R. v. James TAPLEY and Janelle CLARK, 2013 NBPC 8

PROVINCIAL COURT OF NEW BRUNSWICK 2013 NBPC 8 R. v. James TAPLEY and Janelle CLARK Before: Judge Alfred H. Brien On: March 28, 2013 At: Woodstock, N.B. Counsel: Crown: D. Lahiton Tapley: S. Pelletier Clark: B. Reentovich _____________________________________________________________________ REASONS ON DECISION ______________________________________________________________________ Charge: [ 1 ] The two accused are charged with breaking and entering a residence on April 17, 2012 at Glassville N.B. contrary to s. 348(1) (

d) of the Criminal Code Issues: [ 2 ] There are four issues raised in this case: 1. Whether the actions of the accused constitute break and enter 2. The effect of the use of the word ‘residence’ particularized in the information 3. Whether the building in question was a dwelling house 4. Whether the presumption under s.348(2) C.C. applies Background:

[3] On the date in question, somewhere between 10:30 and 11 P.M. a car, with three young persons , drove into the yard of a vacanthouse which was adjacent to the residence of Lawrence McIntosh in Glassville N.B. The sound of the vehicle drew the attention of theMcIntosh household. The occupants of the car were the male driver Tapley, and two females, namely Clark and a youth named Greer,as passengers. [4] The three exited the car each carrying a flashlight and proceeded to attempt to gain entry to the house. This was by one or more ofthem kicking the door.

The three then walked to an adjacent barn and a few moments later returned to the door of the house. While thereis some dispute as to whether they attempted to kick the door again, the three then returned to their car and drove off. [5] McIntosh and his son followed the car to a place where they heard it to have stopped, about a 3 minute drive up the road. Apparently Clark had observed another house she considered to be vacant and directed Tapley to drive in this yard. She testified that shewanted to see the inside of the house.

She described it as a ‘fetish’ for old houses [6] Tapley drove the car to the rear of the house. This placed the car in a position that it could not be seen from the road. Clarkobserved a door on a porch to be ajar. She gave it a little shove and the three then entered the house. Clark testified that she carried hercell phone which they used to light their way in the house. [7] It turns out that this house was owned by Lawrence McIntosh. When he and his son arrived they drove into the yard to a positiondirectly behind the Tapley car to block its exit.

The three young persons, upon seeing the McIntosh vehicle’s headlights, exited thehouse and were confronted by Lawrence McIntosh and his son. [8] After a brief conversation Lawrence McIntosh went to call the police, Before doing so he telephoned his brother Dale to ask that thelatter come to assist his son with the young persons. Dale McIntosh resides adjacent to this house. He arrived and spoke with theaccused. In response to his inquiries, Tapley identified himself while Clark refused.

She told him “It was none of his business” andwhen he indicated that such an answer was not sufficient, touching her shoulder with his flashlight, she threatened to sue him. Theother female then identified herself Issue 1 Proof of Break and Enter [9] Sections 321 and 350 of the Criminal Code read as follows: "321. In this Part 'break' means (

a) to break any part, internal or external, or (

b) to open any thing that is used or intended to be used to close or to cover an internal or external opening; 350. For the purposes of sections 348 and 349, (

a) a person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered; and (

b) a person shall be deemed to have broken and entered if (

i) he obtained entrance by a threat or artifice or by collusion with a person within, or (ii) he entered without lawful justification or excuse, the proof of which lies upon him, by a permanent or temporary opening." [10] In R. v. Toney (1976), (NS CA), 17 N.S.R. (2d) 481 the fact situation revealed that entry to the building hadbeen obtained through the outside front door which was partly open, described in the terms "enough to get your hand in". [11] In a review of cases similar to the fact situation , the court in Toney noted at para 12 et seq: 12 In Regina v. Jewell (1975), (ON CA), 22 C.C.C. (2d) 252, Mr. Justice Martin of the Ontario Court of Appealsaid (p. 255):

"It is clear that further opening a door which is already partly open now constitutes a breaking under s. 308. In R. v. Bargiamis, (ON CA), [1970] 4 C.C.C. 358; (ON CA), [1970] 3 O.R. 90; 10 C.R.N.S. 129, this Court held that furtheropening a door that was ajar constituted a breaking. An examination of the record in that case discloses that the door in question wasopen about one-half inch." 13 In Regina v. Corkum (1969), 7 C.R.N.S. 61, the facts were that a window was partly open, being held in such position by a can orbottle. The accused raised the window higher and entered the building. His Honour Judge R. F.

