Her Majesty the Queen - v. -, 2021 SKPC 59

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 59 Date: December 14, 2021 Information: 90416773 Location: Wakaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Stefan Kolla Appearing: Ms. J. Souter For the Crown Mr. D. Burlingham For the Accused JUDGMENT I.J. CARDINAL , J Introduction [ 1 ] Mr. Kolla is charged that on or about August 4, 2019 he committed mischief by wilfully interfering with the lawful enjoyment of property, without legal justification or excuse, and without colour of right, being a residence, contrary to s. 430(1) (

c) of the Criminal Code [ Code ]. [ 2 ] The Crown called the complainant to testify and tendered a

summary of a warned statement Mr. Kolla provided to police on September 9, 2020 as Exhibit P-1. Mr. Kolla waived his right to a voir dire and admitted that the statement met the test of voluntariness. [ 3 ] The defence called no evidence. [ 4 ] This matter proceeded by way of

summary conviction with the consent of the parties pursuant to s. 786(2) of the Code as the Information was sworn outside the limitation period of twelve months. Facts

[ 5 ] For the most part, the facts are not in dispute. Date, time and jurisdiction are admitted, and that the property involved is the residence owned by the complainant. [ 6 ] On August 4, 2019 the complainant, a single woman, lived alone in her home in a small town in Saskatchewan. Mr. Kolla lived across the street from her, and while they would occasionally wave at each other, they otherwise did not associate. Around midnight, the complainant was “half asleep” on her couch when she heard a knock on the door. It was loud enough to wake her as she was not sound asleep. [ 7 ] She got up and opened the door. Mr.

Kolla was standing there. He looked shaken and appeared to be high from drinking or using marijuana. He was dressed in dress pants and a shirt, like he had been at a party. Mr. Kolla later told police he had been at a wedding, drank heavily, had a fight with his girlfriend, and was dropped off at his home around midnight. He saw the lights on at the complainant’s home and went over, as he needed someone to talk to. [ 8 ] Mr. Kolla told the complainant he had no keys for his house.

Believing he was locked out of his house, the complainant invited him inside and offered him a cup of coffee. [ 9 ] During the 15 to 20 minutes Mr. Kolla was in her house, they talked. However, in cross- examination, the complainant testified that Mr. Kolla did not tell her he had had a fight with his girlfriend and that he wanted to talk about it, nor did he tell her the real reason he was in her house. Mr. Kolla told police the complainant showed him her house, but the complainant did not mention this in her evidence. [ 10 ] At some point the complainant asked Mr.

Kolla if he wanted her to call someone for him, but he declined. He then told her that the comment about his missing keys was just a story and that he could get into his house. [ 11 ] The complainant, upon hearing this, realized that the missing keys story was, in her words, “a ruse”. She felt “he had to go” as she wanted him gone and to be rid of him. [ 12 ] It is not clear from the complainant’s evidence how exactly they made their way to the door, but they did. I do not accept Mr.

Kolla’s explanation to police that he was sitting on the couch with the complainant and he decided to leave because the complainant was dressed in a short skirt, he had become aroused, and he was uncomfortable. [ 13 ] As they were standing at the doorway, Mr. Kolla undid his pants, took out his penis, held it in his hand, and fondled it. According to the complainant, she did not see him open his pants, and testified he must have done it discreetly. His penis was out of his underwear and pants, and the front of his pants was wide open. It was obviously visible as the complainant described it. [ 14 ] Mr.

Kolla admits in Exhibit P-1 that before leaving, he turned around and said something to the effect of, “are you sure you don’t want some of this,” and pulled out his penis, but he does not remember the full details of how he did so. I note that the complainant’s testimony did not indicate that he said anything to her, nor was she asked about anything he said to her. [ 15 ] The complainant testified that other than him holding and fondling his penis while looking at her, Mr. Kolla did not do anything else.

Specifically, he did not touch her with his penis. [ 16 ] The complainant testified that she was getting scared and had to muster the energy to tell him, and did tell him, in no uncertain terms, to go down the stairs and out the door and that if he did not, she would have him removed. [ 17 ] However, after she told him to leave, he did not immediately do so. He continued to stand and look at her for about another 90 seconds or two minutes until, to her relief, he left her residence.

[ 18 ] The complainant testified that she did not like throwing a neighbor out of her house, but she believed, “it was him or me, and I felt like I was at risk”. She did not say why she felt she was at risk, but it is clear that it was the conduct of Mr. Kolla that made her feel that way. [ 19 ] In cross-examination, the complainant said she did not time the encounter, but believed the accused had his penis exposed for approximately 90 seconds to two minutes. She said it was more than just flipping his penis out of his pants.

