R. v. Boehler, 2022 NBPC 6

PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF WOODSTOCK Citation: R. v. Boehler, 2022 NBPC 06 Court File No.: 04734907 Between: HIS MAJESTY THE KING - and - JOYCE BOEHLER JUDGMENT Before: His Honour Sébastien A. Michaud Place of hearing: Woodstock, New Brunswick Date of hearing: November 2, 2022 Date of decision: December 16, 2022 Appearances: Nina Johnsen, for His Majesty the King Alex Pate, for Joyce Boehler MICHAUD, P.C.J.: Introduction 1 . Duane Wortman, his wife Sherry Wortman and their two children reside at 5 Boehler Road, Richmond Corner, New Brunswick. 2 .

Joyce Boehler and her daughter, Laura, are their neighbors. 3 . On the basis of the evidence heard at trial, the Wortmans and Boehlers appear to have a hostile relationship. 4 . On June 28, 2021, Ms. Joyce Boehler walked on Boehler Road to the front of the Wortman residence with a folding chair in hand. She set up the folding chair on the shoulder of the road opposite the residence. While she was walking to her resting point and while she was seated, she repeatedly blew into a whistle for approximately 30 minutes.

The Wortmans maintain that this conduct was meant to interfere with the enjoyment of their property. 5 . This case is about whether the Crown has proven the guilt of Ms. Joyce Boehler on the charge before the Court beyond a reasonable doubt. The Charge 6 . Joyce Boehler is charged as follows:

On or about the 28 th day of June, A.D., 2021, at or near Richmond Corner, in the County of Carleton and Province of New Brunswick, did commit mischief by wilfully obstructing, interrupting or interfering with the lawful use, enjoyment or operation of property of Duane Wortman and Sherry Marshall-Wortman, situate at 5 Boehler Road, contrary to Section 430(1) (

c) of the Criminal Code of Canada and amendments thereto . 7 . The Crown elected to proceed by

summary conviction in this matter. The Evidence The Crown 8 . Three witnesses were called by the Crown to testify in this matter. Alex Wortman, Duane Wortman and Sherry Wortman. Alex is the son of Duane and Sherry. 9 . The testimony of the Wortmans indicated that they reside at 5 Boehler Road in Richmond Corner, New Brunswick. This is their family residence. They have been living there for the last 11 years. The only other residence on Boehler Road is the one occupied by the Boehlers, Joyce and her daughter Laura.

Both residences are on the same side of Boehler Road, separated by a distance of approximately 350 to 400 feet. 10 . Alex Wortman testified that on June 28, 2021, he was residing with his parents, his sister and his girlfriend at the family residence. A friend and this friend’s girlfriend were also present at the residence that day. At around noon time, according to him, he was out in the yard with his friend and he observed Joyce Boehler on Boehler Road near his residence. She was, in his words, “mouthing off and blowing a whistle”. Alex Wortman testified that Ms.

Boehler was saying “They stole the roof off of my barn”. Alex Wortman gave evidence to the effect that Ms. Boehler was blowing in a small whistle that he described as a gym class whistle. He confirmed that the whistle emitted a high-pitched sound. Alex Wortman testified that Ms. Boehler was being a nuisance and that she was trying to annoy them. He stated that he was annoyed, irritated and aggravated by Ms. Boehler’s whistle blowing and that he tried to ignore it while carrying on with his work on a vehicle. He confirmed that he did not interact with Ms. Boehler during this incident.

Alex Wortman testified that he called the police to report Ms. Boehler’s actions. 11 . Duane Wortman testified that on June 28, 2021, at around noon time, he was walking on Boehler Road towards the upper driveway of their property and he observed Joyce Boehler on the road, walking in the opposite direction with a folding lawn chair in her hand. She was saying something in a demanding tone of voice in his view, but he could not decipher what was being said and he ignored her. He explained that the upper driveway is approximately 30 feet from the Boehler’s driveway and that they run parallel to one another. Mr.

