Her Majesty the Queen - v. -, 2016 SKPC 84

IN THE PROVINCIAL COURT OF SASKATCHEWAN 2016 SKPC 084 Date: June 10, 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 __________________________________________________________________________ TRIAL DECISION 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 a dispute between two neighbours. Sharon Deitner (“the complainant”) lives in a home located at 74 Spence Street in Regina. Mr. Tran lives in a home located at 78 Spence Street which is south of Ms. Deitner’s property. At one time the City of Regina owned a parcel of land which I shall refer to as 76 Spence Street. Seventy six Spence Street was situated in between 78 and 74 Spence Street.

Seventy six Spence Street was bare land largely covered by grass and a one foot strip of gravel which ran along the boundary line with 74 Spence Street. The grass on 76 Spence Street was planted by a previous owner of 78 Spence Street and was cared for and maintained by Mr. Tran after he bought 78 Spence Street in September 2011. Mr. Tran cared for and maintained the grass on 76 Spence Street until April 2015. The dimensions of 76 Spence Street were approximately 12 feet wide by 81 feet deep. [ 3 ] To the naked eye, 76 Spence Street appeared to be part of Mr. Tran’s back and side yard.

There was no fencing or other physical barrier separating Mr. Tran’s back and side yard located at 74 Spence Street from 76 Spence Street. [ 4 ] At all material times, Sharon Deitner owned a wooden fence which physically separated the southern edge of her property line at 74 Spence Street from the parcel of land at 76 Spence Street and in turn Mr. Tran’s property at 78 Spence Street. [ 5 ] In November 2011 the City of Regina notified Mr. Tran that it owned 76 Spence Street and was prepared to consider selling it to him. Mr. Tran was interested in purchasing 76 Spence Street.

At some point in time, the City of Regina notified Ms. Deitner that it was going sell a 12 foot easement south of her property. Ms. Deitner was interested in purchasing the easement. [ 6 ] The Crown takes the position that sometime prior to April 20, 2015 Sharon Deitner purchased the northern one-half portion of 76 Spence Street from the City of Regina. The Crown contends that as a result Ms. Deitner’s purchase of a portion of 76 Spence Street, her former southern property line at 74 Spence Street was extended approximately six feet to the south.

The Crown specifically takes the position that on April 20, 2015 Ms. Deitner owned 74 Spence Street plus a strip of land six feet wide (largely consisting of grass) to the south of her existing wooden fence. [ 7 ] Several days prior to April 20, 2015 a workman employed by Ms. Deitner advised Mr. Tran that in the near future he was constructing a new fence for Ms. Deitner to the south of her existing fence. On April 20, 2015 Ms. Deitner came home from work and observed that a

section of the grass on the six foot portion of her property south of her existing fence had been removed and placed on Mr. Tran’s property. Mr. Tran admitted that he took the grass sod from this area. He testified that he believed this was his grass. The Facts [ 8 ] Sharon Deitner has lived in her home located at 74 Spence Street in Regina for the past 24 years. Mr. Tran purchased his home located at 78 Spence Street in September 2011. At the time Mr.

Tran purchased his property at 78 Spence Street he understood his property was south of and immediately adjacent to the Deitner property located at 74 Spence Street. In September 2011 the two properties were physically separated by a wooden fence owned by Ms. Deitner which ran along side of what Mr. Tran believed to be most of the northern portion of his property (See Exhibit P2 Photo 1 and Exhibit D1) and the southern portion of Ms. Dietner’s property. A chain link fence separated the northern portion of Mr. Tran’s property into a backyard and a side yard. Mr.

Tran’s backyard consisted largely of grass which he cared for except for a

section of gravel which ran along the north side of Ms. Deitner’s wooden fence. [ 9 ] I find that when Mr. Tran purchased 78 Spence Street in September 2011, he misunderstood the correct boundaries of his property. In fact, the City of Regina owned 76 Spence Street, which was a parcel of land situated between the northern portion of Mr. Tran’s property at 78 Spence Street and the southern portion of Ms. Dietner’s property at 74 Spence Street. [ 10 ] By letter dated November 14, 2011 [Exhibit D-3] Chuck Maher, Manager - Real Estate Branch, City of Regina notified Mr.

