R. v. Lutz Date:, 2014 BCPC 64

Citation: R. v. Lutz Date: 20140214 2014 BCPC 0064 File No: 61594-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LYNN LUTZ REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. D. MILLER Counsel for the Crown: A. Tosso Counsel for the Defendant: P. Busch Place of Hearing: Chilliwack , B.C. Dates of Hearing: February 12, 13, 14, 2014

Date of Judgment: February 14, 2014 [1] THE COURT: This case involves neighbours of the worst sort: the Lutzes and the Bainses. Each family undoubtedly thinksthe others are the villains. The reality is they may well be equally culpable in their ongoing dispute. This is a sort of Hatfield andMcCoy story; a hillbilly feud in the backwoods of Chilliwack.

I cannot truly determine if one side or the other is more to blame, thoughwhat both Lutzes refer to as their "garden art" is very revealing. [2] I am sure there are many issues between them but the focus of counsel at this trial was on an easement that crossed bothadjacent properties in such a way as to require each family to cross over what would otherwise be the other family's land in order to get totheir respective homes. [3] This apparently caused unrelenting friction.

However, that friction and that easement really only provided a backdrop to thecase before me and was otherwise irrelevant. [4] The defendant, Lynn Lutz, is charged with assaulting with a weapon a friend of the Bainses. The relevant facts are that thecomplainant was driving his truck up that easement to the Bainses' home. David Lutz and maybe Lynn Lutz stood in the middle of theroad and blocked him from continuing up to the Bainses. Mr.

Lutz said he did it to protect his dog from being run over by thecomplainant but I have concluded that he is not telling the truth. [5] The complainant stopped his truck and got out to confront the Lutzes. There was an angry, profane, and threatening exchangebetween the parties that ended in a physical altercation between all of them that included Lynn Lutz hitting the complainant in the headwith a paint can and causing a significant wound in the complainant's head that was accompanied by much blood. [6] The complainant said she hit him from behind when he was dealing with Dave Lutz.

The defendant says she did it when thecomplainant was choking her and that she did it to defend herself and her husband. [7] I have concluded that both her and her husband lie. I base that conclusion on a number of things, but perhaps most significantlyon their account of what they call their "garden art". [8] One or the other of the pair, probably Dave Lutz, put a bright, easily seen, fairly large sign on their front yard that said"Asshole Neighbours".

It was clearly meant to provoke the Bainses and probably also meant to cause them economic harm by alertingperspective purchasers (the Baines' property has been up for sale for quite some time) that it is not a good situation to buy into. One ofthem also put a pole with a glove on it posed with the middle finger up in an easily recognizable obscene gesture. Again, it was easilyseen and obviously meant to insult and provoke. [9] As disgusting as this behaviour was, I probably would not have found it very relevant except for their explanation of thepurpose of these two things.

Both Dave and Lynn Lutz lied and tried to tell me these things were "garden art". These bald-faced lies tellme a lot about the low character of these two people. [10] However, I must view the question I face objectively, that is, can I say with certainty that when Lynn Lutz hit the complainantwith the paint can she was not endeavouring to protect herself or her husband in a way that would afford her a defence under the newsection 34 of the Criminal Code. I cannot say that with the required degree of certainty.

Therefore, the defendant is entitled to thebenefit of the doubt and I must find her not guilty. [11] However, that does not end my enquiry. As I indicated to counsel, I then ask myself if I am satisfied on the basis of theevidence that I do accept, that it is necessary to order the defendant to enter into a common law peace bond in order to prevent furthersuch breaches of the peace. I do this pursuant to the jurisdiction that I have that was confirmed by the B.C.

Supreme Court in R. v.Chohan (1969), (BC SC), 1 C.C.C. 19. [12] I told counsel before they made their submissions that I would be considering this outcome and both counsel agreed that I hadsuch jurisdiction. Defence counsel said he thought it was an appropriate outcome. [13] The evidence before me establishes to my satisfaction that the Lutzes were the aggressors here and when they deny that, theyare lying. It also establishes that the situation between the families needs some sort of judicial intervention to prevent similar eventsfrom happening again.

Unfortunately, I could only deal with Lynn Lutz, though I have no hesitation in saying that I believe that DaveLutz poses an equal problem. [14] It may be that the Baineses also are significant contributors to this situation but I do not have the same strong feelings aboutthem that I have about the Lutzes. [15] I am going to order Lynn Lutz to enter into a common law peace bond in the nominal amount of $1,000. It will not require acash deposit or surety; it will have a duration of two years. [16] I will hear from the parties now about conditions. I have my own ideas of course, but –- [17] MR.

BUSCH: Thank you, Your Honour. [18] THE COURT: Well, okay, I will go to the Crown first. [19] MS. TOSSO: In terms of conditions, we are asking for a no contact with the people who testified today, but I would also askfor the no contact to include – or testified in the last couple of days, namely, Kyle Maskell, Mike Maskell, Cecile Baines, BrandonBaines, and I would also add Brian Baines. While he didn't testify, that is the husband of Cecile Baines who resides at the residence.

