R. v. Kure, 2022 NSSC 309

SUPREME COURT OF Nova Scotia Citation: R. v. Kure , 2022 NSSC 309 Date: 20220504 Docket: Hfx No. 511497 Registry: Halifax Between: His Majesty the King Appellant v. Eleanor Kure and Kevin Smith Respondents Decision Judge: The Honourable Justice Denise M. Boudreau Heard: Oral Decision: Written Release of Oral Decision: March 29, 2022, in Halifax, Nova Scotia May 4, 2022, in Halifax, Nova Scotia November 1, 2022 Counsel: Jim Janson and Joshua Judah, KC, for the Appellant Jamie Simpson, for the Respondents By the Court: [ 1 ] The matter before the Court is a

summary conviction appeal brought by the Crown. Both Respondents were acquitted by a Justice of the Peace (the “JP”) on November 30, 2021, in respect of charges pursuant to

Section 4 of the Protection of Property Act (the “ Act ”) of Nova Scotia, which reads: 4. Every person who, without legal justification, whether conferred by an enactment or other otherwise, remains on premises after being directed to leave by the occupier of the premises or a person authorized by the occupier is guilty of an offence and is liable on

summary conviction to a fine of not more than five hundred dollars. [ 2 ] The facts of the matter essentially are not in dispute. There is a provincial Department of Lands and Forestry office that is located here in Halifax, Nova Scotia. It is on the third floor, as I understand it, of Founders Square in Halifax. That office consisted of an outer public area, an inner public reception area, and then a private office area for the staff. [ 3 ] On November 24, 2020, due to COVID restrictions, access to the offices were by appointment only.

According to the evidence at trial, a sign had been placed in the outer public area indicating the necessity for social distancing and that an appointment was required to access the office beyond that point. There was a phone and a phone number to call, also available in that location. The door between that area and the reception area was closed and locked. [ 4 ] Again, these circumstances had been put in place specifically due to the COVID pandemic. Prior to COVID, according to the

evidence, the door would have been open or, at least, unlocked; the public normally would have been permitted to enter that reception or waiting area essentially without restriction. [ 5 ] On that particular date, the Respondents along with two other persons knocked on the locked door to the reception area. A staff person answered the door and was told by the Respondent Eleanor Kure that she had a letter to deliver. The staff person allowed all four persons beyond the door into the reception area.

Once inside, the Respondent Kure indicated that she, in fact, was seeking a meeting between herself and/or the others, and the Minister. Ms. Kure stated that her group was frustrated because the government was not listening to their concerns in relation to a specific issue. Ms. Kure stated that she had the right to freedom of expression. [ 6 ] The staff person asked the Respondents and the two others to leave the area. They did not leave and, in fact, they would not leave.

Corporate security was called and formal Notices under the Protection of Property Act were served on the Respondents, requiring them to leave and to remain away from the premises. The Respondents, again, refused to leave. The police were then called and attended. [ 7 ] At some point through these events, the two other individuals who were present did leave the premises.

The two Respondents did not and indicated to persons present that they would not leave, in fact, unless they were “carried out” from the premises. [ 8 ] The police officers who attended were hesitant to physically engage the Respondents due to COVID concerns in particular, and made repeated warnings to the Respondents that they should leave. They continued to refuse to leave. Eventually, the Respondents were physically carried off the premises by police. [ 9 ] It should be noted that at the trial Ms. Kure testified, but Mr. Smith did not. In her evidence, Ms.

Kure essentially did not dispute the factual scenario put forward by the Crown, but put forward the position that her actions that day constituted a lawful protest and/or that they were permitted by way of freedom of expression. [ 10 ] Both Respondents were acquitted of the charge by the JP. The acquittals were entirely based on two sections of the Act which provide specific defences. [ 11 ] Section 5(1) of the Act provides: 5(1) It is a defence to a charge under

Section 3 or 4 that the person charged reasonably believed that he had a legal justification, or permission of the occupier or a person authorized by the occupier, to enter on the premises or to do the act complained of. [ 12 ]

Section 16 of the Act provides: 16 This Act does not apply to a person who is engaged in … (

b) a peaceful demonstration in the vicinity of premises to which the public normally has access. [ 13 ] The JP found that Ms. Kure did reasonably believe that she had legal justification to stay in the Minister’s office, as described in Section 5(1) of the Act , because she believed that she had freedom of expression as guaranteed under the Charter . The JP further found that all four people involved were engaged in a common goal on that particular day. [ 14 ] Although the JP did not say this explicitly, it is my understanding from her decision that she attributed Ms. Kure’s beliefs and intentions over to Mr.

