R. v. D.(J.), 2002 CanLII 16805 (ON CA)

DATE: 2002-12-20 DOCKET: C36071

COURT OF APPEAL FOR ONTARIO

DOHERTY, ROSENBERG and CRONK JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

• and -

JERMAIN D. (a young person) Appellant

Counsel: Howard Borenstein, for the appellant Erika Chozik, for the respondent

Heard: November 12, 2002

On appeal from the conviction entered by Justice S. Ray of the Ontario Court of Justice (Youth Court) on December 28, 2000.

DOHERTY J.A.:

I

1On this appeal, the court must interpret s. 72(1) of the Criminal Code, R.S.C. 1985, c. C-46. The section creates the longstanding, but seldom prosecuted, offence of forcible entry.

II

2The appellant was charged with break and enter, assault and forcible entry. The first two charges related to a break-in at the home of Mr. Koon Ming Tse. The third charge arose out of events at the home of Ms. Violet Bernard. The appellant was acquitted on counts 1 and 2, convicted on the charge of forcible entry and sentenced to one day in jail followed by eighteen months probation. He appeals his conviction only.

3After receiving a report of a break and enter, two police officers with a police dog attended at the scene of the alleged break in. The dog picked up a scent and followed it to a nearby park where the police officers saw the appellant, who matched the general description of the intruder that had been provided to the police by the victim. The officers told the appellant to stop, but he walked away quickly after looking in their direction. With the officers and their dog in close pursuit, the appellant walked to the front door of 157 Horseley Hill Drive, the residence of Violet Bernard. The appellant knocked and Mark, Ms. Bernard’s twelve year old son, answered the door. He recognized the appellant as a person he had spoken to in the park on previous occasions. The appellant said “Hi” and Mark let him into the house. The appellant then said “Pretend I live here”. He walked to the back door, found it to be blocked by a couch, and after observing a police officer waiting outside at the back of the house, the appellant proceeded upstairs.

4Ms. Bernard testified that Mark woke her up to tell her that the police were at the door. She spoke to the police who asked her, “Where’s the little boy that ran through the house?”. Ms. Bernard invited the police officers into her home. They saw the appellant coming down the stairs and placed him under arrest without incident.

5Ms. Bernard knew the appellant by name and knew that he was an acquaintance of two of her daughters. He had been in her home before. She was not surprised that the appellant was in her house on that day, although she did not know he was present until after the police had entered her home.

6In his reasons, the trial judge observed that s. 72(1) did not require the actual use of force upon entry. In describing the ambit of the section, he said:

It says “a person who commits forcible entry” and it goes on to define it, and that includes situations where what we usually mean by “force” is not used, such as peacefully walking into a property or a place of residence when the surrounding circumstances give rise to a reasonable apprehension of a breach of the peace.

7After reviewing Mark’s evidence in some detail, the trial judge concluded:

Okay, so we have [J.D.] coming in saying, “Pretend I live here,” and that very sentence would spark in an adult some concern that the young man, [J.D.], is running away from some situation or is in some kind of trouble, and this, coupled with the fact that he was in fact being pursued by the police, including a dog, in all of these circumstances coupled with the fact that he did not have permission by the owner Violet Bernard to be there in all of these circumstances I am satisfied and I am not persuaded by the defence submissions. I am satisfied that the Crown has proved the third count on the Information beyond a reasonable doubt and that this situation in these circumstances does fall within section 72(1) of the Criminal Code and that it is a situation where there should be a reasonable apprehension of a breach of the peace and there will be a guilty finding on the first count.

III

8Section 72 of the Criminal Code reads:

Prise de possession et détention par la force

Forcible Entry and Detainer

72.(1) La prise de possession par la force a lieu lorsqu’une personne prend possession d’un bien immeuble qui se trouve en la possession effective et paisible d’une autre, d’une manière susceptible de causer une violation de la paix ou de faire raisonnablement craindre une violation de la paix.