Tran that the city owned 76 Spence Street and that his personal chattels were encroaching on this property. Mr. Maher also advised Mr. Tran that the city was prepared to consider selling 76 Spence Street for the total sum of $7,780.00. Initially 76 Spence Street was represented to be an area of approximately 1200 square feet. The situation then changed. [ 11 ] Mr. Tran subsequently received a letter dated December 19, 2011 [Exhibit D-4] from Chuck Maher regarding 76 Spence Street.

This letter advised that the potential land now available for purchase was approximately 81 feet deep by 12 feet wide (972 square feet). The letter went on to indicate that the fence located along the northern portion of 76 Spence Street owned by the landowner at 74 Spence Street (Ms. Dietner) was encroaching approximately two inches onto 76 Spence Street. The letter continued as follows: The City of Regina will grant and register this encroachment on title before this land sale occurs. In addition, there is a catch basin pipe located within the subject property.

We will also be registering an easement interest on title before title is transferred. [ 12 ] Total costs were now estimated to be $7,061.60. Mr. Tran gave a $500.00 deposit to the City of Regina on January 5, 2012, and signed a copy of the letter dated December 19, 2011 thereby accepting the terms and conditions as listed in the letter. One of the terms/conditions of the letter was as follows: Upon receipt of your deposit along with a signed copy of this letter, we will request our legal department to prepare an Agreement for Sale that will be forwarded to your solicitor.

Please provide the name and address of your lawyer that will be representing you regarding this land transfer . [emphasis added] However, that was not the end of the matter. It continued to evolve. [ 13 ] Mr. Tran subsequently received a letter dated February 14, 2012 [Exhibit D -5] from Chuck Maher regarding 76 Spence Street and acknowledged receipt of Mr. Tran’s deposit of $500.00 on January 5, 2012. Mr. Maher advised Mr. Tran that the City of Regina’s Real Estate Branch had received a letter of interest from the landowner (Ms. Deitner) north of the subject property boundary (76 Spence

Street), requesting to purchase their proportionate share of “this utility parcel”. Mr. Maher indicated that given this development, theCity of Regina was prepared to move forward with the sale of this land conditionally upon receiving all required approvals. This timethe potential land available for Mr. Tran to purchase was 81 feet deep by 10 feet wide (810 square feet) at a total price of $5,911.50.

Theletter of February 14, 2012 also contained Appendix A which was a drawing that showed how 76 Spence Street (City of ReginaProperty) was situated between 74 Spence Street (Tran Property) and 78 Spence Street (Deitner Property). Mr. Tran signed the letterthereby accepting the terms and conditions as listed in the letter, and returned a copy to the City of Regina. However, that was not theend of the matter. It continued to evolve. [14] Mr. Tran subsequently received a letter dated March 19, 2012 and a drawing, Appendix A [Exhibit D -6] from Chuck Maherregarding 76 Spence Street. Mr.

Maher stated as follows: In response to our on-going discussions concerning the potential land acquisition of that portion of the subject property referenced inArea B on the attached Appendix A, please be advised that the City of Regina’s Real Estate Branch is prepared to move forward withthis project, conditionally upon receiving all of our required approvals. The total land configuration will be based on the actual Plan ofSurvey. [emphasis added] This time the potential land area (Area B on Appendix

A) available for Mr. Tran to purchase was 481.38 square feet at a total cost of$3,516.35. Area B as shown on Appendix “A” is an area 24.60 metres deep by 1.825 metres wide. When metres are converted to feetArea B dimensions are 80 feet and 5.039 inches deep by 5 feet and 11.85 inches wide. [15] Mr. Tran testified that he paid the City of Regina approximately $5000.00 to purchase what he termed “6 feet” of land. Based onall the evidence before me, it appears that sometime in 2015 Mr.

Tran probably purchased a parcel of land approximately 81 feet deep by6 feet wide of land from the City of Regina, more or less, as set out in Exhibit D-6, Appendix A, Area B. I use the words “sometime”and “probably” because Mr. Tran did not tender into evidence the Agreement for Sale respecting his purchase of a portion of 76 SpenceStreet (Area B), any Information Services Corporation Documents evidencing the sale and purchase of the City of Regina land or aSurveyor’s Certificates or Plan of Survey. I am, however, reminded there is no obligation for Mr.