MacLellan, a County Court Judge in thisProvince, held that such conduct amounted to a break and enter under s. 294(b)(ii). [Now. s. 308(b)(ii)]. [12] In the fact situation here, the evidence from the accused Clark was that the front door of the house was ajar and that she gave it “ alittle shove’ to gain entry. All three in the party entered the house. [13] Clearly then, following the wording of the Code and the caselaw, this amounted to a break and enter of the house.

Issue 2 Wording of Information [14] The accused argues that in using the word ‘residence’ in the information that the Crown is bound by that particular and must provethat the house in question was the residence of the complainant. [15] As indicated at trial, this argument was not seen to have merit.

I am satisfied that the information by use of the term ‘ a residence’is providing a descriptor to the building and not an indicator of who resides there. [16] On a further note, the accused argues that by using the word ‘residence’ and not the words ‘dwelling house’, that the offence wouldnot fall under 348(1)(d) ( break and enter of a dwelling house) but rather fall under 348(1)(

e) break and enter of a place other than adwelling house). [17] After review of the definition

section of the Code, it is clear that

section 2, with some qualifiers, defines ‘dwelling house’ as “apermanent or temporary residence”. While not a good practice to interchange the words, particularly in an information, it is noted thatsuch is not uncommon ( see R. v. DeWolfe ) Further, the wording of the information clearly states a violation under s.348(1)(d). In thiscase then I am unable to detect any prejudice to the accused and he would have been fully aware of what he has been charged namely anoffence in relation to a dwelling house.

Issue 3 Dwelling House or Place Other than Dwelling House [18] The next question is whether the house was a dwelling house. It is a given that the house would constitute a ‘place’ as defined in s348(3) Whether it would fall in the definition of a dwelling house under s. 2 requires an examination of certain factors. [19] S. 2 of the Code provides a definition for this term: “dwelling-house” means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence,and includes (

a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way,and (

b) a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence; [20] In R. v. Sappier, 2005 NBPC 37 Judge Ferguson reviewed the factors which can be used to determine if a building has the legalcharacter of a dwelling house. These include the intention of the builder, and depending upon the circumstances the traditional use, thetemporary use, the seasonal use and the actual use of the building.

In his opinion, “ the strength of the temporal connection between anyof these factors and the time of the assessment of the character of the house of the offence can also be relevant.” (para 21) [21] Ferguson J. also addressed the meaning of the word ‘kept’ in the context of s. 348 C.C. He cites R. v. DeWolfe (NS CA), [1988] N.S.J.No 27 (N.S.C.A.) wherein the court agreed with the trial judges assessment that a house which was not beingoccupied still retained its character of a dwelling house.

The court noted that the owner of the house lived next door and the house hadbeen occupied by her son up to a month before the offence. The court concluded that it was “being kept as a residence.” [22] Ferguson J. cited situations where a house which had been traditionally used as a dwelling, could lose the characterization over aperiod of non-use as such. In R. v. Paquet (ON CA), [1978] O.J. No 980 (O.C.A.) the house in question had beenunoccupied for 3 years, was in a somewhat dilapidated condition following a fire a couple of years prior to the offence , severalwindows were broken and one was boarded up.

The place was dirty and there was a high growth of weeds around the porch. The courtconcluded that the house was not being kept or occupied as a permanent or temporary residence.

[23] The building in this case was old, (estimated at 100 years old) constructed and utilized for many years as a dwelling house. It was afarmhouse. The complainant Lawrence McIntosh purchased it 12 years ago as part of the farm. While he did not reside there himself, ithad been “lived into up to 4 months ‘ prior to this incident by his nephew. The electric power to the house had been turned off inDecember 2011 and it was not currently for rent. Mr.

McIntosh acknowledged that the house was not locked and that the door couldhave been open. [24] The only other pertinent facts about the condition of the house came from the accused Clark. She testified that when she enteredthe house she saw broken bottles and a broken foosball table. Also she thought it was abandoned. [25] On the evidence before the court, it appears that this house falls in the category of one which ceased to be a dwelling house.

Whilenot dilapidated, it had not been occupied for 4 months, there was no power, the owner had no intention of renting it as a house, and it didnot appear to be set up for dwelling. At the time it appears to have been standing as a building which went with the farm which thecomplainant worked. In the words of Martin J.A. in Paquet it appears that after the nephew left, the complainant was “not intending tolive in it again’ or have another live in it. However it could in the future regain that characterization of a dwelling house.

