R. v. Griebel, 2014 NSPC 48

Provincial Court of Nova Scotia Citation: R. v. Griebel , 2014 NSPC 48 Date: 2014-07-21 Docket: 2663950 Registry: Amherst Between: Her Majesty the Queen v. Margaret Griebel Decision Judge: The Honourable Judge Paul B. Scovil Heard: May 14, 2014 in Amherst, Nova Scotia Decision: July 21, 2014 Charge

Section 7(

b) of the Protection of Property Act R.S., c. 363 Counsel: Thomas MacLaren, for the Crown Jeanne B. Sumbu, for the Defendant By the Court: Introduction [ 1 ] Nova Scotia is known as Canada’s ocean playground, but sometimes those who live by our shore do not play so well together. Such is the case here where the juxtaposition of interests of private land owners and members of the local public regarding shoreline usage conflicts and that conflict spills over into confrontation. Ms.

Griebel had an exchange with campers on a shoreline campground and consequently a further exchange with the campground owner that lead to a charge being laid against her for disturbing an occupier of premises by disorderly behaviour under S. 7(

b) of the Protection of Property Act R.S., c. 363. Facts [ 2 ] Mr. Robert Kimber testified that he owns and operates Spencer’s Island Campground in Spencer’s Island, Nova Scotia. Ms. Griebel resides just up the road from him and operates a bed-and-breakfast. Mr. Kimber indicated that he had several interactions with Ms. Griebel concerning his campground and the fact that the old Spencer’s Island’s lighthouse is located on the campground. Ms. Griebel believes the lighthouse is community property. On the date in question at approximately 8:30 p.m., Mr.

Kimber had just shut the lights out in his office when he heard a commotion outside. He could hear Ms. Griebel’s voice from within the office itself. He described the voice as being high-pitched and it was one that he was very familiar with. Mr. Kimber testified that Ms. Griebel was speaking to some of his campers telling them that they had no right to stay there. She was telling them that they had no right to have campfires, should not be there, that they should leave immediately, and they should get their money back for the campsite. [ 3 ] As a result of prior interactions with Ms. Griebel, Mr.

Kimber had a notice served on Ms. Griebel pursuant to S. 3 of the Protection of Property Act notifying her that she was not to be on his property. During the course of this incident, he saw Ms. Griebel standing approximately 20 feet away at a boat launch. She would have been located just at his property line but not within it. Mr. Kimber’s guests were upset and Mr. Kimber eventually had to resort to showing his guest on the Internet the property line for the campground to prove that they were not trespassing while they camped for the night. Mr.

Kimber’s evidence indicated that both he and the campers were quite upset. [ 4 ] The testimony of Ms. Griebel was quite different. She testified in direct-examination that on August 30 th , 2013 at 8:30 p.m., she was home cleaning her bed-and-breakfast. She stated clearly that she was not at the campground that evening. On cross-examination, however, she quickly agreed that she was at the property line of the campground when this exchange took place. When asked what time the interaction with Mr. Kimber took place, Ms. Griebel replied that it happened at exactly 5:19 p.m..

When asked if she had spoken to the campers, she replied that they had talked to her. She indicated that there was a simple conversation where she put forth her concerns regarding having campfires near "our” lighthouse. Apparently, Mr. Kimber had placed four fire pits for his campers near the lighthouse. Issue [ 5 ] At issue in this matter is what is meant by disorderly behavior in reference to the Protection of Property Act . Also at issue are the factual foundations of the matter given the dichotomy between the evidence given by Mr. Kimber and Ms. Griebel.

Before I go on to review the law in relation to this matter, I would like to first thank counsel involved for both their conduct in the trial and the police that

they provided. Both are fairly new members to the bar, but conducted their advocacy and their written briefs in a manner that wascomparable to some of the best that I have seen. [6]

Section 7(

b) of the Protection of Property Act states as follows: 7 Every person who disturbs an occupier of premises by (

b) disorderly behavior, is guilty of an offence and is liable on

summary conviction to a fine of not more than five hundred dollars. Under the Act an “occupier” is defined as including either: (

i) a person who is in possession of premises; or (ii) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control overpersons allowed to enter the premises, notwithstanding that there is more than one occupier of the same premises; [7] At trial, both the Crown and Ms. Griebel agreed that Mr. Kimber is an occupier of the property in question under the Act. Ms.Griebel is not. The question of what is meant under the Protection of Property Act by the words “disorderly behavior” is very much anissue.

