R. v. Harrison, 2010 ONCJ 732

No. 09/2321 Citation: R. v. Harrison , 2010 ONCJ 732 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. LOUISE HARRISON ********** R E A S O N S F O R J U D G M E N T HELD BEFORE THE HONOURABLE MR. JUSTICE D. FAIRGRIEVE On November 30, 2010 at WINDSOR, Ontario ********** CHARGE: S. 429(1)(d) - Mischief

********** APPEARANCES: Mr. F. Schwalm Assistant Crown Attorney Defendant, not represented by counsel TUESDAY, NOVEMBER 30, 2010 THE COURT: All right, Mrs. Harrison, it won’t be necessary to hear from you at the moment. MRS. HARRISON: Thank you. THE COURT: And I would appreciate it if I could just give these reasons without interruption, and if you have to make a comment, you can do that afterwards. REASONS FOR JUDGMENT D. Fairgrieve, J., O.C.J. – (Orally): - This is an application for a so called directed verdict dismissing the charge of mischief against Mrs. Harrison at the close of the Crown’s case.

Because the defendant is not represented by counsel, I indicated that if there had been defence counsel participating in the trial, he or she would undoubtedly have brought such a motion. In the circumstances, I think, it is incumbent on the court to deal with such a motion that the defence would normally bring. Mrs. Harrison is charged under S. 430(1) (

d) of the Criminal Code with wilfully interfering with Patricia Newey in the lawful enjoyment of her property, which is specified as Mrs. Newey’s house located at 3958 Roseland Drive West in Windsor. The offence is alleged to have been committed between April the 1 st , 2009 and August the 25 th , 2009. The date of the offence set out in the charge was amended on an earlier occasion so that it alleged a

summary conviction offence in accordance with the Crown’s election to proceed in that way. The word “wilfully” in the charge is to be interpreted in accordance with the provisions of S. 429(1) of the Criminal Code . That is, the offence requires that the act that causes the alleged interference be with the knowledge of the defendant that her act would probably interfere with Mrs. Newey’s enjoyment of her property and that the defendant was reckless whether such interference resulted from her act.

The test to be applied to the evidence led by the Crown is the one stated by the Supreme Court of Canada in U.S.A. and Sheppard (1977), 1976 CanLII 8 (SCC) , 30 C.C.C. (2d) 424. That test is whether there is admissible evidence which could, if it were believed, result in a finding of guilt. Issues of credibility are not to be determined at this stage of the trial, and the Crown’s case is to be taken at its highest. In accordance with the Supreme Court’s decision in R. v.

Arcuri (2001), 2001 SCC 54 (CanLII) , 157 C.C.C. (3d) 21, there must be some evidence as to each constituent element of the offence charged, either direct evidence or circumstantial evidence from which a reasonable inference could be drawn. Again, this is not the stage of the trial when findings of fact are made, but rather only an assessment of whether a particular inference sought by the Crown would be reasonably available on the evidence. The evidence on which the Crown relies to meet the Sheppard test is essentially the testimony of Anthony Newey.

He testified that there were two occasions during the period specified in the charge when the defendant made complaints about his conduct.

The first, on an unspecified date, occurred when he had been kicking a soccer ball against the fence that separated his mother’s property from that of Mrs. Harrison, and the defendant came over and complained that the noise had frightened or upset her daughters. The second incident, which was the focus of the charge since it led to the police being called and the mischief charge being laid, occurred the morning of August the 25 th , 2009. Anthony Newey testified that after being awakened by his mother closing his bedroom window, he got up and went outside to remove the cover of their swimming pool.

He testified that Mrs. Harrison came out then, complained that he had sworn at her, and told him that she was calling the police. A neighbour, Mr. Sulyok, who lived on the other side of the Neweys, heard Mrs. Harrison yelling at Mr. Newey, saying that she was going to call the police, but he seemed not to know from what he heard precisely what the problem was. Mr. Newey expressly denied that he had called Mrs. Harrison a “fucking bitch,” as the defendant suggested when cross-examining him, and he testified that he had said nothing at all to her and that, in fact, he made his usual effort to avoid her. Mr.

Newey testified that he felt harassed by Mrs. Harrison on this occasion and that, as a result, he asked his mother to call the police. Mrs. Newey testified that she did call the police because she saw that her son was upset at being screamed at in an abusive manner by the defendant, although she did not hear it herself. Both Mrs. Newey and her son testified that this event occurred in the context of harassing conduct by the defendant over a number of years. That, then, is the evidence which Mr. Schwalm submits is capable of establishing the mischief offence with which the defendant is charged.

