Her Majesty the Queen - v. -, 2015 SKPC 125

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 125 Date: August 5, 2015 Information: 24450285 Location: Black Lake _____________________________________________________________________________ Between: Her Majesty the Queen - and - August Louis Donard Appearing: Mr. Harold Johnson For the Crown Ms. Alice Robert For the Accused JUDGMENT S.I. ROBINSON, J [ 1 ] August Louis Donard of Black Lake, Saskatchewan stands charged that on February 8, 2015, at Black Lake, Saskatchewan, he did: 1. Break and enter the dwelling-house of Alec Kasagan and commit therein the indictable offence of assault, contrary to section 348(1) (

b) of the Criminal Code ; 2. Commit an assault on Ronald Robillard, contrary to

section 266 of the Criminal Code ; and 3. Breach a probation order by failing to keep the peace and be of good behaviour, contrary to

section 733.1(1) of the

Criminal Code . [ 2 ] The Crown proceeded by indictment on the charges. The accused elected to be tried in Provincial Court and entered not guilty to all charges. The trial proceeded before me at Black Lake on April 22, 2015. It was then adjourned from time to time and finally came back before me for decision on August 5, 2015. The Evidence [ 3 ] Ronald Robillard, age 46, testified as the Crown’s first witness. He said that on the evening of February 8, 2015, he had gone to visit Alec Kasagan at his cabin at around 8:00 or 9:00 p.m.

As the evening was growing late, he was given permission to stay the night on Alec’s couch. He had fallen asleep when he was awoken by a bang. He said the bang sounded “like something dropping.” He speculated that the 2" x 4" that Alec used to lock his door had fallen to the floor. He saw that the outside door was now open and that the accused was in the cabin. [ 4 ] Ronald Robillard asked the accused what he was doing in the house. He then decided he would leave instead of dealing further with the accused. He left in some haste without putting his shoes on.

However, after going to another residence, he became concerned about what might be happening at Alec Kasagan’s cabin. He therefore borrowed a pair of shoes and returned to Alec’s cabin. By this time, however, the RCMP were already in attendance there. [ 5 ] The Crown’s only other witness was Alec Kasagan who testified through a Dene-English interpreter. He said that the accused calls him brother and that the accused’s late mother was his own godmother. He acknowledged that he was aware that the accused did not have his own residence and that he had allowed the accused to sleep at his place in the past.

But he made it clear that he had not given the accused permission to come into his cabin on the night in question. As he put it, “I allowed him to come into my house but not breaking in.” [ 6 ] Alec Kasagan’s evidence was that when he got up, he found the accused standing in his living room near the couch. He did not see the accused do anything. As he put it, “He didn’t do nothing.” It was not entirely clear from Alec Kasagan’s evidence as to whether he or the accused left the cabin first, but Alec Kasagan did say, “He left.

I left.” [ 7 ] While Alec Kasagan did not give his age, he appeared to be early middle-aged. He presented as having a slight build and some slight paralysis in one of his legs. He also presented as being anxious, a condition likely exacerbated by the stress of attending as a witness. Before defence counsel had finished cross-examining him, he got up and left the court room. It was quite clear to all that he did not want to continue testifying. Crown and defence counsel both agreed that I need not order him back to the witness stand. [ 8 ] As part of its case, the Crown filed a copy of a probation order.

Defence counsel agreed that on February 8, 2015, the accused was bound by this probation order and its statutory term that he keep the peace and be of good behaviour. [ 9 ] The defence did not call any witnesses or present any other evidence at trial. The Issues [ 10 ] At trial, the Crown sought to establish that once inside Alec Kasagan’s cabin, the accused had assaulted Ronald Robillard. However, the evidence before me failed to establish that the accused committed any assault after he entered the cabin.

It follows then that the accused cannot be convicted on the charge of break, enter and commit assault set out in Count 1 of the Information. There remain, however, three issues to be considered: a. Whether the accused can be convicted of break, enter and commit mischief by interrupting or interfering with the lawful use or enjoyment of property; b. Whether the accused can be convicted of break and enter with intent to commit an indictable offence therein; and c. Whether the accused can be convicted of mischief as an included offence.

