R v Harley, 2023 ABCJ 213

In the Alberta Court of Justice Citation: R v Harley, 2023 ABCJ 213 Date: 20231017 Docket: 210598496P1 Registry: Drumheller Between: His Majesty the King - and - Kevin Stewart Harley Decision of the Honourable Justice S. Mah Introduction [ 1 ] Mr. Harley is charged with a single count Information alleging that on or about June 18, 2021, at or near Langdon, Alberta, did unlawfully assault Andrea Smith contrary to

section 266 of the Criminal Code of Canada . [ 2 ] Mr. Harley is alleged to have assaulted a water utility employee who attended his residential property to disconnect the water for non-payment. Mr. Harley submits the complainant had no lawful basis for being on his property and he was acting within his rights to defend his property under

section 35 of the Criminal Code . [ 3 ] The Crown called three witnesses, the complainant, Ms. Corrine Crilly, an employee of Rocky View Utility Corp., and Constable Falyn McLaughlin, the investigating officer. [ 4 ] Mr. Harley is a self-represented accused. The accused and his spouse, Ms. Janna Harley, testified.

Elements of the Offence [ 5 ] The Crown must prove each of these essential elements of assault beyond a reasonable doubt, that: 1. the accused intentionally applied force to the complainant; 2. the complainant did not consent to the force the accused intentionally applied; and 3. the accused knew the complainant did not consent to the force that the accused intentionally applied. [ 6 ] The application of force may be direct or indirect and force includes any physical contact with another person, whether violent or gentle. The word intentionally refers to the accused’s state of mind when he applies the force.

Intentionally means on purpose. Elements of the Defence of Property

[ 7 ] The accused raises the defence under

section 35 of the Criminal Code , being defence of property. [ 8 ]

Section 35 provides that a person is not guilty of an offence if four essential elements are present: (1) the person must have peaceable possession of property or alternatively they reasonably believe they are entitled to peaceable possession; (2) the person must have reasonable grounds to believe that another person is entering or has entered the property without being entitled by law to do so, is about to take the property or is doing so or has done so, or is about to damage or destroy property or make it inoperative or is doing so; (3) the person’s actions must be for the purpose of preventing the person from entering the property or removing that person from the property or preventing the person from taking, damaging for destroying the property; and (4) the person’s actions must be reasonable under the circumstances. [ 9 ] The accused’s belief in their entitlement to peaceable possession in certain property and their perception of a threat to that property is assessed on a subjective basis.

The reasonableness of the accused’s response to that threat is determined on an objective basis or what a reasonable person would have done under the circumstances. Issues for Analysis [ 10 ] Has the Crown proved beyond a reasonable doubt that the accused committed the offence of assault against the complainant? [ 11 ] Has the Crown proved beyond a reasonable doubt that at least one of the elements of the defence of property under

section 35 was not present in this case? Crown’s Position [ 12 ] The Crown submits that each of the elements of the offence of assault has been proven beyond a reasonable doubt. The date, time, jurisdiction, and the accused’s identity are made out by the complainant and in a video that captured the alleged incident. The testimony of the complainant and the video, admitted as Exhibit 1, established beyond a reasonable doubt that the accused intentionally applied force to the complainant and knew the complainant did not consent.

The complainant testified she did not consent to such force. [ 13 ] The complainant was a credible and reliable witness. The video captures the accused running out of his house towards the complainant, grabbing a shovel from the complainant, jerking the shovel around before letting go and then pushing the complainant off his residential property. Ms. Crilly testified the accused told her over the phone he pushed the complainant. [ 14 ] The Crown further submits that the defence of property is not applicable in this case.

The complainant is an employee of Rocky View Utility Corp., under instructions from her employer to attend the accused’s property to disconnect the water service for non- payment. The complainant had a legal right to enter the accused’s property given the agreement the accused entered into to access water. In addition, the accused’s actions were unreasonable in the circumstances.

