R. v. Kilfoy, 2023 NLSC 91

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Kilfoy , 2023 NLSC 91 Date : June 20, 2023 Docket : 202206G0093 HIS MAJESTY THE KING v. Jonathan Kilfoy Before: Justice Peter A. O'Flaherty Reasons for Judgment Place of Hearing: Grand Bank, Newfoundland and Labrador Date of Hearing: May 15, 2023 Date of Oral Judgment: May 15, 2023

Summary: The accused was charged with three Criminal Code offences, break and enter with intent, unlawful entry of a dwelling house, and mischief by willfully interfering with the lawful use or enjoyment of property by being in a residence unwanted and intoxicated without permission. HELD: The accused was acquitted on all three charges. Appearances:

Alison J. Manning Appearing on behalf of the Crown Jeffrey H. Slade Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED R. v. Beyo (2000), (ON CA), 144 C.C.C. (3d) 15, 131 O.A.C. 150 (Ont. C.A.); R. v. Dooling(1994), (NL CA), 124 Nfld. & P.E.I.R. 149, 384 A.P.R. 149 (Nfld. C.A.); R. v. W.(D.), (SCC),[1991] 1 S.C.R. 742; R. v. Dinardo, 2008 SCC 24 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT O'Flaherty, J.: INTRODUCTION [1] At the conclusion of Mr. Jonathan Kilfoy’s trial, I dismissed all three charges against him. These are my reasons for thatdecision. [2] Mr.

Kilfoy was charged with breaking and entering the residence of Ms. Amy Drake at 11 Canning Road, Apt. #3, Marystown,NL, on April 1, 2021, with intent to commit an indictable offence, contrary to section 348(1)(

a) of the Criminal Code, (the “Code”), andwith entering Ms. Drake’s dwelling house without lawful excuse, with intent to commit an indictable offence, contrary to section 349(1)of the Code. [3] Mr. Kilfoy was also charged that on April 1, 2021, he willfully interfered with the lawful use or enjoyment of property, theresidence of Amy Drake, “by being in the residence unwanted and intoxicated without permission”, contrary to section 430(1)(

c) of theCode. [4] Mr. Kilfoy elected trial by judge and jury. On May 7, 2023, Mr. Kilfoy re-elected trial in this court by judge alone. The trialwas conducted on May 15, 2023. [5] It is uncontested that Mr. Kilfoy entered and was in Ms. Drake’s apartment in Marystown, NL, on April 1, 2021, and that hewas intoxicated. What is at issue is whether he entered the apartment with Ms. Drake’s permission, whether the door was unlocked, whathe did in the apartment, and when he was told to leave. [6] Based on my assessment of the evidence, I find that Mr. Kilfoy reasonably believed that he had Ms.

Drake’s permission toenter her apartment on April 1, 2021. I further find that he entered her apartment through an unlocked door on the outside of theapartment building. [7] I am therefore left with a reasonable doubt as to whether Mr. Kilfoy “broke into” Ms. Drake’s residence, an essential elementunder section 348(1)(a). I also have a reasonable doubt as to whether Mr. Kilfoy entered Ms. Drake’s dwelling house without lawfulexcuse, an essential element under section 349(1). [8] Based on my assessment of the evidence, I also find that while in the residence Mr. Kilfoy tried to engage Ms.

Drake in aconversation and did nothing else. Furthermore, Ms. Drake did not ask Mr. Kilfoy to leave her residence at any point before he left andhe was therefore not a trespasser in the residence. [9] I conclude from these findings that the Crown did not prove beyond a reasonable doubt that Mr. Kilfoy interfered with thelawful use or enjoyment of property, namely the residence of Amy Drake, “by being in the residence unwanted and intoxicated withoutpermission”. [10] As a matter of law I would also conclude that the actus reus of the offence under section 430(1)(

c) requires proof of somephysical act by the Accused which operates as, or has the effect of causing, some sort of interference with the use or enjoyment ofproperty. Merely trespassing, even while intoxicated, is insufficient. [11] The Crown did not prove all the essential elements of the offence on each of the three charges. Mr. Kilfoy is thereforeacquitted on all three charges. THE ISSUES