While the term “occupier” is defined in the Act, the words “disorderly behavior” is not. [8] The proper approach to statutory construction was explained by Chief Justice McDonald in Cape Breton (RegionalMunicipality) v. Nova Scotia (Attorney General), 2009 NSCA 44 (N.S.C.A.). There the Court stated as follows: 36 The Supreme Court of Canada had endorsed the "modern approach" to statutory

interpretation as expounded by Elmer Driedger,Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87: ... the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme ofthe Act, the object of the Act, and the intention of Parliament. See Re Rizzo and Rizzo Shoes Ltd., (SCC), [1998] 1 S.C.R. 27 at 41; Canada (House of Commons) v. Vaid, 2005 SCC30, [2005] 1 S.C.R. 667; and Imperial Oil Ltd. v. Canada; Inco Ltd. v. Canada, 2006 SCC 46, [2006] 2 S.C.R. 447. 37 It is suggested by some that this approach is no more than an amalgam of the three classic rules of

interpretation: the Mischief Ruledealing with the object of the enactment; the Literal Rule dealing with grammatical and ordinary meaning of the words used; and, theGolden Rule which superimposes context. See Stéphane Beaulac & Pierre-Andre Côté in Driedger's "Modern Principle" at the SupremeCourt of Canada:

Interpretation, Justification, Legitimation (2006), 40 Thémis 131-72 at p. 142. 38 In any event, as Professor Ruth Sullivan explains in Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexisCanada Inc., 2008) beginning at p. 1, this modern approach involves an analysis of: (

a) the statute's textual meaning; (

b) the legislativeintent; and (

c) the entire context including the consideration of established legal norms: The chief significance of the modern principle is its insistence on the complex, multi-dimensional character of statutory

interpretation.The first dimension emphasized is textual meaning. ... A second dimension endorsed by the modern principle is legislative intent. All texts, indeed all utterances, are made for a reason.Authors want to communicate their thoughts and they may further want their readers to adopt different views or adjust their conduct as aresult of the communication. In the case of legislation, the law-maker wants to communicate the law that it intended to enact because thatlaw, as set out in the provisions of a statute or regulation, is the means chosen by the law-maker to achieve a set of desired goals.

Law-abiding readers (including those who administer or enforce the legislation and those who resolve disputes) try to identify the intendedgoals of the legislation and the means devised to achieve those goals, so that they can act accordingly. This aspect of

interpretation iscaptured in Driedger's reference to the scheme and object of the Act and the intention of Parliament. A third dimension of

interpretation referred to in the modern principle is compliance with established legal norms. These norms are partof the "entire context" in which the words of

an Act must be read. ... 39 That said, applying these dimensions is often easier said than done. Professor Sullivan elaborates at p. 3: The modern principle says that the words of a legislative text must be read in their ordinary sense harmoniously with the scheme andobjects of the Act and the intention of the legislature. In an easy case, textual meaning, legislative intent and relevant norms all support asingle

interpretation. In hard cases, however, these dimensions are vague, obscure or point in different directions. In the hardest cases,the textual meaning seems plain, but cogent evidence of legislative intent (actual or presumed) makes the plain meaning unacceptable. Ifthe modern principle has a weakness, it is its failure to acknowledge and address the dilemma created by hard cases. [Emphasis byauthor] 40 Thus in considering whether s. 36 applies to the facts of this case, Professor Sullivan would invite us to answer three questions: Under the modern principle, an interpreter who wants to determine whether a provision applies to particular facts must address the

following questions: * what is the meaning of the legislative text? * what did the legislature intend? That is, when the text was enacted, what law did the legislature intend to adopt? What purposes did it hope to achieve? What specific intentions (if any) did it have regarding facts such as these? * what are the consequences of adopting a proposed

interpretation? Are they consistent with the norms that the legislature is presumed to respect? 41 Finally, in developing our answers to these three questions, Professor Sullivan invites us to apply the various "rules" of statutory

interpretation: In answering these questions, interpreters are guided by the so-called "rules" of statutory

interpretation. They describe the evidence relied on and the techniques used by courts to arrive at a legally sound result. The rules associated with textual analysis, such as implied exclusion or the same-words-same-meaning rule, assist interpreters to determine the meaning of the legislative text. The rules governing the use of extrinsic aids indicate what interpreters may look at, apart from the text, to determine legislative intent.

Strict and liberal construction and the presumptions of legislative intent help interpreters infer purpose and test the acceptability of outcomes against accepted legal norms. [ 9 ] A common sense understanding of the Act comes after reading it in its entirety and shows that the purpose of the Act is to protect the private interest of an individual or corporate entity who possesses or has control of property so that they may use, enjoy and occupy that property in a peaceable manner and remain free from interference and disturbance from either the public or those specific individuals who have been placed on notice pursuant to the Act . [ 10 ] Recourse should also be taken to S. 9(5) of the

Interpretation Act R.S. 1989, c. 235 which states as follows: 9(5) Every enactment shall be deemed remedial and interpreted to insure the attainment of its objects by considering among other matters (

a) the occasion and necessity for the enactment; (

b) the circumstances existing at the time it was passed; (

c) the mischief to be remedied; (

d) the object to be attained; (

e) the former law, including other enactments upon the same or similar subjects; (

f) the consequences of a particular

interpretation; and (

g) the history of legislation on the subject. [ 11 ] The history of the Protection of Property Act has been considered in decisions dealing with other aspects of the Act other than the one before this Court. Nonetheless, those decisions are instructive. Judge Peter Ross in R. v Marcocchio 2002 NSPC 7 at paragraph 27 said: 27 The Bill later to become the Protection of Property Act came forward for 2nd reading before the 1st session of the Nova Scotia House of Assembly on May 27th, 1982. Open hearth furnaces were then still operating at Sysco.

