Rex Respondent v. Amy Elysia Soranno, 2024 BCCA 5

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Soranno, 2024 BCCA 5 Date: 20240112 Dockets: CA48615; CA48616 Docket: CA48615 Between: Rex Respondent And Amy Elysia Soranno Appellant – and – Docket: CA48616 Between: Rex Respondent And Nicholas Steven George Schafer Appellant Before: The Honourable Mr. Justice Groberman The Honourable Justice Griffin The Honourable Justice Skolrood On appeal from: An order of the Supreme Court of British Columbia, dated July 9, 2022 (conviction) ( R. v. Soranno , Chilliwack Docket 70994). Counsel for the Appellants: P. Sankoff Counsel for the Respondent: M.

Richards Place and Date of Hearing: Vancouver, British Columbia November 23, 2023 Place and Date of Judgment: Vancouver, British Columbia January 12, 2024 Written Reasons by: The Honourable Justice Griffin Concurred in by: The Honourable Mr. Justice Groberman The Honourable Justice Skolrood

Summary: The appellants broke into and occupied a barn at a hog farm as part of a group protest. They challenge their convictions, after a jury trial, for breaking and entering with intent to cause mischief and mischief. They argue the trial judge was wrong to exclude certain evidence of mistreatment of the pigs, and erred in his instruction to the jury regarding expert opinion evidence. Held: Appeal dismissed. The evidence of animal mistreatment was irrelevant in determining whether the protesters had disrupted “lawful” activities. This evidence was irrelevant for all other purposes raised by the appellants. The trial judge ought not to have put expert opinion evidence

regarding general biosecurity risks before the jury or ought to have given a limiting instruction regarding the evidence. However, the error in allowing the jury to consider this evidence was harmless, and therefore the curative proviso applies. Reasons for Judgment of the Honourable Justice Griffin: Introduction [ 1 ] Amy Soranno and Nicholas Schafer (the appellants) participated in an animal rights protest during which, as part of a large group of protesters, they broke into and occupied a hog barn at the Excelsior Farm in Abbotsford, BC, for several hours on April 28, 2019.

The protesters demanded that media be allowed to tour the barn. This was arranged, and after it occurred, the protesters left the barn and were arrested. [ 2 ] The appellants were convicted by jury of two offences in relation to the April 28, 2019 protest: (1) break and enter and committing an indictable offence therein, namely mischief; and (2) mischief by wilfully obstructing, interrupting or interfering with the lawful use, enjoyment or operation of property contrary to ss. 348(1) (

b) and 430 of the Criminal Code, R.S.C. 1985, c. C-46 . [ 3 ] They appeal their convictions based on two grounds related to the evidence at trial:

a) First, they say the judge was wrong to rule in a voir dire (“ Voir Dire No. 8” indexed at 2022 BCSC 1432 ) that evidence about alleged mistreatment of the pigs at the farm was irrelevant; and,

b) Second, they say that the judge erred in his instruction to the jury by failing to tell the jury to ignore the opinion evidence of Dr. Dykshorn, an expert witness called by the Crown who testified generally about the biosecurity risks posed when persons enter a farm. [ 4 ] For the reasons that follow, I would dismiss the appeal. Background [ 5 ] The central facts of what occurred on the day of the protest are not in dispute.

Protesters recorded most of the events that day on their cell phones and some of that video footage was filed as evidence at trial. [ 6 ] The farm is owned by three brothers: Calvin, Ray and Jeffrey Binnendyk. It holds anywhere between 13,000 to 15,000 hogs at a time in a number of barns. The farm operations involve breeding sows and raising piglets all the way up to slaughter weight. It is described as a “farrow to finish” operation. [ 7 ] In March 2019, the farm owners discovered four covert cameras in the barn. One of them was in the farrowing room where the breeding of the pigs occurs.

The police were notified, and the SD cards from the cameras were seized. [ 8 ] Some of the charges laid after the April 28, 2019 protest related to alleged break and enters and planting of the surreptitious cameras in February and March, 2019. These charges proceeded to trial but eventually defence counsel brought a motion for a directed verdict of acquittal on the basis of a lack of evidence. The judge granted the motion and these charges were therefore withdrawn from the jury. [ 9 ] An issue at trial arose because the police through negligence lost the SD cards seized from the cameras.

This led to an application by the appellants to stay the proceedings based on lost or destroyed evidence. The application was dismissed in a ruling described as Voir Dire No. 2, indexed at 2022 BCSC 712 . While the appellants do not appeal Voir Dire No. 2, they say that the judge’s reasoning influenced his erroneous ruling in Voir Dire No. 8. [ 10 ] On April 28, 2019 a bus load of protesters came to the farm. Two of the owners tried to intercept them but 30 to 40 protesters entered the barn and breeding room.

The protesters wore matching coveralls and t-shirts with the slogan “Meat the Victims”, and many were holding placards. [ 11 ] By the time the police came, this large group of protesters was inside an area of the barn described by one officer as having tight enclosures and corridors. They were standing in front of pig enclosures. Veterinarians were called to the site by the owners, and they expressed concern about having so many people around the pigs. The police negotiated to move the protesters to another area of the barn, where there were fewer pigs. [ 12 ] Ms.

Soranno, on behalf of the protesters, told the police that if the owners of the farm allowed media to conduct a tour of the facility, the protesters would then leave. The owners agreed. Media were allowed on site to tour the facility, accompanied by a veterinarian and by Ms. Soranno on condition that she stay quiet, which she did. [ 13 ] A police officer on the scene said that the protesters were in the barn, waiting for the media tour, and stayed during the media tour. They were present for approximately two hours when normal operations of the barn could not continue.

One of the owners testified that the length of time disrupted by the protesters that day was around six hours. [ 14 ] After the media tour, the protesters left the barn voluntarily, and the appellants were arrested. [ 15 ] No property was destroyed or damaged during the protest.