Wortman has storage trailers at that upper driveway. The upper driveway is approximately 200 feet from the Wortman’s main driveway. Duane Wortman testified that he walked back down to the main driveway and observed Ms. Boehler who was on the opposite side of this driveway blowing a whistle while watching his son and his son’s friend in their yard. He described the whistle as a basketball referee type whistle and stated that the sound emitted by it was sharp pitched. Mr. Wortman testified that he carried on with his regular chores that day and that he unsuccessfully tried to ignore the whistle sounds.

He could hear them at his chicken coop which is 175 feet away from his main driveway. Duane Wortman gave evidence that Ms. Boehler’s actions made a mess of his daily activities, that they put him in a bad mood and that it ruined his day. 12 . Sherry Wortman testified that on June 28, 2021, she was doing some cleaning in the residence when she heard a whistle. The windows of her residence were opened. She went into the garage and in the yard. She observed Joyce Boehler on the road and blowing the whistle. She testified that Ms. Boehler was also yelling something at her son, Alex.

Sherry Wortman gave evidence that she found Ms. Boehler’s whistle blowing aggravating and that it interfered with her chores that day, in particular her house cleaning. She testified that she had to stop them and keep an eye on her son and his friends who were becoming agitated by Ms. Boehler’s conduct. Alex’s girlfriend wanted to confront Joyce Boehler. Ms. Wortman held her back. Sherry Wortman also testified that she found it aggravating having to deal with the actions of Ms. Boehler, which she qualified as “BS”, that seemed a constant problem in her view.

She stated that this incident of June 28, 2021, where Joyce Boehler was sounding off her whistle, lasted for one half hour or so. It concluded when Laura Boehler came in a motor vehicle to pick her mother up. 13 . The Wortman property is equipped with a video surveillance system. Sherry Wortman testified that she activated same on the day of the incident with Ms. Boehler because, in her words, “this is a constant thing we deal with”. She provided a copy of the recording to the RCMP. This recording was received in evidence at trial by consent and marked as Exhibit C-1. It contains both video and audio

footage. She testified that the date shown on the recording was accurate and that the time shown was accurate within approximately 10 minutes. 14 . The footage played in court at trial from Exhibit C-1 and shown to each of the witnesses called by the Crown was from Camera 3 of the Wortman’s video surveillance system. Both Alex and Sherry testified that the sound of the whistle heard on the video recording was somewhat toned down when compared to what they heard in person. Duane testified that the tone of the whistle heard on the video recording was close to the same as in person. 15 .

The Court was able to observe and hear the recording while it was being played for the witnesses during the trial. It was observed that Camera 3 points towards the Wortman’s main driveway and Boehler Road as those are the images that were captured. Alex Wortman identified himself, his father and his mother on the recording. 16 . On the footage played in court, near the beginning, a whistle being blown can be heard. Shortly thereafter, a person is observed on the left of the video slowly walking on Boehler Road towards the Wortman residence.

This person, identified as Joyce Boehler by each of the Wortmans, walks right up to the front of the Wortman residence, albeit on the opposite side of the road. She stops there and eventually sits down on her folding chair. She is identified by all 3 witnesses as the person blowing the whistle. 17 . During one half hour or so, Ms. Boehler remains in front of the Wortman residence and blows into the whistle sporadically, at various times, multiple times, for no apparent reason. She does not appear in any distress nor needing any assistance or help.

In fact, at one point on the video, another person, identified by Alex Wortman as being Laura Boehler, is seen walking towards her mother and then pass by her. She comes back and appears to be in a conversation with her mother. She then leaves in the direction of her residence. Later, Laura Boehler is identified by Alex Wortman as the driver of a motor vehicle that arrives and stops at Joyce Boehler’s location. The vehicle stays there for a while and then leaves. It comes back not too long after and again stops at Joyce Boehler’s location. After a few minutes, Joyce Boehler enters the vehicle and leaves the area.