Defence’s Position [ 15 ] Defence denies the allegation and submits the complainant did not have the legal right to access his property as: (1) he made arrangement for payment on June 16, 2021, two days before the alleged incident; (2) his property is not subject to a registered easement or utility right of way at land titles; and (3) any agreement to supply water to the property was terminated by either the accused or Langdon Waterworks for failing to give proper notice for non-payment, as required by the terms and conditions. [ 16 ] The accused relies on the defence of property under

section 35 of the Criminal Code and submits all the required conditions have been met. Legal Analysis and Legal Framework [ 17 ] I have carefully reviewed all the evidence presented along with all the arguments advanced by Crown and the accused. Merely because I have not mentioned some aspect of the evidence or arguments advanced does not mean I have failed to consider it. [ 18 ] To determine whether the Crown has proved each essential element of the offence a credibility analysis must be conducted. The accused has the right to be presumed innocent until proven guilty according to law. [ 19 ] The presumption of innocence is found in

section 11(

d) of the Charter of Rights and Freedoms . It states that all accused have the right to be presumed innocent until proven guilty according to law. The Crown has the burden of proving beyond a reasonable doubt that the accused committed the offence as alleged before this Court.

Reasonable Doubt [20] In paragraph 31 of R v Lifchus, (SCC), [1997], 3 SCR 320 the requirement that the Crown prove its case“beyond a reasonable doubt” entails that the evidence relied on by the prosecution must leave no reasonable inference and no reasonablepossibility, that the accused is innocent. [21] At paragraph 39 of the Lifchus decision, “A reasonable doubt is not an imaginary or frivolous doubt. It must not be basedupon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence ofevidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient.” [22] To determine whether or not the Crown has proved the accused’s guilt beyond a reasonable doubt, the test for credibility, isset out by the Supreme Court of Canada in the decision of R v W(D), (SCC), [1991] 1 SCR 742. [23] The test for credibility as set out in W(

D) are:

a) First if you believe the evidence of the accused, you must acquit;

b) Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit;

c) Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [24] The Alberta Court of Appeal affirmed the approach taken by W(

D) in R v Ryon, 2019 ABCA 36 (Ryon) which wassubsequently modified by R v Achuil, 2019 ABCA 299 by listing four steps to consider in cases of credibility in para 51 of Ryon: i. The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on theCrown so that the accused person is never required to prove his innocence or disprove any of the evidence led by the Crown. (Subject tothe caveat that this does not apply to defences, such as that found in s 16 of the Criminal Code, where the onus rests with the proponentof the defence). ii.

In that context, if the jury believes the accused’s evidence denying guilt (or any other exculpatory evidence to that effect), or ifthey are not confident they can accept the Crown’s version of events, they must acquit. (Subject to defences with additional elementssuch as an objective component discussed at para 31). iii. While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence,the jury is unable to decide whom to believe, they must acquit. iv. Even if the jury completely rejects the accused’s evidence (or where applicable, other exculpatory evidence), they may not simplyassume the Crown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whetherthat evidence persuades them beyond a reasonable doubt that the accused is guilty.

Mere rejection of the accused’s evidence (or whereapplicable, other exculpatory evidence) cannot be taken as proof of the accused’s guilt. [25] In considering the issue of credibility, I am entitled to apply common sense and human experience in determining whether theevidence is credible and deciding what use, if any, I will make of it in coming to any conclusion.

At the end of that process, to believe, inwhole or in part, the testimony of a witness, disbelieve, in whole or in part the testimony of a witness and to weigh the individual value ofthe testimony, whether the witness seems to have a good memory of the relevant events, whether the evidence provided by a witnessseems reasonable and consistent and whether there is any reason why a witness would not be telling the truth.