The Offence of Mischief [ 16 ] On appeal, the central questions revolve around the offence of mischief as set out in s. 430 of the Criminal Code , which provides: 430

(1) Every one commits mischief who 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 . … [Emphasis added.] [ 17 ] The meaning of “wilfully” is set out in s. 429: 429

(1) Every one who causes the occurrence of an event by doing

an act or by omitting to do

an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to have caused the occurrence of the event. Colour of right

(2) A person shall not be convicted of an offence under sections 430 to 446 if they act with legal justification or excuse or colour of right. [ 18 ] The word “lawful” in s. 430(1)(

c) and (

d) qualifies each of the words “use”, “enjoyment” and “operation”. [ 19 ] The indictment did not describe the “property” that was the subject of the mischief charge as the pigs themselves, but rather as the barn premises at the farm address that the protesters entered and occupied.

Voir Dire No. 2 Ruling [ 20 ] Although there is no appeal taken from the Voir Dire No. 2 Ruling, the judge’s reasoning provides additional context for the Voir Dire No. 8 Ruling. [ 21 ] In the Voir Dire No. 2 Ruling, the judge found that the police were negligent in losing the SD cards seized from the covert cameras found in a barn on the farm in March 2019. At this stage of the trial, the accused were still charged with offences relating to planting those cameras in the barn.

The judge found that the police had breached their duty to disclose evidence and the s. 7 Charter rights of the appellants. [ 22 ] The judge next considered the appellants’ requested relief of a stay of proceedings. In doing so, the judge reviewed the appellants’ argument that the evidence would have been relevant to potential defences at trial, namely, to allow the appellants to challenge the question of whether the farm was in “lawful use, enjoyment or operation” of property, within the meaning of ss. 430(1) (

c) and (

d) of the Criminal Code . [ 23 ] The judge rejected this argument. He reviewed a number of authorities dealing with the mischief offence. He found: [40] Although I have not heard full submissions on the point, in my view it is highly unlikely that the question of “lawful use” will in fact be an issue at the trial. The argument is essentially that the farm’s treatment of animals could be of such a nature that the defendants could argue the farm was not being used lawfully.

This would likely be a question of law. … [47] In the case before me, there is no suggestion that the Binnendyks and Excelsior farm were not entitled to use the property as a pig farm. Just as in [ R. v. Klimowicz , 2021 ONSC 2589 ] , a breach of a farm Code of Practice would not transform their lawful use into an unlawful use. [48] In my view, it is highly unlikely that mistreatment of the animals that might have been shown on the video (of which there is no indication) could assist the defendants. [ 24 ] The judge further held that the ruling was provisional, as all the evidence had not yet been heard.

Evidence at Trial Regarding Interference [ 25 ] During the trial, Calvin Binnendyk was called as part of the Crown’s case. He was working at the farm on the day of the protest, and testified as to what happened that day.

[ 26 ] His evidence was that normally there are two people working in the barns and sometimes as many as five people at a time. The farm owners restrict who can go into the barns for biosecurity reasons, to keep “outside bugs” from coming into the barns and making the animals sick. They never allow large groups of people into the farm. [ 27 ] He said on the day of the protest, there were 30 to 40 protesters in the barn.

He said they were at the farm or in the barn for around six hours that day. [ 28 ] When he was asked in his direct examination by Crown counsel what effect the protesters presence had on normal operations, he said: Yeah, there was a bunch of chores that definitely didn’t get done. The breeding never got done that day. And probably a bunch more that didn’t get done that [ sic ] didn’t even realize at the time because we’re a bit kerfuffled. [ 29 ] Calvin Binnendyk explained that the breeding is done in the breeding barn and they have different areas of the barn for different stages of a pig’s life.

He said that the pigs that were not bred that day might have had an extended three weeks in the breeding barn. [ 30 ] He testified that because of the protesters’ occupation of the barn, he was unable to proceed with a breeding task he had planned to do that day, involving walking a boar up and down a breeding aisle behind the sows to see which ones were ready to be artificially inseminated. Because the protesters were in the way, the breeding planned for that day did not occur.

In cross-examination he denied that he still had time that day to complete that breeding task after the protesters left, stating that pigs have short breeding cycles, sometimes within 12 hours. He also stated in cross-examination that some chores were delayed and not completed to their full potential. [ 31 ] Calvin Binnendyk confirmed that he and his two brothers do the majority of the work on the farm. Occasionally his children help out. They also have the assistance of a hired hand, and their father. [ 32 ] In cross-examination by counsel for another accused, Mr.

Sasano, Calvin Binnendyk was asked a number of questions about the operations of the farm generally, including the number of pigs on the farm. He was asked if they try to ensure that all the laws are followed, to which he agreed, and he agreed with the proposition that he was confident they do follow the laws.

He was then asked a number of questions about: a herd health management program; protocols for the identification and humane treatment of sick and injured pigs; examination of the pigs for sickness or injury; whether they have a sanitation protocol and whether these are written; the use of electric prods; his acknowledgement that they are not supposed to shock pigs in the face or head; whether he’s seen pigs being electric- prodded in the face; low stress methods for transporting and handling pigs; and the exercise of boars. [ 33 ] This cross-examination of Calvin Binnendyk about lawfulness continued as follows: Q So you don’t know the law with respect to that aspect of caring for pigs.

A Not every law -- no, I don’t know every law out of the top of my head. Q Well I’m not asking if you know the law, what I’m saying is there’s lots of law that you don’t know about in terms of caring and handling pigs, is that correct? A Could be. Q I mean you’re a farmer, you’re not an expert in the law so you don’t know all the laws. Correct? A I don’t know all the laws. No, not at the top of my head, no. Q So if you don’t know the laws, how are you so sure you follow them? A Because I’m a farmer and I do my good work every day and I was born and raised on the farm, I just -- I just know what I know.

Q So you just assume that what you learned being born and raised on a farm is good enough. A No, it’s not -- I just – we’ve – I’ve gone through courses and this and that and learned things over the years but -- Q But you admitted you don’t know the laws and your testimony is because you were born and raised on a farm and you do good work, that’s good enough? Is that what you’re saying? A Well it’s hard to say, it's all depends on the situation. [ 34 ] Crown counsel did not object during this questioning. [ 35 ] The court hearing then adjourned for a break and the witness was excused.