Each time Laura Boehler attended the location of her mother, Joyce Boehler would blow into the whistle a few times, for no apparent reason. 18 . Throughout the one half hour or so, the Wortmans are observed on the video at various moments seemingly going on with their chores or activities. As earlier stated, they testified that Ms. Boehler’s actions were either causing a nuisance, being annoying, irritating, aggravating or interfering with their chores or activities even though they each endeavored to ignore her.

They maintain that Joyce Boehler’s conduct was intended to and did interfere with the use and enjoyment of their property. None of the Wortmans engaged Joyce Boehler during the incident. 19 . The Court notes that the person identified on the video as Ms. Boehler by the Wortmans appears at some distance on the recording and that it would have been somewhat difficult to identify her, at least for the Court, solely on the basis of the video. Furthermore, although it can be heard, the whistle cannot be seen on the video as Ms. Boehler, again, is at some distance from the video- camera.

That being said, the evidence of the Wortmans that Joyce Boehler was the person blowing the whistle is uncontradicted. The Defense 20 . The Defense called no evidence at trial. Position of the Parties 21 . The Crown submits that Joyce Boehler’s actions were wilful and that they interrupted with the lawful enjoyment of the Wortmans property. Ms. Johnsen invites the Court to find Ms. Boehler guilty of the offence charged. 22 . Counsel for Ms. Boehler submits that the term “enjoyment” as found in s. 430(1) (

c) of the Criminal Code should be given a limited

interpretation and not refer to a purely subjective state. Otherwise, it makes the offence one against feelings and tastes and not in relation to property. In this context, Mr. Pate argues that the Crown has failed to establish this element of the offence charged. He alleges that the Crown has not met its burden of proving his client’s guilt beyond a reasonable doubt.

The law Onus and Standard of Proof 23. Ms. Boehler, like every other person charged with a crime, is presumed to be innocent until the Crown has proven her guiltbeyond a reasonable doubt. The Crown bears the burden of proof throughout the entire trial. The accused does not have to presentevidence or prove anything. (See R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, [1997] S.C.J. No. 77 (S.C.C.).) 24. This principle was addressed in R. v. Wilson, 2013 NBCA 38, at para. 28. Richard, J.A. (as he then was) said of it: “[it] iscommon to most adversarial systems of criminal law.

It is intertwined with the presumption of innocence, and it requires that, in order tovalidate a conviction, the prosecution bears the burden of satisfying the trier of fact that the accused is guilty on the basis of proofbeyond a reasonable doubt.” 25. Of course, the standard is reasonable doubt and not absolute certainty. In R. v. Lifchus, supra, and in R. v.

Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 (S.C.C.), the Supreme Court of Canada stated that though proof beyond a reasonable doubt does notinvolve proof to an absolute certainty and though it does not require proof beyond any doubt for a conviction to be entered, it is “muchcloser to absolute certainty than to a balance of probabilities” (See Starr, supra, at para. 242.) 26. A reasonable doubt is not based on sympathy or prejudice, nor is it “proof beyond any doubt” or “an imaginary or frivolousdoubt.” (See Lifchus, supra, at para. 31.) 27.

Reasonable doubt must stem from reason and common sense and is logically connected to the evidence or lack thereof. (SeeLifchus, supra, at para. 30.) It cannot be grounded in speculation or conjecture. (See R. v. Thompson, 2015 NSCA 51, at para. 92.) 28. The Crown must prove all the essential elements of the offence beyond a reasonable doubt and in determining whether theyhave met this burden, I must consider the evidence as a whole. Credibility Generally 29. Most criminal cases require a careful assessment of credibility. In R. v.

Gahan, 2014 NBCA 18, at para. 10, the Court ofAppeal addressed the assessment of credibility by trial judges and held it is the function of weighing many factors. A useful startingpoint is to remember that a trier of fact can accept all of the evidence, some of the evidence, or none of the evidence of each witness.(See R. v. H.(W.), 2013 SCC 22, at para. 32; see also R. v. François, (SCC), [1994] 2 S.C.R. 827, at p. 837.) 30. Credibility is not simply the assessment of the truthfulness of a witness but also the reliability of the testimony of thewitness. 31.

