R. v. Barningham et al., 2008 ONCJ 695 (CanLII)
Date:
2008-12-10
File number:
06-094025
Citation:
R. v. Barningham et al., 2008 ONCJ 695 (CanLII), <http://canlii.ca/t/225gg>, retrieved on 2020-04-28
COURT FILE No.: Central West Region – Halton - 06-094025
DATE: 2008·12·10
Citation: R. v. Barningham et al., 2008 ONCJ 695
ONTARIO COURT OF JUSTICE
BETWEEN: |
Her Majesty The Queen |
— AND — |
Francis Barningham, Matthew Behrens, Daniel J. Hilton, Kirsten R. Jones, Gail M. Lorimer, David W. Marshall, David J. Milne, Margaret Panter, James M. Smith and Thomas York |
Before Justice of the Peace Kenneth W. Dechert
Heard on February 6, 2008, June 3, 2008 and July 23, 2008
Reasons for Judgment delivered orally on December 10, 2008
A. Kaczmarska and C. Peters ............................................................................. for the prosecution
The defendant Francis Barningham, on his own behalf or by his agent L. Smith
The defendant Matthew Behrens, on his own behalf.
The defendant Daniel J. Hilton, on is own behalf or by his agents A. Loucks and L. Smith
The defendant Kirsten R. Jones on her own behalf or by her agent L. Smith
The defendant Gail M. Lorimer on her own behalf or by her agent L. Smith
The defendant David W. Marshall by his agents A. Loucks and L.Smith
The defendant David J. Milne on his own behalf
The defendant Margaret Panter on her own behalf
The defendant James M. Smith on his own behalf or by his agent L. Smith
The defendant Thomas York on his own behalf or by his agent L. Smith
JUSTICE OF THE PEACE DECHERT:
INTRODUCTION
[1] By way of ten separate informations made pursuant to section 23 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, sworn on the 28th day of November 2006, Francis Barningham, Matthew Behrens, Daniel J. Hilton, Kirsten R. Jones, Gail M. Lorimer, David W. Marshall, David J. Milne, Margaret Panter, James M. Smith and Thomas York, stand charged that they, on or about the 20th day of November 2006, at the City of Burlington, in the Region of Halton did, while not acting under a right or authority conferred by law and without the express permission of the occupier, enter on the premises of Wescam, 649 North Service Road, Burlington, when entry was prohibited under the Act to protect against trespass to property, contrary to the Trespass to Property Act, section 2(1)(a)(i).
[2] On February 6th, 2008, each of the said defendants entered a plea of not guilty to the subject charge either personally or through their authorized agent. The joint trial of the charge set out on the each of the ten informations then began before me. The trial continued on June 3rd and July 23rd, 2008, when it was completed. The proceedings were then further adjourned to December 10th, 2008, for my judgement.
[3] As indicated above, during the course of the trial each of the defendants either represented themselves or was represented by a friend as an authorized agent. On February 6th, June 3rd and July 23rd, 2008 the Attorney General of Ontario was represented by Ms. A. Kaczmarska. On December 10th, 2008 the Attorney General of Ontario was represented by Mr. C. Peters.
[4] During the trial, I received viva voce evidence from Mr. Daniel Wallace, the Manager of security for the complainant Wescam, and from Sergeant Charles Vlasic of the Halton Regional Police Service, tendered on behalf of the prosecution. In addition, I received viva voce evidence form the defendants Mr. Matthew Behrens and Mr. David J. Milne, tendered on their own behalf.
[5] Furthermore, during the trial, I received documentary and real evidence entered as exhibits #1 to 6 to this proceeding. Included in these exhibits is a hand-written statement (exhibit #4) signed by the defendants, either personally or by their agent, containing formal admissions made by the defendants and agreed upon by the prosecutor. This document was received by me in accordance with the provisions of subsection 46(4) of the Provincial Offences Act.
THE LAW
(i) Relevant Statutory Provisions
[6] The defendants stand charged with the offence of “enter premises when entry prohibited”, contrary to sub-paragraph 2(1)(a)(i) of the Trespass to Property Act, R.S.O. 1990, c. T.21, as amended. The subject offence is a regulatory offence and may properly be classified as a public welfare statute. Accordingly, the subject offence is, presumptively, an offence of strict liability.