Voir Dire No. 8 Ruling [ 36 ] During the break in the cross-examination of Calvin Binnendyk’s evidence, the judge questioned defence counsel about the relevance of his questions of the witness. Counsel submitted it was “relevant about the lawful use to which the farm is being put which is an element of the offence”. [ 37 ] Defence counsel also advised the judge that he intended to put to the witness a compilation of video clips obtained surreptitiously in February and March 2019. Defence counsel described the videos as capturing the handling of the pigs in a manner that arguably

amounted to the unlawful mistreatment of animals. The Crown objected to the video evidence and to the line of questions regarding the lawful handling of the pigs. [ 38 ] This led to Voir Dire No. 8. The issue was the relevance of questioning regarding the treatment of the animals. This also impacted the admissibility of the video evidence. The judge reviewed the video prior to his ruling. We have not been provided with a copy of the video on appeal and counsel rely on the judge’s description of that evidence. [ 39 ] The judge described the video as being 10 minutes edited from other extensive video footage.

It showed pig carcasses including piglets; possibly pigs eating a pig carcass; pigs with growths of one sort or another (meaning tumours); distressed pigs including distressed piglets; and pigs being prodded with electric prods: Voir Dire No. 8 at para. 31. The video was unpleasant and potentially disturbing: para. 72. [ 40 ] Crown counsel submitted that the evidence had no probative value, as any potential breaches of codes or regulations regarding the treatment of the animals would not render the lawful use of the property itself unlawful.

The Crown submitted that admitting the evidence could have prejudicial effect because it could have an emotional impact that would distract the jury with collateral issues.

Further, the Crown raised concerns about the sources of the video and the splicing of many different clips together in rapid rotation. [ 41 ] Defence counsel submitted that the line of questions and the video evidence went to the issue of the lawfulness of the farm’s operations, which was an element of the offence of mischief. [ 42 ] Defence counsel did not refer the judge to any laws or regulations that were allegedly broken by the farmers in their operation of the farm.

The implication was simply that there had been failure to comply with some laws regarding treatment of the pigs. [ 43 ] Defence counsel also submitted that the evidence could go to the credibility of Calvin Binnendyk regarding what he said about the treatment of animals on the farm. This point is not advanced on appeal. [ 44 ] Defence counsel submitted that any possible prejudice would be to the accused by excluding the evidence. Further, if there was any prejudicial effect it could be dealt with by instruction to the jury. [ 45 ] The judge referred to his earlier ruling in Voir Dire No. 2.

He considered the appellants’ argument that if an accused could show some illegal activity at some point in time on the part of a lawful owner or operator of property that was the subject of a mischief charge, this would undermine the lawfulness element of the mischief offence. The judge rejected this argument: paras. 49–55, Voir Dire No. 8. [ 46 ] The judge held in Voir Dire No. 8: [53] The defendants argue that unlawful conduct of some kind having some connection to the property which is the focus of the charge, essentially at any time, could potentially negate the Crown’s case .

So for example, in this case, as I mentioned, the defence wishes to put to Calvin Binnendyk that kicking of pigs or prodding of pigs or allowing pigs to suffer unduly on occasions unspecified, but apparently in February and March of 2019, could be relevant to the Crown’s case having to do, in this case, at least in part, with the occupation of the farm on April 28, 2019. [54] Again, I reject this proposition . [55] The implications of the defendants’ argument are worth considering.

Every piece of real property, in particular, is subject to a myriad of federal, provincial or local laws, especially here in terms of, for example, animal raising or husbandry. Whether the real property is a house, a factory, a farm, or a business, the question is whether other activities that take place on the real property are relevant to s. 430 .

Put another way, is Parliament’s intention in saying “lawful use” in s. 430 so wide that if there is a challenge, the Crown must establish that there were no unlawful activities that are in some way related to the property, or the use of the property, or enjoyment of the property, in order to make out the offence? Are those activities to be the subject of offences and trials under s. 430 ? [56] In my view, that is not Parliament’s intention. So as a matter of statutory

interpretation, I conclude that the evidence going to alleged mistreatment of the animals is not relevant to this case. [Emphasis added.] [ 47 ] The judge concluded in Voir Dire No. 8 that evidence going to obstruction, interference or interruption with lawful use of the property was open to the defence to examine, but distinguished this as something different than evidence simply about mistreatment of the animals: [73] It is argued that an accused must have a full opportunity to make full answer and defence. That is an unchallengeable proposition. But the scope of that is what is at issue here.

The defendants have full rights to make full answer and defence with respect to matters that are relevant to the charge. [74] With specific reference to s. 430(1)(

c) or (

d) of the Code , the issues relate, of course, to whether there was obstruction or interference or interruption with lawful use, enjoyment, and operation of property. Questions going to that issue, other than simply mistreatment of the animals, are open to the defence to examine. [ 48 ] In the result, the judge ruled inadmissible both the further questioning of Calvin Binnendyk on whether there was mistreatment of pigs on the farm, and the video recordings made in February or March 2019 purportedly showing mistreated animals. Dr. Dykshorn’s Evidence [ 49 ] Dr. Dykshorn is a veterinarian who was called by the RCMP to come to the farm on the day of the protest to assess the condition

of the animals, in the context of the presence of the protesters. He provided factual evidence regarding his attendance on the farm that day, as well as expert opinion evidence. [ 50 ] A voir dire was held to determine the scope of Dr. Dykshorn’s expert evidence, with the ruling described as Voir Dire No. 6, indexed at 2022 BCSC 1123 . [ 51 ] The judge set out the Crown’s submissions regarding the potential relevance of Dr. Dykshorn’s expert evidence, as follows: [6] The four accused are charged with mischief.