Tran to prove anything in a criminaltrial. [16] The Crown’s sole witness was Sharon Deitner. Ms. Deitner testified as follows: 1. There used to be a 12 foot easement owned by the City of Regina between her property and the property of Mr. Tran. 2. Shortly after Mr. Tran moved into 78 Spence Street (September 2011) the City of Regina decided to sell the 12 easement. She wasasked if she wanted to purchase it or half of it. 3. The City of Regina phoned her and sent some papers to her about the 12 foot easement. 4 After a survey was done by the City of Regina, survey pins were put in on her property. 5.

She paid $5400.00 or $6400.00 to the City of Regina for the one half of the easement which she termed, “the 6 feet”. 6. As of February 29, 2016 (the date she testified in court) “the 6 feet” had been hers for two to three years. No documents were submitted into evidence by the Crown regarding Ms. Deitner’s dealings with the City of Regina.

Specifically, theCrown did not submit any agreement for sale, the Province of Saskatchewan Land Titles Registry Title (certified or uncertified),surveyor’s certificate or plan of survey. [17] In this case the Crown submitted the following documents into evidence: Exhibit P-1, Ms. Deitner’s hand drawn diagram showing the boundaries of her home (74 Spence Street), the 12 foot easement and Mr.Trans property (78 Spence Street); Exhibit P-2, a photo book consisting of four photographs taken by Ms. Deitner of 74 and 78 Spence Street.

Exhibit P-3, an Information Services Corporation “Quick Search Result” document dated June 18, 2015 regarding Lot E, Block 65, Plan102098189. Exhibit P-4, an Information Services Corporation “Surface Parcel Number: 166201231”document dated June 18, 2015. Has the Crown proved beyond a reasonable doubt that Ms. Deitner owned half the parcel of land described as 76 Spence Streeton April 20, 2015? [18] As in any criminal trial, the prosecution bears the burden to prove guilt beyond a reasonable doubt. The Crown must prove eachessential element of the offence charged beyond a reasonable doubt. Mr.

Tran is presumed innocent and bears no burden to proveanything. After considering the whole of the evidence, if there is a reasonable doubt on any element of the offence, he must be found notguilty. [19] In R v Lifchus, (SCC), [1997] 3 SCR 320, [1997] SCJ No. 77 the Supreme Court of Canada has said that thestandard of proof beyond a reasonable doubt is higher than proof on a balance of probabilities but lower than proof to an absolutecertainty. But the standard falls closer to absolute certainty than to proof on a balance of probabilities.

Jurors are instructed that theburden is met when they are sure of the accused person’s guilt, and that if they are not sure of guilt, they must acquit. In R v J.M.H.,

2011 SCC 45 at paragraph 39 the Supreme Court of Canada stated that "a reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond reasonable doubt".

In R v Ahmed , 2013 ONCA 473 at paragraph 3 the Ontario Court of Appeal stated that "in some circumstances the absence of evidence can give rise to reasonable doubt”. [ 20 ] One of the essential elements of each of the charges of theft and mischief that the Crown must prove is that on April 20, 2015 Sharon Deitner owned the land and from which the offences are alleged to have taken place. [ 21 ] In this case the Crown’s evidence that Ms. Deitner owned 76 Spence Street on April 20, 2015 is based on the testimony of Ms. Deitner and in particular three exhibits: P-2, photograph #1, P-3 and P-4. [ 22 ] Ms.

Deitner testified that she took photograph #1 in Exhibit P-2 in the fall of 2014. She indicated that this photograph shows her old wooden fence in relation to her house and Mr. Tran’s home. Ms. Deitner pointed out that photograph #1 shows a post or stake lying on the ground next to some rocks in the foreground. She claims that this stake is next to a peg which was placed in the ground by surveyors and delineates the southern extent of her property. [ 23 ] During the trial the Crown showed Ms. Deitner Exhibit P-3. After examining Exhibit P-3 Ms.

Deitner testified “This is probably mine . . .a description of my property . . . Block 65 is familiar . . . Lot E is what they call the new lot they made . . . like it used to be Lot D when they incorporated the new part, they gave it a new name”. On cross-examination Ms. Deitner could not recall going to Information Services Corporation on June 18, 2015 and could not recall if she gave this document to the Crown. She doesn’t know if Exhibit P-3 is a land title.

