R. v. Damm, 2016 ONCJ 717

ONTARIO COURT OF JUSTICE CITATION: R. v. Damm , 2016 ONCJ 717 DATE: 2016-11-28 COURT FILE No.: 15-4858 BETWEEN: HER MAJESTY THE QUEEN — AND — ANWAR DAMM Before Justice C. M. Harpur Heard on June 21 and October 7, 2016 Reasons for Judgment released on November 29, 2016 F. Faveri/M. Alexander............................................................................. counsel for the Crown K. Jokinen .................................................................... counsel for the accused Anwar Damm HARPUR J.: Overview [ 1 ] Mr. Damm is charged with assaulting Christine Auclair on August 5, 2015.

The Crown proceeded summarily. The trial proceeded on June 21 and October 7, 2016. The only witnesses at trial were Ms. Auclair and Mr. Damm. Submissions were made on October 7, 2016. [ 2 ] Many of the facts underlying the charge are not in dispute. At the material time, Mr. Damm was 55 years of age. He was employed as a senior pilot for a commercial airline. Ms. Auclair was 35 years of age and a flight director for the same airline. Mr. Damm was divorced, Ms. Auclair single. [ 3 ] In approximately 2010 Mr. Damm and Ms. Auclair had become romantically involved. Mr. Damm invited Ms.

Auclair to live with him in his home. They did so in an intimate relationship until approximately May 2015. In that month Ms. Auclair gained the impression that Mr. Damm had been unfaithful to her and confronted him. Their relationship never recovered. They agreed that they would separate. Mr. Damm agreed that Ms. Auclair could continue to reside at his home, although in a separate bedroom, while she searched for alternative accommodation. Ms. Auclair moved to a guest room in the house. Thereafter, to Mr.

Damm’s knowledge, she purchased a condominium unit and planned to take occupation of it in October of 2015. [ 4 ] While theirs was no longer a romantic relationship, both Mr. Damm and Ms. Auclair testified that the relationship was not rancorous from the time of their in-house separation until August 3, 2015. Indeed, they acknowledged having been intimate once or twice. [ 5 ] In the evening of August 3, 2015, Ms. Auclair saw a telephone bill of Mr. Damm at the home. Mr. Damm was staying at a hotel next to Terminal 3 at Pearson Airport that evening leaving the next day for personal business in Winnipeg. Ms.

Auclair regarded the contents of the bill as confirming her suspicions of his earlier infidelity. She called Mr. Damm and accused him. Mr. Damm hung up on her. Ms. Auclair made further repeated calls and texts to him at the hotel which he did not answer. At approximately 1:30 a.m., Ms. Auclair proceeded to pack a suitcase and drive to the hotel. She located Mr. Damm’s room, went to it and knocked. Mr. Damm came to the door. Ms. Auclair showed him the phone bill. She asked to come in. Mr. Damm refused. He and she pushed at the door and Mr. Damm

succeeded in closing it. Ms. Auclair continued to knock at the door for approximately one half hour. Mr. Damm did not open it. Ms. Auclair left, located Mr. Damm’s vehicle in an adjoining parking lot and intentionally let most of the air out of one of his front tires. [ 6 ] Ms. Auclair then drove back to Mr. Damm’s home and consumed a substantial amount of alcohol. She went to Mr. Damm’s room and created a mess, putting a lubricant liquid on the floor and on some of Mr. Damm’s possessions and strewing the bed sheets and blankets about. According to Ms.

Auclair’s evidence, she then got into the bed, fell asleep and urinated while unconscious, wetting the mattress and the pillows. On this point Mr. Damm testified that there were several wet spots in various places on the mattress in his bedroom from which he concluded that Ms. Auclair must have risen from the bed and wet it intentionally. In any event, both the mattress and the pillows, as well as other property, were damaged by Ms. Auclair’s action. [ 7 ] Eventually that night Ms. Auclair woke and went to her own bedroom. She slept most of the day on August 4. [ 8 ] Mr.

Damm returned from Winnipeg to Toronto at around midnight on August 4/5, 2015. He discovered the flat tire, inflated it and drove home. He suspected Ms. Auclair, given the incident the previous night at the hotel. He arrived home and went to his room. He described himself as a “clean freak”. He noted the disarray and the liquid on the floor and his possessions. Ms. Auclair’s Evidence [ 9 ] At this point in the narrative Mr. Damm’s and Ms. Auclair’s testimonies parted ways. The following was Ms. Auclair’s version of events. [ 10 ] Ms. Auclair was aware that Mr. Damm had arrived home and gone to his room.