One of the elements of the offence has to do with whether the conduct in question interfered with the lawful use or enjoyment of property or caused obstruction or interruption or interference with the use of property. The Crown submits that the opinion of Dr. Dykshorn is relevant in that respect. The Crown also suggests that Dr. Dykshorn’s expert opinion is relevant specifically to:

a) overall condition of the pigs and the state of the farm;

b) whether the presence of the protestors caused stress to the pigs;

c) whether the presence of the protestors represented a potential biosecurity hazard or risk to the health of the pigs. [7] The Crown also notes that while it is not obliged to prove that the Excelsior Hog Farm was well run or that the pigs were generally well cared for in order to prove the charged offences, the Crown anticipates that the accused may raise a defence of necessity and, in that context, the Crown submits that the opinion of Dr.

Dykshorn with respect to the general state of the farm and the animals may be relevant, to counter an argument that the actions were necessary because the animals were being maltreated. [ 52 ] The defence did not contest that the evidence was relevant: para. 9, Voir Dire No. 6. The only issue raised by the defence was whether Dr. Dykshorn had the expertise to provide opinion evidence on biosecurity risks. The judge ruled that he was qualified to give this evidence within his qualifications as a general veterinary medicine expert: para. 11. [ 53 ] Dr.

Dykshorn’s evidence-in-chief established that the day of the protest was his first visit to the farm. He and two other veterinarians toured the part of the barn where the pigs were. [ 54 ] Crown counsel began to ask Dr. Dykshorn some questions about the stress level of the pigs on the day of the protest, but defence counsel objected on the basis that given the judge’s earlier rulings, this was not relevant to the mischief offence. In discussions with the Court, the Crown agreed that it was not alleging that the protesters harmed the animals; the interference alleged was with the farm property not the pigs.

Ultimately after hearing defence submissions and the exchange with the Court, Crown counsel decided not to pursue that line of questioning. [ 55 ] On appeal, the appellants submit that this decision to limit examination on animal health removed the grounds of relevance that had been advanced by the Crown for Dr. Dykshorn’s biosecurity opinion evidence: harm to the pigs or increased risk of harm to the pigs by the presence of the protesters. [ 56 ] The Crown did ask Dr.

Dykshorn some general questions about the biosecurity protocols he followed that day, including having clean boots and coveralls to ensure that they did not track pathogens or parasites into the barn. He explained general biosecurity protocols that exist on commercial farms in this regard. [ 57 ] Dr. Dykshorn agreed in answer to questions from the Crown, that biosecurity risk management includes limiting the number of people who come on to a farm, because the more people in the barn, the more likely a pathogen or parasite will be brought in. [ 58 ] The defence did not object to Dr.

Dykshorn’s evidence about biosecurity risks, but instead pursued more questions on the topic. Defence counsel asked him questions that appeared designed to show that the owners of the farm were lax in respect of some biosecurity measures, drawing out evidence that having no boot washing stations and allowing cats to roam free would increase biosecurity risks. Defence also asked questions that appeared designed to show that the protesters had in fact been mindful of managing biosecurity risks, obtaining Dr.

Dykshorn’s admissions that wearing booties, coveralls and masks would enhance the management of biosecurity risks. The appellants were wearing booties, coveralls and masks. [ 59 ] Jeffrey Binnendyk testified about standing at the barn door trying to stop protesters from entering. Asked in direct examination why he would want to stop people, he testified that it was because he had no idea what kind of diseases were on them. Defence counsel objected to any further questions on this topic, on two grounds: that it related to the health of the pigs and it was the subject of expert evidence.

On hearing the objection, Crown counsel agreed to move on from the topic with the witness. [ 60 ] Defence counsel did not seek to cross-examine Dr. Dykshorn on facts that might have gone to the defence of necessity. It became clear during the trial that the accused were not advancing this defence. [ 61 ] Ultimately, Crown counsel did not suggest to the jury in closing address that the introduction of biosecurity risks by the appellants led to the interference with farm operations that was the object of the mischief offence.

Rather, the focus of the Crown submissions regarding interference was the disruption of the farmers’ ability to do the chores that day. [ 62 ] Counsel for Mr. Schafer in his closing submissions to the jury briefly referred to Dr. Dykshorn’s evidence, to point out that there was no evidence that an actual biohazard had been created, and presumably if there were such evidence, the Crown would have put it forward.

He noted that the accused had properly mitigated any such risks, and submitted that the suggestion of a risk was not enough, there had to be actual evidence of the elements of the offence, that property was actually interfered with, obstructed, or interrupted. He went on to submit that Calvin Binnendyk could feed or water the pigs by pressing a button, and he submitted to the jury that nothing was in fact obstructed.

[ 63 ] The judge’s charge to the jury regarding Dr. Dykshorn’s evidence was essentially a template charge relating to expert opinion evidence generally, as follows: Expert opinion evidence. You heard the evidence of Dr. Dykshorn, an expert witness. Dr. Dykshorn is a large animal veterinarian practising in Abbotsford. He testified as an ordinary factual witness regarding the events of April 28th, 2019, when he was called to the farm. He also gave expert opinion evidence concerning biosecurity hazards to the animals and steps that should be taken to minimize such risks.

As a general rule, witnesses are not allowed to give evidence as to their opinions. However, a qualified expert may give opinion evidence within their field of expertise when permitted to do so by the court. In this case, Dr. Dykshorn was permitted to give you expert opinion evidence as a veterinarian. You may consider this opinion evidence in deciding this case. As with other witnesses, you may give the expert’s testimony as much or as little weight as you think it deserves. Just because an expert has given an opinion does not require you to accept it.

You should consider the expert’s education, training, and experience, the reasons given for the opinion, the suitability of the methods used, and the rest of the evidence in the case when you decide how much or little to rely on the opinion. [ 64 ] This was the only part of the charge in which the judge mentioned biosecurity hazards or Dr. Dykshorn’s evidence.

The appellants did not object to this aspect of the charge or ask the judge to correct it. [ 65 ] When it came to explaining the elements of the offence of mischief, the judge pointed out that the disruption of Calvin Binnendyk’s work day was the alleged obstruction, interruption or interference with lawful use of property relied upon by the Crown. The judge did not suggest that introduction of biosecurity risks could amount to obstruction, interruption or interference with the property.

Grounds of Appeal [ 66 ] The appellants say that the judge erred in excluding defence evidence showing poor treatment of pigs on the farm.

