R. v. Manoux, 2017 ONCJ 58

Court Information

Date: January 11, 2017

Ontario Court of Justice

Old City Hall – Toronto Region

Parties

Between:

Her Majesty the Queen

— and —

Jean Paul Manoux

Before the Court

Justice: S. R. Shamai

Reasons for Judgment released on: January 11, 2017

Counsel

Ms. Sonia Beauchamp — for the Crown

Mr. Adam Weisberg — for the defendant, Jean Paul Manoux

Judgment

SHAMAI J.:

Overview

1Mr. Manoux is charged with two counts of mischief to private property. Crown alleges that he did:

between December 15, 2014 and April 30, 2015 … willfully obstruct, interrupt or interfere with Sarah O'Shaugnessy in the lawful use, enjoyment or operation of property, namely 1171 Queen Street West, unit 1704, and thereby commit mischief, contrary to Section 430, subsection (4) of the Criminal Code of Canada.

The second count (in fact these are counts 3 and 4 on the information) relates to Tressa Moncada, in identical terms.

Overview of Facts

2Mr. Manoux had leased a two bedroom condo apartment at 1171 Queen Street West, unit 1704, in downtown Toronto from Carmelana Ruggiero, the owner. This was during a time when a condo he had purchased was under construction. He had previously owned a house in Toronto, and rented out parts of it through the Airbnb services. He testified that Airbnb gave him the benefit of an insurance policy against theft or damage by persons renting at his premises through that service.

3At his apartment at 1171 Queen West in Toronto, his lease included a provision that he not sublet without his landlady's permission: "The Tenant shall absolutely have no rights to assign or sublet all or any part of the leased premises during the term of this lease or any extension without the prior written consent of the landlord." The lease also provided that "The Tenant and its family or any other person occupying or visiting the premises covenants and agrees to abide by the Rules and Regulations of the Condominium Corporations as amended from time to time, and all requirements of the declaration/or by-laws thereof". The rules of the condominium prohibited leases or subleases, except in certain circumstances. In particular, the rules provide that "If guests are given permission to occupy a dwelling unit during a resident's absence, the property manager shall be notified in writing of the names of such guests, dates of occupancy and license numbers of all motor vehicles of such guests…" The rules concerning "Tenancy Occupation" are very detailed as to any lease or sublease, and there is no question but that Mr. Manoux was not complying with that Rule in seeking the short term arrangement which he concluded with the complainants.

4He had previously rented out Unit 1704 by means of Airbnb, and had a less than optimal experience with it. His landlady became aware of it, and warned him not to do it again or she would terminate his lease. Mr. Manoux persisted in renting out his apartment. He did not use Airbnb on the occasion that resulted in the criminal charges, but rather, a Facebook group. The "group" is a web-based resource to facilitate short term sublet housing. It was through that site, "Sublets For Gypsys", that he came to an arrangement with Ms. O'Shaugnessy and Ms. Moncada. The women agreed to pay him for their occupancy of the premises, which he would leave furnished and containing his personal papers and other items, for approximately four months. Mr. Manoux was open to various start times, and was prepared to adjust the rent accordingly. In fact, he offered to Ms. O'Shaughnessy the opportunity to share the apartment with a man who expressed interest in the place. Ms. O'Shaughnessy preferred to find her own roommate, and in fact expressed clearly in her testimony that she was not prepared to share an apartment with a man. It was Ms. Moncada who became the other occupant. Mr. Manoux and each of the women had a discussion concerning his rules for use of the condo, key among which was his wish that they keep a low profile, keep to themselves, and not deal directly with condo management.

5What he did not disclose to the two women is that he had customised a Blu-ray player to contain a web camera, and positioned it on a piece of furniture in the living area, so that it would record the images of people on the couch and coming and going from the apartment, by the hallway near the kitchen. As it was a web camera, he was able to access the device remotely, and the Ethernet cable attached to the Blu-ray player facilitated this. None of this was disclosed to the women who were paying to live there. Their upset on learning about it led to a report to police, and subsequently to the owner of the unit. Charges were laid against Mr. Manoux and proceedings under the Residential Tenancies Act launched, in order to obtain an eviction order against the women. Mr. Manoux's lease was terminated.