[ 12 ] There are three issues: 1. Whether the Crown proved that Mr. Kilfoy broke into and entered the residence of Ms. Drake with intent to commit an indictable offence therein? 2. Whether the Crown proved that Mr. Kilfoy entered the residence of Ms. Drake without lawful excuse and with intent to commit an indictable offence therein? 3. Whether the Crown proved that Mr. Kilfoy wilfully interfered with the lawful use or enjoyment of the residence of Ms. Drake by being in the residence unwanted and intoxicated without her permission? THE APPLICABLE LAW [ 13 ] Mr.

Kilfoy was charged on a three count Bill of Indictment that he: Count #1: On or about the 1st day of April, A.D. 2021 at or near Marystown in the Province of Newfoundland and Labrador, did break and enter a certain place to wit: the residence of Amy Drake situate at 11 Canning Rd. Apt. #3, Marystown, Newfoundland and Labrador with intent to commit an indictable offence therein, contrary to Section 348(1) (

a) of the Criminal Code ; Count #2: On or about the 1st day of April, A.D. 2021 at or near Marystown, in the Province of Newfoundland and Labrador, with without lawful excuse enter the dwelling house of Amy Drake situated at 11 Canning Rd.

Apt #3, Marystown with intent to commit an indictable offence therein contrary to Section 349(1) of the Criminal Code ; Count #3: On or about the 1st day of April, A.D. 2021 at or near Marystown, in the Province of Newfoundland and Labrador, did commit mischief by willfully interfering with the lawful use or enjoyment of property to wit: the residence of Amy Drake situated at 11 Canning Rd., Apt #3, Marystown, Newfoundland and Labrador by being in the residence unwanted and intoxicated without permission, contrary to Section 430(1) (

c) of the Criminal Code and punishable by Section 430(4) of the Criminal Code . [ 14 ] The Crown has the onus to prove all the essential elements of the offence on each of the three charges on the criminal standard of proof. The onus on the Crown remains on the Crown throughout the trial and never shifts to the accused. [ 15 ] The standard of proof required of the Crown to establish guilt is proof beyond a reasonable doubt. While proof beyond a reasonable doubt is not equivalent to proof to an absolute certainty, it is much closer to that than to the civil standard of proof on a balance of probabilities. [ 16 ] The first count alleges that Mr. Kilfoy breached section 348(1) (

a) of the Code . Under section 348(1)(a), the essential elements of the offence which the Crown must prove are the following: • place; • date; • identity; • that Mr. Kilfoy broke into a place; • that Mr. Kilfoy entered a place; • that the place broken into and entered was the residence of Amy Drake; • that Mr. Kilfoy intended to commit an indictable offence when he entered the residence - or must be presumed under section 348(2) to have had an intention to commit an indictable offence when he entered the residence. [ 17 ] The second count alleges that Mr.

Kilfoy breached section 349(1) of the Code by entering the dwelling-house of Amy Drake without lawful excuse and with intent to commit an indictable offence therein.

[18] In R. v. Beyo (2000), (ON CA), 144 C.C.C. (3d) 15, 131 O.A.C. 150 (Ont. C.A.), Rosenberg, J.A., speakingfor the Ontario Court of Appeal stated at paragraph 34: 34 … The offence created by s. 349 can be committed in two ways. It is an offence to "enter" or be "in" a dwelling-house withoutlawful excuse with intent to commit an indictable offence... [19] The Crown has chosen to proceed by one of the two permissible means of commission of the offence set out in section 349(1)of the Code, namely “entry”.

The Crown must prove the offence as charged. [20] Under section 349(1), the essential elements of the offence as charged which the Crown must prove are therefore thefollowing: • place; • date; • identity; • that Mr. Kilfoy entered a dwelling-house; • that the dwelling-house entered was that of Amy Drake; • that Mr. Kilfoy had no lawful excuse for entering the dwelling-house; • that Mr.