They submit: the evidence was relevant to address whether the owners of the farm were engaged in “lawful use” of their property when they were obstructed by the appellants; even if the evidence did not establish unlawful use, it could have grounded a belief of unlawful use that provided the appellants with the defence of a colour of right for their actions; the evidence provided important proof regarding the appellants’ motive for entering the property; and the judge relied on irrelevant considerations in excluding the evidence.

They say by excluding this evidence, the judge therefore compromised their ability to have a fair trial. [ 67 ] The Crown says that the judge correctly found that the video and questions about the maltreatment of the pigs on the farm was irrelevant; and that the other arguments by the appellants as to colour of right and motive are new issues on appeal that should not be entertained and in any event have no merit. [ 68 ] As for Dr. Dykshorn’s evidence, the appellants say that his opinions regarding biosecurity risks on farms were improperly put to the jury as evidence they could consider in deciding the case.

The evidence was irrelevant to the question of whether the farmers’ work was disrupted that day. However, they say it was prejudicial to the appellants because it left the jurors with the impression that the appellants had put the pigs’ health and safety at risk by entering the barn. [ 69 ] The Crown says that the evidence of Dr. Dykshorn was relevant and not prejudicial and so the judge did not err in allowing it to be put before the jury. There was no objection to the evidence at trial.

Nevertheless, if there was an error in allowing it to be put before the jury, the error was harmless and the curative proviso should apply. Was Evidence of Mistreatment of Pigs on the Farm Relevant? [ 70 ] A judge must approach the question of the admission of evidence in three parts, by determining: first, whether it is relevant; second, whether it is subject to an exclusionary rule; and third, whether to exercise discretion to exclude it: R. v.

Schneider , 2022 SCC 34 at para. 36 . [ 71 ] Here the judge decided evidence that the pigs were being mistreated on the farm was irrelevant and so there was no need to consider the next two questions. [ 72 ] The question of whether evidence is relevant is a question of law, reviewable on a standard of correctness: Schneider at para. 39 . [ 73 ] The concept of relevance was discussed at length in Schneider : paras. 39–40 . To determine relevance, a judge must ask whether the evidence tends to increase or decrease the probability of the existence of a fact at issue.

The threshold for relevance is low, and should not be confused with weight or reliability. However, judges in their gatekeeping roles must evaluate relevance as a matter of logic and human experience. Judges must necessarily evaluate relevance in the context of the other evidence at trial and must often determine it on the submissions of counsel.

Relevance to Lawful Use of Property [ 74 ] The one argument advanced at trial (leaving aside credibility which is not being advanced on appeal) and the key argument on appeal regarding the relevance of the evidence of animal mistreatment on the farm, was that this evidence would allow the appellants to challenge whether property was being used “lawfully”, as lawful use is an element of the offence of mischief. [ 75 ] The judge said that he did not rule out questions of the witness that went to the issue of obstruction or interference or interruption with lawful use, enjoyment or operation of property.

However, he held that questions tending to show simple mistreatment of the animals

were not relevant: para. 74, Voir Dire No. 8. [76] The judge noted that the charges against the appellants related to their interference with the use, enjoyment or operation of thefarm property on the day of the protest. The appellants’ focus on lawful use was on lawful treatment of the pigs themselves. [77] By the time the defence sought to introduce the evidence of mistreatment of pigs in the cross-examination of Calvin Binnendyk,his evidence as to the interference with the farm operations caused by the protesters was:

a) As part of his work that day, he planned to do farm chores and those chores were blocked, delayed and/or not completed to their fullpotential because of the presence of the many protesters; and

b) He also planned to breed sows that were ready for breeding, and he was unable to take the steps necessary to begin and complete thiswork because of the presence of the many protesters in the barn. [78] Counsel have cited a number of authorities dealing with mischief. [79] In some authorities, the use of the property that was interfered with by the person accused of mischief is simply accepted aslawful, without analysis. I presume this is because lawful use is obvious in many cases. For example, in R. v.

Roy, 2023 QCCQ 1151, theaccused protesters blocked lanes of traffic on a road tunnel and were found guilty of mischief without any inquiry into whether the publicroad was being used in a lawful manner. [80] The question discussed in more than a few mischief authorities is the meaning of “enjoyment” of property within the context ofthe mischief offence in s. 430.

This seems to arise most often in cases where residential neighbours are engaging in off-property conductthat deliberately annoys and disturbs their neighbour but does not otherwise actively interfere with a use of the neighbour’s property, suchas in R. v. Drapeau, [1995] R.J.Q. 320, (Que. C.A.) [Drapeau], R. v. Maddeaux, [1997] 33 O.R. (3d) 378, (Ont. C.A.) [Maddeaux] and R. v.

Boehler, 2022 NBPC 6 , 2022 NBPC 06 [Boehler]. [81] For example, in Drapeau, the accused regularly stared at his neighbours when they went outside, blew kisses, and made suckingand vomiting noises as well as imitated the sounds made by cows and pigs. The issue was whether this was sufficient to interfere withthe complainants’ “enjoyment” of their own property as to constitute mischief. His appeal from conviction for mischief was allowed. [82] In Maddeaux, the accused lived in an adjacent apartment and was accused of making noise, disturbing the neighbour’s“enjoyment” of her property.

The Ontario Court of Appeal agreed that he was guilty of mischief. The Court held at 383: The charge in the instant case is that Mr. Maddeaux wilfully interfered with the lawful use or operation of property. In my view, thewords “use, enjoyment or operation” in s. 430(1)(

c) are to be read ejusdem generis. “Use” of this property would include being present inthe apartment for the purposes of cooking, eating, cleaning, resting, sleeping, listening to the radio and watching television.

The word“enjoyment” might include any or all of those uses. “Operation” would not normally be employed in connection with a residentialproperty, such as an apartment, but would be used in connection with a commercial, institutional or industrial enterprise as, for instance, amusic shop, a grocery store, a library, or a mill. [83] In Boehler, the accused stood opposite her neighbour’s property and repeatedly blew a whistle. The complainants described it asaggravating and annoying.