[7] As stated above, the subject offence is created by the Trespass to Property Act. The portions of that statute, which are relevant to this proceeding are as follows:
s.s. 1(1) In this Act,
‘occupier’ includes,
(a)a person who is in physical possession of the premises, or
(b) a person who has responsibility for and control over the condition of premises or the activities carried on, or control over persons allowed to enter the premises,
even if there is more than one occupier of the same premises;
‘premises’ means lands and structures, or either of them, and includes,
(a) water,
(b) ships and vessels,
(c) trailers and portable structures designed or used for residence, business or shel- ter,
(d) trains, railway cars, vehicles and aircraft, except while in operation.
s.s. 2(1) Every person who is not acting under a right or authority conferred by law and who,
(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on the premises when entry is prohibited under this Act,…
is guilty of an offence…
s.s. 2(2) It is a defence to a charge under subsection (1) in respect of premises that is land that the person reasonably believed that he or she had title to or an interest in the land that entitled him or her to do the act complained of.
s.s 3(1) Entry on premises may be prohibited by notice to that effect…
s.s. 5(1) A notice under this Act may be given,
(a) orally or in writing;…
s.s. 46(4) The court may receive and act upon any facts agreed upon by the defendant and prosecutor without proof or evidence.
s.s. 47(3) The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authoriza - tion, exception, exemption or qualification does not operate in favour of the defen -dant, whether or not it is set out in the information.
[9] The following portions of the Legislation Act, S.O. 2006, c. 21, sched. F., as amended, are relevant to this proceeding:
s.s. 64(1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.
s. 70 Tables of contents, marginal notes, information included to provide legislative his -tory, headnotes and headings are inserted in an Act or regulation for convenience of reference only and do not form part of it.
s. 87 In every Act or regulation,
…
‘person’ includes a corporation; …
(ii) Relevant Common Law
[10] The underlying principles pertaining to the concept of trespass to property have been settled by the common law. In the seminal case of Harrison v. Carswell, 1975 CanLII 160 (SCC), [1976] 2 S.C.R. 200, (S.C.C.), Dickson J., on behalf of the majority of the Court, limited the role of the courts in amending the law of trespass as codified in provincial legislation, through the following statement:
“Anglo-Canadian jurisprudence has traditionally recognized, as a fundamental freedom, the right of the individual to the enjoyment of property and the right not to be deprived thereof, or any interest therein, save by due process of law. The Legislature of Manitoba has declared in The Petty Trespass Act that any person who trespasses upon land, the property of another, upon or through which he has been requested by the owner not to enter, is guilty of an offence. If there is to be any change in this statute law, if A is to be given the right to enter and remain on the land of B against the will of B, it would seem to me that such a change must be made by the enacting institution, the Legislature, which is the representative of the people and designed to manifest the political will, and not by the court.”
[11] In the decision in Russo v. Ontario Jockey Club, 1987 CanLII 4356 (ON SC), [1987] O.J. No. 1105 (Ont.H.C.), Boland H.C.J. summarized the state of the law in the province of Ontario, pertaining to the right of an individual to exclude persons from his/her property, as follows:
“There is a general principle in common law, which is enforced by the Trespass to Property Act that a landowner has the exclusive right to decide who is allowed to remain on his or her land. The landowner is not compelled to give a reason when the visitor is asked to leave the land. Furthermore, the landowner is not under any duty to follow the principles of natural justice when excluding any person.”
“Thus, the Canadian common and statute law clearly preserves the landowner’s right to exclude persons from the property without the prerequisite that there be a reasonable ground for such action. …”
THE ISSUES
[13] The ultimate issue in this proceeding is whether or not the prosecutor has proved the subject charge against each of the defendants to the standard of proof beyond a reasonable doubt.
[14] As stated above, the subject offence is one of strict liability. Accordingly, the prosecutor need not prove the element of mens rea. The prosecutor bears the legal burden of proving the issues of the identity of the defendants and the actus reus of the offence. These elements must be proved to the standard of proof beyond a reasonable doubt.
[15] Once the prosecutor has shown that the defendants committed the prohibited act, beyond a reasonable doubt, the legal burden of proof shifts to the defendants to negate the presumption that they were negligent in committing the offence or by attempting to establish a statutory or common law defence which would either justify their actions or excuse them from liability therefor. The standard of proof in this regard is that of proof on a balance of probabilities.