Shortly after he went to his room, he came to her bedroom where she was sleeping. He pulled the covers from her bed, waking her. He screamed at her to pack and leave. Ms. Auclair told Mr. Damm that she intended to sleep in the house that night, that it was “her house too”. He left Ms. Auclair’s room and she went back to sleep. After a brief interval Mr. Damm returned to Ms. Auclair’s room, again pulled off the covers and again demanded Ms. Auclair leave immediately. Mr. Damm then demanded that, before leaving, Ms. Auclair clean the mess she had made in his bedroom. He approached Ms.

Auclair, put his fist against her face and threatened to use his fist if she did not clean up the bedroom. Ms. Auclair went into the master bedroom and cleaned while Mr. Damm continued to scream at her from a foot or two away. [ 11 ] Having cleaned the room, Ms. Auclair returned to the guest bedroom and got back into bed intending to sleep. She was vaguely aware of Mr. Damm watching television for approximately half an hour and going downstairs into the kitchen.

Based upon her observation of an opened wine bottle in the kitchen later in the night when she was leaving the home, she has concluded that he also consumed some wine during this absence from her room. She slept. [ 12 ] Suddenly, Mr. Damm again entered her room, approached her bed and pulled up violently on the left side of her mattress (if one were looking into the bedroom toward the foot of the bed), causing Ms. Auclair to crash head-first into a wall to the right of the bed one to two feet away and then to fall to the uncovered hardwood floor. Ms. Auclair passed out.

When she woke she got to her feet, pushing the bed mattress aside. Mr. Damm, who had left, came back to the room screaming that she was to get her things and leave. He once again left the room. Ms. Auclair began putting the mattress back on the bed. Mr. Damm re-entered the room and again screamed at her to leave. [ 13 ] Ms. Auclair dressed, gathered her suitcase and went downstairs. Mr. Damm continued to scream at her to get out of his house. The two proceeded to the front door after Ms. Auclair had gone to the kitchen for a glass of water. Mr. Damm took the keys to the house from her purse.

He pushed her to the door, slammed it behind her and locked it. [ 14 ] Ms. Auclair stayed the rest of the night with a friend and went to Royal Victoria Hospital later on August 5, 2016. She said she was diagnosed with a concussion and was sore for several weeks in an area from her head to her ankle on her right side and in the area of her left jaw. Put into evidence were prescriptions Ms. Auclair was given at the hospital on August 5, 2015 for a pain killer and an anti- inflammatory. Also put in evidence were a series of photographs of Ms.

Auclair taken approximately one week after the incident showing some faint bruising in Ms. Auclair’s right hip area. [ 15 ] On August 6, 2015 Ms. Auclair went to the police and Mr. Damm was charged with assault. Mr. Damm’s Evidence [ 16 ] Mr. Damm’s version of the altercation is quite different. He said he went to Ms. Auclair’s bedroom only twice. The first time was to demand that she clean up the mess in his room, which she did as he stood at the master bedroom doorway. After Ms. Auclair had cleaned Mr. Damm’s room. Mr. Damm did some further cleaning of his own.

He felt the dampness on his mattress and concluded that Ms. Auclair had deliberately wet the bed. He decided he could not trust Ms. Auclair not to do more damage to him or his possessions and that she must leave immediately. [ 17 ] He returned to the door of her room. Ms. Auclair was lying on top of the covers on a diagonal with her head toward the foot of the bed. To the left of the bed – again, looking toward its foot from the door - was a gap of approximately five feet from bed edge to bedroom wall. The hardwood floor in that gap was partially covered by a small lambskin rug and some carpet. [ 18 ] Mr.

Damm told Ms. Auclair to get out. He said he could not trust her. Ms. Auclair told Mr. Damm she wanted to sleep and that she had nowhere to go. Mr. Damm suggested a hotel but said he didn’t care where she went. Ms. Auclair said she was going to sleep. Mr. Damm approached the bed and again told Ms. Auclair to leave. She did not move.

[ 19 ] Mr. Damm tipped up the right side of the mattress and Ms. Auclair slid onto the carpet on the floor in the five foot gap. After approximately twenty seconds, she got up, put clothes on, produced her suitcase and said she was leaving. Mr. Damm went downstairs to the kitchen. Ms. Auclair came down. He took her key and said he would collect and forward to her any mail and personal belongings she had left behind. He repeated that he could not trust her and that she might “decide to stick a knife into him”. Ms. Auclair said she “should have done so long ago”. Ms. Auclair left in her car. The following day Ms.