After a careful review of the caselaw, the judge agreed with the description in Drapeau, and concluded thatlawful enjoyment of property within the meaning of s. 430 refers to “both the entitlement or exercise of a right in relation to property andthe satisfaction or pleasure that can be derived from that property”: para. 47. The accused was found to have interrupted or interferedwith her neighbour’s lawful enjoyment of their property, and was convicted of mischief. [84] The meaning of “enjoyment” within the context of the mischief offence was also explored in R. v. Lévesque, 2022 QCCA 510[Lévesque].

The Quebec Court of Appeal’s judgment in Lévesque has been discussed many times, including in a helpful analysis inBoehler at paras. 43–47. In Lévesque, a group of about seven or eight people pulled a stunt at the offices of a media company, with oneof them first being granted entry legitimately. The group then played a song, threw papers on the floor quoting Napoleon, threw anumber of clown noses on the floor, and presented flowers and a trophy full of cigarette butts inscribed with the words “Media trash2018”. Photos were taken by the intruders and posted on Facebook.

The entire event lasted approximately 75 seconds. [85] In Lévesque, it appears no one argued that any actual uses of, or operations on, the property were interfered with by the satiricalprotesters, just the “enjoyment” of the property. As summarized in Boehler at para. 45, the approach of the Quebec Court of Appeal wasto state that the word “lawful” in relation to the word “enjoyment” connotes something about the relationship between the victim and theproperty that is the object of the mischief offence. [86] At trial, the accused in Lévesque was acquitted of break and enter and mischief.

The judge considered that the companyemployees were only troubled by the conduct. On appeal, the Court was of the view that the conduct caused a loss of use and enjoymentof the property by the property owner and occupants (para. 88). The accused was found guilty of both offences but the mischief chargewas stayed because both events arose out of the same transaction. [87] The meaning of “lawful enjoyment of property” also arose in R. v. Kirchner, 2005 ONCJ 45 [Kirchner]. In this case, the accusedplayed his music so loudly at 3 a.m. that the neighbouring complainant was unable to sleep.

The complainant was a tenant who wassleeping in her studio property, however, the area was not zoned for residential use. The judge concluded that the use of the property thatwas interfered with, sleeping and residing in an industrial zone, was not lawful, and so the mischief charge was dismissed. [88] In R. v. Janusas, 2010 ONSC 2068, the accused blocked a laneway between his and his neighbour’s homes, that had been usedby his neighbour for a driveway to enable him to park behind his own home.

In defence of the charge of mischief, the accused pointed toa bylaw that arguably prevented use of the laneway as a driveway because it was not as wide as required: paras. 15–17. The courtdistinguished Kirchner, because in Kirchner the only use that was interfered with by the accused was the prohibited use of the studio as aresidence. The court noted that the complainant in Janusas had other possible uses for the laneway, including to walk on it or ride a

bicycle or motorcycle to reach his own home (para. 21). Just because the accused could demonstrate he was interfering with an unlawful use did not mean that he did not interfere with other lawful uses, and he was found guilty of mischief. [ 89 ] All of the cases dealing with the meaning of enjoyment in the context of a mischief charge are interesting but somewhat distinguishable. In the present case, the evidence was that the protesters actually interrupted and interfered with Calvin Binnendyk’s activities that day, including his planned uses or operation of the property and not just his enjoyment of it.

That means that on the facts of this case, it is not necessary to state any test as to the meaning of “enjoyment of property” within the context of the mischief offence. [ 90 ] I therefore do not find it necessary to resolve whether I agree with the position of the judge of the Quebec Court in R. v. McQueen , 2022 QCCQ 2801 .

There, the judge found that the mere trespass by accused protesters into the barn of a pig farm, and occupation of it, without the permission of the owner, were each enough to constitute an interference with lawful use, enjoyment or operation of the property, without more: para. 360. [ 91 ] The above findings in McQueen are stated rather broadly and may be at odds with the approach of the Ontario Superior Court of Justice in R. v. Klimowicz , 2021 ONSC 2589 . There, an animal rights activist broke into a mink farm and took videos of the animals.

He did not have permission to come onto the property or to film but the owner did not even know he had been there until the videos were posted on the Internet. The court found at para. 27 that the accused did not interfere with the conduct of any activity in the barn or disturb the mink or harm them.

He was found not guilty of mischief. [ 92 ] The authorities illustrate that there may be more than one factor to consider when considering lawfulness of use, enjoyment or operation of property within the context of the mischief offence. [ 93 ] I accept that when considering the concept of “lawful use” or “lawful operation” for purposes of the mischief offence, even apart from the concept of “enjoyment”, the analysis may involve: (1) the relationship between the property and any person whose use is allegedly interfered with (for example, whether the person is an owner of the property or has a legal right to use it in the way that was interfered with); and (2) the nature of the person’s disrupted activity (for example, is the person permitted or prohibited by law to use the property that way). [ 94 ] Here, consideration of both of these factors leads to the same answer regarding relevance of the evidence of mistreatment of animals in this case. [ 95 ] First, Calvin Binnendyk’s relationship to the property, as owner, permitted him to use the property.

There is no basis for believing that evidence there had been mistreatment of animals on the farm would tend to negate his entitlement, as owner, to use the property.

It was undisputed that the Binnendyks were generally entitled to farm pigs on the property. [ 96 ] Second, the nature of Calvin Binnendyk’s disrupted activities on the day of the protest was lawful. [ 97 ] The appellants’ position appears to be that they could establish a defence to the mischief charge if they had evidence that some activities within the pig farm operation were unlawful because they perhaps violated a law regarding animal cruelty, or if there were repeated acts of animal cruelty.

This argument assumes that any unlawful use of the property could be a defence to the offence of mischief and so they ought to have been permitted to explore this generally. [ 98 ] The appellants interpret the mischief offence in a manner that is not borne out by its plain language. I know of no principle of statutory

interpretation that would allow us to read into s. 430 the proposition that if the property that is the object of the mischief conduct has ever been used illegally, whether because of a minor violation of a regulation or something more serious, that would be a defence. [ 99 ] I do not accept this theory. [ 100 ] The mischief offence in s. 430 of the Criminal Code directly links the offending conduct — obstructs, interrupts or interferes — with the object of that offending conduct; namely, lawful use, enjoyment or operation of property, or a person’s lawful use, enjoyment or operation of property.