Kilfoy intended to commit an indictable offence when he entered or was in the dwelling-house - or must be presumedunder section 349(2) to have had an intention to commit an indictable offence therein. [21] The third count alleges that Mr. Kilfoy breached section 430(1)(

c) of the Code by wilfully interfering with the lawful use andenjoyment of property, namely the residence of Amy Drake situated at 11 Canning Rd., Apt #3, Marystown, NL, by “being in theresidence unwanted and intoxicated without permission”. [22] Under section 430(1)(c), the essential elements of the offence as charged which the Crown must therefore prove are thefollowing: • place; • date; • identity; • that Mr. Kilfoy interfered with the lawful use or enjoyment of the residence at 11 Canning Rd., Apt #3, Marystown, NL; • that the residence was that of Amy Drake; • that Mr.

Kilfoy acted wilfully which means not merely voluntarily but deliberately, intentionally and without lawful excuse. [23] The mere presence of a trespasser in or on a property is insufficient by itself to establish the actus reus of the offence undersection 430(1)(c) (see: R. v. Dooling (1994), (NL CA), 124 Nfld. & P.E.I.R. 149, 384 A.P.R. 149 (Nfld. C.A.)). [24] The physical acts constituting the trespass must operate as, or have the effect of causing, some sort of interference with the useor enjoyment of the property in question to establish the actus reus of the offence. [25] The legal principles in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 are applicable where the accused testifies andcredibility findings must be made because the court is faced with opposing versions of an incident.

[ 26 ] W.(D.) reminds the court to avoid an “either or” reasoning path which compares the stories of a complainant and an accused and picks one over the other. Following such a reasoning process can shift the burden of proof from the Crown and thereby deprive the accused of the right to be presumed innocent. [ 27 ] The authorities state that the decisive question in every case that turns on credibility findings where the accused testifies is “whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt” (see: R. v.

Dinardo , 2008 SCC 24 ). [ 28 ] These are the legal principles which I will apply as necessary in this case. THE EVIDENCE [ 29 ] Constable Bradley Layman, Ms. Amy Drake, Mr. Jonathan Kilfoy, Sr., and the Accused, Mr. Jonathan Kilfoy, testified at the trial. Screen shots of text messages exchanged on March 31 and April 1, 2021, were entered through Ms. Drake. [ 30 ] Constable Layman testified that on April 1, 2021, at approximately 2:30 a.m., the RCMP received a call from Ms.

Drake reporting that there was an intoxicated person in her apartment at 11 Canning Road, Marystown, and the person would not leave. [ 31 ] Constable Layman and another officer responded to the call for service and the Accused was located by the RCMP about 1.5 kilometers away from the property walking along the road. He was observed by Constable Layman to be intoxicated. [ 32 ] Mr. Kilfoy told the police he had been invited to Ms.

Drake’s apartment and claimed he had texts he could show them to prove it but his phone was out of power. [ 33 ] As a result of the police investigation, the Accused was arrested and detained overnight at the RCMP Detachment in Marystown, NL. On April 19, 2021, the three charges were laid. Mr. Kilfoy re-elected trial in this court by judge alone. The evidence about Ms. Drake’s express or implied permission [ 34 ] On March 31, 2021, the Accused and Ms. Amy Drake were involved in an ongoing relationship that was described by Ms.

Drake as “friends with benefits”. [ 35 ] As it was used by the Complainant and Accused, this term refers to a relationship which is sexual without any romantic or other commitment. Mr. Kilfoy testified that he believed they were more than friends having sex occasionally. According to Ms. Drake, by March 31, 2021, this arrangement was ongoing for at least six months. According to the Accused and his father, it was closer to a year. [ 36 ] Screen shots from Ms.

