COURT OF APPEAL FOR ONTARIO
ROSENBERG, BORINS and LANG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN Appellant
Eliott Behar for the appellant
- and -
BRADLEY PRIESTAP Respondent
Craig Parry for the respondent
Heard: March 7, 2006
On appeal from the order of Justice Thomas A. Heeney of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated June 10, 2005, allowing the appeal from the conviction by Justice Deborah K. Livingstone of the Ontario Court of Justice dated August 19, 2002.
1[1] Livingstone J. acquitted the respondent, Bradley Priestap, of criminal harassment, but convicted him under s. 177 of the Criminal Code for prowling at night. She imposed a suspended sentence and three years probation. The respondent appealed his conviction and the Crown appealed the sentence. Heeney J., sitting as a summary conviction appeal judge, allowed the respondent’s appeal and quashed the conviction. The Crown now appeals to this court seeking either to restore the conviction or to obtain an order for a new trial.
2[2] The primary point of law raised on this appeal is the intent required to ground a conviction for prowling at night. While the trial judge concluded that the Crown had proven the offence of prowling at night by establishing that the respondent engaged in “stealthy traversing”, the summary conviction appeal judge held that the Crown must also prove that the respondent prowled with the intention of committing a specific evil act.
3[3] In my view, the summary conviction appeal judge erred in holding that the Crown must prove this additional element. I am also of the view that the summary conviction appeal judge misapprehended the reasons of the trial judge in two respects. For the reasons that follow, I would allow the appeal and restore the conviction. With that result, it is unnecessary to consider the Crown’s further submission that the summary conviction appeal judge erred by refusing to grant a new trial.
The Facts
4[4] On May 15, 2002, the night that led to the respondent’s arrest, the complainant was home alone with her four young children, whom she had just tucked into bed. Shortly after 9:00 p.m., she decided to go into her backyard to gather the family laundry. As she started to go outside, she noticed something hunched over at the base of her deck. At first she thought it was an animal until she saw the shape move in a crouched position into the front corner of the yard, where the house met the fence. Growing nervous, she asked, “Who’s, who’s there?” No answer came. She asked again, more loudly, “Who’s there?” A male voice answered, saying that he was “looking for something”. The complainant asked this time, “What are you looking for? What are you doing here? What, what do you mean?” The man stood up and walked towards her. He then moved quickly past her to the front of the house and ran away.
5[5] The complainant was frightened. She called 911. The police arrived shortly thereafter. The respondent eventually returned to his car, which was parked on the road near the complainant’s home. He was arrested that night at 11:10 p.m. Pursuant to a warrant, the police searched the respondent’s car. Although the trial judge did not refer to this evidence on this count, there was no dispute that the police found various objects in the respondent’s car including a balaclava, duct tape, binoculars, two flashlights, a tape recorder, a camera, and a telephone book. Several days later, a pair of the complainant’s underwear was discovered in the front bushes of property three doors away. The complainant believed that this underwear was with her other laundry when the respondent was hiding in her backyard.
The offence of trespassing at night
6[6] Section 177 provides:
Every one who, without lawful excuse, the proof of which lies on him, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence punishable on summary conviction.
The trial decision
7[7] Since the prowling incident was one of five incidents alleged in the criminal harassment charge, there is overlap between the discussion of the two charges in the trial judge’s reasons.
8[8] On the first charge of criminal harassment, the Crown failed to persuade the trial judge beyond a reasonable doubt of two essential elements. First, the trial judge was not persuaded that the respondent, who was known to be the man involved in the May 15 incident, was the same man who had approached the complainant on four earlier occasions. The trial judge was unable to find that the man who repeatedly approached the complainant was the same man as the May 15 trespasser because the complainant’s evidence on the harasser’s identity, although sincere, amounted to no more that a “feeling” or “suspicion” on the complainant’s part. Second, even if the trial judge had been persuaded that the respondent was indeed the same man, she was not persuaded that his earlier approaches to the complainant’s front door had what the Crown had described in argument as the necessary “sinister” context to ground a conviction for criminal harassment.
9[9] She was of a different view with respect to the prowling charge and rejected the respondent’s explanation for his presence in the complainant’s backyard on that occasion.
10[10] After he was arrested, the respondent gave the police a statement purporting to explain his presence in the complainant’s backyard. This statement was later admitted in evidence and relied on by the respondent, who did not testify at trial.
11[11] In his statement, the respondent admitted that he was the man in the complainant’s backyard that night. His recollection of his movements and responses to the complainant’s inquiries accorded with the complainant’s testimony. Accordingly, on the evidence before the trial judge, there could be no question that the respondent’s movements in the backyard at night were furtive, secretive, and stealthy – sufficient to fit within any dictionary definition of prowling.
