it seems most consistent with genuine confusion and surprise on being accused of not having authority to be on the land. 2. Bruce Dunne [ 104 ] Mr. Dunne’s evidence corroborates what the defence submits was Mr. Van Mackelberg’s state of mind. He says Mr. Van Mackelberg talked to him about having permission to hay the field before the work was started. [ 105 ] Mr.

Dunne was at the field about six or seven times from the end of August to September 22 and saw the work being done. He never saw any hay leave the field. He remembers there being at most about 100 bales. [ 106 ] After the arrest, he spoke to Mr. Kang who confirmed that he gave permission to hay the land – and had done so to others in earlier years. He testified that Mr. Kang told him he owned the property – although in cross-examination he acknowledged that Mr. Kang might have told him the City of Airdrie owned it but anyone could farm it. [ 107 ] There are some inconsistencies in Mr. Dunne’s evidence.

For example, at one point he suggested Mr. Kang told him that he owned the land but then said Mr. Kang probably spoke about the City of Airdrie being the owner. There are some implausibilities in Mr. Dunne’s story which are largely the same as those from Mr. Van Mackelberg’s testimony – namely, that there was a very simple confirmation from Mr. Kang that he would sign whatever was wanted. Finally, Mr. Dunne’s demeanor showed bias in favor of Mr. Van Mackelberg and a very different manner in cross-examination (when he suddenly developed difficulty in hearing) than on direct examination.

However, his bias was natural in the circumstances and does not indicate an intention to be untruthful. 3. Peter Kang [ 108 ] Little can be made of Mr. Kang’s testimony. He had great difficulty with the English language. He was very impatient in giving his testimony, and far too adamant to be convincing. I conclude that he had made his mind up about what he remembered and would not remember, and entered the witness stand with a motivation to keep his testimony very simple. 4. Spencer Duhn [ 109 ] Spencer gave very simple, unadorned testimony. There is no reason to doubt his credibility or truthfulness.

He has no connection to the matter in question, other than a passing conversation. [ 110 ] Significantly, he confirmed that he told Mr. Van Mackelberg that Mr. Kang owned the land, based on the Dunh family’s involvement in haying the land before. 5. Hunter Van Mackelberg [ 111 ] Hunter was a young witness in a very difficult position. He testified in his father’s presence, with his father on trial. I conclude those factors may have influenced some of what he said. [ 112 ] Still, the basic outlines of his story remain unimpeached. He related that Spencer said his family received permission to hay the land from Mr.

Kang. Hunter and his father followed this up by going to Mr. Kang’s house and talking to him. They spoke about the field (pointing to fence lines) and Mr. Kang gave permission for them to hay it. They spoke about garbage removal and a written agreement. B. Crown Evidence [ 113 ] The main parts of the Crown evidence to be considered are Mr. Bacovsky’s assertion that Mr. Van Mackelberg told him he had sold 160 bales before September 22; Mr. Thoreson’s testimony that he saw hay leaving the field; and the testimony of Ms. Kang and her son about alleged contact with Mr. Van Mackelberg and Mr.

Dunne. [ 114 ] There are no reasons to question Mr. Bacovsky’s credibility in general. However, I am not made certain by his testimony that Mr. Van Mackelberg sold 160 bales before September 22, 2015. That assertion is offset by other evidence, especially Mr. Dunne. It is a strange coincidence that “160 bales” uses the same number as “$160 per bale” – giving rise to the possibility of a misunderstanding. I also consider the possibility of sales puffery – Mr. Van Mackelberg being anxious to conclude the deal.

It is further possible that his reference to having sold bales of hay was a reference to hay on other land he farmed. [ 115 ] Mr. Thoreson was clearly motivated in his testimony by a strong animas against Mr. Van Mackelberg. His record of crimes of dishonesty, such as shoplifting, mean I must treat his evidence with caution. [ 116 ] Mr. Thoreson says he saw much hay leaving the land – but he did not mention this important detail in his statement to police. Given his obvious bias against Mr. Van Mackelberg, it is very unusual that he would not have mentioned this activity in his first meeting with police.

Further, I find it improbable that he would watch all of this farming activity from both inside and outside his place of work – and yet he did not see any of the hay actually being cut. [ 117 ] The Kangs deny much of what Mr. Van Mackelberg says. But they remember a big man coming to ask for Mr. Kang Sr. And it is very difficult to make of the testimony of Ms. Kang. C. Findings

1. Introduction [ 118 ] I am unable to say I believe Mr. Van Mackelberg, given the contradictions, implausibilities and demeanor factors I mentioned earlier. However, his evidence, together with the other defence evidence leaves me with a reasonable doubt on the essential elements on both charges. When I consider as well the Crown evidence key to those elements as necessary to give the Defence evidence context, it does not resolve my reasonable doubt. 2. Theft [ 119 ] The Crown must prove beyond a reasonable doubt that Mr. Van Mackelberg caused hay to be removed from Mr.