She agreed that while she has a mortgage on her property and power line in her backyard, Exhibit P-3 does not indicate that she has a mortgage or an easement on her property. [ 24 ] During the trial the Crown showed Ms. Deitner Exhibit P-4. After examining Exhibit P-4 Ms. Deitner testified “ . . . based on that diagram, my house is surface parcel 166201231 . . . what is now my lot”. She further testified in chief “. . . based on this document, my lot was like this, except for the jog, it was straight across . . . and it had a different number”. On cross-examination Ms.

Deitner read aloud part of the disclaimer on Exhibit P-4 which states as follows: DISCLAIMER: THIS IS NOT A PLAN OF SURVEY The rest of the disclaimer reads as follows: It is a consolidation of plans to assist in identifying the location, size and shape of a parcel in relation to other parcels. Parcel boundaries and area may have been adjusted to fit with adjacent parcels.

To determine actual boundaries, dimensions or area of any parcel, refer to the plan, or consult a surveyor. [emphasis added] [ 25 ] In my view the photograph taken in the fall of 2014 (Exhibit P-2, photo #1) of a single stake lying on the ground some distance away from the area where Mr. Tran removed the grass sod is not proof beyond a reasonable doubt that Ms. Deitner owned this land and the grass upon it on April 20, 2015. [ 26 ] Exhibit P-3 (Information Services Corporation “Quick Search Result” document dated June 18, 2015 regarding Lot E, Block 65, Plan 102098189) is also of limited probative value.

In the first place I am reminded that Ms. Deitner testified in chief “This is probably mine . . . a description of my property.” Ms. Deitner did not seem to be familiar with this document and could not say with certainty that the Quick Search Result was in fact her property located at 74 Spence Street. Indeed the document itself does not refer 74 Spence Street. I am also reminded that Ms. Deitner also candidly admitted on cross-examination that she doesn’t know if Exhibit P-3 is a land title. [ 27 ] Sections 79(2) and 82 of The Land Titles Act, 2000, S.S. 2000, c.

L-5.1 state as follows: Search Results 79(2) A printed title provided by the Registrar in the prescribed manner is admissible in evidence as conclusive proof of: (

a) ownership of the surface parcel, mineral commodity or condominium unit referenced in the title by the person or persons named in the title; and (

b) the type of ownership and the ownership of each person named in the title. Certified copies 82

(1) A copy of a printed document in the land titles registry that is certified by the Registrar in the prescribed manner is admissible in evidence as a true copy of the document without proof of the signature or official position of the Registrar.

(2) A printout of a document recorded and stored in the land titles registry is admissible in evidence as a true copy of the document without proof of the signature or official position of the Registrar if the print out is:

(

a) printed in accordance with the regulations; and (

b) certified by the Registrar in the prescribed manner.

(3) Every document certified by the Registrar in accordance with subsection (1) or (2) is ad- missible in evidence in all cases and for allpurposes for which the document would have been admissible and with the same effect as if the document wereproduced. [28] Exhibit P-3 does not purport to be a Province of Saskatchewan Land Titles Registry Title provided by the Registrar in theprescribed manner. Nor is it certified. As a result it should be given little weight, if any at all. I am of the view that Exhibit P-3 doesnot prove that Ms.

Deitner owned 74 Spence Street and half the parcel of land described as 76 Spence Street on April 20, 2015. [29] I am also of the view that Exhibit P-4 (Information Services Corporation “Surface Parcel Number: 166201231) should also begiven little weight, if any at all. It is not a surveyor’s certificate or plan of survey which I understand actually exists and might haveprovided evidence of the precise dimensions of Ms. Deitner’s property and the actual boundaries of her property in relation to Mr. Tran’sproperty on April 20, 2015.

In addition Exhibit P-4 does not purport to be a document provided by the Registrar of Land Titles in theprescribed form. Nor is this document certified. [30] When I closely examine all of the evidence before me, I am of the view that the Crown has not proven beyond a reasonable doubtthat on April 20, 2015 Ms. Deitner owned half the parcel of land known as 76 Spence Street and from which the grass was removed byMr. Tran. This land may have been owned by City of Regina or by Ms. Deitner. It was probably owned by Ms. Deitner. However, thatis not up to the criminal standard of proof. Accordingly, I find Mr.