12[12] The respondent, however, attempted to provide a “lawful excuse”. He said that he had overheard people in a restaurant talking about marijuana growing in the complainant’s town behind the mailboxes, “at the edge of the field.” The respondent told police that he wanted to expose the location of any marijuana, as he was strongly opposed to the substance. As a result, he said that one night he set out to look for the marijuana, first on town property beside the mailboxes, then in a farmer’s field behind. On his return from the farmer’s field, he said:
[B]ut I guess I cut over a little bit too soon and but I still headed in that direction and the lights are still bright and all of a sudden I hear someone come out of a house and it startles me.
13[13] The trial judge concluded that the respondent’s story made “absolutely no sense” for several reasons. First, and most significantly, the complainant’s backyard was a distinct residential property clearly separated from the farmer’s field and the vacant lot by both fencing and foliage. Accordingly, the respondent could not have been in the complainant’s backyard in the mistaken belief that he was in a farmer’s field. Second, the respondent initially remained silent when the complainant repeatedly asked him, “who’s there?”, contradicting his statement of innocent purpose. Third, as I will discuss later, the trial judge found, even if the respondent had driven to the area to look for marijuana, that his explanation failed to explain why he was prowling in the complainant’s backyard.
14[14] After rejecting the respondent’s excuse, the trial judge concluded that the respondent prowled by his act of “ ‘stealthy traversing’ in the sense of furtive, secret or clandestine moving about someone’s property,” including his crouching near the house. This conduct fit within the definition of prowling in R. v. Willis (1987), 1987 6851 (BC SC), 37 C.C.C. (3d) 184 (B.C. Co. Ct.), which was cited to the trial judge. The trial judge did not conclude that the Crown was required to prove a specific evil act intended by the respondent. Instead, she determined that the respondent intended to prowl, and entered a conviction.
The summary conviction appeal decision
15[15] The summary conviction appeal judge, relying on R. v. Cloutier (1991), 1991 11767 (QC CA), 66 C.C.C. (3d) 149 at 154-155 (Qc. C.A.), came to a different conclusion on the law. He held that the Crown was required to prove that the respondent had an evil intention to commit a specific act:
Justice Livingstone, with great respect, committed an error of law in relying on Willis as authority for the proposition that an offence of prowling can be made out simply by proving the manner of movement being furtive, secret or clandestine, without the Crown being required to go on to prove the element of evil intent on the part of the accused in moving as he did, as required by Cloutier.
Issues
16[16] This appeal raises two issues:
1.1. Did the summary conviction appeal judge err in holding, to prove a s. 177 offence, that the Crown must establish that an accused has an intention to commit a specific evil act?
2.2. Did the summary conviction appeal judge misapprehend the trial judge’s findings?
17Analysis
1. Did the summary conviction appeal judge err in holding that, to prove a s. 177 offence, that the Crown must establish that an accused has an intention to commit a specific evil act?
18[17] For convenience, I repeat s. 177:
Every one who, without lawful excuse, the proof of which lies on him, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence punishable on summary conviction.
19[18] The view that the Crown must prove a separate evil intent has arisen from interpretations of Cloutier in subsequent cases. See R. v. Hebert (2004), 62 W.C.B. (2d) 162 (Ont. S.C.J.); R. c. Morelli, [1996] J.Q. no. 5044 (Qc. Mun. Ct.); R. v. Singh, [1996] B.C.J. No. 1410 (B.C.C.A.); R. v. Pacholec, [1996] Q.J. No. 4824 (Qc. Mun. Ct.); and R. v. McLean (1970), 1970 1034 (AB MAGCT), 1 C.C.C. (2d) 277 (Alta. Mag. Ct.). While I am of the view that these cases misinterpret Cloutier, in any event I would disagree with the conclusion that an intention to commit a specific evil act is required. To address the point, it is necessary to review both Cloutier and Willis.
20[19] In Willis, the accused prowled through the complainant’s property in an attempt to avoid detection for an earlier attempted break and enter at another property. In dismissing the accused’s appeal from his prowling conviction, the court said this about the conduct captured by s. 177 and the burden on the Crown to establish only an intention to prowl:
I think that the evil Parliament intended to prevent was both loitering, i.e. lingering indolently on one's way, hanging idly about a place; and prowling, i.e. traversing stealthily - stealthily meaning furtively, secretly, clandestinely, or moving by imperceptible degrees. It is not necessary for the Crown to establish, as in McLean, that the accused"... was hunting in a stealthy manner for an opportunity to carry out an unlawful purpose." In other words if the Crown establishes the prowling (or the loitering as the case may be) an accused is then required to provide a lawful excuse, otherwise he is guilty as charged.
[Appellant’s counsel] submits that in this case the accused was at best a trespasser and that it is no crime to trespass upon another's property under s. 173 of the Criminal Code. That is true but the difference between prowling, as I perceive the meaning of that term to be, and trespassing, is the element of stealth. A prowler is a trespasser, but a trespasser is not necessarily a prowler.