Assessing credibility is not a function of a set of rules or a rigid methodology, but rather, as stated by the Supreme Court ofCanada in R. v. Marquard, (SCC), [1993] 4 S.C.R. 223, at para. 49, the “product of the judge or jury’s view of thediverse ingredients it has perceived at trial, combined with experience, logic and an intuitive sense of the matter”. 32. Jurisprudence from the Supreme Court of Canada, the Court of Appeal of New Brunswick, and other courts provide someguidance. The following non-exhaustive list of relevant factors in assessing credibility arises from that jurisprudence: a.

The witness’s opportunities for knowledge; (Gahan, supra, at para. 81.) b. The witness’s powers of observation; (Gahan, supra, at para. 81.) c. The witness’s judgment and memory; (Gahan, supra, at para. 81.) d. The witness’s ability to clearly describe what has been seen and heard; (Gahan, supra, at para. 81.)

e. How the testimony of the witness harmonizes "with the probabilities which a practical and informed person would readilyrecognize as reasonable in that place and in those conditions."; (Gahan, supra, at para. 81.) f. The cogency of the account; ( R. v. D.D.S., 2006 NSCA 34, at para. 77.) g. Inconsistencies, and whether such inconsistencies: i. make the main points of the testimony more or less believable and reliable ii. whether the inconsistency is about something important, or a minor detail; iii. whether the inconsistency seems like an honest mistake or a deliberate lie. (R. v.

C.H. (1999), (NL CA), 182 Nfld. & P.E.I.R. 32 (N.L.C.A.), at para. 23.) h. Whether the witness has an interest in the outcome of the case, or any reason to give evidence that is more favourable to oneside than to the other, though care should be taken not to put undue weight on this factor; (R. v. Laboucan, 2010 SCC 12, at paras. 11-15.) i. An absence of motive for the complainant to lie is a relevant factor to the fact-finding process (R. v. Jackson, [1995] O.J.No. 2471, 28 W.C.B. (2d) 179 (Ont.

C.A.)) however, the trier of fact must be careful to remember that this is but one factor, the accusedhas no obligation to prove a motive to fabricate and to not to let this factor turn into a reversal of the onus of proof; (R. v. L. (L.), 2009ONCA 413, at para. 53.), and j. The demeanour of the witness, though this is but one of the elements that enter into the credibility of the evidence of awitness and can be both an unreliable indicator of truth and fallible. (R. v. Rhayel, 2015 ONCA 377, at para. 89; see also R. v. Dyce, 2017ONCA 123, at para. 12.) 33.

As indicated above, it is also important to consider the reliability of a witness. The fact that a witness may be “found to becredible does not answer the question of whether the evidence provided is reliable…The distinction is an important one and must berecognized by a trial judge in order to reach a just verdict.” (See R. v. Perrone, 2014 MBCA 74, at paras. 27 and 28.) Mischief 34. The crime of mischief is set out in s. 430(1) of the Criminal Code. It reads as follows: 430

(1) Every one commits mischief who wilfully (

a) destroys or damages property; (

b) renders property dangerous, useless, inoperative or ineffective; (

c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or (

d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property. 35. Pursuant to

section 428 of the Code and for the purposes of s. 430(1), property includes both real and personal property. 36. In R. v. Osborne, 2007 NBPC 3, Judge Brien of this Court considered the words “obstructs, interrupts or interferes” as theyare found at s. 430(1)(

c) of the Code. At para. 15, he wrote: 15 With respect to the words “obstructing, interrupting or interfering” each of them connotes an element of interference. In R. v.Hnatiuk, 2000 ABQB 314 , [2000] A.J. No. 545 (Alta. Q.B.), the court observed: . . . 46 One difficulty with the decision to adopt a broad

interpretation of the word “enjoyment” is that the words of

section 430 of theCriminal Code, are, therefore, extremely broad: it is a crime to wilfully obstruct, interrupt or interfere with the lawful use, enjoyment oroperation of property. Wilfully means knowingly, or deliberately, in the sense adopted by the B.C.C.A. in Tan; obstruct means to stand inthe way of; interrupt means to break the continuity of; and, although interfere has a quite technical meaning of interposing or

