2013 ONSC 1068, 2013 ONSC 1068

CITATION : Her Majesty the Queen v DDW, 2013 ONSC 1068 COURT FILE NO.: 23-12 DATE: 2013/02/15 SUPERIOR COURT OF JUSTICE – ONTARIO RE: Her Majesty the Queen (Respondent) - and – D.D.W. (Appellant) BEFORE: JUSTICE I. F. LEACH COUNSEL: Stephen W.V. Guiler, for the Crown Roman B. Wolyniuk, for the Appellant HEARD: February 15, 2013 On Appeal from the Judgment of The Honourable Mr Justice P.R. Isaacs dated June 14, 2012 ENDORSEMENT [ 1 ] The appellant was convicted in the court below of offences stemming from an incident that took place in a high school classroom, in the City of Woodstock, on April 19, 2011.

It occurred during a dispute between the appellant and his teacher concerning possession of the appellant’s cellular phone. [ 2 ] The appellant formally was charged with one count of assault pursuant to s.266 of the Criminal Code of Canada , (“the Criminal Code ”), and one count of breach of probation pursuant to s.137 of the Youth Criminal Justice Act . [ 3 ] At trial, the Crown relied upon s.265(1) (

b) of the Criminal Code , which reads as follows: 265.

(1) A person commits an assault when ... (

b) he attempts or threatens, by

an act or gesture, to apply force to another person, if he has, or causes that other person to believe upon reasonable grounds that he has, present ability to effect his purpose. [ 4 ] However, the Crown, (not the defence), also relied upon the provisions set forth in s.38(2) of the Criminal Code , which read as follows: 38(2) Where a person who is in peaceable possession of personal property lays hands on it, a trespasser who persists in attempting to keep it or take it from him or from any one lawfully assisting him shall be deemed to commit an assault without justification or provocation. [ 5 ] In his reasons for judgment, the trial judge focused on the application of s.38(2) , and reached the following conclusion: I’m satisfied that section 38(2) of the Criminal Code provides the definition of a person who can be deemed to have committed an assault, and in this particular case, having found that the phone was removed for breach of a school rule, and was in the possession of the teacher pursuant to that alleged breach, the actions of D.D.W. in this particular case, removing the phone from the teacher’s possession without her consent in the fashion that it occurred, constitutes an assault.

I therefore direct a finding of guilty be registered in respect to this matter. [ 6 ] Having reached his conclusion pursuant to s.38(2) , the trial judge did not, in his reasons, proceed with any express consideration of s.265(1) (

b) of the Criminal Code . [ 7 ] On appeal, the appellant seeks to set aside the conviction primarily on the basis that the learned Justice erred in law in his application of s.38(2) of the Criminal Code of Canada . Facts - Evidence

[ 8 ] At trial, the court heard evidence from the investigating officer, and from students other than the appellant who were present in the classroom at the time of the incident. The teacher did not testify, (as she now lives abroad), and the appellant chose not to lead evidence. [ 9 ] In the result, the evidence and findings below indicate facts that include the following: • The appellant’s teacher observed the appellant sending text messages on his cellular phone during class, contrary to a school rule prohibiting the use of electronic devices in the classroom.

The appellant and other students were aware of the rule. • The teacher asked the appellant to give her the device until the end of class, and the appellant did so - albeit grudgingly.

He felt that he was being singled out unfairly, as other students were alleged to be texting as well. • Shortly thereafter, the appellant asked the teacher to return the device immediately. (Evidence from other students suggests the request was prompted by the teacher’s indication that the device would not be returned at the end of class, as originally indicated, but that it instead would be taken to the school office.) The teacher refused to give the device back. The appellant, visibly angry, then left the class without permission, before its completion.

The teacher was upset when she realized the appellant had left class without permission, and started to call the school office. • Minutes later, however, the appellant returned to the classroom. In the presence of his classmates, he approached to within inches of the teacher, (who was shorter and older than he was), confronted her, and once again demanded return of the device.

When she refused, the appellant then made a gesture to grab the device, (which the teacher was holding in her hand). • There was conflicting evidence from the appellant’s classmates as to whether or not he succeeded in retrieving the device. The reasons of the trial judge, noted above, seem to indicate a conclusion that the appellant succeeded in removing the device from the teacher’s possession.

In either case, however, the witnesses agreed that the appellant made no physical contact with the teacher herself – although the appellant’s gesture resulted in her dropping the papers she was holding in her other hand. • The appellant then left the classroom again without permission, despite efforts by the teacher to restrain him.

Analysis [ 10 ] The appellant’s conduct may have been reprehensible and inappropriate in a broad sense, (as emphasized by Crown Counsel), but the narrow question before me is whether the appellant properly was convicted of the offences with which he was charged. [ 11 ] That in turn obviously requires consideration of the legal objections raised by the appellant. Again, these centre on complaints that the trial judge erred in law through his application and reliance upon the “deeming provisions” contained in s.38(2) of the Criminal Code . [ 12 ] Those provisions therefore lie at the heart of this appeal.