21[20] The accused in Cloutier had hidden in an alcove contiguous to the garage of a private home at night. The lock to the garage was damaged. He was apprehended and charged with loitering. The question on appeal was whether, even if the accused could not be found to have loitered, whether he could be convicted under s. 177 for prowling. In other words, the court considered whether loitering and prowling were interchangeable terms within s. 177 (then s. 173).
22[21] The court in Cloutier concluded that the accused could not be convicted of prowling because prowling was not included in the offence of loitering. While a person loitering was in essence one wandering without purpose, a prowler was different:
23[F]or the average person, “prowl” inspires a pejorative reaction. The verb includes a notion of evil; it depreciates in his eyes the person who is involved in the action that it represents. The prowler does not act without a purpose like the loiterer, his actions lead one to believe that he has something in mind and that this something is not commendable. To see him acting so, one can properly say that he is eventually going to do some specific act, which will be such as to attract the reprobation of honest people, even if it is not otherwise specifically prohibited by the Criminal Code.
24[22] This reference to “going to do some specific act” has been interpreted as requiring proof of an intention to commit a particular evil act. However, Cloutier did not directly consider the question of intention, but rather only considered whether an accused charged with loitering at night could be considered to be charged also with prowling at night.
25[23] On that issue, the court decided that s. 177 creates two separate offences of loitering and prowling, not a single offence that can be committed in two different ways. Mr. Cloutier, having been charged with the loitering offence, could not be convicted on evidence establishing only the prowling offence.
26[24] While, as part of this conclusion, Cloutier noted that prowling, by its nature, requires a higher degree of “lawful excuse” than does loitering, it does not, in my view, conclude that prowling requires an additional element of intent to commit another specific act. To the contrary, in my view Cloutier confirms that the movements involved in prowling suggest in themselves that the prowler is up to no good.
27[25] The purpose of s. 177 and its placement in the Code assist in interpreting Parliamentary intention. Section 177 was introduced to criminalize “peeping tom” conduct, conduct that the Supreme Court of Canada held was not a criminal offence. See Frey v. Fedoruk, 1950 24 (SCC), [1950] S.C.R. 517. The s. 177 trespassing at night offence is classified as a “Disorderly Conduct” offence under Part V of the Code, along with such offences as vagrancy, causing a disturbance, nudity and indecent acts.
28[26] In enacting this section, Parliament specified that loitering or prowling would only be a criminal offence if committed at night near a dwelling house. It follows from this that, on a purposive interpretation of s. 177, Parliament did not intend to criminalize petty trespass, such as individuals entering on private property in the daytime in a manner that did not convey any malevolent purpose. Parliament, however, did intend to protect a resident by criminalizing the invasion of that person’s residential property at night in a surreptitious manner when the intruder has no lawful excuse to explain his presence.
29[27] This makes sense. Instinctively, an occupant or other observer seeing a trespasser moving stealthily or furtively near a home at night, absent other explanation, would conclude that the trespasser’s conduct evidences an intention to avoid detection - perhaps because the trespasser has committed, or is going to commit, or is contemplating committing, a reprehensible act. Whatever the prowler’s motive, however, it is the act of prowling itself that is an unwarranted invasion that causes anxiety to the observer, and not any reprehensible act that the trespasser may intend to commit, may have committed, or is contemplating committing.
30[28] The prowler’s purpose in prowling is not the focus of s. 177 because other provisions of the Code will likely address that purpose1. Moreover, inherent in prowling is the implication that the accused is up to no good. The accused is prosecuted under s. 177 only for prowling, and not for the underlying purpose of such activity.
31[29] It is because the offence is prowling and not the contemplation of another specific crime, that Parliament explicitly placed the burden on the prowler to provide a lawful excuse for his or her conduct.
32[30] I find further support for this interpretation from the structure of s. 177. It would be illogical to reason that a prowler cannot be convicted unless the Crown proves the specific evil act intended by the prowler while, at the same time, loitering, a more innocuous activity, can lead to a conviction without proof of any additional specific intention.
33[31] The respondent raises an additional argument that an interpretation of “prowl” without an added element of a specific evil goal would criminalize the conduct of many innocent individuals. To support this argument he raises hypothetical situations including children playing hide and seek in a neighbour’s backyard, a teenager retrieving an errant Frisbee from a householder’s backyard, or a golfer seeking to retrieve a wayward golf ball from a house adjacent to a golf course. These “innocent” activities, argues the respondent, could not have a “lawful” explanation because they offend against the Trespass to Property Act, R.S.O. 1990, c. T.21 (the TPA).
34[32] With certain common sense exceptions, the TPA makes it an offence, and therefore unlawful, for a person to enter enclosed residential premises unless the person has the occupier’s permission. The onus of proving permission is on the intruder.