(1.1) Pour l’application du paragraphe (1), le fait qu’une personne ait ou non le droit de prendre possession d’un bien immeuble ou qu’elle ait ou non l’intention de s’en emparer définitivement n’est pas pertinent.

(2) La détention par la force a lieu lorsqu’une personne, étant en possession effective d’un bien immeuble sans apparence de droit, le détient d’une manière vraisemblablement propre à causer une violation de la paix ou à faire raisonnablement craindre une violation de la paix, à l’encontre d’une personne qui a un titre légal à cette possession.

(3) Les questions de savoir si une personne est en possession effective et paisible ou est en possession effective sans apparence de droit, constituent des questions de droit [emphasis added].

72.(1) A person commits forcible entry when that person enters real property that is in the actual and peaceable possession of another in a manner that is likely to cause a breach of the peace or reasonable apprehension of a breach of the peace.

(1.1) For the purposes of subsection (1), it is immaterial whether or not a person is entitled to enter the real property or whether or not that person has any intention of taking possession of the real property.

(2) A person commits forcible detainer when, being in actual possession of real property without colour of right, he detains it in a manner that is likely to cause a breach of the peace or reasonable apprehension of a breach of the peace, against a person who is entitled by law to possession of it.

(3) The questions whether a person is in actual and peaceable possession or is in actual possession without colour of right are questions of law [emphasis added].

9The approach to be taken in interpreting provisions of the Criminal Code is well established. In R. v. Jarvis (2002), SCC 73 at para. 77, the court said:

The approach to statutory interpretation can be easily stated: one is to seek the intent of Parliament by reading the words of the provision in context and according to their grammatical and ordinary sense, harmoniously with the scheme and the object of the statute …

10The French and English versions of s. 72 are equally authoritative. They should be read together to discern their shared meaning: R. v. Jarvis, supra, at para. 79; R. v. Mac (2002), 2002 SCC 24, 163 C.C.C. (3d) 1 (S.C.C.); Schreiber v. Canada (Attorney General) (2002), SCC 62 at para. 54.

11There are two distinctions between the French and English versions which take on some importance in the interpretative exercise. Section 72(1) in the English version uses the word “enters” to describe the prohibited conduct, while the French version uses the phrase “prend possession”. The word “enters” can refer to a purely physical act. However, the phrase “prend possession” suggests the taking of some form of control over the property.¹

12The second distinction between the two versions appears in s. 72(1.1).² The closing words of the English version declare that it is immaterial whether the person entering the property “has any intention of taking possession of the real property”. The French version uses the phrase “s’emparer définitivement” meaning “to seize” “for good” or “definitely”: Collins-Robert French English Dictionary 2nd ed.

13The English version, viewed in isolation, suggests that any intention to take possession of the property, no matter how fleeting or qualified, is immaterial to liability under the section. The French version speaks of a more specific and limited concept of possession. That version declares that it is immaterial whether the person entering the property intended to take over the property.

14The two differences between the French and English versions become significant when s. 72 is placed in its historical context. The French version is truer to the crime’s historical roots. Forcible entry was a crime at common law. There was, however, some uncertainty as to whether it prohibited the taking of possession of real property by force from another where the person taking that possession had some legal right to it: J.W. Turner, Russell on Crime, 12th ed. vol. I, (London: Stevens & Sons, 1964) at 279. Statutes were enacted as early as the fourteenth century prohibiting the use of force to take real property from a person in possession of that property, even where there was a legal right to take possession. The Forcible Entry Act, 1381 (U.K.) 5 Richard II, c. 7³ provided:

[N]one from henceforth make any entry into any lands and tenements, but in case where entry is given by the law, and in such case not with strong hand, nor with multitude of people, but only in peaceable and easy manner.