According to the Crown’s submission, it justifies calling on Mrs. Harrison to present a defence, if she wishes to do so. In my view, the evidence clearly fails to meet the Sheppard test. There is no evidence, in my opinion, of any act on the part of Mrs. Harrison that had the effect of interfering with Mrs. Newey’s “enjoyment” of her real property, an essential element of the actus reus . One neighbour’s complaints about, for example, another neighbour’s kicking a soccer ball against a fence or using foul language (which Mr.

Newey denies in any event) can be regarded, no doubt, as troubling or disturbing in terms of the personal interaction between the people involved, but the complaints, even if completely unfounded, along with the notification that the police were to be called, can hardly be said to be causally related to any impact on the aggrieved party’s enjoyment of her real property.

Physical proximity to an offensive or annoying neighbour, whose alleged act is simply the making of false or unreasonable complaints or accusations does not, in my view, provide, in itself, any evidence of the necessary connection between that act and the interference with the enjoyment of property that is the gist of the mischief offence. I have read the judgment of the Court of Appeal in R. v. Maddeaux (1997), 1997 CanLII 1934 (ON CA) , 115 C.C.C. (3d) 122, that was cited by Mr. Schwalm, and I accept that “enjoyment of property” is to be given a broad

interpretation and that noise made by a neighbour is certainly capable of establishing wilful interference with the use or enjoyment of property. However, there is no evidence that the act which is the subject of the charge here, that is, the alleged making of certain unreasonable statements by the defendant and her calling the police, while no doubt annoying, interfered physically with the use or enjoyment of the other person’s house or created any condition that altered the nature or quality of the occupation of the premises by the alleged victim. The Crown’s

interpretation of the mischief provision would, in effect, criminalize having a disagreeable nature or not otherwise being a pleasant neighbour, if the other neighbour found it upsetting. That, in my view, is clearly not the kind of interference with property that Parliament intended the offence to cover. Likewise, I do not think that the evidence permits an inference that could reasonably be drawn that there was any “wilful” interference on the part of Mrs. Harrison with Mrs. Newey’s enjoyment of her property, even with the expanded definition of “wilfully” in S.429(1) .

In my view, while the mental element of an offence normally involves drawing inferences from an accused’s act or conduct, the

defendant’s complaint about the conduct she attributed to Mr. Newey, rightly or wrongly, was so far removed from any effect on the quality of Mrs. Newey’s occupation of her residence that it simply does not leave available as a potential inference that Mrs. Harrison knew that her act, making allegedly unjustified complaints about the son, would probably interfere with his mother’s enjoyment of her house and that the defendant was reckless concerning that consequence. In my opinion, there is no evidence that would permit a reasonable trier to infer the mental state required to make out the offence.

This is a criminal court, not a neighbourhood mediation centre. The evidence called by the Crown fails to meet the Sheppard test and the charge must be dismissed. In addition, I think I’m obliged to make the observation that this prosecution seemed misconceived from the beginning.

I can understand the dilemma confronted by the police officer who attended the scene and was in the position of having to deal with the respective complaints made by both neighbours, but when there was no crime disclosed, the default position surely was not to torture the mischief provision of the Criminal Code that had no application to the fact situation and equate it with simply being upset about something the next door neighbour had done.

It was inappropriate, in my view, for a police officer to invoke the criminal law simply because one of the neighbours making a complaint appeared to be more sympathetic and reasonable than the other. Even when a police officer has such a charge laid, I think, the hope is that the normal screening process will identify the case as one that doesn’t warrant prosecution because there is no reasonable prospect of conviction. That didn’t happen in this case.

Clearly, different people can have different opinions concerning legal issues that arise in this context, but in my view, the evidence here never, on any reasonable reading of the section, warranted a charge of wilful interference with the enjoyment of real property. The charge, then, is dismissed. ********** FORM 2 Certificate of Transcript Evidence Act , subsection 5(2) I, Lynn Worley, certify that this document is a true and accurate transcript of an audio digital recording of H.M.Q. v. L.

Harrison at the Ontario Court of Justice, held at 200 Chatham Street East Windsor, Ontario, and taken from audio digital recording No. 20101130- 094510 as certified in form one. Date: December 6, 2010 ___________________________

Lynn Worley Certified Court Reporter (

i) Table of Contents ONTARIO COURT OF JUSTICE Transcript Ordered:.................. Transcript Completed:................ Ordering Party Notified:..............