Issue of Break, Enter & Commit Mischief [ 11 ] The Crown initially argued that the accused should be convicted of break, enter and commit mischief on the basis that after the accused had unlawfully entered Alec Kasagan’s cabin, he had interfered with the sanctity of Kasagan’s home. In making this argument, the Crown essentially sought to have Count 1 of the Information amended to allege an offence of break, enter and commit mischief by interrupting or interfering with the lawful use or enjoyment of property. [ 12 ] I am not prepared to amend Count 1 to allege break, enter and commit mischief.

Simply put, such an amendment could not be made without an injustice being done to the accused. During the trial, the defence’s focus was on responding to an allegation of break, enter and commit assault. The defence’s decision not to call evidence might well have been based on the weakness of the Crown’s case

respecting the offence charged. To now change the allegation to one of break, enter and commit mischief would be unfair to theaccused and create injustice of a kind contemplated by paragraph 601(4)(

c) of the Criminal Code. Issue of Break and Enter with Intent [13] In his written argument submitted after the trial, Crown counsel has also argued that the accused should be convicted of breakand enter with intent to commit an indictable offence. In making this argument, the Crown references subsection 662(6) of the CriminalCode. That subsection reads: 662(6) Where a count charges an offence under paragraph 98(1)(

b) or 348(1)(

b) and the evidence does not prove that offence but doesprove an offence under, respectively, paragraph 98(1)(

a) or 348(1)(a), the accused may be convicted of an offence under that latterparagraph. [14] On the question of whether the accused should indeed be convicted of break and enter with intent, subsection 348(2) of theCriminal Code is relevant. The first part of that subsection reads: 348(2) For the purposes of proceedings under this section, evidence that an accused (

a) broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that hebroke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein. [15] Although Crown counsel has suggested that the accused entered Alec Kasagan’s cabin with a sinister intent, there was noevidence led in support of that suggestion. Accordingly, if I am to convict the accused on a charge of break and enter with intent, I willnecessarily have to rely on the presumption set out in paragraph 348(2)(a).

That presumption, however, only applies “in the absence ofevidence to the contrary”. [16] The defence chose not to lead any evidence at trial. Notwithstanding this, from looking at the Crown evidence, I must concludethat there was indeed some evidence to show that the accused’s reason for entering Alec Kasagan’s cabin was not a sinister one. Thatevidence is: a. The accused had a personal relationship with Alec Kasagan; b. The accused had slept at Alec Kasagan’s cabin in the past; c. The accused did not do anything after he entered Alec Kasagan’s cabin; and d.

The accused left the cabin before or at the same time as Alec Kasagan. [17] In my view, the evidence indicates an intention on the part of the accused to find a place to sleep for the night rather than anintention to commit a criminal act. [18] It seems the Crown’s strongest argument with regard to the accused’s intention would be that upon entering Alec Kasagan’scabin, the accused fully intended to interfere with the lawful use or enjoyment of property.

This would amount to an intention to committhe indictable offence of mischief (a hybrid offence deemed to be indictable at the time of the alleged offence). [19] It is clear from the evidence that the accused entered Alec Kasagan’s cabin without permission and was essentially trespassingwhen he entered. But I do not believe that this trespass would be sufficient for me to find an intention to commit mischief.

Support forthis position can be found in the Ontario Court of Appeal case of R v Beyo, (ON CA) [Beyo], where the Courtrejected the view of the Northwest Territories Court of Appeal in R v E.(S.) (1993), (NWT CA), 80 CCC (3d) 502 thatthe essential element of mischief under paragraph 430(1)(

d) of the Criminal Code is the violation of privacy. At paragraph 32 of Beyo,Rosenberg J.A. wrote: . . . The decision in E.(S.) depends upon accepting the proposition that any entry into a dwelling house without lawful excuse, even if theresident is not aware of it, detracts from the right to control the property and therefore interferes with the use of the property (para. (1)(c))or the person’s use of the property (para. (1)(d)). I cannot agree with this proposition. It would mean that an accused could be convictedof the mischief offence by application of a wholly abstract concept.

To take an example, assume an accused comes upon a cottage that istemporarily vacant (which meets the definition of “dwelling-house” in s. 2 of the Code). He notices that a window has been left open. He puts his head through the window (which meets the definition of “enters” in s. 350) and leaves. Assume that he had no lawful excusefor putting his head into the cottage. No person was home at the time and, in fact, no resident of the cottage ever becomes aware of theaccused’s action.