(i) whether the prosecution has proved that each of the defendants committed the actus reus of the subject offence, beyond a reasonable doubt, and
(ii) if the prosecution has met its burden in this regard, whether the defendants have established, on a balance of probabilities, any defence which may be available to them by statute or by common law.
[17] During the course of the trial, the defendant Matthew Behrens made final legal submissions on his own behalf and that of his co-defendants. While it is noted that the defendants Gail M. Lorimer, David J. Milne and Margaret Panter made additional submissions on their own behalf, all of the defendants adopted the submissions made to the Court by Mr. Behrens.
[18] During his final submissions, Mr. Behrens argued that if the prosecution had succeeded in meeting its legal burden of proof in this matter, then the defendants were entitled to be acquitted, based on either the justification defence established by subsection 2(2) of the Trespass to Property Act or on the basis that the defendants were, in entering onto the premises in the face of the alleged prohibition, acting under a right or authority conferred by law, as stated in subsection 2(1) of the said Act.
[19] In considering the merits of the proposed defences, I must apply the provisions of subsection 47(3) of the Provincial Offences Act, in order to determine whether the various authorizations, exceptions, exemptions or qualifications prescribed by subsections 2(1) and 2(2) of the Trespass to Property Act have been established by all or some of the defendants to the standard, of proof on a balance of probabilities. The defendants bear the legal burden of proof in respect of these statutory defences.
THE ACTUS REUS OF THE OFFENCE
[20] Based on the agreed statement of facts filed with the Court in accordance with the provisions of subsection 46(4) of the Provincial Offences Act and the testimony of prosecution witnesses, Mr. Daniel Wallace and Sergeant Charles Vlasic, I am satisfied that the prosecution has established the elements of identity and the actus reus of the offence of “enter premises when entry prohibited”, as against the defendants, on a balance of probabilities.
[21] In making formal admission under subsection 46(4) of the Provincial Offences Act, all ten defendants signed a statement of facts, which was accepted by the prosecutor. This statement was entered in to evidence in this proceeding as exhibit #4. In that statement, the defendants stated as follows:
“We, the 10 defendants charged under the Trespass to Property Act admit the following elements:
-We are the same people alleged in the information.
-On the morning of November 20, 2006, we were given notice that Wescam did not want us on their property and that charges might laid.
-We did enter upon Wescam property at approximately 12 noon and attempted to walk to the front door at 649 North Service Road West.
-Upon being stopped by police we refused to leave and were charged with trespassing.
-We are proud of our actions to uphold the law.”
[22] The testimony of Mr. Daniel Wallace and Sergeant Charles Vlasic, considered in conjunction with the formal admissions made by the defendants, as set out in exhibit #4, establish the following facts on a balance of probabilities:
(i) That at all material times and in particular on November 20th, 2006, the corporation L3 Communications owned and operated a business organization under the name of L3 Communications Wescam, also known as Wescam;
(ii) That at all material times and in particular on November 20th, 2006, Wescam carried on its business on the lands and premises municipally known as 649 North Service Road, in the City of Burlington and the Regional Municipality of Halton;
(iii) That at all material times and in particular on November 20th, 2006, Wescam occupied the lands and premises municipally known as 649 North Service Road, Burlington, Ontario, as a tenant;
(iv) That at all material times and in particular on November 20th, 2006, Mr. Daniel Wallace was employed by Wescam as its manager of security;
(v) That on or about October 24th, 2006, Mr. Daniel Wallace received information that a rally protesting the products allegedly being developed and manufactured by Wescam, involving a number of individuals, was to take place at 649 North Service Road, Burlington, Ontario on November 20th, 2006;
(vi) That in light of this information, Mr. Wallace wrote a letter to the Halton Regional Police Service, dated October 24th, 2006, on behalf of Wescam, authorizing the Halton Regional Police Service to act as the agent for Wescam for purposes of enforcing the Trespass to Property Act in respect of its facility located at 649 North Service Road West, Burlington, Ontario, on November 20th, 2006. This letter was entered into evidence in this proceeding as exhibit #1;
(vii) That Sergeant Charles Vlasic was the officer from the Halton Regional Police Service assigned to assist Wescam in respect of its security arrangements pertaining to the anticipated protest rally of November 20th, 2006;
(viii) That Sergeant Vlasic met with Mr. Wallace on two occasions prior to November 20th, 2006, in order to discuss security arrangements for the Wescam property, concerning the aforesaid protest rally;