Unfortunately, counsel for the appellant and Crown counsel both confirmed that there is a dearth of reported authority dealing with s.38(2) of the Criminal Code .

The particular issues raised before me therefore are largely a matter of first impression. [ 13 ] Having considered the matter, the wording and context of the relevant Criminal Code provisions, and the limited judicial guidance available, I believe the approach adopted by the trial judge is problematic and incorrect as a matter of law, for a number of reasons. [ 14 ] First and foremost, the legislative context and available judicial consideration of s.38(2) indicate that its contemplated operation was intended to focus on the availability (or lack thereof) of certain defences to an accused, rather than provide an independent basis of criminal culpability for assault. [1] [ 15 ] To use the traditional legal vernacular: I agree with counsel for the accused that the provisions of s.38(2) were intended to restrict the operation of a possible shield, rather than provide the Crown with an additional sword. [ 16 ] In that regard, do not disagree with Crown counsel’s observation that the structure of the Criminal Code often employs “punishment provisions”, which may be triggered by various other “offence provisions” establishing criminal culpability warranting resort to the relevant punishment provisions. [ 17 ] For example, as noted by Crown counsel, the punishment for “theft” is addressed in s.334 of the Criminal Code , but “theft” can be established in various ways pursuant to other offence provisions set out in sections 322 to 333.1 of the Criminal Code .

Similarly, the punishment for “assault” is addressed in s.266 of the Criminal Code , (with which the appellant was charged), but an “assault” can be established by the Crown in numerous alternative ways pursuant to the various provisions of s.265 of the Criminal Code . [ 18 ] Taken out of context and viewed in isolation, the wording of s.38(2) , set out above, therefore understandably might suggest that it was intended to operate in a similar fashion; i.e., providing the Crown with yet another independent basis for establishing the existence of an assault warranting punishment pursuant to s.266 of the Criminal Code .

In other words, one might interpret s.38(2) as having the following intended emphasis: 38(2) Where a person who is in peaceable possession of personal property lays hands on it, a trespasser who persists in attempting to keep it or take it from him or from any one lawfully assisting him shall be deemed to commit an assault without justification or provocation. [Emphasis added.] [ 19 ] However, it seems to me that, when considered in context, the wording of the relevant provisions suggests a fundamentally

different emphasis and application. [ 20 ] In particular, I note the following: i. The provisions of

section 38 generally are not found within

Part VIII of the Criminal Code dealing with “Offences Against the Person”, where one reasonably might expect to find provisions grounding criminal culpability for “assault”. They instead are found within

Part I of the Criminal Code . ii. As noted by Crown Counsel,

Part I of the Criminal Code is labelled “General”, and not “Defences”. However, for present purposes, (in terms of seeking the relevant legislative intent of Parliament), it is noteworthy that

Part I is largely devoted to various defences and mitigating circumstances capable of being raised by an accused who otherwise might be exposed to criminal culpability. In particular, in a sub-grouping of Criminal Code provisions prefaced successively by the headings “Defence of Person”, (ss.34-37), “Defence of Property” (ss.38-42), and “Protection of Persons in Authority” (ss.43-45),

section 38 is immediately “surrounded” in the Criminal Code by provisions expressly relating to various specified circumstances of justification, provocation and “protection from criminal responsibility”. Having regard to this broader context, it seems unlikely that Parliament intended to insert, in the midst of Criminal Code provisions negating or mitigating criminal culpability, an isolated and therefore anomalous provision designed to have precisely the opposite effect. iii.

Section 38 itself is prefaced not only by the Criminal Code subheading “ Defence of Property”, (emphasis added), which applies to sections 38 to 42 inclusive, but also is given the specific internal heading “ DEFENCE OF PERSONAL PROPERTY/Assault by Trespasser”, (emphasis added). These “defence” labels obviously are completely inappropriate if Parliament effectively intended the provisions of

section 38 to create an offence, rather than a defence. iv. It is noteworthy that the provisions of s.38(2) are not isolated within a “stand-alone”

section of the Criminal Code . Rather, Parliament has set them within the immediate context of the remaining provisions of

section 38, which clearly suggests they were to be read as a whole. In that regard, the entire provisions of

section 38 read as follows: DEFENCE OF PERSONAL PROPERTY / Assault by trespasser 38.

(1) Every one who is in peaceable possession of personal property, and every one lawfully assisting him, is justified (

a) in preventing a trespasser from taking it, or (

b) in taking it from a trespasser who has taken it, if he does not strike or cause bodily harm to the trespasser.