15Attempts to take possession of real property by force from another person in actual possession invited violent confrontations which posed a real risk to the public peace. The forcible entry statutes looked to preserve public order by restraining those who would use force to assert property rights against others in actual possession of real property: R. v. Mountford, [1971] 2 All E.R. 81 at 83 (C.A. Crim. Div.); R. v. Campey (1910), 1912 717 (QC CA), 20 C.C.C. 492 at 494-95 (Alta. Dist. Ct.); R. v. Czegledi (1931), 1931 246 (SK CA), 55 C.C.C. 114 at 115 (Sask. C.A.).

16In Article 79 of his Digest of the Criminal Law, published in 1877, Sir James Stephen described the common law crime of forcible entry in these terms:⁴

Everyone commits the misdemeanor called the forcible entry, who, in order to take possession thereof, enters upon any lands or tenements in a violent manner, whether such violence consists of actual force applied to any other person or in threats, or in breaking open any house, or in collecting together an unusual number of people for the purpose of making such entry.

It is immaterial whether the person making such an entry had or had not a right to enter, provided that a person who enters upon land or tenements of his own, but which are in the custody of his servant or bailiff, does not commit the offence of forcible entry [emphasis added].⁵

17The crime of forcible entry appeared as s. 89(1) in the first Criminal Code:⁶

Forcible entry is where a person, whether entitled or not, enters in a manner likely to cause a breach of the peace, or reasonable apprehension thereof, on land then in actual and peaceable possession of another.

18Although the language of s. 89(1) did not track that used by Sir James Stephens in his Digest, the Criminal Code provision, like the common law crime, was clearly designed to preserve public peace by prohibiting potentially violent confrontations over entitlement to land between those claiming possession and those in actual possession. That purpose is apparent from the placement of s. 89 in Part II of the Criminal Code (Offences Against Public Order, Internal and External), the express indication that entitlement to entry was irrelevant to liability, and the requirement that the manner of entry precipitate a breach of the peace or a reasonable apprehension of a breach of the peace.

19No doubt because the Criminal Code provision shares the same purpose as the common law offence, several appellate authorities have interpreted the Criminal Code provision as a codification of Stephen’s definition of forcible entry despite the differences in the language used in Stephen’s Digest and the Criminal Code: R. v. Pike (1898), 1898 116 (MB CA), 2 C.C.C. 314 at 316, 319 (Man. Q.B.); R. v. Gordon (1947), 1947 424 (BC CA), 88 C.C.C. 413 at 415 (B.C.C.A.); R. v. Scribner, 1968 851 (NB CA), [1968] 4 C.C.C. 126 at 128 (N.B.S.C. App. Div.). For example, in R. v. Pike, supra, Killam J. said at p. 316:

Our Code, defines forcible entry, as where a person “enters” on land in the actual and peaceable possession of another, etc. I think, in view of what I take, in the absence of authority to the contrary, to have been the previous law, that “entering” in the Code is not merely going upon land or trespassing upon it, but there must accompany the act of going upon the land some intent to take possession of the land itself and deprive the possessor the land, and that such an interference with the possession as trespassing upon it for the purpose of taking away chattels upon the land is not an “entering” within the Code [emphasis added].

20The phrase “prend possession” in the French version of the current Criminal Code captures the definition of “enters” favoured in R. v. Pike, supra, and the other authorities. It is also consistent with the common law concept of forcible entry. In addition, the requirement in s. 72(1) that the real property be in the actual and peaceable possession of another at the time of the entry indicates that the prohibited entry must interfere with the peaceable possession of the person in actual possession at the time of the entry. The common meaning of the French and English versions of s. 72(1) speaks of more than a mere physical entry upon the property. Read together, I think, the two versions require a taking of possession in the sense of some interference with the peaceable possession of the person in actual possession of the real property at the time of the entry. As Martin J.A. put it in R. v. Czegledi, supra, at 116:

The gist of the offence is the forcible depriving another person of actual and peaceable possession in a manner likely to cause a breach of peace.