(ix) That during these two meetings, plans were made to ensure the safe conduct of the protest rally and in particular to designate an area at the front of the Wescam property where the demonstrators could congregate and conduct their demonstration;
(x) That in the morning of November 20th, 2006, Mr. Wallace and his staff spray-painted a “bluish-green” coloured 4 inch wide line, on the ground across the front of the Wescam property;
(xi) That this spray-painted line extended in an easterly/westerly direction, a distance of approximately 300 feet and was set back a distance of approximately 30 to 50 feet north of the northerly limit of the North Service Road;
(xii) That this “bluish-green line was painted across the front portion of the Wescam property in order to demarcate the approximate southerly boundary of the lands and premises which Wescam occupied on November 20th, 2006;
(xiii) That the line was spray-painted at the said location, specifically for the purpose of defining both the area where the demonstrators were permitted to participate in their protest rally and the area of the Wescam property where the demonstrators were prohibited from entry;
(xiv) That Sergeant Vlasic met with Mr. Wallace at the Wescam facility in the morning of November 20th, 2006, prior to the commencement of the anticipated protest rally, in order to discuss the security plans and the enforcement of Wescam’s direction that no protestor be permitted to enter upon the portion of its property north of the spray-painted boundary line;
(xv) That on November 20th, 2006, at a time just prior to 12:00 p.m., the demonstrators, including the defendants, arrived at the location of the Wescam facility;
(xvi) That at approximately 12:00 p.m., the defendants began walking in a northerly direction from the area just south of the painted boundary line up the driveway towards the building which houses the offices of Wescam;
(xvii) That in walking in a northerly direction along the driveway to the Wescam property, the defendants crossed over the spray-painted line and entered on the portion of Wescam’s property to the north of that line;
(xviii) That during the period of time between 11:30 a.m. and 12:00 p.m., prior to the time that the defendants crossed over the spray-painted line, the defendants received verbal notice from either Sergeant Vlasic, as the authorized agent for Wescam or from Mr. Wallace, or from both, that they were not permitted to enter upon any portion of the Wescam property to the north of the spray-painted line;
(xix) That in receiving the said oral notice, the defendants were warned that if they violated Wescam’s direction and entered upon the prohibited area, they would be considered to be trespassers on the property and that charges would be laid against them;
(xx) That once the defendants crossed over the painted boundary line, they continued to walk up the driveway of the Wescam property within the prohibited area, a distance of approximately 100 feet north of the boundary line, when they were stopped by police officers;
(xxi) That once the defendants’ progress up the driveway had been halted by the officers, the defendants sat down on the ground and refused to leave;
(xxii) That at that point in time, the defendants were arrested and individually charged with the offence before the Court.
[23] As stated above, the defendants Matthew Behrens and David J. Milne testified during these proceedings. In my view their verbal evidence did not contradict the evidence of the prosecution witnesses as supported by the agreed statement of facts, in respect of the elements of the actus reus of the subject offence, in any significant way.
[24] It is noted that during his testimony, Matthew Behrens disagreed with the proposition that on November 20th, 2006, he was prohibited from entering onto the portion of the Wescam property to the north of the spray-painted line. In response to a question posed to him by the prosecutor, if he knew that he was prohibited from entering the Wescam property at least as far as going north of the blue line, Mr. Behrens replied that while he was informed that he was not welcome north of the blue line, he did not take that as a prohibition given that he felt that he was protected by his international legal obligation “under Nuremberg”.
[25] In later parts of his testimony during cross-examination, Mr. Behrens acknowledged that on November 20th, 2006, he had been advised by both Mr. Wallace and Sergeant Vlasic, on behalf of Wescam, that on that day he was not permitted to cross the blue spray-painted line and thereby enter upon the subject property to the north of the line.
[26] During the course of his testimony, Mr. David J. Milne admitted that on November 20th, 2006, he had been notified of the wishes of Wescam barring him from entry on the portion of the Wescam property north of the painted demarcation line. Mr. Milne acknowledged that he had been prohibited from the defined area of the subject property on the date in question, and that he entered onto the property in spite of the prohibition. In this regard, Mr. Milne testified that in crossing the painted boundary line and walking up the driveway through the prohibited area, he walked a distance of approximately 50 feet before he was stopped by the police, and then sat down on the ground.