interspersing, by extension it means “to get in each other’s way”. 37. Concerning the words “use, enjoyment or operation” found at s. 430(1)(c), Judge Brien in Osborne, supra, at paras. 16 and17 wrote the following: 16 With respect to the words “use, enjoyment or operation”, regardless of whether one applies a broad interpretative approach such asthe Ontario Court of Appeal did in R. v. Maddeaux (1997), (ON CA), 115 C.C.C. (3d) 122 (Ont. C.A.) @ 127 or amore restrictive approach as the Quebec Court of Appeal did in R. c. Drapeau (1995), (QC CA), 96 C.C.C. (3d) 554(Que.

C.A.) per Fish J. it appears clear that the conduct complained of must be wrongful in order to bring it from non-criminal tocriminal. (see also R. v. Hnatiuk supra and R. v. Link, [2004] A.J. No. 1405 (Alta. Prov. Ct.) @ para 37 et seq). 17 In Hnatiuk Veit, J. observed at para. 46 “A purposive

interpretation of the words of s. 430 leads us to the conclusion that, although the words themselves are broad, they meanthat a person who engages in wrongful behaviour which interferes with the lawful enjoyment of property is guilty of a crime. 38. The “wrongful behaviour” required to offend s. 430(1)(

c) or 430(1)(

d) of the Code should not be circumscribed to actscontravening a municipal or provincial legislation or to acts constituting a civil wrong or a tort. The wrongful behaviour of

an act for thepurpose of these provisions is in the effect that it has on someone else. In R. v. Anderson, 2009 ABPC 249, Alberta Provincial CourtJudge Wendon, quoting in part from his colleague Judge Fradsham in R. v. Link, 2004 ABPC 223 (Alta. Prov. Ct.), wrote the followingon this topic at paras. 51-53: 51 At para 35 of his decision, Fradsham PCJ said: “It would appear from Her Ladyship’s reasons that to be “wrongful”,

an act mustcontravene a municipal by-law, or constitute a civil wrong (tort). [ FN7]” The footnote reads “It would seem logical that breaches ofprovincial legislation or regulations, or breaches of contractual obligations might also suffice to make

an act ‘wrongful’ for the purposesof Veit, J.’s analysis.” 52 Like my brother Fradsham, I accept the state of the law to be that as is set out in Maddeaux, and that “enjoyment” in the phrase“enjoyment of property” is to be given wide meaning, beyond that suggested in the Phoenix decision. With respect, however, I do notaccept his observation that “to be ‘wrongful’,

an act must contravene a municipal by-law, ...” Veit QBJ clearly uses the breach of amunicipal by law as an example of wrongful behaviour. 53 The term “wrongful behaviour” finds its definition in the effect that it has on someone else. That is evident from the phrase inHnatiuk “... a person ... engage(ing) in wrongful behaviour which interferes with the lawful enjoyment of property is guilty of a crime.” Itis therefore contextual. 39. On the issue of “enjoyment of property”, Mr. Pate, at trial, argued that the term “enjoyment” as found in s. 430(1)(

c) of theCriminal Code should be given the limited

interpretation arrived at by Justice Fish of the Québec Court of Appeal (as he then was), in R.c. Drapeau, (1995), (QC CA), 96 C.C.C. (3d) 554 (Que. C.A.). That matter, of course, dealt with the offence at s.430(1)(

d) of the Code which also contains the same term. Mr. Pate submitted this argument as the reason why this Court should acquithis client. He did not elaborate on any other reasons why Ms. Boehler should be found not guilty of the offence charged except tomention the principle of « De minimis non curat lex ». 40. It appears that the more restrictive approach of the Québec Court of Appeal in Drapeau, supra, to be given to the term“enjoyment” has not received much favor. Other courts have preferred the more expansive interpretative approach found in R. v.Maddeaux (1997), (ON CA), 115 C.C.C. (3d) 122 (Ont. C.A.).