6The evidence shows some significant conflict as to just what the arrangement was, between Mr. Manoux and the women. He claims that they were not tenants of the apartment as such, but were in a "sharing" arrangement with him, asserting that he had told them to expect he was their third roommate, but that he would be like a "hard working flight attendant", not frequently there. He characterised the arrangement in a variety of ways, with different words and phrases which specifically excluded "tenancy" and "sublets". He claims that the amount of payment he asked for reflects that arrangement, as his cost for the apartment was $2400 monthly, and he asked for and received $1600 monthly from the women. He testified that their arrangement required that they keep a low profile in the building: staying at their boyfriends rather than boyfriends at the condo, no noisy parties, no overnight guests apart from their boyfriends, all communication with the condo management to be through him. He expressed his impression of an overbearing landlady, as the reason for this. From Mr. Manoux's perspective, he knew that his lease would likely be terminated if on a second occasion he was found to breach the "no sublet" aspect, both of his lease and of the condo rules. As a result he monitored the activities of the women he let his apartment to, quite closely, apparently through text messaging. He testified that it was also to secure his property, as, in using the "Gypsys" listing rather than Airbnb, he did not have the benefit of the million dollar insurance coverage, which that latter service included. He therefore adapted the blu-ray player to contain the operating webcam, to allow him visual access at will, without the knowledge of the women renting from him.

7The factual basis requires close scrutiny due to the conflicting versions of events according to the parties, and the impact of fact upon law in this case. The defendant argues that the charge of mischief has an essential element that the complainants were in lawful use, enjoyment or operation of property (section 430(1)(c)) and that given the circumstances of their occupancy of the place, Crown cannot prove this element. Moreover, Mr. Manoux asserts a colour of right in this conduct, which he claims was for the purpose of protecting his property. Defence takes the position that even if the complainants are shown to be in "lawful …enjoyment…", Crown fails to prove on the evidence that Mr. Manoux's installation and operation of the concealed webcam wilfully obstructed, interrupted or interfered with the complainants' enjoyment of the property. In any event, Defence contends an absence of sufficient proof that the operation of the webcam in fact interfered with their lawful use of the premises.

8Crown asserts that the evidence fully proves the essential elements of the offence beyond reasonable doubt, and that the significant issue in this case involves the right to privacy of every member of the community. In the Crown submission, the right to privacy is a key aspect of the lawful enjoyment of a residence. As well, Crown takes the position that the right to privacy properly understood vitiates any air of reality which might support the claim of colour of right. Crown argues that the facts prove wilfulness in committing the act in question, and that the evidence amply supports the conclusion that all elements of the Crown's case are supported beyond reasonable doubt.

Procedural History

9Initially, with an information sworn January 30, 2015, trial was set for January 28, 2016. An application for relief by way of stay under Section 11(b) of the Charter was argued on October 21, 2015, and granted on November 5, 2015. However, Crown appealed the stay. The appeal was granted on May 18, 2016, and a new trial was ordered. It is that second trial which I preside over, and which brings me to the stage, having heard the evidence and the arguments, of considering whether the Crown has proved the offences beyond reasonable doubt.

10On a motion for directed verdict, the defendant argued that as the complainants occupied the unit in violation of the terms of the lease, they were not in lawful use, enjoyment or operation of property, and hence, Crown had failed to provide any evidence on an essential element of the charges and its case therefore failed. I dismissed the application. Mr. Manoux then testified. Now, on the whole of the evidence, I am now left to consider the result.

The Facts

11The key components of the evidence on this trial are the testimony of the two complainants and Mr. Manoux's evidence. Aspects of the police investigation were admitted by way of agreed facts. A member of the Tech Crimes Unit of Toronto Police Services, P.C. Angus, gave evidence about the installation and operation of the webcam. Ms. Ruggiero testified about the conditions of her lease agreement and the condo rules, and the events which followed her being alerted to the issues at the condo on January 23, 2015. As well, real evidence by way of photo's, lease, and documents relating to the eviction process as well were tendered. Most of these latter parts of the record are uncontentious. The records of text messages between Mr. Manoux and the two complainants are of assistance in assessing the nature of the relationship between him and them, and I will start with a review of those messages.