Tran not guilty of the offences before me. Colour of Right [31] In the alternative, the defence also took the position that the Crown did not establish that Mr. Tran had no colour of right in relationto the grass sod. [32] In R v Dorosh, 2003 SKCA 134, 183 CCC (3d) 224, at paragraphs 16 and 18 the Saskatchewan Court of Appeal defined themeaning of “colour of right”: [16] The jurisprudential history surrounding the phrase "colour of right" indicates that the meaning of the phrase has a certain quality ofelusiveness (see The Law of Theft and Related Offences by Winifred H.

Holland (Scarborough, Ont.: Carswell, 1998) at pp. 150-170).The definition of the phrase by Martin J.A., speaking for the Court (including Gale C.J.O. and Estey J.A.), in R. v. DeMarco (1973), (ON CA), 13 C.C.C. (2d) 369 (Ont. C.A.) at 372, may be taken to have settled many, if not all, of the contentiousissues raised by earlier Canadian cases where the phrase was considered. He said: ▪ 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.

One who is honestly asserting what he believes to be anhonest claim cannot be said to act "without colour of right", even though it may be unfounded in law or in fact: see R. v. Howson, (ON CA), [1966] 3 C.C.C. 348, 55 D.L.R. (2d) 582, [1966] 2 O.R. 63. The term "colour of right" is also used to denote anhonest belief in a state of facts which, if it actually existed would at law justify or excuse the act done: R. v. Howson.

The term whenused in the latter sense is merely a particular application of the doctrine of mistake of fact. [17] Since DeMarco was decided, the Supreme Court of Canada has dealt with the "colour of right" issue in two cases: R. v. Lilly, (SCC), [1983] 1 S.C.R. 794, 5 C.C.C. (3d) 1; and R. v. Jones, (SCC), [1991] 3 S.C.R. 110, 66 C.C.C. (3d)512. Nothing said in the judgments in either of those cases in any way detracts from Martin J.A.'s definition. If anything, the Court'sdecision in Lilly may be said to impliedly support the definition. In two other cases, R. v.

Lafrance, (SCC), [1975] 2S.C.R. 201, 13 C.C.C. (2d) 289, and R. v. Milne, (SCC), [1992] 1 S.C.R. 697, 70 C.C.C. (3d) 481, the "colour of right"issue arose only incidentally and not as a principal issue. These judgments as well contain nothing that detracts from the DeMarcodefinition. [18] A colour of right can have its basis in either a mistake of civil law (a colour of right provides an exception to s. 19 of the Code;see: The Law of Theft and Related Offences p. 153) or in a mistake in a state of facts.

The mistake in each case must give rise to either anhonest belief in a proprietary or possessory right to the thing which is the subject matter of the alleged theft or an honest belief in the stateof facts which if it actually existed would at law justify or excuse the act done. [33]

Section 322 of the Criminal Code makes the defence of colour of right applicable to theft.

Section 429 extends the defence to theoffence of mischief under sections 430 to 446. [34] In R v Simpson, 2015 SCC 40 , [2015] 2 SCR 827, 2015 SCJ No. 40 the court noted the following in respect to theapplicability of the defence of colour of right, at para 32: To put the defence of colour of right into play, an accused bears the onus of showing that there is an "air of reality" to the asserteddefence -- i.e., whether there is some evidence upon which a trier of fact, properly instructed and acting reasonably, could be left in astate of reasonable doubt about colour of right: R. v.

Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 49-53 and 83. Once this hurdle ismet, the burden falls on the Crown to disprove the defence beyond a reasonable doubt. Applying these principles here, the respondentsbore the burden of pointing to some evidence upon which a trier of fact could be left in a state of reasonable doubt about the respondents'asserted claim of a colour of right to occupy the commercial space.

[ 35 ] The defence has advanced several colour of right arguments based on: 1. A lien, based on a constructive trust or quasi-builder’s lien. 2. The law of emblements. 3. The Improvements Under Mistake of Title Act RSS 1978, c I-1. 4. Mr. Tran’s contractual dealings with the City of Regina. In this case, I am of the view there is no “air of reality” to the colour of right arguments. Conclusion [ 36 ] The Crown has not proved beyond a reasonable doubt that Ms. Deitner owned the property and from which Mr. Tran took the grass sod. As a result I find him not guilty of the offences before the court. ___________________________ M. Hinds, J