R. v. Robitaille, 2012 ONCJ 155

Citation: R. v. Robitaille, 2012 ONCJ 155 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DENIS ROBITAILLE Before Justice David Paciocco Reasons for Judgment released on March 21, 2012 Ms. Louise Tansey-Miller ........................................................................................... for the Crown Ms. Meaghan Thomas ..................................................................... for the accused Denis Robitaille PACIOCCO J.: [1] Denis Robitaille was charged with a number of offences including breaking and entering into 304-B 2041 Arrowsmith Drive andcommitting therein the indictable offence of assault, contrary to section 348(1)(

b) of the Criminal Code of Canada. This was alleged tohave occurred on 23 December 2010 in the context of a domestic disturbance involving Mr. Robitaille and Ms. Candyrose Freeman. Mr.Robitaille did apply force against Ms. Freeman in that apartment unit on the evening in question. During the trial it was also provedbeyond a reasonable doubt that before this happened Mr. Robitaille kicked his way into unit 304-B, causing extensive damage to theexternal door. The prosecution of the break and enter charge nonetheless failed because the Crown did not prove that Mr.

Robitaille wasnot lawfully entitled to enter unit 304-B. If he was lawfully entitled to be in the apartment, he could force his way in without committinga break and entry. In this case no evidence was led that would enable me to conclude that he was not a leaseholder. Indeed, the onlypertinent evidence before me was that while Ms. Freeman lived there for several years and was clearly entitled to possession of theapartment unit, Mr. Robitaille had been living with Ms. Freeman in unit 304-B for approximately a year before 23 December 2010 andwas still living there at the time.

I therefore had a reasonable doubt about whether Mr. Robitaille was lawfully entitled to enter theapartment, even over Ms. Freeman’s protests. I also had a reasonable doubt whether he had the right to use the modest degree of physicalresistance he did to keep from being evicted from the apartment by Ms. Freeman. He was accordingly acquitted of both the break enterand commit an indictable offence charge, and the assault charge. The Crown has asked that I nonetheless convict Mr.

Robitaille ofmischief, contrary to section 430(1) of the Criminal Code of Canada for having kicked down the door, on the basis that mischief is an“included offence” within the break, enter and commit an indictable offence charge contrary to section 348(1)(b). [2] The Crown’s mischief theory is not based on damage to the apartment building itself. This is no doubt because no evidence was ledas to who owned the building, again necessarily leaving me in a reasonable doubt as to whether Mr. Robitaille had damaged someoneelse’s property. The theory of the Crown is that even if Mr.

Robitaille had lawful authority to enter and break his way into the apartmentunit, the damage to the external door interfered with Ms. Freeman’s lawful enjoyment of the property. It is obvious that it would have.The locking mechanism from the door, required to secure the apartment was clearly inoperable given the damage to the door. On thefacts before me, Ms. Freeman would have been left without the security required to fully enjoy the property. Ms. Thomas thereforeconcedes on behalf of Mr. Robitaille that if mischief had been charged, Mr.

Robitaille’s act of kicking the door down in thecircumstances would have supported a conviction. The sole question is therefore whether mischief is an included offence within themeaning of section 662(1) of the Criminal Code of Canada in the charge of break and enter that was laid. [3] The test for whether an offence is “included” was described by the Supreme Court of Canada in R. v. G.R. 2005 SCC 45 ,[2005] S.C.J.

No. 45 at para. 25: “An offence is “included” if its elements are embraced in the offence charged (as described in the enactment creating it or as charged inthe count) or if it is expressly stated to be included in the Criminal Code itself.” The Court cautioned that the test is strict. The offence must “necessarily” be included in the sense that it is an “apparent and essentialconstituent of the offence charged”: R. v .G.R. at para. 26, citing R. v. Manuel (1960), (BC CA), 128 C.C.C. 383(B.C.C.A.). In other words, if it is possible to commit the charged offence without committing the offence the Crown is seeking

conviction for, then the offence the Crown is seeking conviction for is not an “included offence.” [4] The purpose of this strict requirement was described in R. v. G.R. at para. 2: “It is fundamental to a fair trial that an accused knows the charge or charges he or she must meet.” The Crown has argued in its writtensubmissions that disclosure put Mr. Robitaille on notice that his break and enter charge was predicated upon his act of kicking in thedoor and therefore he should have come prepared to defend against the mischief charge.

The issue, however, is not what the accusedknows about the facts of the case when coming into the courtroom, whether from disclosure or personal knowledge: R. v. G.R. at para.40. It is whether the accused is aware “from the indictment the offence or offences with which he is faced” that he would face the chargethe Crown ultimately seeks to convict him of: R. v. Harmer and Miller (1977), (ON CA), 33 C.C.C. (2d) 17 at 10. The pertinent question is whether the break and enter charge that was laid against Mr.