1. Evidence of Text Messages

12The defendant asserts that he did not sublet the condominium apartment to Ms. O'Shaughnessy and Ms. Moncada, but rather that he rented bedrooms only, and that he maintained possession of the entire apartment as a "third roommate". He shades in parts of his testimony about the rental or sublet agreement, saying it was a sharing arrangement or a housesitting arrangement. He says that he advertised the arrangement in similar terms to ads he had posted. It was on a Facebook group, called "Sublets For Gypsys". The ad which Ms. O'Shaughnessy answered was no longer available online, but she confirmed that previously posted ones were similar to the one she answered. The previous ads have been filed as Exhibits 7 and 9 in these proceedings. Their wording is slightly different, and I note that one was posted on March 22, 2013, and another on April 11, 2014. They read as follows:

J.P. Manoux > Sublets for Gypsys

April 11, 2014

TORONTO, May 1st – June 1st, or any number of days within, King size bedroom in furnished 2 bedroom 17th floor Bohemian Embassy condo. Queen West West, across the street from the Drake and Gladstone Hotels. Spectacular views! Parking!

J.P. Manoux > Sublets for Gypsys

March 22, 2013

TORONTO, One bedroom available immediately, both bedrooms available April 1 -15 in my 2 bedroom Bohemian Embassy condo. Northeast corner of the 17th floor overlooking everything. Underground parking spot included. http://Airbnb.com/rooms/792606

13In fact, his evidence was that he was prepared initially to rent to Ms. O'Shaughnessy, knowing that her budget required that she share the apartment and the rent. He proposed another individual, a man who had expressed interest in the rental, but Ms. O'Shaughnessy was not comfortable living with a strange man and instead proposed an acquaintance of hers. That was agreeable to Mr. Manoux. He was to receive $1600 in total from the women, and ultimately another $100 for Ms. Moncada's parking space. They were told that he would be back from time to time, as he was working in Los Angeles. He made it quite plain that his landlady was not to know about their residency there, and that they were to keep their presence low-key: no parties, no listing their names on the directory, not to do anything which might draw attention to themselves. In fact, when an issue arose because Ms. Moncada sought to have a parking spot, the communications between Ms. Moncada and Mr. Manoux, and between Mr. Manoux and the building staff became a frenzied exercise in covering up the arrangement Mr. Manoux had entered into. He advised Ms. O'Shaughnessy (Jan.20/15):

"Tressa might have blown it for you guys. Building manager asking all kinds of questions. This is fucked" (Why? What happened?) Don't think it has anything to do with the friend's lost phone. Telling the building to take Tressa's phone number off the registry and hoping this is the end of it. But, if they'e already contacted my landlady, be prepared to move out pronto. Boo. If someone is visiting her, they should call her phone or yours (have you spoken with Tressa?) And , again, NEVER engage the building without contacting me first. I don't care how nice the late shift lady seems. Yes she ignored that last directive. Dumb. Didn't want to pay for someone else's parking space. That was a mistake too. Could have been breezing in and out for months ("I'm sorry JP I'm working right now and I feel like you really need to clarify these things with Tressa because I've completely kept to myself and have spoke to them about anything) Told her before. Multiple times. Nothing without contacting me first.

(Jan.21/15: details regarding listing a phone number to connect to the door entry system):

And please keep your guys from compromising this situation further. Sleep/party/whatever at their places as much as possible (Yeah neither of them are here that often. Mine more so than Tressas because he lives closer. When my boyfriend has gone to get a visitor pass he is by himself so no connections can start to be made with me and gives only your name and unit. That way no questions are ever raised about who he is visiting That is ok, yes?) That is okay… NOW. But should definitely have been told to me when it started happening. They ask me about him I'll look like an idiot. Need his name.

(Then further exchange about Ms. O'Shaughnessy's boyfriends name and car, and further regarding documents required for Ms. Moncada at front desk)

14The communications reveal Mr. Manoux's wish to maintain control over the unit, which the two women were renting from him. It is clear that he was sensitive to the jeopardy he faced, in the event he was discovered breaching his tenancy agreement and the condo rules.

15Early in Ms. O'Shaughnessy's stay there, on December 18 she received a text asking first if she had "grabbed the package" - she was asked to receive mail and deliveries for him. Ten days later, the query came, seemingly out of the blue:

"Nobody is sleeping in the condo except you and occasionally a boyfriend, right? Reminder that you're a "house sitter" agreeing to compensate me for the use of one bedroom. Not a proper tenant leasing the whole unit from a landlord. If anyone besides you and your dude are spending the night, I need to know who's coming and going.

