R. v. Soranno, 2024 BCCA 5
[79] In some authorities, the use of the property that was interfered with by the person accused of mischief is simply accepted as lawful, without analysis. I presume this is because lawful use is obvious in many cases. For example, in R. v. Roy, 2023 QCCQ 1151, the accused protesters blocked lanes of traffic on a road tunnel and were found guilty of mischief without any inquiry into whether the public road was being used in a lawful manner.
[80] The question discussed in more than a few mischief authorities is the meaning of “enjoyment” of property within the context of the mischief offence in s. 430. This seems to arise most often in cases where residential neighbours are engaging in off-property conduct that deliberately annoys and disturbs their neighbour but does not otherwise actively interfere with a use of the neighbour’s property, such as in R. v. Drapeau, [1995] R.J.Q. 320,1995 CanLII 5099 (Que. C.A.) [Drapeau], R. v. Maddeaux, [1997] 33 O.R. (3d) 378, 1997 CanLII 1934 (Ont. C.A.) [Maddeaux] and R. v. Boehler, 2022 NBPC 6 (CanLII), 2022 NBPC 06 [Boehler].
[81] For example, in Drapeau, the accused regularly stared at his neighbours when they went outside, blew kisses, and made sucking and vomiting noises as well as imitated the sounds made by cows and pigs. The issue was whether this was sufficient to interfere with the complainants’ “enjoyment” of their own property as to constitute mischief. His appeal from conviction for mischief was allowed.
[82] In Maddeaux, the accused lived in an adjacent apartment and was accused of making noise, disturbing the neighbour’s “enjoyment” of her property. The Ontario Court of Appeal agreed that he was guilty of mischief. The Court held at 383:
The charge in the instant case is that Mr. Maddeaux wilfully interfered with the lawful use or operation of property. In my view, the words “use, enjoyment or operation” in s. 430(1)(c) are to be read ejusdem generis. “Use” of this property would include being present in the apartment for the purposes of cooking, eating, cleaning, resting, sleeping, listening to the radio and watching television. The word “enjoyment” might include any or all of those uses. “Operation” would not normally be employed in connection with a residential property, such as an apartment, but would be used in connection with a commercial, institutional or industrial enterprise as, for instance, a music shop, a grocery store, a library, or a mill.
[83] In Boehler, the accused stood opposite her neighbour’s property and repeatedly blew a whistle. The complainants described it as aggravating and annoying. After a careful review of the caselaw, the judge agreed with the description in Drapeau, and concluded that lawful enjoyment of property within the meaning of s. 430 refers to “both the entitlement or exercise of a right in relation to property and the satisfaction or pleasure that can be derived from that property”: para. 47. The accused was found to have interrupted or interfered with her neighbour’s lawful enjoyment of their property, and was convicted of mischief.
[84] The meaning of “enjoyment” within the context of the mischief offence was also explored in R. v. Lévesque, 2022 QCCA 510 [Lévesque]. The Quebec Court of Appeal’s judgment in Lévesque has been discussed many times, including in a helpful analysis in Boehler at paras. 43–47. In Lévesque, a group of about seven or eight people pulled a stunt at the offices of a media company, with one of them first being granted entry legitimately. The group then played a song, threw papers on the floor quoting Napoleon, threw a number of clown noses on the floor, and presented flowers and a trophy full of cigarette butts inscribed with the words “Media trash 2018”. Photos were taken by the intruders and posted on Facebook. The entire event lasted approximately 75 seconds.
[85] In Lévesque, it appears no one argued that any actual uses of, or operations on, the property were interfered with by the satirical protesters, just the “enjoyment” of the property. As summarized in Boehler at para. 45, the approach of the Quebec Court of Appeal was to state that the word “lawful” in relation to the word “enjoyment” connotes something about the relationship between the victim and the property that is the object of the mischief offence.
[86] At trial, the accused in Lévesque was acquitted of break and enter and mischief. The judge considered that the company employees were only troubled by the conduct. On appeal, the Court was of the view that the conduct caused a loss of use and enjoyment of the property by the property owner and occupants (para. 88). The accused was found guilty of both offences but the mischief charge was stayed because both events arose out of the same transaction.
[87] The meaning of “lawful enjoyment of property” also arose in R. v. Kirchner, 2005 ONCJ 45 [Kirchner]. In this case, the accused played his music so loudly at 3 a.m. that the neighbouring complainant was unable to sleep. The complainant was a tenant who was sleeping in her studio property, however, the area was not zoned for residential use. The judge concluded that the use of the property that was interfered with, sleeping and residing in an industrial zone, was not lawful, and so the mischief charge was dismissed.
[88] In R. v. Janusas, 2010 ONSC 2068, the accused blocked a laneway between his and his neighbour’s homes, that had been used by his neighbour for a driveway to enable him to park behind his own home. In defence of the charge of mischief, the accused pointed to a bylaw that arguably prevented use of the laneway as a driveway because it was not as wide as required: paras. 15–17. The court distinguished Kirchner, because in Kirchner the only use that was interfered with by the accused was the prohibited use of the studio as a residence. The court noted that the complainant in Janusas had other possible uses for the laneway, including to walk on it or ride a bicycle or motorcycle to reach his own home (para. 21). Just because the accused could demonstrate he was interfering with an unlawful use did not mean that he did not interfere with other lawful uses, and he was found guilty of mischief.
[89] All of the cases dealing with the meaning of enjoyment in the context of a mischief charge are interesting but somewhat distinguishable. In the present case, the evidence was that the protesters actually interrupted and interfered with Calvin Binnendyk’s activities that day, including his planned uses or operation of the property and not just his enjoyment of it. That means that on the facts of this case, it is not necessary to state any test as to the meaning of “enjoyment of property” within the context of the mischief offence.
[90] I therefore do not find it necessary to resolve whether I agree with the position of the judge of the Quebec Court in R. v. McQueen, 2022 QCCQ 2801. There, the judge found that the mere trespass by accused protesters into the barn of a pig farm, and occupation of it, without the permission of the owner, were each enough to constitute an interference with lawful use, enjoyment or operation of the property, without more: para. 360.
[91] The above findings in McQueen are stated rather broadly and may be at odds with the approach of the Ontario Superior Court of Justice in R. v. Klimowicz, 2021 ONSC 2589. There, an animal rights activist broke into a mink farm and took videos of the animals. He did not have permission to come onto the property or to film but the owner did not even know he had been there until the videos were posted on the Internet. The court found at para. 27 that the accused did not interfere with the conduct of any activity in the barn or disturb the mink or harm them. He was found not guilty of mischief.
[92] The authorities illustrate that there may be more than one factor to consider when considering lawfulness of use, enjoyment or operation of property within the context of the mischief offence.
[93] I accept that when considering the concept of “lawful use” or “lawful operation” for purposes of the mischief offence, even apart from the concept of “enjoyment”, the analysis may involve: (1) the relationship between the property and any person whose use is allegedly interfered with (for example, whether the person is an owner of the property or has a legal right to use it in the way that was interfered with); and (2) the nature of the person’s disrupted activity (for example, is the person permitted or prohibited by law to use the property that way).
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