Her Majesty the Queen - v. -, 2012 SKPC 137

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 137 Date: August 30, 2012

Summary Offence Ticket #: 7418478 Location: Wynyard _____________________________________________________________________________ Between: Her Majesty the Queen - and - Norman M. Hall Appearing: Cst. James Floyd For the Crown Norman Hall For the Accused JUDGMENT J. PLEMEL , J Introduction [ 1 ] Norman Hall is charged under section 4(1)(

b) of The Trespass to Property Act , Statutes of Saskatchewan, 2009 (hereinafter referred to as the Act ). The date of the alleged offence is July 2, 2011.

[ 2 ] The subsection under which Mr. Hall is charged reads as follows: 4(1) For the purposes of clause 3(1)(a), entry in or on premises is prohibited if any person: (

b) enters in or on enclosed lands that are the property of another person. ... [ 3 ] The following are other relevant sections of the Act : 2(a) “enclosed land” means land that: (

i) is surrounded by a fence, a natural boundary or a combination of a fence and a natural boundary. (ii) is enclosed in a manner that indicates the occupier’s intention to keep persons off the occupier’s premises or animals on the occupier’s premises: or (iii) .... 2(e) “premises” means lands or structures... 3(1) Without the consent of the occupier of a premises, no person who is not acting under a right or authority conferred by law shall (

a) enter in or on the premises when entry is prohibited pursuant to this Act : 3(2) For the purposes of subsection (1) the onus rests on the defendant to prove, on a balance of probabilities, that he or she had the consent of the occupier to enter in or on the premises or to engage in the activity in or on the premises. 4(3) A person found in or on enclosed land is presumed not to have the consent of the occupier to be there. 7(2) It is a defence for a person charged with an offence pursuant to

section 3 or 5 to prove, on a balance of probabilities, that entry in or on the premises or the activity there engaged in was: (

c) undertaken in the honest and reasonable belief that he or she had the consent of an occupier of the premises (

d) undertaken in the honest and reasonable belief that he or she had lawful justification to enter in or on the premises or to engage in the activities complained of. Evidence [ 4 ] Neil Campbell, the owner of the land in question, testified that, while checking his barbed wire fence in early July 2011, he found an area of the fence down covered in dirt. The mound of dirt looked relatively fresh. He telephoned Michael Yaskowich who was a Rural Municipal (RM) Counsellor and deputy reeve for the municipality in question. He asked him if the RM had authorized someone to go onto this land and Mr.

Yaskowich told him the RM had not. Mr. Yaskowich had an idea that Norman Hall may have been the one who did this so he called him and asked. Mr. Yaskowich was called as a witness by the Crown. [ 5 ] I ruled that Mr. Yaskowich was a person in authority when he made this phone call and after hearing evidence on a voir dire , ruled the comments made to Mr. Yaskowich by the accused during this call were made voluntarily and were admissible. Mr. Hall readily admitted to Mr. Yaskowich that he had entered Mr. Campbell’s property and removed a beaver dam just over the property line. Mr.

Hall testified at trial that when he learned from Mr. Yaskowich that Mr. Campbell had concerns about him having done so, he attempted to call him but the message manager on his phone was full and he was unable to leave messages. Mr. Campbell reported the matter to police and Mr. Hall was soon charged. [ 6 ] Mr. Hall testified at trial and explained why he felt justified in going on the property to remove the dam. In addition he called his brother, Ernest Hall with whom he farms and also Christian Thordarson.

[ 7 ] Christian Thordarson testified that he had been contracted by the RM to remove beaver dams on the property in question including on Jolly Creek. When doing so, he removed one close to Mr. Campbell’s property line which had a fence intertwined in it. He could not remove the beaver dam without damaging and removing the fence. As he left the area in the machine he was operating he almost got stuck and, in extricating the machine, he covered the fence with mud. He reported this to Mr. Campbell when it happened and Mr. Campbell said it was fine, he would take care of it. [ 8 ] Mr.

Thordarson was not asked what month or year this happened. However, Ernest Hall testified that a fence in this area was intertwined in a beaver dam in 2010 and that this dam was removed and the fence taken down that year. I am proceeding on the basis that Mr. Thordarson took out the beaver dam and fence sometime in 2010. Mr. Campbell was not asked if he had put up the fence after it was taken down in 2010. There is no evidence that this fence was ever put back into place. Mr. Hall testified that the fence was down when he came to the scene in 2011.

The Crown has not satisfied me that the fence was in place when the accused removed the beaver dam on the date charged. The evidence indicates it was taken down one year earlier. [ 9 ] It appears from the evidence that beaver constructed a new dam in the same area after Mr. Thordarson took down the fence. The accused, Norman Hall states that in July 2011, he attended that area to remove beaver dams which were damming Jolly Creek. Prior to attending he did not know that one of the dams was on Mr. Campbell’s property. He was aware of some dams upstream from the property.

When he got to the area with his equipment to remove those which were upstream he could see that one dam was just over Mr. Campbell’s property line. He did not have a cell phone with him to call Mr. Campbell. He had on two prior occasions entered Mr. Campbell’s property to remove beaver dams. Once he had been contracted by the RM to do it. On another occasion he did it without permission but without any protest or complaint from Mr. Campbell. On this occasion in July 2011, he saw what he estimated was 150 to 200 feet of fence down. He felt that Mr.

Campbell would have no objections to him going onto this land through this opening to remove the beaver dam. He believed this for several reasons: 1. He had been on the land twice before to remove dams. 2. The fence was down at the point where the beaver dam was located. 3. The dams on the creek were causing rural municipal access roads to the farms of Mr. Campbell, Ernest Hall and Norman Hall to be flooded. 4. He felt he was providing a service to all three of them by taking out the dam in question. [ 10 ] Norman Hall therefore entered Mr.

Campbell’s property in the area where the fence was down and removed the dam. Issues [ 11 ] The issues are: 1) Was the land enclosed as defined in s. 2(a)? 2) If the land was enclosed, does Norman Hall have defences available to him under subsections 7(2)(

c) or (d)? Analysis [ 12 ] I find the land at this location was not surrounded by a fence or a natural boundary and was therefore not enclosed land as defined by s. 2(a)(

i) of the Act . I find the gaping hole in the fence which was about 150 to 200 feet wide means the land was not “surrounded”. There is no evidence of any other natural boundary. I find that it was not otherwise enclosed as defined in s. 2(a)(ii). Since there was a wide hole in the fence, it was not enclosed in a manner that indicated the occupier’s intention to keep persons off the occupier’s premises or animals on the occupier’s premises at this location.

[ 13 ] Therefore, in dealing with the first issue, I conclude that Mr. Hall did not enter on enclosed land and I find him not guilty of this offence. [ 14 ] I do not find it necessary to comment further on the second issue. J. Plemel, J