2021 QCCQ 2253, 2021 QCCQ 2253

R. c. Fong-Jean 2021 QCCQ 2253 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Criminal and Penal Division” No.: 555-01-001175-208 DATE: March 30, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE ANOUK DESAULNIERS, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

Robert Fong-Jean Accused ______________________________________________________________________ VERDICT ______________________________________________________________________ [ 1 ] Robert Fong-Jean is charged with mischief for damaging a cenotaph erected in honour of veterans and belonging to the municipality of Portage-du-Fort. [ 2 ] On the day of the events, the town’s mayor intervened while the accused was pulling up the asphalt strip and dirt surrounding the monument. He had not consulted the municipality before taking on this endeavour.

The mayor testified that, although the cenotaph already needed repairs that the municipality could not afford, the accused’s actions damaged the monument even further. [ 3 ] In his defence, the accused explained that he felt a connection with the cenotaph because his parents had been in the military. He criticized the municipality for not properly maintaining the monument. Being skilled at masonry, he began the work with the aim of protecting the base of the cenotaph from erosion caused by water pooling nearby.

To prevent water infiltration, the belt of asphalt around the cenotaph should be replaced by a watertight concrete structure, which the accused was planning to install. [ 4 ] The accused testified that, in the days preceding the events, he also cleaned the municipal lot on which the cenotaph is located, picking up the refuse and dead branches littering the ground, and pruning a tree planted close to the monument. [ 5 ] This case raises the following question: Did the accused have the culpable state of mind [1] required to commit the offence of mischief on the cenotaph? [ 6 ] For the reasons that follow, the Court answers affirmatively.

Despite his good intentions, the accused is guilty of mischief on the cenotaph. ANALYSIS 1. The law [ 7 ] Paragraph 430(1) (

a) of the Criminal Code ( Cr. C .) provides that every one commits mischief who wilfully damages property. [ 8 ] The word “wilfully” is defined in subsection 429(1) Cr. C . When applied to the offence of mischief, this subsection provides that every one who does

an act knowing that it will probably damage property or is reckless whether it damages property will be deemed to have wilfully damaged the said property. [ 9 ] Moreover, with regard to the culpable state of mind, mischief is an offence of “general intent”, [2] which means that the prosecution need only establish that the accused committed the alleged act wilfully. [3] The prosecution is not required to prove that the accused was motivated by a specific intent or that his action had a specific purpose. [4] [ 10 ] Thus, a person is guilty of mischief if the evidence establishes that he or she deliberately (”wilfully”) damaged property that

does not belong to him or her, even if the prosecution does not prove that the person acted maliciously or fraudulently. [ 11 ] Of course some people may have a legal justification for damaging property that does not belong to them. While the examples are too numerous to list here, we may nonetheless consider a professional demolition company or a kitchen designer hired by homeowners to tear down their old cupboards. In such cases, subsection 429(2) Cr. C . creates an exception to the offence of mischief for anyone acting with legal justification or colour of right. 2.

The law applied to the facts [ 12 ] The accused deliberately began to pull up the asphalt surrounding the cenotaph, thereby damaging it. The accused thus acted “wilfully” within the meaning of subsection 429(1) and paragraph 430(1)(

a) Cr. C . [ 13 ] The Court believes the accused’s testimony that the ultimate goal of his actions was to restore the cenotaph. The accused appears to have the skills needed for this type of work. He hoped that his efforts would gain him greater acceptance in the small municipality of Portage-du-Fort, where he had been finding it difficult to integrate. In addition, because he was from a military family, he was appalled by the decrepit state of the monument erected in tribute to veterans. [ 14 ] But the accused also acted without legal justification or colour of right.

He did not obtain consent from the municipality before he started pulling up the asphalt. The fact that the municipality did not intervene when he was picking up branches or cleaning the municipal lot does not allow the accused to assume that he had received implicit permission to begin much more significant work on the cenotaph. [ 15 ] The prosecution is not required to prove that the accused acted with malice for him to be found guilty of mischief. The prosecution need only prove that the accused acted wilfully. It has discharged this burden beyond a reasonable doubt.

The accused has not raised a legal justification. The accused’s good intentions do not give rise to a defence against the offence of mischief. [ 16 ] The prosecution proved beyond a reasonable doubt that the accused had the culpable state of mind required to commit the offence of mischief on the cenotaph. He must therefore be convicted. [ 17 ] However, the accused’s laudable intentions are a significant mitigating factor that the Court may take into consideration at the sentencing stage. FOR THESE REASONS, THE COURT: CONVICTS the accused of mischief. __________________________________ ANOUK DESAULNIERS, J.C.Q.

Mtre Simon Pelletier Criminal and penal prosecutor Date of hearing: January 19, 2021 [4] R v Tatton , supra , note 1, at para 35.