The Attorney General of the day, the Honourable Harry How, spoke to the concerns which the Bill was intended to address. He noted first the concerns of shopping centre owners who wished to have some simple sanction available against improper conduct and behaviour in shopping malls. Another concerned group were operators of private recreational parks who, again, wished a simpler remedy than a civil tort action in order to

restrict and remove people who were misbehaving. Others concerned were rural land owners, whose wood lots, and farms were subjectto continuing trespass by snowmobilers and other forms of recreation. It appears the Bill was thus intended to address the mercantileinterests of mall owners and recreational parks, and the privacy interests of rural land owners. It was noted that the common lawremedies such as injunctions or damages in tort were to be preserved.

The bill reflected changes brought about through the interventionof various groups such as hunters and fishers, spoken to by the member for Cape Breton South, Mr. Vincent MacLean, and the concernsof the Trade Union movement spoken to by the member for Halifax-Chebucto, Ms. Alexa McDonough. She also felt the arrest powersexpressed in the legislation were "inadvisable", and found herself in the "rather unusual position" of agreeing with the member for CapeBreton Nova Mr. Paul MacEwan and joined him in voting in opposition to the Bill. [12] Further in a Youth Court matter, R. v. N.F. 2004 NSFC 3 (N.S. Fam.

Ct.), Chief Judge Comeau utilized the above passage fromMarcocchio in considering the Protection of Property Act. Chief Judge Comeau went on to say that reliance on the dictionary meaningof words is sometimes condemned or dismissed as useless and statutory

interpretation. Further, that the definition of words are not thesame in every dictionary. The Chief Judge was quite correct in what he said about the dismissive attitudes of Courts towards theutilization of dictionaries to interpret the meaning of words. Quite frankly, I’m not sure why Courts frown on using ordinary dictionarymeanings as a tool for the

interpretation of words within a statutory context. Dictionaries are read daily by people to determine themeaning of words, usually preceded by a teacher saying, “Look that up in the dictionary”. I am not sure if we have determined that it istoo pedestrian to utilize such a common reference as a dictionary, but I do not see the problem with it. Dictionaries are meant to be readby ordinary people and Court decisions should be accessible to those people as well.

As to concern that the definition of words are notthe same in every dictionary, decisions across the country are often not the same and not reconcilable with each other. The Courtsseemed to deal with that reasonably well. [13] Black’s Law Dictionary (8th Ed.) defines “disorderly conduct” as “behavior that tends to disturb the public peace, offend publicmorals or undermine public safety”.

I am specifically reminding myself not to use that definition, but I must say it has aspects which areuseful in determining what disorderly behavior might be. [14] In any event, I find that the term “disorderly behavior” within the framework of the Protection of Property Act means behaviorwhich disrupts the peaceable enjoyment and operation of property in a manner that disturbs the occupier or occupiers of that property. [15] Before applying the analysis contained above with regards to this matter, I must make a factual finding as to what exactly took placeon the date in question that led to the charges before me.

This will obviously require a consideration of the credibility of the witnessesbefore me. In this matter, the principles contained in R. v. W.D. (SCC), [1991] 1 S.C.R. 742 apply. I must firstdetermine if I believe Ms. Griebel. If I believe what she has said, then I must acquit as it would leave me with reasonable doubt as to herguilt. Even if I do not believe her, I must determine whether her evidence might still raise a reasonable doubt. That reasonable doubt ofcourse would go to the benefit of the accused and would result in acquittal. Finally, if I reject in totality the evidence of Ms.

Griebel andthat if in it’s entirety, evidence tendered by the Defence does not raise a reasonable doubt, I must still review all of the evidence todetermine if I have any doubt on any element of the offence before me. If I have any reasonable doubt on any element of the offence, Imust acquit Ms. Griebel. [16] I find I cannot accept Ms. Griebel’s version of what took place at Spencer’s Island Campground on the day in question. She clearlystated that she was not at the campground that evening when asked in direct evidence.

Only on cross-examination did she come forth andadmit that she was in a position to have the conversation with the camper that formed the subject matter of the complaint. I foundthroughout her evidence that she was less than frank and forthcoming in relation to what took place. Ms. Griebel’s reference to thelighthouse on Mr. Kimber’s campground as “our lighthouse” gives me grave concerns that she tailored her evidence in a manner thatwould suit her as opposed to the truth. Accordingly, I reject her evidence and after reviewing it, I find it does not raise a reasonable doubt. [17] Having rejected Ms.

Griebel’s evidence, I still must review the entire evidence before me to determine if at the end of that process, Ihave any reasonable doubt. I accept Mr. Kimber’s evidence that he was quite able to recognize Ms. Griebel’s voice and that thecommotion had occurred by the lighthouse. I accept that Ms. Griebel was attempting to discourage campers from being on that propertyand from utilizing that campground in the manner that it was meant to be by the campground owner, Mr. Kimber. I find that the conductof Ms.

Griebel amounted to “disorderly behaviour” as it is meant under the Protection of Property Act and accordingly, I convict her ofthe offence as charged. Paul B. Scovil, JPC.