Ms. O'Shaughnessy responds: "Is there a reason why you're sending that? My sister stayed with me one night because she was in town. I've been away since the 23rd for holidays. I can assure you I've been nothing but respectful of the space so I'm just a little thrown off by that message".

Mr. Manoux replies: "Just confirming that if I show up in an hour to crash in my room tonight, I won't be surprising anyone. My Rogers and AppleTV accounts say someone has been changing channels all day. But, no one's in the condo."

There followed a further exchange about Tressa Moncada moving in and she being away till after New Year's. To Mr. Manoux's query about others using the apartment and sleeping there she texts:

"I would never just allow people to spend time there and lend out your apartment"… Well I'm more than happy to get (Tressa's contact info) for you. I just don't really appreciate that approach to things. I've been very respectful and done everything that we discussed in regards to things prior to me moving in. I understand you're worried about keeping your place the way you had it. It just feels a little like I'm being scolded and I've done everything you asked of me".

(Mr. Manoux then texts) "Someone other than you was sleeping in the condo last night. Tressa doesn't move in until January. That was a legit issue. To me. Thanks."

The exchange continues regarding how they can further communicate.

(Mr. Manoux) "I just need to know what's going on. Who has keys, whose licence plate is currently in the parking spot, etc. If I can't answer my landlady I'm fucked. "

Mr. Manoux texted to advise of his arrival back in Toronto on January 19, and that he would check into the guest suite, but needed access to the condo.

16Text exchanges continue between Mr. Manoux and Ms. Moncada during the day of his return in January and the few days following. On January 19, 2015, at 8:20 a.m., he messages Ms. O'Shaughnessy:

"Bonjour" (reply hello) "Cool to come up?" (Yep)

At about the same time, he messages Ms. Moncada

"Bonjour."

She asks: "Who's this?"

He: "Your third roommate. Canadian phone (he provides two phone numbers)"

She: "Oh ok lol"

She then asks: "Do u have a key or do u need me to let u in".

He advises: "Need you. You and Sarah should have the only keys."

17However, over the next few days, a frenetic exchange of messages develops, with a view to getting Ms. Moncada a parking space without her taking any initiative not directed by him. As quoted earlier:

"You were supposed to go through me. Regarding anything and everything…. Because I need to know EXACTLY what you are telling people…. And PLEASE keep your guys from compromising this situation further. Sleep/party/whatever at their places as much as possible."

The two undertake a detailed set of instructions regarding securing a parking spot for Ms. Moncada, in order that it appear to be done by Mr. Manoux on her behalf. The discussion includes his comment about informing building management when he will be returning. Ms. Moncada gives assurance that she understands the arrangement for the condo is restricted to herself, Ms. O'Shaughnessy and Mr. Manoux. He cautions at 4:22 pm, January 21, at the end of their lengthy exchange regarding the parking spot, including the above exchanges:

"Cool. But you must proactively discuss with me anything and everything regarding the unit. Mail, a sticker on the mailbox, a note under the door. Anything."

The next day, he is messaging with Ms. Moncada, and asks to speak with Sarah. Tressa says, at Sarah's request, that she is not there. After reviewing the details of parking spot, clicker, and amounts owed to him monthly, he says:

"Don't fall into a conversational trap about paying rent. You aren't paying me or the landlady anything. Visiting friend and guest. ☺"

He concludes that day, a couple of hours later:

"Need the truth from you, Tressa. Tiny lies add up to trouble. Sarah's not at work, is she…Trying to keep the concierges on our side. Hasn't seen her leave today… Can I stop worrying about this? Want to be done with all of this today. Still a chance they contact my psycho landlady… Too many fucking dominos from the start of this. Stressing me out. Sorry"

18By 5:53 pm the following day, Mr. Manoux sent a series of messages to his two tenants:

2015-01-22, 5:53 PM

Just got an alert that the condo's security camera is disconnected. Are you home? Do I need to worry?

It's built into the Blu-Ray player. If there has been a blackout, please restart the unit. Protects you guys and me both. If you don't feel comfortable with the motion recordings, please reconnect the unit whenever you leave the condo.

AirBnB dude stole a laptop from one of my tenants before. Security snapshots were our only recourse.

But, if I don't hear something back from one of you two soon, I've got to assume that someone HAS stolen the unit. And/or something else from the place.