[27] After carefully considering the testimony of the defendants Matthew Behrens and David J. Milne in the context of the evidence as a whole, I find that I am not left in a state of reasonable doubt as to the evidence establishing the essential elements of the actus reus of the subject offence against each of the defendants herein.
[29] I am satisfied that the prosecution has proven each of the elements of the subject offence under sub-paragraph 2(1)(a)(i) of the Trespass to Property Act, against each of the defendants herein, beyond a reasonable doubt. The totality of the evidence establishes the following elements:
(i) That on the 20th day of November, 2006, the corporation known as L3 Communications carried on its business under the name Wescam;
(ii) That on the 20th day of November, 2006, Wescam was an occupier, within the meaning of the Trespass to Property Act, of the premises municipally known as 649 North Service Road, Burlington, Ontario;
(iii) That on the 20th day of November, 2006, representatives of Wescam orally notified all of the defendants that on November 20th, 2006, they were prohibited from entering onto a certain portion of Wescam’s premises at 649 North Service Road, Burlington, Ontario;
(iv) That the prohibited area was defined by the existence of a bluish-green spray-painted line on the ground to demarcate the boundary of the prohibited area;
(v) That the defendants were advised by the occupier that they were prohibited from entering upon that portion of the premises of Wescam at the said municipal address, located north of the spray-painted line;
(vi) That on November 20th, 2006, the defendants crossed over the spray-painted line and entered onto the area where entry had been prohibited in accordance with the oral notice that they had received from the occupier, earlier that same day.
[30] In my view, the prosecution has met its legal burden of proof in respect of all of the elements of the issues of the identity of the defendants and the actus reus of the offence against each of the defendants. Accordingly, I will now consider the second sub-issue in this proceeding, being whether the defendants have established, on a balance of probabilities, the existence of any defence which may be available to them by statute or by common law.
THE ISSUE OF THE AVAILABILITY OF STATUTORY OR COMMON LAW DEFENCES
[31] As stated above, during the course of this trial, the defendant Matthew Behrens made legal submissions not only on his own behalf, but on behalf of his co-defendants. At the conclusion of his submissions all of the other defendants herein indicated that they had adopted the legal arguments made to the Court by Mr. Behrens.
[32] During his submissions, Mr. Behrens contended that he and his co-defendants should be acquitted of the subject offence under the Trespass to Property Act, on the basis of the justification defences created by subsections 2(1) and 2(2) of the said Act.
[33] Mr. Behrens advised the Court that the defendants were not relying on the common law defence of necessity as, in his submission; the defendants were not arguing that they “broke a small law to uphold a higher law”. Mr. Behrens contended that in entering Wescam property after their entry had been barred, they were acting to discharge their duty to uphold the Nuremberg principles enshrined in international law, thereby “upholding a higher law”.
[34] In short, the defendants submit that their actions in trespassing on the Wescam property on November 20th, 2006, were justified based on their contention that in doing so they were “acting under a right or authority conferred by law”. Alternatively, the defendants submit that their actions in entering onto the subject property in the face of the occupier’s direction to bar them entry, was justified on the basis that at the subject time they honestly and reasonably believed that they had an “interest” in the lands occupied by Wescam that entitled them to do the act complained of.
[35] When I consider the merits of the defendants’ assertion that they are entitled to be acquitted of the subject charge based on the statutory justification defences as aforesaid, I must remind myself of the provisions of subsection 47(3) of the Provincial Offences Act, which places the legal burden of proving statutory defences, such as those contained in subsections 2(1) and 2(2) of the Trespass to Property Act, on a defendant on the balance of probabilities. In my view, in order to discharge this legal burden, a defendant must show that based on the totality of the evidence in a proceeding, it is more probable than not that the authorization, exception, exemption or qualification prescribed by law operates in favour of a defendant. The defendant may not overcome this burden by merely adducing some evidence which raises the issue of the operation of a statutory defence in his/her favour.
[36] In considering the merits of the defendants’ submissions, I note that both Matthew Behrens and David J. Milne elected to proffer evidence to the Court through their own testimony. The other eight defendants elected to not call any evidence on their own behalf, arguing that the Court should be able to draw a logical inference from the totality of the evidence that the justification defences submitted have been established in their own favour, on a balance of probabilities.
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