Although the accused has entered a dwelling house without lawful excuse within the meaning of s. 349, in my view,this is not criminal conduct that could attract liability for mischief. The effect of the decision in E.(S.) is to transform every trespass intoa dwelling house, no matter how trivial the conduct, into a criminal offence.

Section 430 was not intended to capture mere trespass: R. v.Dooling (1994), (NL CA), 94 C.C.C. (3d) 525 (Nfld. T.D.). [20] In my view, the Ontario Court of Appeal approach in Beyo makes good sense. Mere trespass, even into occupied dwellings, neednot necessarily constitute a criminal offence. Admittedly, Rosenberg J.A. in Beyo referred to an example where the dwelling entered wasunoccupied. But the same logic should apply to other situations as well. One such situation would be where a drunk opens a home’sunlocked door, enters, passes out on a living room couch and is then discovered by the homeowners.

The drunk’s attendance would bean invasion of privacy and a nuisance, but without something more, it would hardly be criminal.

[21] In the case before me, the accused’s presence inside Alec Kasagan’s cabin could be said to be an invasion of privacy, but Icannot find that his presence constituted an interruption or interference sufficient to make him guilty of an offence under paragraph430(1)(

d) of the Criminal Code. If he had exposed Ronald Robillard or Alec Kasagan to yelling, swearing, pushing or shoving or had herefused a request that he leave the cabin, I might find otherwise. But the Crown did not establish anything more than his brief presencein the cabin. Issue of Mischief [22] Although the Crown did not seek a conviction on a charge of just mischief, I suggested to counsel during argument that I shouldperhaps also consider whether the accused should be found guilty of committing mischief by damaging Alec Kasagan’s cabin door.

Hadthe accused been charged with committing mischief by damaging the door, I would have had little hesitation in convicting him. However, since he was not charged with mischief, the question becomes whether he might be convicted of that offence on the groundsthat it is an offence included in the charge of break, enter and commit assault. [23] In my view, the accused cannot be found guilty of mischief since it is not necessarily an included offence in the offence of breakand enter. In this regard, the Ontario Court of Appeal’s decision in Beyo, is instructive.

After citing R v Simpson (1981), (ON CA), 58 CCC (2d) 122 (ON CA) with approval, Rosenberg J.A., at paragraphs 30 and 31, went on to say: A way to determine whether one offence is included in another as it is described in the Criminal Code is to ask whether the main offencemay be committed without committing the “included” offence. Put another way, does the commission of the main offence as describedin the enactment necessarily include the other offence?

In accordance with Simpson and Luckett, mischief as described in s. 430 wouldbe an included offence of unlawful entry into a dwelling house if that offence necessarily included any of the offences described in s.430. In my view, the offence of unlawful entry into a dwelling house does not necessarily include the offence of mischief as set out in s.430(1)(

c) or (d). It does not contain the essential elements of the mischief offence in any of the ways the offence is described in thoseparagraphs. . . . [24] Although the Beyo case dealt with a charge of unlawful entry into a dwelling, the same reasoning would apply to a charge ofbreak and enter into a dwelling. Paragraph 350(b)(ii) of the Criminal Code says that a person shall be deemed to have broken andentered if he enters a place without lawful justification or excuse.

Such entry does not necessarily entail any damage to property (such asin the case before me) or even any interruption or interference with property in a legal sense. In other words, a break and enter into aplace can occur without the commission of any criminal mischief. It follows, then, that the breaking and entering element of a break andenter charge cannot be said to include the offence of mischief. I am therefore unable to convict the accused on a charge of mischief.

Charges of Assault and Breach of Probation [25] It is clear from the evidence that the accused did not commit an assault when he entered Alec Kasagan’s cabin. I therefore findhim not guilty on the assault charge set out in Count 2 of the Information. [26] Defence counsel concedes that by forcing in the door at Alec Kasagan’s cabin on the night in question, the accused breached hisprobation order by failing to keep the peace and be of good behaviour. I therefore find him guilty on the breach charge set out in Count 3of the Information. [27] I wish to thank both Mr. Johnson and Ms.

Robert for their helpful representations. ____________________________________ S.I. Robinson, J