Accordingly, the “lawful” inquiry applies only to the activities disrupted at the time of the offending conduct. [ 101 ] In my view, therefore, the starting question in relation to the nature of the disrupted activities is: what activity did the protesters actually obstruct, interrupt or interfere with on the day in question ? [ 102 ] Here the answer in the evidence was clear: they obstructed, interrupted and interfered with Calvin Binnendyk’s plans to do farm chores and breed animals in the barn. [ 103 ] The submissions of the appellants at trial and on appeal have not explained how any evidence they intended to explore regarding mistreatment of farm animals would tend to increase the probability that the protesters could establish, either from the broader perspective, that all of the farm operations themselves were unlawful; or from the more focussed perspective, that the actual farm chores and breeding activities that were interrupted were unlawful. [ 104 ] I can appreciate that sometimes submissions at trial are not fully fleshed out in the heat of the moment.

But surely by the time of the hearing of this appeal the appellants ought to be able to specify what laws on their theory of the case may have been broken by the owners of the farm. [ 105 ] On appeal, the appellants have still been unable to refer to any legal authority that would support the suggestion that some acts of animal mistreatment would convert the owners’ otherwise freedom to perform farm chores and breed pigs on the farm into unlawful activities.

They argue in their factum that they might have been able to show that the farm “was regularly engaged in harmful practices that were contrary to provincial and federal law”. Respectfully, this is too vague. [ 106 ] Rather than specify a theory of unlawfulness, the appellants submit that they ought to have been able to explore that topic through

cross-examination of one of the owners, to try to find out if the appellants could discover nuanced degrees of ‘illegal’ activity within thefarm operation. I do not accept that the appellants were entitled to go on a roving commission to try to find out if some illegal actshappened on the property.

They were permitted some latitude to lay the groundwork with Calvin Binnendyk, but they did not even startdown a path of suggesting that his farm chores and breeding activities were unlawful, nor did they suggest on the voir dire they mighthave any reason to pursue such a theory. [107] Since counsel for the appellants were seeking to explore an area of evidence of questionable relevance, they had an obligation toexplain to the judge how it might tend to prove or disprove an issue. [108] The judge was faced with determining relevance based on the known evidence at trial and the submissions of defence counsel.

Hedid not err in concluding that the defence had failed to explain how evidence of some mistreatment of animals would tend to show thatthe interference that occurred on the day of the protest was interference with unlawful use, enjoyment or operation of the property. [109] I therefore do not see any error in the judge’s conclusion that the evidence of some animals being mistreated at times on the farmwould not be relevant to the question of whether there was interference with the owners’ lawful use, enjoyment or operation of theproperty.

Relevance to Colour of Right [110] As for the other arguments on appeal, that the evidence might tend to show the defence of colour of right, or the motives of theprotesters, respectfully I do not consider this a case where we ought to consider these new grounds on appeal. [111] This was a case where the known facts did not lend themselves to a colour of right defence. [112] The term “colour of right” means an honest belief in a state of facts which at law, if those facts existed, would justify or excusethe act done: R. v. DeMarco, 13 C.C.C. (2d) 369 at 372, (Ont. C.A.).

It is distinct from having a moral conviction thatone is justified in breaking a law. [113] On an earlier ruling, the judge noted that Ms. Soranno had acknowledged in a voir dire that the activities of the protesters that daywere criminal in nature, but she maintained they were morally justified: Voir Dires No. 4 and No. 5, 2022 BCSC 714 at para. 129.

Thiswould suggest that early on the appellants were not planning to advance a colour of right defence. [114] The accused did not testify, and so there is no evidence that they believed they had a legal right to break into this private propertyand occupy it. [115] Counsel for Ms. Soranno admitted in his closing address that the protesters knew they were not supposed to be there, and that noone was allowed in the barn unless invited. [116] A number of videos and text messages involving the appellants and other protesters were put into evidence. We have not beenprovided with this evidence on appeal.

However, counsel for the appellants concedes that at the very least the appellants intended totrespass onto the farm to drum up media interest in what they believed to be mistreatment of animals occurring there. [117] In a pre-charge hearing, there was discussion between the Court and counsel about what to do about video evidence of the day ofthe protest that had gone in before the jury. The judge described that evidence as including the RCMP telling Ms. Soranno that she wasbreaking and entering and committing mischief, and Ms. Soranno replying that she has a higher moral purpose.

The judge discussed hisperception that he might need to say something in the jury charge to clarify that “the law is the law and everyone has an obligation tofollow it”. None of the defence counsel suggested that the appellants did not know that they were breaking a law. [118] The judge did instruct the jury on what colour of right means. He also told the jury that as a matter of law, if a person is takingpart in a peaceful protest, that does not provide a legal justification or excuse for unlawful conduct.

He further explained the rule of law,including that no one is above the law. [119] If the appellants believed they had a lawful right to enter the barn, occupy it and demand a media tour, and needed to pursueevidence that would show mistreatment of the animals in order to prove their lawful right, I would have expected their counsel to raisethis with the judge, but they did not.

The appellants have not explained the theory which would link an accused’s belief that there wasanimal mistreatment occurring at the farm, with the belief that this would legally justify the accused breaking into private property andcontinuing to occupy it when the owners and the police asked them to leave.

One does not equate to the other. [120] The videos of the protesters, their t-shirts, and placards, followed by their continued presence despite being asked by the ownersand then the police to leave, their actions in occupying the barn until their demands for a media tour were met, leave no evidentiaryfoundation for an argument that the appellants had a subjective belief that they had a legal right to enter and occupy the property. [121] It cannot be said the judge made an error in not considering evidence of mistreatment of the animals to be relevant to a defencetheory that was not advanced and that did not appear to be a viable theory based on the evidence.