His final salvo is:

2015-01-23, 2:49 PM

"You guys are not tenants. I am not your landlord. You don't have a lease. You are my guests. Facebook friends (formerly), who have been kind enough to compensate me for short term use of my home. Please call me if you want to stay in the condo beyond tomorrow morning."

19These messages bring a source of reliable record to the evidence. This must be considered along with the testimony of Ms. O'Shaughnessy and Ms. Moncada, as well as Mr. Manoux's testimony at trial. Their testimony involves findings of credibility.

2. Testimony of Key Parties

(i) Sarah O'Shaughnessy

20Ms. O'Shaughnessy was 28 when she testified in September 2016 about events, which had occurred almost two years previous. She testified that she had qualified as a teacher, had taught in London, England, and was teaching part-time in Toronto, climbing the ladder to a full-time position with the Toronto District School Board. She did and continues to volunteer with an organization helping people with autism. She worked in a restaurant as well, at the time, which is the context in which she knew Ms. Moncada. She responded to a posting in a Facebook group called "Sublets for Gypsys", as described above. The Sublet ad showed the cost of the two bedroom unit was $1600, and she intended to share it with someone else, someone who she would choose. Although Mr. Manoux proposed another man who had responded to his ad, she was clear in her testimony that she would not be comfortable living with a man she did not know. Her agreement was verbal, and the rent was adjusted by Mr. Manoux to reflect that the first month's rent was for half the month, starting December 15, 2014. She understood that she and her eventual roommate, Ms. Moncada, would have key fobs, with which to enter the building and the unit, and that Mr. Manoux retained a fob as well. She understood that they were allowed to have guests, but that they were not to throw parties or bring much with them, as the place was fully furnished. Ms. O'Shaughnessy moved in over a period of a few days, bringing personal items as well as a small dresser or night-table and some kitchen items. She understood that part of one cabinet was not for their use, though it was not locked. The arrangement for their use of the apartment included iHome device, Apple TV, DVD player. She testified that there was nothing in the unit they were not permitted to use.

21She described the incident when she and Ms. Moncada discovered the camera system, about which they knew nothing. She said Ms. Moncada was having a conversation with Mr. Manoux about a parking space she was trying to obtain. She said she was on a quick break from work, and that she and her boyfriend were having lunch. When Ms. Moncada said that Mr. Manoux wanted to speak with her, she told her to tell him she was not there. Later, Ms. Moncada showed her a text she received from Mr. Manoux – saying, "Sarah is at home, you have to stop lying, these little lies really add up". The text was tendered as part of the defence case, and referred to earlier. Together with a series of messages she had received from Mr. Manoux the month earlier, Ms. O'Shaughnessy became suspicious and anxious that there was some sort of surveillance allowing Mr. Manoux to make these observations. Around December 26 or 27, a message from Mr. Manoux had suggested that there were others in the apartment, other than herself and her boyfriend. At that point, Ms. O'Shaughnessy advised that her sister had been there at some point. Another message, in retrospect, raised concerns as well as to how Mr. Manoux knew their comings and goings and the company they kept. Ms. O'Shaughnessy said that initially she assumed it was the nosy landlady, about whom Mr. Manoux had warned her saying that she did not want the apartment to be used by anyone but herself.

22However, after the lunchtime incident, on January 22, she and her boyfriend started looked everywhere for a camera in the premises. Finding nothing on the initial search, she did an internet search to learn whether any of the Apple products might contain a camera. She saw the image of a DVD player, which had been modified to contain a webcam. It was similar to the Blu-ray player in the apartment. She and her boyfriend examined it carefully. She described in detail what she found, and the power and Ethernet cords attached to it. PC Angus testified to the functionality of the item, which he examined and tested. Mr. Manoux as well acknowledged the steps he took in acquiring and setting up and testing the item. There was no doubt that Mr. Manoux had purchased equipment and ensured that it was functioning, for the purpose of having a surreptitious view of a part of the apartment.