Drake’s phone entered in evidence showed that over the evening of March 31 and the early morning of April 1, 2021, text messages were being exchanged between Ms. Drake and a phone number identified in her contacts as “Johnny Kilfoy”. The contact had a photograph of the Accused attached. It is not disputed that the phone number was that of the Accused, Jonathan Kilfoy. [ 37 ] On the night of the alleged offences, Mr. Kilfoy was having supper and drinking at the residence of Francis Farrell in Little Bay, NL. One of the people with him was Mr. Bernard Drake. On the same evening, Ms.

Drake was out visiting one of her friends in Marystown. [ 38 ] Mr. Kilfoy initiated the texting at 8:19 p.m. with the message “why you not answer”. Ms. Drake responded at 9:44 p.m. with the message “Hows the steak Johnny tell Bernard I said hi lol”. This is consistent with Mr. Kilfoy’s evidence that he had been speaking with Ms. Drake that evening as well as texting with her. [ 39 ] At 11:00 p.m. Mr. Kilfoy sent a text “r u home” to which Ms. Drake replied “R u drunk”. At 11:11 p.m., Mr.

Kilfoy texted “no can i come see you” and followed up at 11:46 p.m. with a text of three emojis, digital images of smiling faces and hearts, to which she responded at 12:04 a.m., “Booty call out of order please call for your next available appointment”. [ 40 ] Between 12:20 a.m. and 12:23 a.m., Ms. Drake and Mr. Kilfoy next exchanged a further series of texts in which Ms. Drake said she was trying to get a ride home, and get some smokes, and Mr. Kilfoy offered to come and get her with a mutual acquaintance, Rendell driving the taxi, an offer which Ms. Drake declined. [ 41 ] At 12:34 a.m. Mr.

Kilfoy asked “are you going home”, at 12:35 a.m. the Complainant responded “yep”, and at 12:36 a.m. the Accused replied “I’ll go up, but I got to deal with him”. According to Mr. Kilfoy, this text referred to dropping Bernard Drake off at his home in the taxi before coming to Ms. Drake’s apartment. [ 42 ] Between 12:21 a.m. and 12:23 a.m., and again between 12:43 am. and 12:52 a.m., a number of texts were sent from Mr. Kilfoy’s phone relating to sexual practices and/or positions and suggesting a three party sexual encounter or “threesome” involving Bernard Drake. Ms.

Drake responded at 12:50 a.m. “U Bernard go threesome ur self’s in la la land bhy” and at 12:52 a.m. “Honey no offence neither one of ye can afford to tap this one time and five minutes ant worth my time or energy”. [ 43 ] In his evidence, Mr. Kilfoy denied sending these texts, or even seeing them on March 31-April 1, 2021. He claimed that they were sent without his knowledge by either Bernard Drake or Francis Farrell who must have accessed his phone when Mr. Kilfoy temporarily left Mr. Farrell’s residence in Little Bay. [ 44 ] The final texts between the phones were sent by Ms.

Drake at 1:03 a.m. asking “can u get smokes or do u have one” followed by a text at 1:05 reading “?????”. Ms. Drake admitted that she sent these texts after that she was told by the taxi driver who was driving her home that Mr. Kilfoy was going to be at her place when she arrived. It is not in dispute that Mr. Kilfoy’s phone lost power sometime after 12:52 a.m.

[ 45 ] Mr. Kilfoy arrived at 11 Canning Road before Ms. Drake arrived in the taxi. His said he entered Ms. Drake’s apartment, Apartment 3, through the unlocked door. [ 46 ] Ms. Drake said she unlocked her apartment door and found Mr. Kilfoy lying on her couch smoking a cigarette. Ms. Drake testified that she was “shocked” to find him there, as she did not invite him and did not want him to spend the night. [ 47 ] Ms. Drake admitted in cross-examination that she was driven home in a taxi by a common acquaintance of the Accused and the Complainant, Rendell, who told her that Mr.