Auclair came to his home with the police and Mr. Damm was arrested. Issue [ 20 ] Ms. Alexander for the Crown asks me to accept Ms. Auclair’s version of this incident and to find Mr. Damm guilty of assault on this basis. Ms. Jokinen for Mr. Damm submits that Mr. Damm’s version is that which should be accepted, or at least be regarded as a version which may be true, and, based on that version, his actions have not been proven to be unreasonable, either through the lens of ss.34 or 35 C.C. or of his entitlement to eject a trespasser at common law. Analysis [ 21 ] The evidence is clear that Mr. Damm dumped Ms.

Auclair from her bed and onto the bedroom floor in the early morning hours of August 5 following his repeated requests that she leave his home immediately and her refusal to do so. On these facts, both witnesses were in agreement. However, there were contradictions in the versions of the altercation to which Ms. Auclair and Mr. Damm testified on a number of details of significance in determining Mr. Damm’s guilt, namely: (

i) whether, after cleaning his room, Ms. Auclair told Mr. Damm without objection that she would leave in the morning; (ii) whether Mr. Damm spent some time between the next-to-last and last attendances at Ms. Auclair’s bedroom watching television and consuming wine; (iii) whether Mr. Damm in fact put his fist to Ms. Auclair’s face as he demanded she clean the master bedroom; (iv) whether Mr. Damm and Ms. Auclair exchanged the remarks about the risk of Ms. Auclair stabbing Mr. Damm with a knife; (

v) whether Ms. Auclair sustained injuries as extensive as those she described. On this point I should say that I did not permit the Crown to introduce what purported to be Ms. Auclair’s medical records as I did not regard their foundation to have been established; and (vi) most significantly, whether Ms. Auclair was ejected from the bed into a wall approximately one foot away followed by a fall to the hardwood floor, as she said, or was simply tipped from the mattress onto a carpeted portion of the floor, as Mr.

Damm said. [ 22 ] In attempting to assess the reliability of each of the testimonies, I note that neither survived cross-examination unscathed. [ 23 ] I accept Ms. Jokinen’s submission that the following aspects of Ms. Auclair’s testimony weakened her reliability: (

i) Ms. Auclair said she had intended to clean up Mr. Damm’s room prior to his return to the home but had not had a chance to do so when he arrived home early in the morning August 5. She said she did not get out of bed to warn him about the mess when he arrived because she was asleep. However, when Ms. Jokinen pointed out to her that, in chief, she had been able to provide details of Mr. Damm’s activities in the garage and first floor of the home when he first arrived, Ms.

Auclair initially responded that hers was a light sleep state which permitted these perceptions and then, in conflict with her earlier evidence, said that the reason she had not warned Mr. Damm about the mess in the bedroom was because she was ashamed of what she had done; (ii) Ms. Auclair said that, because of Mr. Damm’s anger and her “not wanting to add fuel to the fire”, she did not respond to Mr. Damm’s shouted inquiry, as she cleaned his room, as to why she had wrecked it. However, during the same phase of the altercation, when handing Mr. Damm’s agenda to him, Ms.

Auclair acknowledged having said to him, “out of all the people, you had to fuck Jackie”. She also acknowledged that, when first told to clean the room, she had said to Mr. Damm, “get one of your girlfriends to do it”. Although I would not characterize these remarks as especially combative, I accept that they are not completely in keeping with Ms. Auclair’s suggestion that she was trying to minimize the conflict when cleaning Mr. Damm’s bedroom; and (iii) Ms. Auclair testified that she was ejected from her bed into a wall approximately one foot away by Mr. Damm’s wrenching upward of her mattress.

This is a manoeuver which would require a significant level of physical strength. Mr. Damm’s appearance at trial, which I take not to have undergone major change in the slightly more than one year since the incident, seemed that of a healthy 56 year old man. It did not, however, suggest that he possessed the sort of power the violent lift described by Ms. Auclair would require. I am dubious about his having launched Ms. Auclair as far or as hard as suggested. [ 24 ] On the other hand, for the majority of her testimony, Ms. Auclair demonstrated candour, consistency and careful consideration of her answers. Ms.