23Ms. O'Shaughnessy testified that upon finding the Blu-ray with the suspicious Ethernet cable, she tried to open it, having disconnected it, and that in the course of doing that, she received messages from Mr. Manoux within two minutes of unplugging it. She did not respond to his, first second or third message, all of which were tendered in the defence case. She described her state of mind, upon finding the device and receiving the messages, as "freaked out". She was very concerned that he might show up at the apartment as he mentioned getting on a flight, in his messages. She contacted the condominium security about her concerns. She believed that Ms. Ruggiero and the police were contacted by them. She stated that after that date she spent as little time there as possible, changing her behavior significantly. Until that date she had slept there almost continuously, with holidays, and the odd night away at her boyfriend's or her parents' home. She testified that after the discovery, she did not feel comfortable there. In fact, in testifying, she started crying when she was asked how she felt after discovering the device. She was challenged on her assertion in cross examination, with the suggestion that her evidence and demeanour in relation to this point were driven by the lawsuit she had brought, and that her conduct at the time, not vacating the condo until the eviction order was made, were more telling of her actual feelings. She responded that she had been advised by police that she did not need to leave the apartment, although the condo management offered her the first night in the guest suite, given her distress. She became aware that Ms. Ruggiero was seeking her eviction, although the one time she encountered Ms. Ruggiero, there was no enmity expressed, nor any direct suggestion that she vacate the apartment. Moreover, Ms. O'Shaughnessy testified that it was not easy to find affordable accommodation, especially so close to her place of employment at the time. She did not vacate the apartment until March 22, when she found a place within her budget. That was a little earlier than April 1, which she termed the end of the lease date. Nonetheless she spent little time at the apartment, after January 22, spending considerably more nights at her boyfriend's.

24Ms. O'Shaughnessy affirmed that while discussing the arrangement for the apartment initially, she was aware that he was not the owner of it, and that he was subletting from an owner was very sensitive about noise complaints.

25To the suggestions in cross-examination that she was merely renting a bedroom, she stated that she understood that two bedrooms were available, that she expected another female to take the other bedroom, and that the rest of the apartment was common space. To the suggestion that she would be a house sitter with a private bedroom, she testified, I thought candidly, that she did not recall those words, but that her understanding was that she was renting the whole unit, with exclusive use of a bedroom. She rejected the idea of house sitting as the nature of the arrangement, as she was paying rent, in fact more than she initially budgeted. She understood that he might return, but that he was to contact her and her roommate first: "he could not just come and go". She rejected the suggestion that he characterized his continuing involvement in the unit as a third roommate, "the hardworking flight attendant", although in cross-examination she agreed the phrase might have been used by Mr. Manoux during their initial discussion. She stated that her understanding was that he would sleep in a hotel if he returned to Toronto – she rejected that he would "crash on the couch". She did not acknowledge being twice told rules that she was not to have contact with others in the building or bring her own furniture. She said there was not much room in the well-furnished condo, so she would not have brought more than her personal items and a few small items of furnishing. Although she acknowledged being asked once to open mail for him, she did not recall that as an obligation under the agreement. She says she knew he was not to have sublet the apartment, and that the neighbor was the landlady's realtor, so he should not be aware of the arrangement. She rejected the suggestion that she was to be "invisible" if taking the place, but put the idea in terms of not having large gathering parties or excessive noise. She agreed that at one point, in late December there was some sort of "confusion" in her word, as to just what the nature of the agreement was, and that she was uncomfortable with some of his suggestions, which she did not want to sort out by text message. However, he told her he could not call from where he was, and it appears the issues were never fully teased out. She agreed that she took on relatively onerous terms, with him leaving his possessions there, and needing access occasionally, but that this justified the rate of the rental. Ms. O'Shaughnessy was clear in her assertion in cross-examination that she did follow the rules he set, but disagreed that her presence in the apartment was a secret. She stated that she did not know whether he was permitted to enter into the arrangement he had, but that the owner of the unit was not happy about him doing it. Questions concerning her boyfriend's access to the building, Ms. Moncada's parking space issues (she got the spot associated with the apartment, Ms. Moncada "had her pick" was her understanding of it); and Ms. Moncada's attempt to put her name on the listing for the entry buzzer were reviewed in cross-examination, as well as the detail of events after alerting security to the camera in the unit. Cross-examined about the exchange of text messages referred to above, Ms. O'Shaughnessy said she was thrown off by his suggestion in December 18 that no one but her "and her dude" were to be staying there, similarly with his suggestion by text that if he showed up, he would not find someone else staying there. She characterized checking mail as a favour she did for him, but that it was not her duty. In particular, regarding his early morning arrival in January, she stated that if indeed he was a roommate that he would not have been required to check his arrival with them, that if he was a roommate he could come and go as he pleased. Ms. O'Shaughnessy stated that she stopped paying rent to Mr. Manoux after the January 22 incident as she was advised that doing so might amount to having contact with him, and she ought not do that, according to Toronto Police.