(2) Where a person who is in peaceable possession of property lays hands on it, a trespasser who persists in attempting to keep it or take it from him or from any one lawfully assisting him shall be deemed to commit an assault without justification or provocation. [ 21 ] Reading the provisions of s.38(2) within this more extended context, it seems clear to me that they were not intended to create an offence; i.e., an independent basis for finding the existence of an assault warranting punishment pursuant to

section 266 of the Criminal Code . [ 22 ] Rather, like the provisions surrounding it,

section 38 as a whole was only intended to create a possible defence that might be asserted by a person otherwise exposed to criminal culpability - in this case, as a result of measures taken to defend/retain personal property.

The ambit of the defence extended by s.38(1) then is narrowed by s.38(2) ; i.e., by a specific indication that the defence, (along with the defence of provocation), is unavailable to a specific subset of persons, (namely trespassers who persist in attempts to retain or obtain property once a person in peaceable possession has laid hands on it). [ 23 ] In effect, the deeming provision of s.38(2) makes clear Parliament’s intention that a particular subset of persons, (trespassers who persist in attempts to secure or retain personal property), if otherwise guilty of an assault, cannot escape criminal culpability by reliance on justification or provocation.

The deeming provision does not, however, in my opinion, establish a basis of criminal culpability that would not otherwise exist. [ 24 ] Read in that way, I believe the proper emphasis intended by s.38(2) therefore is as follows: 38(2) Where a person who is in peaceable possession of personal property lays hands on it, a trespasser who persists in attempting to keep it or take it from him or from any one lawfully assisting him shall be deemed to commit an assault without justification or provocation . [Emphasis added.] [ 25 ] As a defence, the matters addressed by

section 38 obviously and inherently should be raised, if at all, by an accused. [ 26 ] Nothing in the above

interpretation and approach supports the Crown’s proactive resort to s.38(2) as an independent and sufficient basis for establishing criminal culpability - - particularly in the absence of any attempt by the accused to raise a defence pursuant to

section 38. [ 27 ] Yet that is precisely what happened in the trial below. [ 28 ] With respect, I believe the overall approach to subsection 38(2) adopted by the trial judge therefore was fundamentally incorrect in law. In the circumstances of this particular case, the provisions had no proper relevance or application. [ 29 ] As a secondary concern, however, even if the provisions were applicable in the abstract, it seems to me that the trial judge also

erred in law during the course of their application. [30] In that regard, if the provisions of s.38(2) did indeed constitute an independent and sufficient offence, then the Crownobviously should have born the burden of establishing each of its constituent elements beyond a reasonable doubt. [31] In particular, given the underlying circumstances, the elements the Crown was obliged to establish beyond a reasonable doubtincluded the following: i. that the teacher was in “peaceable possession” of the personal property in question, (the cellular phone); and ii. that the appellant was a “trespasser”. [32] However, the approach adopted by the trial judge in relation to the Crown’s required proof of each these s.38(2) elements isproblematic. [33] The term “peaceable possession” is not defined in

section 38, or elsewhere in the Criminal Code for that matter.[2] [34] In his Reasons for Judgment, the trial judge was content to proceed on the basis that the term “can generally be interpreted as alegal entitlement to the property”, and then found that the teacher had such a right “pursuant to recognized rules that existed in thisschool”, the appellant’s breach of those rules, “the rights and limitations of [the teacher’s] position as a legal educator in the school”, andthe Education Act, R.S.O. 1990, c.E.2. [35] However, the suggestion that “peaceable possession” is established by “legal entitlement” arguably sets a lower threshold forsatisfaction of that element than the meaning attributed to the term by our Court of Appeal in R. v.

George, (ON CA),[2000] O.J. No. 1696 (C.A.). [36] In that case, the accused attempted to advance a defence pursuant to s.41(1) of the Criminal Code, which extends a justificationdefence to those in “peaceable possession” of a house or real property who use reasonable force to prevent trespass or remove atrespasser.

In particular: a. the accused and other First Nation band members had established de facto possession of real property, (CFB Ipperwash); b. although the federal government had expropriated the property from the Stoney Point Reserve during World War II, the accusedand others claimed legal entitlement to the property on the basis of aboriginal treaty rights; c. the accused had driven a car into several police officers, and was charged, inter alia, with having committed “assault with aweapon” (a motor vehicle), pursuant to s.267(1)(

a) of the Criminal Code; and d. the accused sought to advance a defence pursuant to s.41(1), on the basis he and the other occupiers were justified in usingreasonable force in the defence of real property, to prevent the trespass threatened by the police officers, or remove those officers astrespassers. [37] The Court of Appeal found that s.41(1) did not apply because the accused was unable to establish “peaceable possession” ofthe property in question, regardless of the legal entitlement asserted by the accused. [38] In that regard, our Court of Appeal agreed with the meaning of “peaceable possession” adopted by the Alberta Court of Appealin R. v.