Relevance to Motive [122] As for the protesters’ motives in breaking into the barn and occupying it, there was no vandalism and nothing was taken, theyshowed up with identical shirts and many carried placards, they demanded that the media be allowed to tour the barn and videotape it,and they were peaceful and left when the media tour was over and the arrests were processed. They were referred to at trial as protesters.The motive was obvious, to obtain media attention regarding the conditions of the animals, because they believe those conditions to becruel. As counsel for Mr.

Schafer put it to the jury in his closing address, “[t]he intention here and in fact the only goal by anybody wasan information gathering process…you wouldn’t be allowed to get in [to these farms] otherwise”. Counsel for Mr. Schafer then reminded

the jury of the video capturing what the protesters did see inside, including pigs being in crates, presumably to highlight what was considered to be obviously cruel conditions. [ 123 ] Motive was never in issue and is not a basis for the appellants’ arguments as to why they wanted to lead evidence to prove there had in fact been some mistreatment of the animals. [ 124 ] I should add that in this case, there were several defence counsel and it could be fairly stated that they turned over many stones in advancing a vigorous defence for their clients.

The fact that they did not advance arguments at trial that evidence of maltreatment of animals was relevant for these additional purposes speaks volumes. [ 125 ] The judge was only required to grapple with the live issues before him on the voir dire . He was not obliged to think of arguments that were not advanced on points that were not truly in issue: R. v. Zsombor , 2023 BCCA 37 at para. 45 . [ 126 ] Before I leave this ground of appeal, I will also deal with the argument that the judge relied on irrelevant considerations in excluding the evidence of the mistreatment of animals.

At the conclusion of his reasons, the judge added that the appellants had a political agenda in seeking to publicize the video evidence and that it was illegally obtained. He said these were factors that would enter into the exercise of discretion: para. 71, Voir Dire No. 8. [ 127 ] The judge’s comments regarding the appellants’ political agenda were obiter and not the basis for his ruling. This observation did not influence his conclusion that the evidence was irrelevant, which he had already decided: para. 70.

I would give this complaint no weight. [ 128 ] In the circumstances, I would not accede to the ground of appeal that the judge erred in concluding that evidence of actual mistreatment of the animals was irrelevant. Should the Judge Have Instructed the Jury Differently Regarding Dr. Dykshorn’s Evidence? [ 129 ] The admissibility of Dr. Dykshorn’s evidence was subject to a voir dire ruling. The focus was on his qualifications. The judge noted that no submissions were made that the evidence was irrelevant. [ 130 ] Dr.

Dykshorn’s evidence appeared relevant, factually, as he was brought to the farm on the day of the protest. [ 131 ] His expert opinion evidence appeared relevant to the Crown’s theory that the appellants’ actions interfered with the use of the property because they introduced a biosecurity risk on the farm, and they caused extra stress for the pigs. However, the Crown abandoned this theory in the end.

By the time the case was put to the jury, the interference which the Crown focused on was the interference with farm chores. [ 132 ] The appellants’ counsel never changed from their position accepting the relevance of Dr. Dykshorn’s opinions during the trial. They also did not argue before the judge that Dr. Dykshorn’s evidence was prejudicial. [ 133 ] I accept that the concept of relevance often evolves as a trial continues, and also once all the evidence has been heard. I accept that by the time of the judge’s jury charge to the jury, Dr. Dykshorn’s expert opinion evidence seemed to have little relevance.

There was no allegation that the protesters had brought in an illness to the pigs, and no argument that simply creating a biosecurity risk was interference with property. It is well established that a judge must act as a gatekeeper with respect to the admission of expert evidence. [ 134 ] I agree with the appellants that on reflection, by the time of the jury charge given the evolution of the case, it was an error to put Dr. Dykshorn’s opinion evidence to the jury, at least without a limiting instruction. The judge should have either: properly instructed the jury to ignore Dr.

Dykshorn’s opinion evidence because it was irrelevant to proving any element of mischief, or given a limiting instruction to suggest that its only relevance was to explain as general background, why the Binnendyks do not permit strangers on the farm, alongside a warning that the evidence did not establish any element of the offences. [ 135 ] Section 686(1) of the Criminal Code permits this Court to dismiss an appeal where despite an error, the court is of the opinion that no substantial wrong or miscarriage of justice has occurred. This is known as the curative proviso. [ 136 ] As held in R. v.

Rajani , 2021 BCCA 292 : [16] For the curative proviso to be applied, the Crown must show either that the errors were so harmless that they could not have affected the verdict or that the errors, while serious, did not result in a miscarriage of justice or a substantial wrong because the case against the accused was overwhelming: R. v. Heltman, 2019 BCCA 468 at para. 51 . [ 137 ] I agree with the Crown that the error in permitting Dr.

Dykshorn’s opinion evidence to go before the jury, and without a limiting instruction, was harmless. [ 138 ] It was clear from the submissions of the parties, and the judge’s charge, that this opinion evidence was not relied upon to prove whether there had been interference with property as part of the charge of mischief, and the jury could not have been confused about this. [ 139 ] Nor was Dr. Dykshorn’s evidence prejudicial to the accused. Dr. Dykshorn’s opinion was simply interesting background as to how biosecurity risks need to be managed at large farms.

The protesters had taken steps to limit biosecurity risks by wearing booties, coveralls and masks. No one argued that they had introduced a biosecurity risk and harmed the pigs. It could not be said that allowing the jury to consider this evidence could cause them to draw negative inferences regarding the morality of the accused, or to infer that the accused were bad people who are more likely guilty of the offences for which they were charged.

[ 140 ] Furthermore, the case against the accused was overwhelming. Their actions were recorded that day. The conclusion that they interfered with ordinary use of the property was obvious from their sheer numbers and lengthy presence in the barn, combined with Calvin Binnendyk’s evidence. [ 141 ] I would therefore not accede to this ground of appeal. Disposition [ 142 ] For the foregoing reasons, I would dismiss the appeal. “The Honourable Justice Griffin” I AGREE: “The Honourable Mr. Justice Groberman” I AGREE: “The Honourable Justice Skolrood”