Her Majesty the Queen - v. -, 2016 SKPC 47

IN THE PROVINCIAL COURT OF SASKATCHEWAN 2016 SKPC 047 Date: March 23, 2016 Information: 90012501 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lam Tu Tran Appearing: Ms. Leona Andrews For the Crown Mr. Cloudesley Rook-Hobbs For the Accused __________________________________________________________________________ INTERIM RULING ON NON-SUIT APPLICATION M. Hinds, J __________________________________________________________________________ I. Introduction [ 1 ] Mr.

Lam Tu Tran (“the accused) is charged that on or about April 20, 2015 at or near Regina he did: 1. Steal grass, the property of Sharon Deitner of a value not exceeding $5,000.00, contrary to

section 334 (

b) of the Criminal Code ; 2. Commit mischief by wilfully damaging property of Sharon Deitner, to wit: grass of a value not exceeding $5,000.00, contrary to section 430(4) of the Criminal Code .

[2] This case involves two neighbours. Sharon Deitner (“the complainant”) lives in a home located at 74 Spence Street in Regina. Theaccused lives in a home located at 78 Spence Street which is south of and adjacent to 74 Spence Street. On February 29, 2016 the Crowncalled it’s sole witness, Sharon Deitner. Ms. Deitner testified that at one time a 12 foot easement owned by the city of Regina separatedher property from Mr. Tran’s property. She purchased one half of the easement (the “six feet”) from the City of Regina in 2012 or 2013. This six feet of property was covered with grass. On April 20, 2015 Ms.

Deitner came home from work and observed that a largesection of the grass which had been located on the six feet had been removed from her property and had been placed on Mr. Transproperty. At the conclusion of the complainant’s testimony the defence admitted that the grass sod was taken from the disputed area (thesix feet) by the accused. Prior to calling any evidence, the defence made an application for a directed verdict. II. Directed Verdict or Non-Suit [3] In R v De Clercq, 2012 AJ 527, Judge R.G.

Redman explains how an application for a directed verdict has now become known asan application for a non-suit: 3 In a typical criminal case, the Crown Prosecutor leads evidence in an attempt to prove beyond a reasonable doubt all the essentialelements of each of the charges before the Court.

When the Crown has concluded its case, the Court invites the accused to call evidence.Before deciding whether to call evidence it is open to the accused to bring an application for a directed verdict of acquittal on the basisthat no reasonable jury, properly instructed, could return a verdict of guilty. 4 An application for a directed verdict arises from the common law: R. v. Litchfield, (SCC), [1993] 4 SCR 333. It takesits name from the fact, that historically, the trial judge literally directed the jury to return a verdict of not guilty.

Over time this procedurewas criticized as it was considered to be unduly formal, and there was always a risk that the jury would disobey the judge's direction. Italso led to unnecessary frustration for some juries as they had to retire and elect a foreman, only to return a verdict that the judge directednotwithstanding their opinion. Juries, after all, were suppose[d] to be independent of the judge and yet the judge in these cases wastelling them what to do.

As a result the Supreme Court of Canada modified the common law procedure so that a trial judge now simplywithdraws the case from the jury and enters the acquittal. As a result, the application is now also referred to as an application for non-suit: R. v. Rowbotham, (SCC), [1994] 2 SCR 463. [4] The test for a directed verdict or non-suit is well settled as being the same test to be applied by a judge at a preliminary inquiry indetermining whether there is sufficient evidence to commit an accused for trial.

As stated in R v Charemski, (SCC),[1998] 1 SCR 679 at paragraphs 2 -3: 2 The leading case on the issue of directed verdicts is United States of America v Shephard, (SCC), [1977] 2 S.C.R.1067, which sets out the test to determine whether a case should go to a jury in terms, at p. 1080: "whether or not there is any evidenceupon which a reasonable jury properly instructed could return a verdict of guilty". See also R. v. Monteleone, (SCC),[1987] 2 S.C.R. 154, at p. 160.

In other words, a motion for a directed verdict should not be granted "in any case in which there isadmissible evidence which could, if it were believed, result in a conviction".

See Shephard, at p. 1080. 3 For there to be "evidence upon which a reasonable jury properly instructed could return a verdict of guilty" in accordance with theShephard test (at p.1080), the Crown must adduce some evidence of culpability for every essential definitional element of the crime forwhich the Crown has the evidential burden. […] If the Crown fails to adduce any evidence to discharge the evidential burden on any ofthese issues, the trial judge should direct a verdict of acquittal. [5] The issue in this case is whether the Crown has adduced some evidence for every essential element of the theft and mischiefcharges upon which a reasonable and properly instructed jury could return a guilty verdict on those charges.