Kilfoy was going to be at her apartment when she arrived home. [ 48 ] Mr. Kilfoy’s father testified that he had dropped his son off at 11 Canning Road on a number of occasions over a period of about one year before April 1, 2021, normally on the weekends. He understood his son was there to visit Ms. Drake. Was the apartment door locked or unlocked when Mr. Kilfoy entered? [ 49 ] Mr. Kilfoy testified that the apartment door was unlocked. Ms. Drake testified that she always locked her door before she went out and she did so that evening.

She said she unlocked the door when she arrived home. [ 50 ] There was no evidence of any damage to the apartment door or door frame, and no evidence of any forced entry. There was also no evidence of any entry to the apartment through a window, and Ms. Drake confirmed the windows were not able to be entered by Mr. Kilfoy. Ms. Drake admitted that Mr. Kilfoy had on other occasions showed up unannounced at her apartment and she did not call the RCMP. What did Mr. Kilfoy do while he was in the apartment? [ 51 ] According to Ms. Drake, Mr. Kilfoy was on her couch when she arrived at the apartment smoking a cigarette.

She testified that he appeared to her to be under the influence of alcohol and drugs, based on her experience, probably cocaine. [ 52 ] There was no other evidence regarding what Mr. Kilfoy did while he was in the apartment except that he was trying to engage Ms. Drake in a conversation. Was Mr. Kilfoy told by Ms. Drake to leave and if so when? [ 53 ] Both Ms. Drake and Mr. Kilfoy testified that Ms. Drake did not at any time tell Mr. Kilfoy to leave while he was in the apartment. Ms. Drake testified that she sat at the kitchen table looking at her phone and “zoned” him out until he got up and left her apartment.

At that point, she locked the door behind him. [ 54 ] Both Ms. Drake and Mr. Kilfoy testified that Mr. Kilfoy knocked on the apartment door and he asked to be let back inside to call a taxi, because his phone had no power. Ms. Drake stated he was calling out and loudly knocking on the door and she warned him to stop or she would call the police because of her neighbors. When he continued to make noise outside the apartment she called the RCMP.

THE POSITIONS OF THE PARTIES [ 55 ] Counsel focused their arguments on the material facts in dispute and how the principles in W.(D.) should be applied in support of their respective positions. [ 56 ] The Crown’s position was that the evidence of Mr. Kilfoy should not be believed and does not raise a reasonable doubt as to his guilt. The Crown submitted that Mr.

Kilfoy’s evidence was fatally flawed because he contradicted himself on the timing of the text messages and when his phone lost power, and because of his evidence about who sent the texts suggesting a threesome involving Bernard Drake. [ 57 ] The Crown submits that Ms. Drake was a credible and forthright witness and that, on the totality of the evidence, convictions on all three charges can be entered. [ 58 ] The position of the Defence was diametrically opposed. The Defence submitted that Mr. Kilfoy’s evidence that he believed he entered the apartment with the permission of Ms.

Drake was believable, and further, that it was consistent with their “friends with benefits” relationship and the content of the texts exchanged that evening, in particular, with the final two texts sent by Ms. Drake. [ 59 ] The Defence submitted that Ms. Drake’s evidence, that she was “shocked” when she found the Accused in her apartment because she did not invite him and did not want him to spend the night, was not credible. The Defence pointed to the content of the texts exchanged and Ms. Drake’s admission that she was told that Mr.

Kilfoy would be at her apartment while she was on her way home in the taxi. [ 60 ] The Defence further submitted that Mr. Kilfoy’s evidence about entering through an unlocked door was wholly consistent with the physical evidence. Finally, his evidence about what he did in the apartment, and that he was never told to leave until he was outside, was consistent with the evidence of the Complainant. ANALYSIS [ 61 ] There is no question on the evidence before me that Mr. Kilfoy entered and was in Ms. Drake’s apartment on April 1, 2021, and that he was intoxicated. There is a dispute about whether he entered Ms.

Drake’s apartment with her permission, whether the door was unlocked, what Mr. Kilfoy did in the apartment, and if and when he was told to leave. [ 62 ] The Complainant testified that Mr. Kilfoy was not invited to her apartment and she did not want him to spend the night. Mr. Kilfoy testified he believed he was invited, and pointed to the texts exchanged that night and the ongoing nature of the relationship to support the reasonableness of his belief.