Furthermore, Crown will be asking -– [ 20 ] THE COURT: Just wait a minute. So that is Lucille Baines, Brian Baines, Brandon Baines, Mike Maskell and Kyle Maskell. [ 21 ] MS. TOSSO: Cecile Baines. [ 22 ] THE COURT: Didn't I say that? [ 23 ] MS. TOSSO: No, you said Lucille Baines. [ 24 ] THE COURT: It is Cecile? [ 25 ] MS. TOSSO: Cecile, yes. [ 26 ] THE COURT: Cecile, okay. I thought it was Lucille. Except through counsel I am presuming. [ 27 ] MS. TOSSO: Yes, with the exception of except for leading counsel.

We will also be asking that there be a no go clause that she shall not attend the residence, school, or workplace of Michael Maskell and Kyle Maskell as those become known to you. Crown will also be seeking specifically a non-attendance at either the school or workplace of both Cecile Baines, Brandon Baines and Mr. Brian Baines. Now, in terms of their living arrangement, I understand that the area is actually marked, the easement is clearly marked, and in that respect it may be best to word it such that she not cross the property lines I think is the best way.

Just that not – rather than a general radius of non-attendance of a property as they are neighbours, but not cross the property lines onto the Baineses' property. [ 28 ] THE COURT: Well, what I -– [ 29 ] MS. TOSSO: With the exception of the easement. [ 30 ] THE COURT: -- what I came up with was not to be found on the property of the Baineses except when passing over the easement leading to the Lutz home. [ 31 ] MS. TOSSO: That sounds appropriate. [ 32 ] THE COURT: Okay. That is it? [ 33 ] MS. TOSSO: I'm not sure if Your Honour will entertain this but the Crown's primary concern is that Ms.

Baines also continues – essentially with her medications to ensure that she is safe for the public and for herself, that maybe a reporting condition and counselling as well as a Rogers appropriate on this common law peace bond, so that she has to go to probation and with a Rogers condition as well has to take her medication and attend to your – a doctor, psychologist or psychiatrist as seen fit by her treating physician, and in that respect if she is not following the recommended course of treatment, she attend at probation to ensure that she is not only safe for herself but safe for her neighbours as well as others in the community. [ 34 ] THE COURT: Okay. [ 35 ] MS.

TOSSO: And a no-weapons condition as well. [ 36 ] MR. BUSCH: Your Honour, Ms. Lutz is in agreement to all the conditions except the Rogers order and the medical conditions. These were not in issue in trial. They were brought up to test the reliability of her testimony and I believe it's too onerous, too intrusive of the Court to require her medical and health to be monitored. [ 37 ] THE COURT: I am not inclined to do that. Anything else? [ 38 ] MR. BUSCH: No. Thank you. [ 39 ] THE COURT: Okay? Ms. Lutz, do you have anything you want to say?

You do not have to say anything but I am obliged to give you an opportunity. [ 40 ] MS. LUTZ: No, sir. [ 41 ] THE COURT: Okay. Then the recognizance that I have already referred to, the simple common law peace bond will contain the following conditions: 1. You will be required to keep the peace and be of good behaviour. 2. You will report to the Court when required to do so. 3. You are required to report to a probation officer before – any problem in doing it today? [ 42 ] MS. TOSSO: There should not be a problem with that, Your Honour. It's just next door. [ 43 ] THE COURT: Any problem from your end? [ 44 ] MR.

BUSCH: No. [ 45 ] THE COURT: 3. (Continued) -- before 4:30 p.m. today, February 14th, 2014, and thereafter as and when directed by your probation officer.

4. You are to keep your probation officer informed of your residential address. 5. You will have no contact or communication either directly or indirectly with Cecile Baines, Brian Baines, Brandon Baines, Mike Maskell and Kyle Maskell except through legal counsel. 6. You will not attend at the residence, school or workplace of Mike Maskell and Kyle Maskell. 7. You will not attend at the school or workplace of Cecile Baines, Brian Baines, or Brandon Baines. 8. You are not to be found on the property of Cecile Baines and Brian Baines except when passing over the easement leading to the Lutz home. 9.

You are not to be found in possession of any weapon as that term is defined by the Criminal Code . [ 46 ] THE COURT: What do you say about a conventional counselling condition? [ 47 ] MR. BUSCH: She states that it's just a medication issue and she is being supervised by a doctor. So she's not in agreement with counselling. [ 48 ] THE COURT: Well, Ms. Lutz, I do not agree with that but I will not include a counselling condition. [ 49 ] MR. BUSCH: Thank you, Your Honour. [ 50 ] THE COURT: All right. (ORAL REASONS FOR JUDGMENT CONCLUDED)