Auclair did not attempt at any stage to minimize the impropriety and “stupidity”, in her words, of her behaviour toward Mr. Damm. She also acknowledged the “get your girlfriends to clean” and “Jackie” remarks – unhelpful to her cause - although only Mr. Damm was in a position at trial to contradict her had she denied them. As an example of care in her evidence, when Ms. Jokinen characterized in an approximate way her previous testimony at trial as telling the police of “spraying lubricant on his floor and mattress”, Ms.

Auclair promptly corrected this to precisely what she had said: “not on the mattress, just on the floor…”. [ 25 ] Turning to Mr. Damm’s testimony, I accept Ms. Alexander’s submission that there were some doubtful aspects:

(

i) Mr. Damm acknowledged not having demanded that Ms. Auclair leave the house immediately following her cleaning of his room.He said this was because it was only as he himself cleaned that he concluded she had intentionally urinated on his bed and must berequired to leave. He said this conclusion was the result of noting discrete wet patches in the bed more consistent with upright urinationthan urination which might occur in one’s sleep. However Mr. Damm also said that he was aware when Ms. Auclair was cleaning hisroom that the pillows on his bed had been urinated on.

I am inclined to think that the wet pillows would provide as much support for Mr.Damm’s theory about intentional urination as discrete wet spots on the mattress. I am sceptical about his evidence that the resolution toevict Ms. Auclair was formed in the delayed manner he described; and (ii) Mr. Damm described himself as having been “upset but calm” with Ms. Auclair during their exchange at Mr. Damm’s hotel roomthe night of August 3/4 and “not upset” with Ms. Auclair when he came home the morning of August 5, even on discovering the mess inhis bedroom.

Although he described himself as a “clean freak” in his evidence, he said that her urinating in his bed simply “meant shecouldn’t be there”. He said that he generally maintains a “flat affect”. He described his second trip to Ms. Auclair’s bedroom as normal,not agitated. Yet Mr. Damm did concede that he raised his voice in his exchanges that night with Ms. Auclair and that, in due course, hedid lift the mattress on which she was reclining “not gently”. It is difficult to reconcile, on the one hand, the relative equanimity Mr.Damm described himself as exhibiting on August 5, 2015 in forcing Ms.

Auclair from his home with, on the other, the raised voice, hisnon-gentle tipping of Ms. Auclair from her bed and the inherent improbability of calm in the face of the highly provoking circumstancesin which he found himself. [26] It should be said, however, that, overall, Mr. Damm’s testimony generally was detailed and consistent. He was not evasive inhis responses to Ms. Alexander’s questioning. It is common ground that he acknowledged immediately to the police that he had, indeed,tipped Ms. Auclair from the bed.

This was despite what I infer was his knowledge that the only evidence which could oppose him in thisregard would be that of Ms. Auclair. He volunteered during the Crown’s cross-examination that his lifting of Ms.

Auclair’s mattress was“not gentle”, a concession one would not expect from a witness seeking to present himself in the best possible light at the expense oftruth. [27] These competing testimonies, of approximately even reliability, have left me in doubt concerning the matters described inparagraph 21 above. [28] The question which remains is whether the Crown has proven that the physical contact which Mr. Damm acknowledges in thecourse of removing Ms. Auclair from his home – the tipping her out of the bed onto the floor– is not defensible either under the CriminalCode or at common law.

Sections 34 and 35 C.C. [29] I regard the Crown as having proven beyond reasonable doubt that neither of these defences is available to Mr. Damm. TheSupreme Court of Canada has described each as “ordinary affirmative defences”, as opposed to “reverse onus affirmative defences”: R. v.Fontaine, 2004 SCC 27 , [2004] 1 S.C.R. 702. With such defences the “evidential burden” and the “persuasive burden” aredivided. The persuasive burden does not shift. The evidential burden does. To satisfy the evidential burden, Mr.

Damm must establishthat there is some evidence in the record “upon which a reasonable trier of fact properly instructed in law and acting judicially couldentertain a reasonable doubt as to the defence”, in the language of Fontaine. If Mr. Damm is able to do so, the Crown bears the burden ofpersuading me beyond reasonable doubt that, while the defence is “in play”, the evidence as a whole disproves it.

The principle isexpressed in the following manner in Watts Manual of Criminal Evidence, 2016, at paragraph 16.03: Where there is an evidential burden on D, as for example, in relation to a defence of self-defence, the test applied is whether there isevidence which gives an air of reality to the defence. Where there is not, the trier of fact will not consider the defence. Where D meetsthe evidential burden, the defence will be left for the jury with instruction that the burden of negating the defence rests with P. a.