I have concluded the Crownhas done so and as a result the application for a directed verdict/non-suit is dismissed. III. Facts [6] The complainant lives at 74 Spence Street in Regina. She has been living there for about 24 years. Approximately 3 to 4 years ago(2012 or 2013), the accused moved into 78 Spence Street which is located south of and adjacent to 74 Spence Street. For some time theCity of Regina owned an easement which is situated between the two properties. The easement consisted of a 12 feet wide strip of land. In 2012 or 2013, the City decided to sell its easement.

The complainant bought half of it, being a 6 feet wide strip of land bandimmediately south of and adjacent to her property. [7] The newly acquired six feet of land did not constitute part of the complainant’s fenced in yard at the time of the purchase. It lay tothe south of her fence.

However, in the course of the survey conducted for the purpose of delineating the revised boundary between thetwo properties, pegs and wooden stakes were placed on the new property line which made the boundary visible. [8] The six feet of land was partially covered by a grass lawn seeded by the previous owner of the accused’s property. The six feet ofland was also partially covered with gravel. Ms. Deitner testified that since 2012 or 2013 she has seen the accused cut the lawn on thesix feet of land that she purchased. She added that she never asked Mr. Tran to do this. Since 2012 or 2013 Ms.

Dieter has kept theweeds down on the gravel portion of the six feet of land. [9] In the month of April 2015 Ms. Dieter was getting ready to move her existing wooden fence over within two to three feet of thenew property line. On April 20, 2015 the accused Mr. Tran removed the grass sod on Ms. Dieter’s six feet of land and placed it on hisproperty. IV. Theft

[10] Section 322(1)(

a) of the Criminal Code provides that Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to hisuse or to the use of another person, anything, whether animate or inanimate, with intent (

a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of hisproperty or interest in it; [11] Therefore, theft is the fraudulent taking of someone else’s property with intention to deprive that owner of their property, withoutcolour of right. [12] “Fraudulently” in section 322(1) means “that the taking is done intentionally, under no mistake and with knowledge that the thingtaken is the property of another person” (R v Wilkins, (ON CA), [1964] 2 OR 365, (CA)). [13] The uncontradicted evidence is that Ms.

Deitner purchased the six feet of land from the City of Regina in 2012 or 2013 around thetime Mr. Tran moved into his property. There is no evidence to suggest that the grass sod on that six feet of land was not included in thepurchase. In addition, Ms. Deitner testified that pegs and wooden stakes were placed on the new property line.

At least one of thesestakes was visible on the picture marked as Exhibit P-2. [14] I am of the view that the Crown has adduced some evidence to establish that the accused knew or ought to have known of theboundary line separating the two properties and intentionally removed grass sod from Ms. Deitner’s property and placed it on hisproperty. [15] The term “colour of right” generally, although not exclusively, refers to a situation where there is an assertion of a proprietary orpossessory right to the thing which is the subject matter of the alleged theft (R v Howson, (ON CA), [1966] 2 OR 63(CA). In this case Ms.

Deitner testified that on April 20, 2015 the six feet of land including the grass sod upon it, was her property. Inmy view the Crown’s evidence does not suggest that Mr. Tran had a proprietary or possessory right to the grass sod on the six feet ofland. [16] In conclusion, the Crown has adduced some evidence to prove that the accused fraudulently, with intention to deprive and withoutcolour of right removed the grass sod from Ms. Deitner’s property. Therefore I dismiss the application for non-suit on the theft charge. V. Mischief [17] Section 430(1)(

a) of the Criminal Code states that “every one commits mischief who wilfully destroys or damages property”. Section 429(2) of the Criminal Code states that “No person shall be convicted of an offence under sections 430 to 446 where he provesthat he acted with legal justification or excuse and with colour of right”. [18] As previously stated there is some evidence before the Court that the accused knew or ought to have known of the boundary lineseparating the two properties. I am of the view that there is sufficient evidence for a trier of fact to find that by removing the grass sodfrom Ms.

Deitner’s property the accused wilfully damaged her property. If Mr. Tran wishes to prove he acted with colour of right hemay adduce evidence at the trial proper. VI. Conclusion [19] The Crown adduced some evidence for every essential element of the theft and mischief charges upon which a reasonable andproperly instructed jury could return a guilty verdict on those charges. The non-suit application is therefore dismissed. ___________________________ M. Hinds, J