When assessing theevidence of the accused, it is impermissible to assume the accused will lie to escape conviction, as to do so would undermine thepresumption of innocence, R v Laboucan, [2010] 1 SCR 379. [26] The testimony of a witness must be weighed carefully and considered in light of many factors, including internal consistencyor inconsistency, the consistency or inconsistency of the testimony when measured against the evidence over which there is no realdispute.

In other words, how the testimony of the witness fits with the facts that have been clearly established on the evidence.Determining credibility is an issue of fact. Law and Analysis [27] Applying R v W(D), first, if I believe the evidence of the accused, I must acquit. [28] I do not believe the evidence of the accused. Both accused and his spouse described a sequence of events that omits anexplanation as to why the complainant’s body is pushed and twisted around in the video.

The accused and his spouse focused on thepushing back and forth of the shovel but ignored the video evidence which showed the accused grabbing the shovel from thecomplainant, the jerking around of the shovel a few times and then the accused pushing the complainant such that the complainant’sbody was twisted around. [29] I also find Ms. Harley and the accused were aggressive with the complainant. Ms. Harley said to the complainant “Hold yourtits. And then I said stop acting like a cunt.” (page 65, line 2 of day 2 transcripts).

The accused is also seen in the video running quicklyfrom the house directly towards the complainant. [30] When Ms. Harley was describing the sequence of events leading up to the incident, she started to say there was a struggle

between the accused and the complainant, but then corrected herself. Mr. Harley also acknowledged there was incidental coverage. [ 31 ] At lines 40 and 41 of page 65, and line 1 of page 66 of day 2 transcripts, Ms. Harley said: “You guy – there was a struggle – sorry – struggle back and forth with the shovel, but there was – you never had the actual shovel in your hand.” [ 32 ] Mr. Harley also acknowledged there was an incident with the complainant.

He said (at lines 4-6 on page 93 of day 2 transcripts): “I went out there, tried to remove the shovel from her hands, and we were pushing back and forth on it, and then broke away and there may have been an incidental coverage (sic).

I’m not sure.” [ 33 ] Finally, the accused testified he suffers PTSD from unrelated experiences and he cannot thoroughly remember the actual incident happening (page 97 lines 16 and 17 of day 2 transcripts). [ 34 ] I find the evidence of the accused and his spouse not to be credible as their evidence is inconsistent with the video and they omitted explaining a push that results in the complainant’s body being twisted around.

I also find the accused’s evidence not to be reliable as he acknowledged he cannot thoroughly remember the actual incident happening. [ 35 ] Second, if I do not believe the evidence of the accused, but I am left in reasonable doubt by it, I must acquit. In keeping with the second stage of W(D) , I must consider the accused’s evidence in the context of the other evidence before the Court to determine whether I am nonetheless left with reasonable doubt as to the accused’s guilt. [ 36 ] I am not left in reasonable doubt by the evidence of the accused.

The sequence of events described by the accused and his spouse is inconsistent with the video. [ 37 ] Constable Falyn McLaughlin retrieved a video from the house across the street from the accused’s residence and confirmed the video was dated June 18, 2021 and started at 8:20:41 am. She confirmed the video was not edited or changed. The video captured the accused running out of his house, grabbing for the shovel from the complainant and the complainant being pushed by the complainant enough to cause her body to be twisted around.

There is no one else in the video. [ 38 ] Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 39 ] I accept the evidence of the complainant. The complainant was a credible and reliable witness. She testified in a direct manner. She admitted when she did not know things or when things were outside of her area. [ 40 ] The complainant identified the accused in court. The complainant is an employee of Rocky View Utility Corp. in Langdon.

She is employed as a water distribution operator. She attended the accused’s property on June 18, 2021, to disconnect the water service for non-payment on instruction from her employer. She arrived shortly after 8 am and knocked on the door. She announced her name, that she was from Rocky View Utility Corp., she was there to perform a service disconnection and was required to stay on the property until she received confirmation of payment.