Born with a Tooth (1992), 1992 ABCA 244 , 76 C.C.C. (3d) 169 (Alta.C.A.), and held that “peaceable” meanspossession that is, inter alia, “not seriously challenged by others”.

This supplemented the general definition of “peaceable” from Black’s Law Dictionary, 6th ed. (1990), also embraced by both Courts of Appeal, which described “peaceable” possession “such as is acquiescedin by all other persons, including rival claimants, and not disturbed by any forcible attempt at ouster nor by adverse suits to recover thepossession of the estate”. [Emphasis added.] [39] Whatever the underlying legal entitlements, possession of CFB Ipperwash by the accused and others clearly was beingchallenged by the police.

That was sufficient to negate a finding of “peaceable possession”, and therefore the application of s.41(1). [40] In the case at hand, regardless of any legal entitlement to the cellular phone being asserted by the teacher, the events leading tothe confrontation made it clear to all concerned that the appellant was challenging her continued possession of the device.

He did notacquiesce in the teacher’s continued possession of the phone, and was asserting a rival claim to possession based on his right ofownership and the teacher’s apparent deviation from the understanding on which the appellant originally turned over possession; (i.e.,that the device would be returned at the end of class). [41] In these circumstances, the evidence at trial was at least capable of raising reasonable doubt as to whether the Crown hadestablished “peaceable possession” as a prerequisite to any suggested application of the s.38(2) deeming provisions. [42] Whether or not the evidence was sufficient to raise reasonable doubt in that regard, the fundamental point for present purposesis that the trial judge failed to turn his mind at all to that possibility because he interpreted “peaceable possession” in a manner at oddswith appellate authority. [43] Beyond this, I agree with counsel for the appellant that there was an additional problem with the stated rationale of the trialjudge for finding that the teacher had a “legal entitlement” that in turn established “peaceful possession”. [44] In particular, although the judge repeatedly states that the teacher’s confiscation and retention of the cellular phone waspermitted by applicable school rules, the evidence at trial referred to nothing more than a prohibition on use of such devices duringclass.

There was in fact no evidence before the trial judge of any school rule authorizing the confiscation that took place, or the

continued retention apparently intended by the teacher. [ 45 ] Finding that the Crown had established “peaceful possession” as a requisite element of s.38(2) , based on matters not in evidence, suggests a further error in law. [ 46 ] There are similar concerns in relation to satisfaction of the Crown’s obligation to establish that the appellant was a “trespasser”, within the meaning of s.38(2) . [ 47 ] In particular, the Reasons for Judgment contain no finding that the appellant was a “trespasser” within the meaning of the provisions, (however the term “trespasser” might be construed) [3] .

Indeed, the Reasons for Judgment contain no mention whatsoever of the term. [ 48 ] Application of s.38(2), without a finding that this requisite element had been established, therefore suggests a further error of law. [ 49 ] For all these reasons, I am satisfied that the conviction below was “erroneous in point of law”, within the meaning of 830(1)(

a) of the Criminal Code , insofar as it was based on application of s.38(2) of the Criminal Code . [ 50 ] However, I do not think that necessarily is the end of the matter. [ 51 ] If s.38(2) was inapplicable and an insufficient basis on which to ground a conviction, consideration should have been directed to the Crown’s alternate theory of the case; i.e., that the appellant committed an assault pursuant to s.265(1) (

b) of the Criminal Code . [ 52 ] In that regard, I agree with counsel for the accused that any conviction pursuant to s.265(1) (

b) based on the teacher’s subjective belief was impossible, given her absence at trial. [ 53 ] However, it also seems to me that the evidence before the trial judge may have been capable of establishing that the accused attempted or threatened, “by

an act or a gesture, to apply force to another person”, and had the “present ability to effect his purpose”. [ 54 ] In particular, there was evidence of such

an act or gesture, (the appellant confronting the teacher in close proximity, making an oral demand, and grabbing in her direction although he failed to make contact), along with evidence that the appellant was younger and taller than the teacher, (suggesting that he had the ability to apply force to the teacher, if that was his purpose/intent). [ 55 ] The problem is that the trial judge, viewing s.38(2) to be sufficient and decisive, simply failed to address, in any way, whether or not the evidence was sufficient to satisfy the elements of s.265(1) (

b) of the Criminal Code . [ 56 ] Without having observed the witnesses and their evidence directly at trial, I think it inappropriate and unsafe for me to draw conclusions in that regard on appeal, particularly in relation to necessary inferences as to the appellant’s intent. [ 57 ] In the circumstances, I think the necessary and appropriate disposition, pursuant to s.834(1) of the Criminal Code , is an order setting aside the conviction below, and directing that the matter be remitted to the court below for a new trial. “ Justice I. F. Leach” Justice I. F. Leach Date: February 15, 2013