[ 63 ] I find that Mr. Kilfoy entered Ms. Drake’s apartment with the reasonable belief that he had her permission. My reasons for that finding are the following. [ 64 ] First, and whatever the exact parameters of their “friends with benefits” arrangement were, I find the Accused and Complainant had a relationship of friendship and physical intimacy that had been ongoing for a number of months prior to April 1, 2021.

This finding is supported by the evidence of the Accused’s father. [ 65 ] Secondly, the tone and content of the text messages exchanged between the Accused and Complainant on March 31 and April 1, 2021, which Crown counsel described as “saucy”, support the inference that Ms. Drake understood that Mr. Kilfoy’s intention was to come over and spend the night at Ms. Drake’s apartment and that he wanted to do so in line with their “friends with benefits” arrangement. [ 66 ] Thirdly, the penultimate text sent by Ms. Drake at 1:03 a.m. asking “can u get smokes or do u have one” which Ms. Drake sent after she knew Mr.

Kilfoy’s intention, and she knew he was going to her place, or was already there, supports the reasonable inference that she had acquiesced to him coming over to her apartment. [ 67 ] Fourthly, I find that Ms. Drake’s evidence that she was “shocked” when she arrived and Mr. Kilfoy was in her apartment as she had not invited him, was not credible. Her evidence that he was not invited was inconsistent with the tone and content of her own text messages, and her evidence that his presence was unexpected was contradicted by her admission that she knew Mr.

Kilfoy was going to be there. [ 68 ] Fifthly, there were inconsistencies in Mr. Kilfoy’s evidence regarding the timing of the texts and his suggestion that other persons must have sent the texts suggesting a “threesome” involving Bernard Drake, but they were not important evidentiary inconsistencies on material matters. His disavowal of the “threesome” texts was likely due to the potentially embarrassing nature of the texts. On the totality of the evidence presented, I find that Mr. Kilfoy had a reasonable belief that he had Ms.

Drake’s permission to enter her apartment on April 1, 2021. [ 69 ] On the issue of whether Ms. Drake’s apartment door was unlocked, I find as a fact that Ms. Drake’s apartment door was unlocked when Mr. Kilfoy entered the apartment. My reasons for that finding are the following. [ 70 ] I find that Mr. Kilfoy must have entered the apartment through the outside door at the top of the stairs leading to the landing as the windows were not able to be opened. There is no evidence of any damage to the apartment door or door frame, and no evidence of any forced entry, and Mr.

Kilfoy testified that on prior occasions, when he came over to Ms. Drake’s apartment for a visit, the door was left unlocked. Once he was inside, there was no reason for Mr. Kilfoy to lock the apartment door. [ 71 ] Based on the totality of the evidence, I find that Ms. Drake was mistaken when she testified that the door was locked when she went out earlier that evening and that she unlocked it when she arrived home. [ 72 ] On the issue of what Mr. Kilfoy did in the apartment, I find as a fact that Mr. Kilfoy did nothing except try to engage in conversation with Ms.

Drake, in furtherance of his intention to spend the night with her, and smoke a number of cigarettes. All the evidence points to this finding. [ 73 ] Finally, on the issue of if and when Mr. Kilfoy was told to leave the apartment, I find as a fact that Ms. Drake did not tell Mr. Kilfoy to leave the apartment at any point before he left voluntarily. Again, all the evidence points to this finding. [ 74 ] I further find that, after he left, Ms. Drake locked the door behind him and Mr. Kilfoy started knocking loudly on her door. I find that Ms. Drake warned him she would call the RCMP if he continued making noise.