Judge Wendon in R. v. Anderson, supra, canvassedmany decisions on this topic at paras. 25-52 before concluding at para. 52: “[…] I accept the state of the law to be that as is set out inMaddeaux, and that “enjoyment” in the phrase “enjoyment of property” is to be given wide meaning, beyond that suggested in thePhoenix decision.” 41. In R. v. Maddeaux, supra, a neighbor in an adjacent apartment complained about noise made by the accused.

The allegationwas that the neighbor’s use, enjoyment or operation of the property was interfered with. “Use” was held to include the presence ofcooking, eating, cleaning, resting, sleeping, listening to the radio or watching TV. The Court found “enjoyment” included all of these andshould be given its plain meaning and not restricted to mean mere possession. The Court adopted the dissenting reasons of JusticeChamberland in Drapeau, supra, and stated the following at para. 12:

12 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 presentin the 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. “Operation” would not normally be employed in connection with a residentialproperty, such as an apartment, but would be used in connection with a commercial, institutional or industrial enterprise as, for instance, amusic shop, a grocery store, a library, or a mill. 42. In R. v. Squires, [2005] N.J.

No. 117, Judge Gorman of the Newfoundland and Labrador Provincial Court considered theelements of the offence under s. 430(1)(

c) of the Code and offered his view on the issue of “enjoyment of property”. It is clear that healso adopted the position taken by the Court in Maddeaux, supra. He wrote at paras. 27 and 28: 27 In R. v. Day, [2002] N.J. No. 353 (N.L. Prov. Ct.), I had the opportunity to consider the elements of an offence under section430(1)(

c) of the Code. At paragraphs 24-26, I wrote: The offence of mischief, contrary to section 430(1)(

c) of the Criminal Code, requires the Crown to prove that Ms. Day: • wilfully, • obstructed, interrupted or interfered with the lawful use enjoyment or operation of property. In R. v. Drapeau (1995), (QC CA), 96 C.C.C. (3d) 554 (Que. C.A.), Justice Fish concluded that the words“enjoyment of property” restricts section 430(1)(

c) of the Criminal Code to interferences with “entitlement or exercise of a right.”Justice Chamberlain adopted a broader

interpretation, holding that these words apply not only to possession or entitlement to property butalso to an interference with the “satisfaction” that can be derived from property. In R. v. Maddeaux (1997), (ON CA), 115 C.C.C. (3d) 122, the Ontario Court of Appeal concluded that it preferredthe view of Justice Chamberlain. At page 127, the court states: 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. “Operation” would not normally be employed in connection with a residentialproperty, such as an apartment, but would be used in connection with a commercial, institutional, or industrial enterprise as, for instance,a music shop, a grocery store, a library or a mill. 28 At paragraph 28 of Day , I concluded: In my view, Justice Fish’s definition is an overly technocratic one. It ignores the purpose of having property and the purpose ofpreventing interference with it.

Interference with the enjoyment of property, is as serious an interference as is an interference with theexercise of a right in relation to it. 43. Recently, the Québec Court of Appeal revisited and commented on its decision in Drapeau, supra. In R. c. Lévesque, 2022QCCA 510, the Court discussed at length the apparent diverging positions of Justices Chamberland and Fish in Drapeau. The decision isin French, save for the quoted passages from Justice Fish in Drapeau. I am fluent in French. 44.

The Court in Lévesque, supra, went to some length to explain that the respective opinions of Justices Fish and Chamberlandin Drapeau are not as far apart as they might first appear. At paras. 66 and 67, the Court concludes that the opinions complement eachother rather than being fundamentally divergent. The Court goes on to state at para. 69 that Justice Fish’s

interpretation should not beenseen as limiting the application of s. 430(1)(

d) of the Code strictly to a violation of the right to property. The provision, in its view, issomewhat wider in scope by also criminalizing acts that more than negligibly diminish the legitimate use, enjoyment or exploitation ofproperty. The Court adds at para. 70 that there is no doubt that the rights of ownership, possession or use of property necessarily includethe right to enjoy it fully, that is to say, to derive from it the satisfaction that the property is supposed to provide to its rightful owner.This was to some extent the position put forth by Justice Chamberland in Drapeau, supra. [emphasis added] 45.