Robitaille necessarily alerted him that he was alsofacing an allegation that he committed the offence of mischief. [5] In R. v. G.R. at para. 29 Justice Binnie explained that there are only three ways in which an offence can come to be included in acharged offence: (

a) offence included by statute, e.g., those offences specified in s.662(2) to (6), and attempt provided for in s.660; (

b) offences included in the enactment creating the offence charged, e.g., common assault in a charge of sexual assault; (

c) offences which become included by the addition of apt words of description in the principle charge. [6] The first mode can quickly be dispensed with here. There are no relevant statutory provisions making the offence of mischief anincluded offence in the offence of break and enter and commit contrary to section 348(1)(

b) of the Criminal Code of Canada. [7] Nor is the offence of mischief an included offence in the enactment creating the charge. This is so even though the offence ofmischief contrary to

section 430 of the Criminal Code of Canada can be committed in 4 distinct ways, namely, where a person 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. It is entirely possible for the offence of break and enter and commit an indictable offence contrary to section 348(1)(

b) to be committedwithout committing mischief in any form. [8] With respect to the offence in

section 430(a), in spite of the usual meaning of the term “break” it is entirely possible to “break”into a place without destroying or damaging any property. Similarly, it is possible to do so without rendering property dangerous,useless, inoperative or ineffective contrary to

section 430(b). This is because the law of break and enter includes concepts of“constructive breaking” which can be apply if the accused simply opens anything that is intended to be used to close or cover an internalor external opening and enters (s.321 of the Criminal Code of Canada), or gains entry by artifice (s.350(b)(

i) of the Criminal Code ofCanada) or enters through a permanent opening such as a chimney (s.350(b)(ii) of the Criminal Code of Canada). [9] Nor is it necessary in order to commit break and enter and commit an indictable offence contrary to section 348(1)(

b) to “obstruct,interrupt or interfere with the lawful use, enjoyment or operation of the property” or “obstruct, interrupt or interfere with any person inthe lawful use, enjoyment or operation of property.” To be sure, in the abstract the simple fact of a break and entry can create a sense onthe part of an owner that the sanctity of their place has been violated, but included offences cannot be predicated upon abstract notions. As the Ontario Court of Appeal put it in R. v. Beyo (ON CA), [2000] O.J.

No. 888 at para. 33, “Wholly abstractnotions or feelings of privacy and security and interference with theoretical rights to control access to property, even a dwelling house,cannot be transformed into criminal conduct.” The offence of mischief is predicated upon proof of actual interference with theenjoyment of property. [10] In R. v. Beyo the Court posited a case in which someone committed an unlawful entry that the owner never learned about.

Werethis to happen the offence of unlawful entry would be committed but there would be no impact, even an emotional impact, on the abilityof the owner to enjoy their property. Hence mischief is not an included offence where unlawful entry has been charged. The same can besaid where a break and entry occurs, even one in which an indictable offence has occurred inside. For example, there is no legalrequirement that the indictable offence occur against the interest of the property owner whose place is broken into.

Someone couldbreak into a restaurant and steal from a common area a coat that belongs to a restaurant patron. If that theft was never reported by thecoat-owner to the restaurant owner the break and enter would have no impact on the enjoyment of the place by the restaurant by the

owner. [ 11 ] The offence of mischief is therefore not necessarily committed whenever a break and enter and commit an indictable offence occurs, contrary to section 348(1)(b). While it is extremely likely that something satisfying the mischief offence will occur during a break and entry where an indictable offence is committed that is not the legal standard. Before qualifying as an included offence, the relevant offence must necessarily be committed every time the offence charged is committed.

This is manifestly not the case for mischief when a break and enter and commit is charged. [ 12 ] The Crown relies upon the decision of R. v. Schizgal [2001] B.C.J. No. 646 (B.C.C.A.) , in which the B.C.C.A. found that mischief was an included offence in a charge of break, enter and commit contrary to section 348(1) (b). The B.C.C.A. did not, however, make this finding on the footing that the offence of mischief is included in the enactment of section 348(1) (b). Schizgal turned on the fact that the wording of the specific offence charged against Mr. Shizgal described the offence of mischief. Specifically Mr.

Schizgal was charged with “break and enter a place, a dwelling house ... and commit the indictable offence therein, mischief.” Mr. Schizgal was therefore alerted that he should come prepared to defend a mischief allegation not by section 348(1) (

b) but by the specific wording of the information. Schizgal is an illustration of the third mode in which an offence can come to be included in a charge – “by the addition of apt words of description in the principle charge.” In this case, there are no comparable words in the offence charged that would have alerted Mr. Robitaille that he would be facing a mischief charge. [ 13 ] In conclusion, in this case none of the required modes for qualifying mischief as an included offence in the charge of break and enter and commit an indictable offence contrary to section 348(1) (

b) are present. There is no statutory provision making mischief an included offence in a break and enter charge; the charge of break and enter and commit an indictable offence can be committed without the offence of mischief occurring, and there are no words in the specific allegation against Mr. Robitaille alerting him that he is being prosecuted for the offence of mischief. That being so, even though the evidence shows that Mr. Robitaille committed the offence mischief he cannot be convicted of the offence of mischief. I therefore find Mr. Robitaille not guilty of the offence of mischief. [ 14 ] Mr.

Robitaille will be sentenced solely on Count 1 for breaching his probation by failing to keep the peace and be of good behaviour as required by his probation order of 23 December 2009, which was then in force. Released: March 21, 2012 ___________________________________ The Honourable Justice David M. Paciocco