35[33] To begin with, it is unlikely that such “innocent” activities would take place during the night or that such individuals would stealthily enter into a residential backyard in a surreptitious manner to seek lost equipment. “Night” is defined in s. 2 of the Code as “the period between nine o’clock in the afternoon and six o’clock in the forenoon of the following day” and “dwelling house” is defined as “the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence”. Applying those definitions to the hypotheticals raised by the respondent, it is unlikely that an “innocent” individual would prowl in a clearly demarcated residential backyard for such a purpose at night. Accordingly, in my view, this argument does not assist the respondent.
36[34] A plain reading of s. 177 leads to the conclusion that an accused commits an offence if he or she intentionally loiters or prowls at night near a residence on another person’s property unless the accused establishes a lawful excuse for his or her conduct. The Crown is not required to prove that the accused also had an intention to commit a specific evil act.
2. Did the summary conviction appeal judge misapprehend the trial judge’s findings?
37[35] The trial judge found as a fact that the respondent was prowling at night. In my view, the summary conviction appeal judge misapprehended the trial judge’s reasons both with respect to whether the prowling was in a “sinister context” and whether the respondent provided a “lawful excuse”.
38[36] With respect to the first issue, the trial judge referred in her reasons to the absence of a “sinister context,” a finding that could be interpreted as contradictory to her conclusion of prowling. This finding, however, must be considered in the context of its location in the trial judge’s reasons in the segment dealing with the criminal harassment charge. As I have said, that charge was based on five incidents. In 1997, a man approached the complainant in a public place asking her if she had ever considered “getting involved in porn”. The Crown argued that this inquiry lent a “sinister implication” to the man’s subsequent attendances at the complainant’s home. On three of those occasions, the man said that he was seeking either another person’s address or that he was wishing to purchase a specific item. In his statement, the respondent admitted that he might have been at the complainant’s home on an earlier occasion for innocent purposes, which he explained. If accepted, the respondent’s explanation provided a reasonable explanation for at least some of his attendances. If considered in light of the first approach, however, that explanation may have been inadequate.
39[37] In dealing with the respondent’s explanation in relation to the criminal harassment charge, the trial judge referred back to the Crown’s argument of a sinister context in the man’s appearances at the complainant’s front door. The trial judge, however, was not satisfied that the Crown had proven the necessary “sinister context” to ground a conviction for criminal harassment. Even though that charge specifically included the prowling incident, the trial judge considered that incident quite separately. This is clear from her introduction to that count where she began, “[w]ith respect to count two, however, I am of a different view”. Accordingly, the trial judge’s finding that there was no sinister context in the respondent’s earlier approaches to the complainant’s front door related to her discussion of criminal harassment and not to prowling.
40[38] A fair reading of the trial judge’s reasons with respect to the second alleged misapprehension also leads to a different interpretation than that formed by the summary conviction appeal judge. The summary conviction appeal judge was of the view that the trial judge had a reasonable doubt about the respondent’s excuse for being on the complainant’s property because the trial judge said:
In my view Mr. Priestap, if indeed he was looking for marijuana (which may or may not be so), was doing so in an area that was in a residential part of Ethel. The mailboxes were next to a residential piece of property. That is obvious from the photographs. That is obvious from the diagram drawn by [the complainant]. It is obvious from the aerial photograph. And it should have been obvious to Mr. Priestap, even if it was in the night. In my view he is on her property knowing that he has no lawful or reasonable excuse to be there.
41[39] The summary conviction appeal judge interpreted this passage as meaning that the trial judge had a reasonable doubt as to whether the respondent was on the complainant’s property looking for marijuana. Even if this explanation for trespassing could amount to a “lawful excuse”, in my view this is not what the trial judge said. Rather, reading her reasons as a whole, the trial judge concluded that, even if she accepted that the respondent was looking for marijuana in the field contiguous to the complainant’s home, he still failed to explain why he was prowling at night in the complainant’s backyard – a backyard surrounded on all sides by fences and foliage.
42[40] Thus, the trial judge’s reasons are clear on the essential findings that the respondent was prowling at night and that he failed to provide a lawful excuse.
43Result
44[41] In the result, leave to appeal is granted, the appeal is allowed and the conviction for prowling at night is restored. The Crown appeal of the suspended sentence and probation imposed by the trial judge is remitted to the summary conviction appeal court for hearing.
RELEASED: “M.R.”
April 19, 2006
Signed “S.E. Lang J.A.”
“I agree: M. Rosenberg J.A.”
“I agree: S. Borins J.A.”
Footnotes
- [1] [1] For example, it is a crime to attempt to commit an offence under s. 24(1) and a crime for a trespasser to be in possession of housebreaking tools under s. 351 of the Criminal Code.