At paras. 71 and 72 in Lévesque, supra, the Québec Court of Appeal states that the word “lawful” as used in s. 430(1)(

c) ofthe Criminal Code constitutes an indication that a relationship between the victim and the property that is the object of the mischief mustexist. A person who lawfully enjoys property necessarily has a sufficient interest in that property to make unfettered use of it. Thus,where a person has a lawful interest in a property, not only does the law prohibit depriving that person of his right to possession or use ofthe property, but it also prohibits a more than negligible reduction in the attributes of those rights by obstructing, interrupting orinterfering with the lawful enjoyment or exploitation of that property. [emphasis added]

46. The Court in Lévesque, supra, then goes on to affirm that the jurisprudence is on all fours with its

interpretation of s. 430(1)(

c) of the Code subject to a few slight variations. In fact, at para. 74, it quotes Maddeaux, supra, seemingly in support of its contention.One slight variation that the Court alludes to may be its use of the terms “more than negligible” to qualify the minimal extent of thediminished use, enjoyment or exploitation of property required by the wrongful act to bring it into the scope of criminal law. This Courtdid not however find caselaw from other jurisdictions than Québec that have used these terms. 47. I am of the opinion that the proper

interpretation to be given to the word “enjoyment” in s. 430(1)(

c) and 430(1)(

d) of theCriminal Code is the one expressed in Maddeaux, supra, and by Justice Chamberland, dissenting in Drapeau, supra. The limitedinterpretation sought by the accused and expressed by Justice Fish in Drapeau should no longer be retained particularly in light of theQuébec Court of Appeal decision in Lévesque, supra. “Enjoyment of property”, therefore, concerns both the entitlement or exercise of aright in relation to property and the satisfaction or pleasure that can be derived from that property. 48. I turn now to the element of wilfulness. Section 429(1) of the Criminal Code provides for the following presumption: 429

(1) Every one who causes the occurrence of an event by doing

an act or by omitting to do

an act that it is his duty to do, knowingthat the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall bedeemed, for the purposes of this Part, wilfully to have caused the occurrence of the event. 49. In R. v. Squires, supra, Judge Gorman wrote the following on the term “wilfully” at paras. 30-33: 30 The inclusion of the word “wilfully” in

section 430 of the Criminal Code does not mean that the Crown has to prove an “evilintent” (see R. v. Toma (2000), 2000 BCCA 494 , 147 C.C.C. (3d) 252 (B.C. C.A.)). The word wilfully is generally “taken tomean intentionally but it is also used to mean recklessly” (Toma , at page 257). 31 In R. v. Schmidtke (1985), (ON CA), 19 C.C.C. (3d) 390 (Ont. C.A.), it was held that the definition of wilfullyin

section 429 of the Code was “intended to extend and broaden the meaning of the word ‘wilfully.’ “ The Court, in Schmidtke , held thatthis definition allows for the mental element to be established “by showing that [the accused] failed to meet the standards imposed onhim by the offence section.” 32 In R. v. Guess (2000), 2000 BCCA 547 , 148 C.C.C. (3d) 321 (B.C. C.A.), the British Columbia Court of Appeal, in thecontext of

section 139 of the Criminal Code, held that the word wilfully “may be taken to connote the concept that the offence could notbe made out on the basis of accidental or unknowing conduct” (at paragraph 30) and in R. v. Hnatiuk, 2000 ABQB 314 , [2000]A.J. No. 545 (Alta. Q.B.), Madam Justice Veit, in the context of an offence under

section 430 of the Criminal Code, concluded that theword wilfully means “knowingly, or deliberately” (at paragraph 46). 33 In Day , at paragraph 43, I concluded: It is not necessary therefore, for the Crown to prove subjective forseeability of the consequences for a conviction to be entered undersection 430(1) of the Criminal Code. However, objective forseeability of the consequences of the actus reus of section 430(1) isconstitutionally required. 50. I agree with Judge Gorman’s conclusion. Regarding the mens rea element of the offence, the Crown in this case need notprove that Ms.