Smith as well, thereby giving him the benefit of the same defence(s). However, as I have already noted, Mr. Smith did not testify. There was no evidence before the JP as to Mr. Smith’s beliefs or thoughts on that day. [ 15 ] The JP further found that the facts of the case fit the definition found in

Section 16(

b) of the Act , in that the Respondents were engaged in “a peaceful demonstration in the vicinity of premises to which the public normally has access”. [ 16 ] The Crown brought a

Summary Conviction Appeal with respect to these acquittals. A number of grounds of appeal were advanced; at the hearing, counsel agreed that the issues to be determined were whether: 1. The Adjudicator had erred in law by finding that the Protection of Property Act defence at

Section 16(

b) applied to the reception area of the Minister’s Department; 2. The Adjudicator had erred in law and made unreasonable findings of fact by finding that the Protection of Property Act defence at Section 5(1) applied. [ 17 ] Counsel further agreed that the standard of review for an appeal court in relation to questions of law (i.e., the first issue hereinabove) is correctness. [ 18 ] Issue number two concerns both a question of law (held to a standard of correctness) and also findings of fact.

The standard of review in relation to questions of fact is whether the finding is unreasonable or cannot be supported by the evidence. If a trial judge makes an error on a question of fact, it may be disturbed on appeal only if the error is palpable and overriding. [ 19 ] I am going to start with the first ground of appeal, which is the

Section 16 issue. [ 20 ] The Crown argues that the decision of the JP, where she found that

Section 16 applied in the facts of the present case, was an error of law. [ 21 ] The debate essentially turns on the

interpretation of the expression “in the vicinity of premises to which the public normally has access”, as is contained in the section.

[ 22 ] The Protection of Property Act is available to all owners or occupiers of property. However, this situation is a little different. The situation of a person who is purposefully occupying a government space for what they state is a “protest” is, to some extent, different than a situation of trespass or nuisance to a private landowner. Having said that, of course, the Protection of Property Act remains available in both circumstances. [ 23 ] I note the Nova Scotia Court of Appeal case of R. v. Mian , 1995 NSCA 187 .

In that case, the defendant had entered the waiting area of the Premier’s office and refused to leave after having been asked. Mr. Mian had previously been given a formal Notice pursuant to the Act not to enter those premises. Mr. Mian claimed that he had the right to be in that location because it was a publicly owned public place; therefore, he had a right to protest in that place. [ 24 ] The Court in Mian made the point that even publicly funded places are, and must be, subject to rules.

Furthermore, the Court noted that some places, despite being publicly owned or publicly funded, are in fact not public in the usual sense of that word. In those places, “… the guarantee of free expression has no place.” [ 25 ] The examples given by the Court in Mian were of a judge’s office, an airport control tower, the Prime Minister’s office, or a prison cell. Despite being publicly funded, those places are clearly not public.

The Court noted, for example, that there is a high “public interest in the protection of the right of a person holding public office to control his or her official working environment ...”. [ 26 ] The Court in Mian further stated that, in its view, the Protection of Property Act would apply not only to the “sanctum” of the Premier’s Office, but also to its waiting area. In other words, the Premier and his staff had the right to control both spaces. [ 27 ] The Mian case is binding on this Court. Clearly, it has many similarities to the case at bar.

In fact, in my view, the Mian case is not only instructive to this Court but to a large extent it is dispositive of the matter. [ 28 ] Interestingly, it does not appear that the Mian case was brought to the attention of the JP who heard this matter. She did not address it in her decision. [ 29 ] I also note the case of R. v. Breeden , 2009 BCCA 463 which confirmed that even in government offices or buildings, the public cannot be allowed to indiscriminately protest in whatever way they choose.

Such would affect the orderly conduct of business in that place. [ 30 ] It certainly seems to have been settled by our Court of Appeal that a public office holder is entitled to control their own working space by way of the Protection of Property Act . As well, that such entitlement is inclusive of the public waiting areas in those spaces. The only logical conclusion one can reach following Mian is that such spaces, although they are publicly funded, are not entirely public.

Nor would they be, to use the language of the Act , “in the vicinity of premises to which the public normally has access”. [ 31 ] In this particular case, there is the added (and somewhat complicating) factor that in the past, this reception area had been essentially accessible to the public as a waiting area. However, at some point in 2020, the Minister and/or his staff had made the decision that, due to the COVID-19 pandemic, this area was no longer freely accessible to the public.

The area was now behind a locked door and was accessible only by appointment. [ 32 ] In my view, that does nothing to change the legal analysis here. I see that as an entirely logical extension of the Court’s decision in Mian . The Minister and his staff have the right to control their space as they deem appropriate. [ 33 ] Whatever had been occurring in that space prior to the pandemic was no longer occurring on November 24, 2020. That door to the space was now locked.