As well, during the encounter she was pausing because she was thinking about what she was going to do as it was a very uncomfortable situation. [ 20 ] When asked in cross-examination if she interpreted his actions as a sexual advance toward her, she replied that she was worried that he had come into her house wanting to have sex or wanted to display his penis. [ 21 ] Since this encounter, the complainant has tried to avoid any contact with Mr. Kolla, even so much as waving at him. She has been worried about people coming over to her house.

She now locks her doors and, for added protection, inserts two knives into the door jamb to help keep the doors secure. [ 22 ] The complainant testified that she tried to get over it, but it continued to bother her until she reported it to police in August 2020, approximately one year later. The Law [ 23 ] Mr. Kolla is charged with the offence of mischief pursuant to s. 430(1) (c), which states: 430(1) Every one commits mischief who wilfully … (

c) obstructs, interrupts or interferes with the lawful use, enjoyment, or operation of property. [ 24 ] Particularly, he is charged that he did commit mischief by “wilfully interfering with the lawful enjoyment of property, to wit: the residence” of the complainant. There is no question that the residence of the complainant is “property” within the meaning of s. 428 of the Code , being real property. [ 25 ] Section 429 (1) provides: 429(1) Every one who causes the occurrence of an event by doing

an act … knowing that the act … will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to have caused the occurrence of the event. [ 26 ] The accused can avoid liability if he can show, on a balance of probabilities, pursuant to s. 429(2) that he acted with legal justification or excuse or colour of right. Mr. Kolla did not raise any such defences, nor does the evidence disclose any. [ 27 ] As with any criminal charge, the presumption of innocence remains unless and until the Crown proves the guilt of Mr. Kolla beyond a reasonable doubt. Issue

[28] The essential issue is whether the Crown has proven the offence beyond a reasonable doubt. As counsels’ arguments focusedupon whether the Crown had proven the actus reus and the mens rea of the offence, this decision will address those elements. Actus Reus [29] The actus reus of the offence of mischief is an interference with the enjoyment of property. There has been much discussionin the case law about the proper

interpretation of the word “enjoyment” as used in s. 430. [30] In R v Nicol, 2002 MBCA 151, 170 Man R (2d) 127 [Nicol], at paragraph 5, the question was whether “enjoyment” ofproperty was to be considered objectively, as an entitlement to exercise property rights, or whether it should be interpreted from asubjective standpoint, as taking pleasure from the use of property. After considering both positions, the Manitoba Court of Appealfound it should be interpreted from the subjective standpoint, that is, taking pleasure from the use of property.

In doing so, the Courtfollowed the reasoning of the Ontario Court of Appeal in R v Maddeaux (ON CA), 1997, 115 CCC (3d) 122 (Ont CA)[Maddeaux]. Neither the Crown nor Mr. Kolla takes issue with the subjective

interpretation, namely enjoyment of property. [31] However, Mr. Kolla argued that the Crown must also prove the underlying act was “wrongful”, that is, that the underlying actconstitutes a violation of any municipal bylaw, a civil wrong or otherwise offends some provision of the law. This requirement that theunderlying act be “wrongful” arises from the decision of the Alberta Court of Queen’s Bench in R v Hnatiuk, 2000 ABQB 314 [Hnatiuk].There, the accused had an acrimonious relationship with their neighbors which, after many complaints, resulted in mischief charges.

While Veit, J., accepted the broad definition of “enjoyment” as outlined in Maddeaux, she went on to say at paragraph 46: … Common sense tells us that the doing of something which is not illegal is not transformed into a crime by the fact that it annoys aneighbour. However, the doing of something which is wrongful - for example causing a loud disturbance in the middle of the nightwhich contravenes a municipal by-law may also constitute a crime if it disturbs, or interferes with, a neighbour’s sleep.

A purposiveinterpretation of the words of s. 430 leads us to the conclusion that, although the words themselves are broad, they mean that a personwho engages in wrongful behaviour which interferes with the lawful enjoyment of property is guilty of a crime. Mr. Kolla argued that while the act of exposing his penis to the complainant may have interfered with her enjoyment of her property, theCrown did not prove an essential element of the offence, that is, that his act of exposing his penis to the complainant was wrongful. Since the Crown has not proven the underlying act was wrongful, Mr.

Kolla argues he should be acquitted. [32] In Nicol the Manitoba Court of Appeal considered the Alberta Court of Queen’s Bench Hnatiuk decision but did not adopt theelement of “wrongfulness”. I agree with the Court’s comment at paragraph 17: Among the other cases which have considered the matter is R. v. Hnatiuk, [2000] A.J. No. 545 (Q.L.), 2000 ABQB 314, decided by VeitJ. of the Court of Queen’s Bench of Alberta. I mention this case because, unlike the present case and even the two that have been noted,R. v. Drapeau and R. v.