Boehler knew that her conduct would obstruct, interrupt or interfere with the use or enjoyment of the Wortmans’residence (i.e. “subjective foreseeability”), but rather it must prove that she intended to obstruct, interrupt or interfere with the use orenjoyment of this property, the proof of which may be through evidence of intention or through evidence of recklessness or wilfulblindness (i.e. “objective foreseeability”). (See R. v. Squires, supra, at para. 34.) [emphasis added] Analysis 51.

The credibility of each of the three (3) witnesses called by the Crown in this matter was not raised as an issue by the accusedat trial. Rightfully so. Exhibit C-1 corroborated much of their respective testimony, particularly as it concerned the actions of Ms.Boehler during the incident.

52 . I found Alex Wortman, Duane Wortman and Sherry Wortman both credible and reliable. Their testimony left no doubt with the Court regarding what they observed and how they reacted and felt concerning the sporadic and frequent whistle blowing by Ms. Boehler. I believe their testimonies. 53 . As for Exhibit C-1, it speaks for itself. 54 .

I conclude that the following has been established by the evidence presented in this case: • The incident occurred on June 28, 2021, at or near the residence of Duane and Sherry Wortman situate at 5 Boehler Road, Richmond Corner, New Brunswick. • The Wortmans, Alex, Duane and Sherry were going about their daily chores or activities. Alex was out in the yard with his friends doing some work on a vehicle. Duane was carrying on with his regular chores at his chicken coop and outdoors at home. Sherry was in the residence doing some house-cleaning. • Ms.

Joyce Boehler, around noon time, walked on Boehler Road to the front of the Wortman residence. She had carried a folding chair with her. She sat on the folding chair on the opposite side of the road, facing the residence. • While walking to her destination and while seated, for the better part of 30 minutes or so, Ms. Boehler repeatedly, sporadically, at various times and multiple times blew into a whistle. She did not appear in any distress nor needing any assistance or help. • Ms. Boehler’s whistle blowing interrupted or interfered with the lawful enjoyment of the Wortman residence and property by the Wortmans.

It interrupted Sherry Wortman in the cleaning of her residence to the point that she had to stop and now keep an eye out on her son and his friends, one of which wanted to confront Joyce Boehler. Although Alex Wortman continued his work on a vehicle and tried to ignore Ms. Boehler’s whistle blowing, he was annoyed, irritated and aggravated by it. Duane Wortman carried on with his regular chores but was unsuccessful in ignoring the whistle sounds. Ms. Boehler’s actions made a mess of his daily activities and they put him in a bad mood and ruined his day. • Joyce Boehler’s actions were entirely deliberate.

Her conduct was clearly wilful. She intended to interrupt or interfere with the use or enjoyment of the Wortman property as evidenced by the fact that she brought a folding lawn chair and a whistle to the front of the Wortman residence and remained there for a half hour or so blowing into the whistle as previously described. • Ms. Boehler’s conduct more than negligibly diminished the legitimate enjoyment of the Wortman property. It interfered with the Wortmans’ satisfaction or pleasure that can be derived from that property. This conduct was wrongful. It was not inadvertent nor the result of negligence.

Conclusion 55 . For the reasons stated, I find that the Crown has established beyond a reasonable doubt that Ms. Boehler wilfully interrupted or interfered with the lawful enjoyment of the Wortman property on June 28, 2021. Accordingly, I find her guilty of the offence as charged. 56 . Finally, I sought and received the consent of the parties to provide an oral

summary of these reasons. [1] I am filing a full written judgment, providing a copy to the parties and noting that an oral

summary of this judgment has been read into the record.

____________________________________ Sébastien A. Michaud, P.C.J.