When he continued, Ms. Drake called the police and reported that Mr. Kilfoy was at her apartment intoxicated and was refusing to leave. Application of the Law to the Facts [ 75 ] Mr. Kilfoy was charged with breaking and entering the residence of Ms. Amy Drake on April 1, 2021, with intent to commit an indictable offence, contrary to section 348(1) (

a) of the Criminal Code . [ 76 ] Based on my factual finding that the Accused entered the apartment through an unlocked door, with the reasonable belief that he had Ms. Drake’s permission to enter, I am left with a reasonable doubt on the issue of whether Mr. Kilfoy did “break into” her apartment, an essential element under section 348(1) (a). [ 77 ] In addition, there was no evidence presented that Mr. Kilfoy entered the apartment with the specific intent to commit an indictable offence therein, an essential element under section 348(1) (a). [ 78 ] Mr.

Kilfoy must be acquitted on the first count under section 348(1) (a). [ 79 ] Mr. Kilfoy was charged with entering Ms. Drake’s dwelling house without lawful excuse, with the specific intent to commit an indictable offence, contrary to section 349(1) of the Code . [ 80 ] Based on my finding that Mr. Kilfoy entered Ms. Drake’s apartment with the reasonable belief that he had her permission to enter, I am also left with a reasonable doubt on whether Mr. Kilfoy entered Ms.

Drake’s apartment without lawful excuse, an essential element of the charge under section 349(1) . [ 81 ] As I noted above, there was no evidence presented that Mr. Kilfoy entered or was in the apartment with the specific intent to commit an indictable offence on entry or therein, an essential element under section 349(1) . [ 82 ] Mr. Kilfoy must be acquitted on the second count under section 349(1) .

[ 83 ] Finally, Mr. Kilfoy was charged that on April 1, 2021, he willfully interfered with the lawful use or enjoyment of property, the residence of Amy Drake, “by being in the residence unwanted and intoxicated without permission”, contrary to section 430(1) (

c) of the Code . As this charge is worded, it appears to allege that Mr. Kilfoy committed the offence of mischief by wilfully interfering with the lawful use or enjoyment of Ms. Drake’s residence by being a trespasser while he was intoxicated. [ 84 ] In R. v. Dooling , supra, Green, J. considered the scope of behavior that is criminally proscribed by s. 430(1) (c). In Dooling two individuals were picketing inside the lobby of a business premises with signage but did not impede or otherwise physically interfere with the passage of customers entering the store.

The business owner asked the picketers to leave and, upon obtaining a refusal, called the police. [ 85 ] On arrival, the police conferred with the business owner, and with the owner of the building, and then asked the picketers to leave.

Again they refused, whereupon both were arrested and charged with mischief by interference with the lawful use and enjoyment of property. [ 86 ] T he trial judge concluded that the business owner, as the lessee of the premises, was interfered with in his lawful use and enjoyment of his interest as a lessee by having to leave whatever else he might have been doing as a businessman and get involved with calling the police, having the police come and having to deal with the picketers. [ 87 ] On appeal, Green, J. held that in order to constitute the external circumstances of this offence, there must be some physical act on the part of the accused which operates as, or has the effect of causing, some sort of interference with the use or enjoyment or potential use or enjoyment of the property. [ 88 ] Importantly, for the purposes of this case, Green, J. found that the fact that the accused were trespassing was only relevant to the offence of mischief if it could be said that the acts constituting the trespass have the effect of interfering with the use or enjoyment of the property in question.

Their mere presence on the property as trespassers did not constitute an interference with its use and enjoyment. R. v. Dooling , supra, has been followed on this point by a number of Canadian courts. [ 89 ] There was no evidence of any physical act on the part of the Accused which operated as, or had the effect of causing, some sort of interference with the use or enjoyment or potential use or enjoyment, of the apartment. Proof that Mr.

Kilfoy was in the apartment “unwanted and intoxicated without permission”, without more, could therefore not have constituted the external circumstances of this offence. [ 90 ] Mr. Kilfoy must be acquitted on the third count under section 430(1) (c). DISPOSITION [ 91 ] Mr. Kilfoy is acquitted on all three charges against him. [ 92 ] Order accordingly. _____________________________ Peter A. O'Flaherty Justice