She drove a company truck with the logo of Rocky View Utility Corp. marked on the truck and parked the truck in front of the accused’s house. [ 41 ] The accused was known to her because there had been previous disconnection notices with respect to the accused. She advised the accused payment could be made that morning so the accused returned into his house. She left the front door area, returned to her truck, and pulled out a pin finder which is a metal detector to locate the curb stop to turn off the water.

She returned to her truck, grabbed a spade, began to remove the sod from around the curb stop cap because it was beneath the grass and prepped the area for access in the event she needed to turn off the water. [ 42 ] The complainant heard a woman screaming and then the accused came running out of the house towards her. The accused yelled profanities at her and told her to get off his property. The complainant explained there was a utility right of way. The accused grabbed for the shovel and then pushed her. She did not consent to the push. The accused returned into his house.

She called 911. [ 43 ] Video footage dated June 18, 2021, at 8:24:25 am captured the accused running out of his house, grabbing for the shovel and pushing the complainant enough that her body twisted around. The complainant identified the accused in the video. [ 44 ] The complainant suffered psychological injuries, fear and anxiety.

She received treatment for counselling with a psychiatrist. [ 45 ] The complainant acknowledged that while she was not wearing any clothing which identified her with her employer she was driving the company vehicle marked as Rocky View Utility Corp. which was parked in front of the house. She testified Rocky View Utility Corp. operates Langdon Waterworks Water System. [ 46 ] I also accept the evidence of Ms. Corrine Crilly as credible and reliable. Ms. Crilly has been an employee of Rocky View Utility Corp. for approximately 18 years.

Rocky View Utility Corp. is a utility company which subtrades out to municipalities and towns for water. Rocky View Utility Corp. is contracted to Langdon Waterworks and the billing for water services is through Langdon Waterworks. She knew the name of the accused as a customer. [ 47 ] Ms. Crilly testified that on the morning of June 18, 2021, she entered the office and the phone was ringing. She answered the phone. The person identified himself as Kevin Harley and advised her someone was digging up the yard with a shovel. Ms. Crilly explained the person was looking for the curb stop.

She testified the accused told her he pushed this person and took the shovel. [ 48 ] Ms. Crilly also said the accused told her he nudged the complainant and forcibly removed the shovel from the complainant’s

hand. Ms. Crilly testified she knew at the time of this phone call that a disconnection had been sent out for the accused’s property. Shesaid the accused was yelling obscenities at her, so she hung up. She testified the accused had received disconnection notices before. [49] I find Ms. Crilly testified in a direct and forthright manner. She testified to what she knew, saw, and heard and testified whenshe did not know when a question was posed to her that was outside of her scope. [50] I find both the complainant and Ms.

Crilly to be credible and reliable witnesses and the video is consistent with the testimonyof the complainant. [51] Constable Falyn McLaughlin attended the accused’s residence at 9:30 am after speaking with the complainant and anotherwitness. When she attended the residence of the accused and told him he was under arrest he slammed the door in her face. I find Cst.McLaughlin to be a credible and reliable witness. [52] I find the accused was still in an emotional state at 9:30 am when Constable McLaughlin knocked on his door almost 1 hourafter the incident. [53] I accept the evidence of the complainant, Ms.

Crilly and Constable McLaughlin and I am convinced beyond a reasonabledoubt of the guilt of the accused. [54] I find the accused intentionally applied force and pushed the complainant without her consent. The accused knew thecomplainant did not consent to being pushed. The accused acknowledged the complainant was an employee of the utility company andeven called the utility company to discuss the miscommunication as to whether payment was being made. The accused did not want thecomplainant on his property, digging a hole to access the water valve, so he pushed her.

The application of force may be direct orindirect and force includes any physical contact with another person, whether violent or gentle. The least amount of touching withoutconsent R v Burden, (BC CA), [1982] 1 WWR 193 at paras 16-18 (BCCA). [55] I find the Crown has proved each element of the offence of assault beyond a reasonable doubt. [56] This does not end the matter. I must address the defence of property under

section 35 of the Criminal Code.