Maddeaux, the conduct of the accused (a husband and wife) towards their neighbours was horrendous.Everything one could imagine was done to make the complainant’s life unbearable in terms of living next door to the accused. I cannothelp but believe that it was this sort of conduct – having nothing to do with a proprietary right – that Parliament intended to criminalizeunder s. 430(1)(d). While the conduct of others who are charged under this

section may be less offensive than that of the Hnatiuks, thedifference is to be reflected in the sentence. Where the nuisance is marginal, the sentence will be adjusted accordingly. [33] The Crown referred to the case of R v Tesar, 2009 SKPC 92, 352 Sask R 1 which adopted the subjective

interpretation ofenjoyment as found in Maddeaux, but which also adopted the reasoning of other courts, notably Hnatiuk, and held that the underlyingact must be proven by the Crown to be “wrongful”. Mr. Tesar was found guilty after trial, and his conviction upheld on appeal in R vTesar, 2010 SKQB 449, 373 Sask R 13. However, the issue of “wrongfulness” was not the subject of the appeal.

Before me, the Crownsubmitted that it need only prove the act was wilfully done, but not that the act itself was wrongful. [34] Although neither counsel referred to it, in R v McIntyre, 2019 SKQB 66 [McIntyre] the Saskatchewan Court of Queen’sBench discussed the elements of the offence of mischief. The facts are outlined at paragraph 9: On the evening of February 22, 2016, shortly after the complainant returned from work, the appellant and a friend entered the Propertyunannounced and uninvited. The complainant asked both men to leave but they refused. Both men appeared to have been drinking.

Thecomplainant testified that the appellant was intoxicated. Other than sitting on the floor and refusing to leave, the appellant took no overtaction against the complainant. Feeling unsafe, the complainant called the RCMP, who attended at the scene and arrested the appellant.At the time of his arrest, the appellant told the attending officer that he owned the Property and was entitled to be there.

[35] Turning to the actus reus, Elson J., stated at paragraph 24: There appears to be no dispute as to the actus reus of the offence of mischief. As the trial judge noted, this was set out in the OntarioCourt of Appeal decision in R v Maddeaux (1997), (ON CA), 115 CCC (3d) 122 (Ont CA) [Maddeaux], a definitionlater adopted by the Manitoba Court of Appeal in R v Nicol, 2002 MBCA 151, 170 CCC (3d) 59. In Maddeaux, the court described theactus reus of the offence as follows at 127: The charge in the instant case is that Mr. Maddeaux wilfully interfered with the lawful use or operation of property. In my view, thewords "use, enjoyment or operation" in s. 430(1)(

c) are to be read ejusdem generis. "Use" of this property would include being present inthe apartment for the purposes of cooking, eating, cleaning, resting, sleeping, listening to the radio and watching television. The word"enjoyment" might include any or all of those uses. … [36] The decision in McIntyre adopts the reasoning of the Ontario Court of Appeal in Maddeaux and of the Manitoba Court ofAppeal in Nicol.

By doing so, it signals that it is not following the reasoning of the Alberta Court of Queen’s Bench in Hnatiuk, and theCrown need not prove the act complained of was “wrongful”. [37] There is no discussion in McIntyre about an onus upon the Crown to prove the underlying act was “wrongful” in the sensethat it must constitute a violation of any municipal bylaw, civil wrong, or otherwise offend some provision of the law. Why not? Simplybecause it is not required. [38] Firstly, on a plain reading of the applicable Code provisions, there is no requirement that the underlying act be unlawful orwrongful.

Such wording does not appear anywhere in s. 430, nor in s. 429 when referring to the act and whether it was wilfully done. [39] Secondly, requiring the Crown to prove the underlying act was wrongful or unlawful in the sense that it must constitute aviolation of any municipal bylaw or otherwise offend some provision of the law would, presumably, mean the Crown must prove sobeyond a reasonable doubt.

This would be in addition to proving beyond a reasonable doubt that the wrongful act interfered with theenjoyment of property and that it was done wilfully. [40] A dilemma would then arise if the underlying wrongful act alleged to found a charge of mischief by interfering with thelawful use or enjoyment of property was a civil wrong. Is the Crown then in the position of having to prove the civil wrong beyond areasonable doubt (the criminal standard) or to the civil standard (on a balance of probabilities)?

The Crown would also have to prove thecivil wrong wilfully interfered with the use and enjoyment of the property, being the actus reus and mens rea of the offence of mischief. [41] In my opinion, requiring the Crown to prove the underlying act is wrongful would result in trials involving a charge ofmischief becoming unwieldy and unnecessarily complex. [42] The decision of the Saskatchewan Court of Queen’s Bench in McIntrye is binding upon me.