21My reading of s. 72(1) also assists in arriving at the shared meaning of s. 72(1.1). While the English version speaks of an intention to take possession of the property as being immaterial, the French version speaks of an intention to take over the property for good or definitely as immaterial. An interpretation of the provisions which requires a taking of possession in the sense of an interference with the peaceable possession of the person in actual possession, but does not require an intention to take over possession of the property is consistent with the French and English versions of the sections and the purpose of the section. For example, an intruder who forces his or her way into a home over the objection of the person in actual possession intending only to run through the house and out the back door would have no intention of taking over possession of the residence in any permanent sense. The intruder’s conduct would, however, interfere, albeit briefly, with the owner’s peaceable possession of the residence. On my reading of s. 72(1) and s. 72(1.1), the fact that the intruder intended only to run through the house and out the back door would not foreclose conviction for forcible entry since there was a taking of possession in that there was an interference, albeit a brief one, with the peaceable possession of the person in actual possession of the property: see R. v. Nickerson, [1997] B.C.J. No. 3121 (B.C. Prov. Ct.) at para. 31.

22In addition to the requirement of a taking of possession as I have described it, s. 72(1) also requires that the taking of possession be done “in a manner” likely to cause a breach of the peace or a reasonable apprehension of a breach of the peace. The section does not address breaches of the peace which may have some causal connection to the taking of possession of the property, but are not associated with the manner in which possession was taken. The breach or the apprehended breach must flow from the manner in which possession of the real property is taken and not from subsequent events. As was said in R. v. Campey, supra, at 495:

By these terms and from the context, I conceive a breach of the peace or apprehension thereof as a present incident existing or occurring at the time of entry, not something to result or to be apprehended in the future.

23The direct link between the manner in which possession is taken and the breach or apprehended breach of the peace found in the language of s. 72(1) is consistent with the purpose underlying the offence, that being to prevent breaches of the peace which can arise from confrontations between those seeking to take possession of real property and those in actual and peaceable possession of that real property.

24The appellant’s entry into Ms. Bernard’s residence was not accompanied by any force, violence, or threat of force or violence. He had been in the residence before and was allowed into the residence by a person who had authority to grant him entry. The appellant was not even a trespasser as long as he was not asked to leave by Ms. Bernard. On these facts, there is no basis for concluding that the appellant took possession of the residence when he entered it in the sense that he interfered in any way with the peaceable possession of the residence by Ms. Bernard and her family.

25There is also no evidence that the manner in which the appellant entered the Bernard residence was such as to create any possibility that his entry or presence in the residence would be resisted by anyone thereby resulting in a breach of the peace or a reasonable apprehension of a breach of the peace. There was a possibility of a breach of the peace if the police entered the Bernard residence in pursuit of the appellant and he resisted any attempt to remove him. Had that breach of the peace eventuated, it would not have been a product of the manner in which the appellant entered the Bernard residence, but would instead have been the consequences of events that occurred after his entry and unrelated to the Bernards’ continued peaceable possession of the property.

IV

26The evidence offered by the Crown was incapable in law of proving the offence of forcible entry. I would allow the appeal, set aside the conviction on the charge of forcible entry and enter an acquittal.

Footnotes

1. 1Section 348, which creates the crime of “breaking and entering”, and s. 350, which defines the word “entry” for the purposes of the break and enter provisions, uses the word “s’introduit” to describe the prohibited act of entering.
2. 2This amendment was introduced in 1985, by Criminal Law Amendment Act, R.S.C. 1985, c. 27 (1st Supp.) at s. 10.
3. 3Chap. VIII in Ruffhead’s edition.
4. 4Sir James Stephen, A Digest of the Criminal Law (Crimes and Punishments) (London: MacMillar, 1877).
5. 5Stephen’s definition was accepted in this province: R. v. Smith (1878), 43 U.C.Q.B. 369 at 381.
6. 6Criminal Code 1892, 55-56 Vict., 29.