The accusedargues he was defending his property for three reasons: (1) he had made arrangements to pay the overdue bill with another person at the utility company on June 16, 2021, once he receivedfunds on June 18, 2021, as a plaintiff in a motor vehicle accident; (2) the complainant had no legal basis to be on his property because there is no registered easement or utility right of way on his landtitle; and (3) he had terminated the agreement with Langdon Waterworks when Langdon Waterworks failed to give him the telephone call andnotice to disconnect under the terms and conditions of the agreement, or Langdon Waterworks had revoked their own user agreementbecause they did not phone Mr.

Harley in advance about the disconnection services which was required under the agreement. [57] Judge S. Schiefner in R v Chaboyer, 2020 SKPC 6 at paras 41-45 wrote: [41] Defence of property has long been recognized as a limited defence in Canada. This defence is codified in s. 35 of the Criminal Code.The defence applies to a wide range of offences and to any type of property. The defence is triggered when a person subjectively believesthat the actions of another person are threatening the peaceable possession of the subject’s property.

See: Cormier v R, 2017 NBCA 10at paras 37 & 47, 348 CCC (3d) 97 [Cormier]. [42]

Section 35 provides that a person is not guilty of an offence (including in this case – assault) if four essential elements are present:(1) the person must have peaceable possession of property or alternatively they reasonably believe they are entitled to such possession;(2) the person must have a reasonable belief that their property is threatened by trespass, theft or vandalism; (3) the person’s actions mustbe for the purpose of retaking or preserving that property; (4) the person’s actions must be reasonable under the circumstances. See:Cormier at para 47.

See also: Pankiw at para 34. [43] For the trier of fact, the subject’s belief in their entitlement to peaceable possession in certain property and their perception of athreat to that property is assessed on a subjective basis (from the subject’s perspective). However, the reasonableness of the subject’sresponse to that threat is measured on an objective basis (what would a reasonable person have done under the circumstances).

See:Cormier at para 47. [44] Much like the defence of self-defence, “reasonableness” is the principle filter for the application of the defence of property to justifyan action that would otherwise be an offence. Assuming the other elements are present, if the actions of the accused are objectivelyreasonable under the circumstances, they are justified at law and the subject is not guilty of the concomitant offence. [45] Finally, [the accused person] need not prove the application of this defence.

If I find there is an air of reality to the defence arisingfrom the evidence, then s. 35 applies unless the Crown can prove beyond a reasonable doubt that at least one of the elements of thedefence was not present. See: R v Caswell, 2013 SKPC 114, 421 Sask R 312. [58] I find the Crown has established beyond a reasonable doubt that the accused did not have a reasonable belief that thecomplainant was entering his property without being entitled by law to do so (being condition 2 of

section 35 of the Criminal Code). Ialso find the Crown has established beyond a reasonable doubt that the accused’s actions were not reasonable under the circumstances(being condition 4 of

section 35 of the Criminal Code). [59] I reject all the accused reasons for defending his property, as unreasonable in the circumstances, for two reasons.

[ 60 ] First, it was not reasonable for the accused to believe, even on a subjective basis, the complainant was not entitled by law to enter the property and turn over sod to access the curb stop to prepare to disconnect the water utility for non-payment. [ 61 ] The accused says he did not understand there was a contractual relationship between Langdon Waterworks and Rocky View Utility Corp. as his invoices are issued by Langdon Waterworks.

In addition, any agreement for water access was terminated because Langdon Waterworks did not comply with the terms to notify the accused of arrears and in any event, the accused terminated the agreement for water service. [ 62 ] I find the accused did understand his water bill was in arrears because he arranged for payment on June 16, 2021 after receiving prior written notice, albeit this written notice was not followed by a telephone call. [ 63 ] The accused also acknowledged that he had been getting notices for non-payments since 2014/2015 so he understood he could and did communicate with the utility company and that the utility company can disconnect service.