Section 35 [30] Turning to s.35 C.C., in my view it has no air of reality in this case and the Crown need not disprove it. The only conceivablyapplicable subsection is 35(1)(b)(3) – “a person is not guilty of an offence if… they believe on reasonable grounds that another person…is about to damage or destroy the property or make it inoperative, or is doing so” [my emphasis]. [31] Is there any evidence of a reasonable perception on Mr. Damm’s part that Ms. Auclair was “about to” damage his home or itscontents when he ejected her from the bed?

Certainly she had damaged property in his bedroom prior to his arrival home. But from thetime Mr. Damm arrived home until the alleged assault, Ms. Auclair did and said nothing, on either witness’s evidence, to suggest that shewas on the verge of further damaging Mr. Damm’s property. She was either alone in her own bedroom or, when cleaning the masterbedroom, in Mr. Damm’s immediate presence. In the course of Mr. Damm’s dealings with Ms. Auclair after his arrival home, the acmeof her belligerence was her remark about Mr.

Damm’s having had sex with Jackie – as much an expression of regret as of challenge – andher suggestion that Mr. Damm have his other girlfriends clean up the room, a suggestion which Ms. Auclair rapidly undercut by cleaningup the room herself. Apart from her refusal to leave, her attitude following Mr. Damm’s return was submissive, not threatening. Ms.Auclair repeatedly told Mr. Damm that her sole intention at that point was to go to sleep in her bed. Her actions seemed to confirm this.Thus, I see no substance to the idea that Mr. Damm reasonably perceived Ms.

Auclair to be on the verge of further damage to hisproperty, the circumstance addressed by s.35 C.C. b.

Section 34 [32] As to s.34 C.C., Mr. Damm’s evidence was that, given Ms. Auclair’s extraordinary behaviour both on the morning of April 4 athis airport hotel and the morning of April 5 in his bedroom, he was fearful that his personal security was at risk if he did not immediatelyeject her.

Section 34 does not contain the “about to” language to be found in s.35 and, as demonstrated in such cases as R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852 involving s.34’s predecessor

section and the battered wife syndrome, a perceived threat ofviolence for the purposes of self-defence need not be an imminent threat. Accordingly, I regard Mr. Damm’s s.34 defence as having an

air of reality; a trier of fact could find that Mr. Damm reasonably concluded from Ms. Auclair’s recent bizarre behaviour that she might,later on August 5 while still in his home, try to do him harm. [33] Thus, the Crown must disprove this defence beyond reasonable doubt. In my view it has. Again, obstinate as she may havebeen about not leaving, Ms. Auclair was exhibiting vulnerability in Mr. Damm’s presence, not belligerence. (I am not satisfied that Ms.Auclair said she “ought to have knifed [Mr. Damm] long ago”. He affirmed this remark but Ms. Auclair denied it.) Every indication toMr. Damm was that Ms.

Auclair’s plan was to sleep in her own bedroom at least until the morning. Mr. Damm denied that Ms. Auclairhad explicitly spoken to him about sleeping in his home only until morning but acknowledged that part of Ms. Auclair’s response to hisdemand that she leave was that it was the middle of the night and she had nowhere to go, implying the same thing. Mr. Damm alsotestified that, earlier in his relationship with Ms. Auclair, there were stages when Ms. Auclair “became quite violent and would punch andkick me in bed”.

He said he did not call the police on those occasions of violence and they do not appear to have made him fearful offuture harm from Ms. Auclair since their cohabitation continued. If those incidents did not induce fears for his safety in Mr. Damm, Ms.Auclair’s property damage on this occasion is unlikely to have done so. [34] My conclusion is that Mr. Damm’s decision to end Ms. Auclair’s occupancy of his home was not fear of any threat from her tohis personal security on August 5 but a considered retaliation for her misbehaviour at his hotel and in his bedroom the night before.

Thes.34 defence has been proven to be inapplicable. Right of an Occupant to Eject a Trespasser [35] The defence position is that Mr. Damm’s entitlement was to have Ms. Auclair leave his home the moment he directed her to doso. Ms. Jokinen submits that Ms. Auclair was a licensee in Mr. Damm’s premises until August 4, 2015 and that that licence had beensummarily terminated by Ms. Auclair’s behaviour in Mr. Damm’s bedroom the previous morning. Ms. Jokinen cited the followingprinciple from R. v.