Such was entirely within the power of the Minister and/or his staff to make as part of their ability to control their space. [ 34 ] Therefore, I find that the area in question where the Respondents found themselves, and from which they refused to leave, does not fit within the defence found in

Section 16 of the Act. In my view, the Minister and his staff were entitled to resort to the Protection of Property Act in relation to the space occupied by the Respondents, and they did so. I therefore find that the JP’s conclusion that

Section 16 afforded a defence to the Respondents is an error of law. [ 35 ] I next move on to the second issue (re: Section 5(1)). [ 36 ] The salient facts before the JP as to that issue were: the door to this reception area was locked. Ms. Kure knocked, and when the staff person answered the door, Ms. Kure stated that she had a letter to deliver. It is notable that Ms. Kure did not state that she was there to protest at that time, nor did anyone else in her group say that at that time. The door was then opened to the group. [ 37 ] Once inside, Ms.

Kure then advised that she was there to insist on a meeting with the Minister, that she was not leaving until that occurred, and that this was an exercise of her freedom of expression. I have no evidence that Mr. Smith said anything. [ 38 ] Section 5(1) of the Act provides a defence where a person reasonably believes that they have a legal justification to be on a property. Put another way, this defence is aimed at a mistake of fact: where a person believes, on articulated and reasonable grounds, that they had authority or permission to be where they were. [ 39 ] In the case at bar, Ms.

Kure put forward as a defence that she believed she had the right to freedom of expression, and that this right allowed her to stay on the premises despite the locked door and despite being repeatedly asked to leave. [ 40 ] The JP accepted Ms. Kure’s evidence. On that basis, she came to the conclusion that Ms. Kure reasonably believed that she had a legal justification. That conclusion appears to have been based entirely and solely on Ms. Kure’s statement that such was her belief.

However, there was no evidence before the JP in relation to the reasonableness of that belief; such would be necessary to allow a proper assessment of that required factor.

[ 41 ] If that was Ms. Kure’s belief, why or how did she come to it? Ms. Kure was not alleging a mistake of fact. Rather she stated that, in her view, she had a justification in law (i.e., permitted by the Charter ). The question of whether a person has freedom of expression in any given context is a question of law, and it can be a complex legal question. How did Ms. Kure formulate that belief? Did she simply believe it, without foundation, or did information or opinion come from some source and what was that source? We do not know. [ 42 ] At most, the evidence before the JP showed that Ms.

Kure subjectively believed that she had that the right to protest. However, such a subjective belief, even if honestly held, is not enough. Section 5(1) does not provide the defence of “honestly” believing one has the right. It provides the defence of “reasonably” believing one has the right. The defence requires not only a belief, but a belief that is objectively reasonable. [ 43 ] In the present case, it is quite simply impossible to determine whether Ms. Kure’s belief was objectively reasonable.

There was no evidence upon which to base any findings on that point. [ 44 ] The missing element of reasonableness becomes even more evident as one goes through the evidence of the day’s events. [ 45 ] For example, whatever the reason for Ms. Kure’s beliefs at the start of these events, one would need to question whether her beliefs continued to be reasonable as the day wore on. Once Ms. Kure was told by the staff that she should leave, how, if at all, did that impact upon the reasonableness of her belief that she was entitled to be there? What about after she received the Protection of Property Act Notice?

What about after she was asked to leave by police? Again, these questions are impossible to answer since we have no evidence that would go to the reasonableness of her beliefs at any time during these events of that day. [ 46 ] Without evidence as to the reasonableness of Ms. Kure’s stated belief, the defence in Section 5(1) of the Act could not be made out. [ 47 ] Findings of fact are entitled to a significant degree of deference. An appeal court will only intervene if such findings constitute palpable and overriding error. In the case before me, some of the findings of the JP in relation to Ms.

Kure are simply not supported by any evidence. [ 48 ] In relation to Mr. Smith, my conclusion is the same. I have no evidence going to any beliefs he might have had on the date in question, nor to the reasonableness of any such beliefs. The defence afforded at Section 5(1) could not possibly be applied to him either. [ 49 ] I therefore find that the adjudicating JP was in error as to the application of both defences in this case to both Respondents. [ 50 ] I allow the appeal. I set aside both acquittals and I enter convictions for both Respondents for their breaches of

Section 4 of the Protection of Property Act . [ 51 ] There will be a fine for each of Ms. Kure and Mr. Smith in the amount of $237.50, made up of $100 fine, costs in the amount of $122.50, and $15 victim fine surcharge. Such fines payable by June 6, 2022. Boudreau, J.