Further, he understood there was a water connection to the property that supplied water to his property so it was unreasonable for him to believe that there would be no consequences, such as the utility corporation accessing the property to disconnect, if he did not pay his water bill. [ 64 ] I also find the complainant had a legal right, by contract, to be on the accused’s property. The terms and conditions from Langdon Waterworks, admitted as Exhibit 3, contains a provision that grants a right of way to the accused’s property. Ms.

Crilly confirmed she was familiar with the terms and conditions that Langdon Waterworks relies on with their customers. She advised every customer is required to sign a contract and must pay a $200 deposit. She referred to paragraph 4.0 of the Langdon Waterworks Terms and Conditions: “4.0 RIGHT OF WAY: The customer shall provide, as required by and without cost to LWW, on, over or under land or any buildings owned, leased, or under easement by the Customer, a satisfactory easement, right of way, space and location for LWW’s facilities, if any, required to provide service to that Customer.

LWW shall have the right of free access to Customer’s property for meter reading or the installation, maintenance or removal of any equipment. The meter and associated hardware shall at all times be fully accessible to LWW for the purposes of reading the meter, making necessary inspections and repairs and shall not be blocked in any manner.” [ 65 ] Ms. Crilly confirmed these terms and conditions apply to all customers.

She confirmed the accused signed a contract with these terms and conditions as there is a signed agreement with the accused on her file. [ 66 ] I find there is a contractual right of way that granted Langdon Waterworks and its contracted party, Rocky View Utility Corp. and its employees, the right to access the accused’s property. [ 67 ] I also find that it was unreasonable for the accused to self declare the contract was terminated when Langdon Waterworks failed to follow up with a phone call, after written notice of disconnection was given, as provided in the terms and conditions for service. [ 68 ] I further rely on the decision of R v Ginter , 2023 ABCJ 92 , at para 8 wherein Justice Hougestol took judicial notice that customers of utility companies must pay for that service and if they do not then they can expect to be disconnected.

Part of a disconnection may involve the utility provider being on the property. [ 69 ] Ms. Harley also acknowledged in cross examination that in 2018 there was a hole made in the same place to turn off the water, so the location of the digging by the complainant was not a surprise to her.

The accused had been subject to disconnection in a prior incident and knew the utility company had a legal right of access to the property to turn off the water. [ 70 ] Second, I find the actions of the accused are not reasonable, from an objective basis. [ 71 ] The complainant identified herself as being from a utility company directed to disconnect the water service for non-payment and she was driving a company vehicle. The accused knew his payments were in arrears.

The accused acknowledged receiving written notice to disconnect a week prior to June 18, 2021, and he arranged for payment on June 16, 2021, with another worker at the utility corporation. The accused knew there was a miscommunication about the arrangements for payment and he needed to resolve it which is why he called the utility company. [ 72 ] Ms. Harley and the accused were upset with the complainant for digging around the curb stop after the complainant told them she would wait in her truck and not disconnect the water. When Ms.

Harley and the accused saw the complainant prepping the curb stop, the reasonable step for them to take was to communicate with the complainant and the utility corporation instead of grabbing the shovel and pushing the complainant. I find it was not reasonable for the accused to push the complainant, who was there to turn off the water for non-payment on direction of her employer. [ 73 ] The accused’s response to the situation was wholly unreasonable. [ 74 ] I find the Crown has proven beyond a reasonable doubt that the accused’s response was unreasonable. [ 75 ] I therefore find

section 35 of the Criminal Code to be inapplicable in this case and the accused is guilty of assault beyond a reasonable doubt.

Dated at the Town of Strathmore, Alberta this 17 th day of October, 2023. S. Mah A Justice of the Alberta Court of Justice Appearances: K. Perrin for the Crown Self Represented for the Accused