Mosgrove, [2014] O.J. 6064 (O.C.J.): “A person may also have an invitation or a licence to enter property for a lawful or specific purpose but that status is lost once theyengage in activity which is unlawful or unrelated to their anticipated use of the property.” [36] Ms. Auclair acknowledged in cross-examination that she regarded Mr. Damm as entitled to issue a demand to her to leave hishome. She said she recognized that she had no property rights in relation to it. However, the Crown argues that, despite Ms. Auclair’sclearly improper misconduct in wrecking Mr.

Damm’s bedroom on August 4, at least overnight notice to leave was required, bearing inmind Ms. Auclair’s four and a half years of residency with Mr. Damm in the home in an intimate relationship, her additional two monthsof shared use of that home with Mr. Damm’s express agreement and, finally, the time of night at which Mr. Damm purported to exercisehis right to terminate Ms. Auclair’s occupancy. [37] I accept that Ms. Auclair’s egregious prior behaviour justified Mr. Damm’s demand that she leave at the time he made thatdemand. She had, in dramatic fashion, breached the implied term of her licence to occupy Mr.

Damm’s home that she would do sopeaceably. She had a car for transportation and other places to stay. [38] There remains, however, the issue of the manner in which Mr. Damm removed Ms. Auclair from his home. An occupier mayeject a trespasser by force as long as the force used is “no more force than is reasonably necessary” (R. v. Assante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3), that is, “no greater than could possibly be considered by any reasonable man to be requisite for the purposeof removing the [trespasser] (MacDonald v. Hees, [1974] N.S.J. 356). MacDonald v. Hees provide a helpful

summary of the law in thisarea: “25. With regard to the other defence, i.e. that the defendant was justified in law and that the application of force was due to the unlawfulentry of the plaintiff and invasion of the defendant’s privacy, it is clear that, as stated in Salmond, op cit. p. 131: - “It is lawful for any occupier of land, or for any other person with the authority of the occupier, to use a reasonable degree of force inorder to prevent a trespasser from entering or to control his movements or to eject him after entry.” 26.

It is clear, however, that a trespasser cannot be forcibly repelled or ejected until he has been requested to leave the premises and areasonable opportunity of doing so peaceably has been afforded him. It is otherwise in the case of a person who enters or seeks to enterby force. In Green v. Goddard (1704), 2 Salk 641, it was said that, in such a case:- “I need not request him to be gone, but may lay hands on him immediately, for it is but returning violence with violence. So if one comesforcibly and takes away my goods, I may oppose him without any more ado, for there is no time to make a request.” 27.

Even in such a case, however, the amount of force that may be used must not exceed that which is indicated in the old forms ofpleading by the phrase milliter manus imposuit. It must amount to nothing more than forcible removal and must not include beating,wounding, or other physical injury. Salmond op cit. 131 and the case of Collins v. Renison (1754), Sayer 138; 96 E.R. 830, there cited. Inthat case, the plaintiff sued for the assault of throwing him off a ladder.

It was held a bad plea that the plaintiff was trespassing andrefused, after request, to leave the premises, and that the defendant thereupon “gently shook the ladder, which was a low ladder, andgently overturned it, and gently threw the plaintiff from it upon the ground, thereby doing as little damage as possible to the plaintiff”. Itwas held that such force was not justifiable in defence of the possession of land. [39] There is no question that Mr. Damm had made repeated demands to Ms. Auclair that she gather her belongings and leave hispremises and that she had remained unmoved. Mr.

Damm testified that he consciously avoided touching Ms. Auclair in the effort toremove her and that, rather than make direct contact, he elected to tip up the mattress. I must say, there appear to have been severaloptions available to Mr. Damm short of this tipping which might well have accomplished his purpose and which would have involvedeven less risk of harm to Ms. Auclair, such as a threat to call the police, a call to the police, a threat to remove Ms. Auclair if she wouldnot do so herself or a threat to upend the mattress.

However, the common law, unlike s.34 C.C., does not appear to require considerationof whether, following a proper demand, there were means other than force available to the occupier in weighing the reasonableness of

his ejection of a trespasser. And even if consideration should be given to Mr. Damm’s options here, I am not satisfied to the criminal standard of proof that the option proven by the Crown to have been his choice, his decision to upend the mattress on which Ms. Auclair was reclining and send her to the carpeting beside the bed, was unreasonable given the adamance to that point of her refusals and the relatively low risk of harm that action involved. [ 40 ] In the result, I find the Crown has not proven the absence of this last defence raised by Mr. Damm. The charge is dismissed. ______________________ Justice C.M. Harpur, O.C.J. Released: November 29, 2016