Bacovsky’s property before September 22 to satisfy the actus reas elements of theft. I have grave suspicions that this may have occurred based on a combination of what Mr. Van Mackelberg is said to have told Mr. Bacovsky, what Mr. Thoreson said he saw and the probability that Mr. Bacovsky was not the first customer. [ 120 ] But I have emphasized why I cannot rely heavily on the Bacovsky and Thoreson evidence – especially Mr. Thoreson’s omission of the detail of earlier sales of hay in his statement to police – and there are firm denials from Mr. Van Mackelberg and Mr. Dunne.

Persons who might have known but were not asked about earlier hay sales were Hunter Van Mackelberg, Spencer Duhn and all of the Kangs. [ 121 ] Finally, I do not know when the Kijiji advertisement was posted (again, there were no questions on that) and the evidence gives no other form of advertisement. [ 122 ] For these reasons, the Crown has not proved beyond a reasonable doubt that Mr. Van Mackelberg caused hay to leave the field, and therefore, there must be an acquittal on the theft charge. 3.

Fraud [ 123 ] It can be difficult to separately analyze the actus reas and mens rea requirements for a fraud case where the central issue is whether the accused knew or did not know only because of his recklessness that he would deprive someone of his property. That is because the actus reas requires an objective finding of what the community would consider dishonest: Manning, Mewett and Sankoff, Criminal Law, 5th ed. (Toronto LexisNexis, 2015 ), para 23.76.

An objective finding of that nature involves some consideration of the actual circumstances of the accused. [ 124 ] However, this case can be determined on the basis of mens rea , that is, Mr. Van Mackelberg’s subjective knowledge: Th é roux , paras 18-25 . A helpful description, which I adopt, of the subjective elements is given in Manning, Mewett & Sankoff’s Criminal Law as follows: The mental elements of fraud are not explicitly listed in

section 380. Nonetheless, the provisions have been interpreted to require a high degree of subjective awareness. To begin with, fraud requires “deceit, falsehood, or other fraudulent means”, and it follows that the accused must have subjective awareness of all relevant circumstances relating to the improper conduct at the heart of the fraud for a conviction to be possible. [Para 23.80, footnote omitted.] [ 125 ] The Crown has not satisfied me beyond a reasonable doubt that Mr. Van Mackelberg subjectively knew that he would or likely would be depriving another person of his property in the hay crop.

The plausibility of his story is a factor in assessing the credibility of his asserted lack of knowledge: Th é roux , para 20 . [ 126 ] Here I am not convinced that Mr. Van Mackelberg’s story is so implausible as to establish mens rea beyond a reasonable doubt. The transaction Mr. Van Mackelberg said he made was very casual as to formalities. However, that may not be unusual for a temporary farming operation of about a month in duration, with very little investment expense by Mr. Van Mackelberg.

The casual nature of the arrangement might be further explained by the fact that the growth of the field had no apparent value to the neighbours (or even to Mr. Bacovsky, who had never harvested it) but rather was an annoyance to those in the area. [ 127 ] The weight of the evidence establishes that Mr. Kang was thought to be the owner of the land, or at least to have authority to grant permission to harvest it, by the Duhns. Similarly, the evidence makes it likely that Mr. Van Mackelberg spoke to Mr. Kang at least once after his inquiries of Spencer Duhn.

Spencer’s grandfather was believed to have farmed the land with Mr. Kang’s permission, and Mr. Van Mackelberg did the same. [ 128 ] I also consider the fact that Mr. Van Mackelberg did his work in the open over a period of several weeks, in a highly visible property adjoining a number of residences and visible from a major highway. Of course, a criminal act is not made innocent by virtue of being carried out in a brazen manner. In this case, however, combined with the other evidence it contributes to the possibility that Mr.

Van Mackelberg was acting in a manner he considered (though mistakenly) justified and reasonable, consistent with what he had been told by Spencer Duhn and Mr. Kang. [ 129 ] On the basis of all of the evidence, I cannot find beyond a reasonable doubt that Mr. Van Mackelberg had the subjective knowledge required for the offence of fraud. He must therefore be acquitted on that count as well. VI. Judgment [ 130 ] For the reasons given, I find that the Crown has failed to establish beyond a reasonable doubt the necessary elements of each of the charges against Mr. Van Mackelberg.

[ 131 ] Therefore, I find Mr. Van Mackelberg not guilty of count one (the charge of unlawfully stealing hay) and count two (the charge of attempting to unlawfully defraud Steven Bacovsky of hay). Heard on the 10 th , 11 th , 12 th day of April, 2017 and the 7 th day of June, 2017 and the 1 st day of August, 2017. Dated at the City of Calgary, Alberta this 5 th day of December, 2017. G.H. Poelman J.C.Q.B.A. Appearances: Britta Kristensen for the Crown Jason Demers for the Accused