In my opinionthe evidence does not establish that at the time of the offence it was being kept or occupied as a residence. Issue 4 Application of Presumption [26] The final question remaining is whether the presumption applies. [27] Ss. "348(2) of the Code provides:

(2) For the purposes of proceedings under this section, evidence that an accused (

a) broke and entered a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to doso, as the case may be, with intent to commit an indictable offence therein [28] Ss 430(1)(

c) and (

d) of the Code provides: "430.

(1) Every one commits mischief who wilfully ……. (

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." [29] A violation of s. 430(1)(

c) or (

d) is punishable either by indictment or on

summary conviction. [30] In this case there are two points on caselaw which have application. In R. v. Rodney 2007 ONCA 314 the Ont C.A. stated at para5: 5 It is clear on the authorities that the point of entry is the time at which the accused's intention is to be ascertained for the purpose ofthe offence of break and enter with intent under s. 348(1)(a): Regina v. Wendel, (BC CA), [1967] 2 C.C.C. 23 at 29(BCCA); R. v. Toney (1976), (NS CA), 17 N.S.R. (2d) 481 at para. 16 (A.D.).

The application of the s. 348(2)(a)presumption at that point, in the absence of evidence to the contrary, supplies the proof of the requisite intent. 6 The proposition that the fact the accused did not commit an offence after entering the premises constitutes "evidence to the contrary"was rejected in R. v. Nicholas, 2004 CarswellOnt 5053 at para. 118 (Sup. Ct.), aff'd on other grounds at [2004] O.J. No. 4416, 2004CarswellOnt 4946 (C.A.); R. v. Singh, [2005] B.C.J. No. 2715 at para. 7 (C.A.) (Q.L.). [31] Having found that the break and enter occurred, has the accused rebutted the presumption?

It is to be noted that only the accusedClark provided evidence as to her intention at the time. The impression she left is that the other two, including the accused Tapley, weresimply following her wishes. It appears that the other two followed her misguided leadership

[ 32 ] The accused Clark maintained that she had a fetish for old houses which she found interesting. This fetish she described as an ‘internal feeling’ and ‘for personal fun’. However, in the course of her testimony it appeared clear that this young woman was more interested, not in the architecture of old buildings, but the thrill of entering them under the cover of dark, as if night time removed the necessity for following a course of making inquiries of or seeking permission from an owner to view the house.

In cross examination, she attempted to excuse herself from having to follow such course by asserting :”I’m not going to ask permission at 11P.M. I wanted to go in” [ 33 ] It is also significant that she instructed Tapley to drive in the driveway and pull behind the house close to the back porch. This placed them in a position such that they could not be seen.

While in relation to this house she says she used her telephone as a light source, it is noted that a few minutes prior at the first house, all three had flashlights when they tried to enter the house and were observed kicking at the door. [ 34 ] These are clear indicators of intention to gain entry without authorization, under the cover of dark, attempting to avoid detection and with complete disregard that they might be interfering with or interrupting the lawful use of the houses by the owner. [ 35 ] While intention is determined at entry, it is also noted that her aggressive attitude on the night in question was also evident at the time of being caught.

She refused to identify herself, wanted to bargain release and then threatened to sue the complainant’s brother. That attitude was conveyed by her at trial as well. [ 36 ] Finally, to the argument that no offence was committed by the accused in the house, there are some points to be observed. As noted above in Rodney such is not evidence to the contrary. Also mischief ( s 430 above) constitutes an offence.

Lastly, the quick action of the complainant obviously curtailed the actions of the accused. [ 37 ] Overall, I did not find the accused Clark to be a credible witness as to her explanation for entering the house and I do not believe her explanation. Considering the circumstances and the above observations it does not have an air of reality or believability.

While youthful pranks and carelessness can, in some situations, go to innocence of intent, in this case her brazen attitude as displayed in her actions and subsequently, remove such from consideration. [ 38 ] As noted to counsel at the time of oral submissions, the accused Tapley did not testify as to his intentions at the time of entry. In essence he has continued to follow the lead of the accused Clark, whose evidence and the evidence taken as a whole, did not rebut the presumption for either of them. .

Conclusion [ 39 ] In the circumstances the accused are both found guilty of the included offence of break and enter of a place other than a dwelling house contrary to section 348(1) (e).