As it adopted the ratio of Nicol, I find there is no requirement for the Crown to prove the underlying act was wrongful. [43] I find the Crown has proven the actus reus beyond a reasonable doubt. Using the subjective test, the evidence establishesthe complainant felt her personal safety and that of her property was at risk from Mr. Kolla and his behavior on August 4, 2019. He hadgained entrance to her residence late at night by lying to her. Although she voluntarily let him inside, she immediately withdrew herconsent when she found out that he was not locked out of his home.

He deliberately removed his penis from his pants and fondledhimself in front of her. He continued to do so even after she clearly and unequivocally told him to leave. Once he left, her fear for hersafety continued and she took further actions to secure her home by placing knives in the door jamb to better secure the door. She alsoavoided all contact with Mr. Kolla, and did not invite any further interaction between them.

The events of August 4, 2019 continued tobother her one year later such that she made a complaint to police. [44] By remaining in her home when he was told to leave, and by exposing his penis, Mr. Kolla interfered with the lawfulenjoyment of the complainant’s property. [45] If I am mistaken as to the law, and a wrongful act is required to be proven, arguably Mr. Kolla was a trespasser in the home ofthe complainant when he entered under false pretenses or refused to leave immediately when told to do so. He provided no evidence of

lawful justification or excuse to be in the complainant’s residence for any purpose, especially to expose his penis and fondle himself. Byexposing his penis, he runs the risk of being convicted of offences under the Code, such as committing an indecent act in any place withintent to insult or offend any person pursuant to s. 173, an assault pursuant to s. 266 or sexual assault pursuant to s. 271 by attempting orthreatening by

an act or gesture to apply force to another person that interferes with their sexual integrity, or other criminal offences. [46] Having found the Crown has proven the actus reus beyond a reasonable doubt, I now turn to the mens rea of mischief. Mens Rea [47] The mens rea of mischief is wilfullness, which is defined in s. 429 (1), which I repeat for ease of reference: 429(1) Every one who causes the occurrence of an event by doing

an act … knowing that the act … will probably cause the occurrenceof the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to have causedthe occurrence of the event. [48] R v St. Pierre (SK CA), 1987, 61 Sask R 80 (CA) mischief was found to be a general intent offence andself-induced intoxication provides no defence.

Further, the mental element is satisfied by showing no more than an intentional orreckless causing of the actus reus; in this case, interference with the enjoyment or the use of property. [49] Here I find the Crown has proven that the accused wilfully interfered with the enjoyment of the complainant’s property. [50] I find Mr. Kolla deliberately lied to the complainant to gain access to her residence. Once inside, he could see she was alone.He knew he was to leave her residence as he was standing in front of the door, and told police that he was about leave.

The complainantthought he was leaving as she testified she wanted him out of her home after she discovered he had lied to her. [51] Yet, rather than leaving, he deliberately removed his penis from his pants, turned around and exposed himself to her. He hadalready interfered with the complainant’s property by perpetrating a ruse to get inside her residence that made her uncomfortable. Thisunwarranted and disturbing behavior of exposing his penis contributed to the offence and no doubt heightened the complainant’sdiscomfort and the interference with her property. To make matters worse, Mr.

Kolla stood, exposing himself, until the complainant toldhim to leave or she would have him removed from her residence. Still, after being told to leave or she would have him removed, hestood an additional amount of time until, as she said, he could see she meant business and left. Whether his penis was exposed for 90seconds, two minutes or some other amount of time is of no consequence. [52] Mr. Kolla argued that his single incident of exposing his penis was more along the lines of a crude sexual advance. Nothing inthe evidence suggest such was the case. Further, had Mr.

Kolla thought it was a crude sexual advance, a contextual review of all of theevidence shows otherwise. It was an intentional disturbing and ongoing interference with the complainant’s enjoyment of her property. [53] Mr. Kolla also suggested that exposing his penis to the complainant was an isolated incident and as such should not becriminalized as many of the cases involve multiple instances that lead to conviction.

There is nothing in the wording of s. 430 thatsuggests more than one incident must occur before a criminal conviction can result. [54] In McIntyre, the intoxicated accused and his friend entered a home and sat on the floor, refusing to leave when told to do soby the complainant. No other action was taken by the accused. That too was a single isolated incident that resulted in a conviction for acriminal offence. As noted in Nicol, at para. 17, while the conduct of some who are charged under this

section may be less offensivethan others, the difference is to be reflected in the sentence. Conclusion [55] For the above reasons, I find the Crown has proven beyond a reasonable doubt that Mr. Kolla wilfully interfered with theenjoyment of the complainant’s property, being her residence, and I find him guilty.

_______________________ Cardinal, J