26I found Ms. O'Shaughnessy to be believable. Her efforts to find suitable lodging seemed to ring true, her wish to share accommodation but not with a person she was not comfortable with. This was also consistent with responsible character she presented herself as, a teacher and volunteer in the autistic community. She gave a credible account of the steps she took after Mr. Manoux's comments to Ms. Moncada on January 22. They made earlier incidents fall into focus, for her, and understandably, she was concerned. Her show of emotion at that point in her testimony, was out of character perhaps with her composed articulate manner of testimony, but not unreasonable given the invasion of privacy which she experienced upon finding out that her home was under potentially constant surveillance by the person she was renting from. Clearly her text exchanges with Mr. Manoux were on a more casual tone than her testimony in court, but not inconsistent with the content. In particular, I note that this composed young woman was clearly having some difficulty with the degree of micromanagement, (though she rejected the suggestion in cross-exam that Mr. Manoux was "OCD", which I understand to mean obsessive compulsive disorder). Clearly she was becoming aware of some fundamental differences in the way she and Manoux perceived essentially a short-term rental agreement. However, she was content to "go with the flow", minimizing her contact with him, until that choice on her part ran afoul of his unilateral wish to be a surreptitious and controlling presence in the apartment.

(ii) Tressa Moncada

27Ms. Moncada testified that she was 27 at the time she appeared as a witness on the trial. She completed a programme in Travel Tourism and Hospitality at Seneca College, and was working at a restaurant at the time. That latter context is how she knew Ms. O'Shaughnessy. It was through Ms. O'Shaughnessy's initial contact with Mr. Manoux that they came to share the apartment.

28She said that upon taking up residency there, she did not have a key fob, but that upon asking the building concierge, she was provided one. She understood that she was not to have guests over, and did not understand how Mr. Manoux found out she had friends over one time before January 22. Without her own parking space in the building, she parked her vehicle in different places, including, apparently, a space belonging to another resident, and also chanced street parking. In her search for a parking space in the building, she was told that "everything had to go through him". The exchange reproduced above, on January 21 and 22 illustrates that. She stated that everything – hydro, Netflix, Apple TV and internet – was included in the amount she paid to Sarah, (Ms. O'Shaughnessy), who then paid it to Mr. Manoux. She was not aware of anything in the apartment she was not allowed to use. She said her understanding was the Mr. Manoux was an actor, and would be in Los Angeles for four months filming a sitcom, and that was the circumstance leading to the sublet. She understood that he might return to Toronto, and would stay in the guest suite of the condo if he did. She was paying for the exclusive use of his bedroom, subject to his coming in with permission to retrieve items. She understood that she was paying as well for the use of the condo apartment in its entirety as her residence, shared with Ms. O'Shaughnessy, on the understanding that Mr. Manoux might return to take things he needed during their stay there.

29Ms. Moncada was extensively examined and cross-examined about a series of emails concerning her contact with building management and the concierge, in connection with parking space and other issues. Ms. Moncada had been locked out a number of times, and needed greater access; and as noted, she did not initially have a parking spot in the building. The contact with the building management gave rise to some delicate and detailed navigation of the situation by Mr. Manoux. Her understanding of the issues concerning the parking had to do with the type of vehicle she drove, a Hummer, which he felt would draw attention, so he needed to manage the contact with building management. Though she initially stated that she only knew about the $1600 amount which she and Sarah split as rent, she agreed in cross examination, that Mr. Manoux was going to pay the "extra $800" on condition that he had access and that she keep her presence in the apartment "secret". Ms. Moncada rejected the suggestion that she was simply renting one bedroom, also the suggestion that he characterized himself as "third roommate, hardworking flight attendant". She said she knew she was to keep her presence in the building "a secret" from building staff and the real estate agent neighbor. The text exchanges concerning the rental of a parking space admittedly culminated in Mr. Manoux calling her "a liar", and were clearly acrimonious or at least annoying between them. She described the events leading to finding the device, which Sarah suspected was there after the events of January 22. Clearly Ms. O'Shaughnessy took the lead in suspecting and tracking down the device.

30Ms. Moncada was deeply affected in her sense of security in the community by these events. She testified that this was her first time renting a place, and that she never wants to rent again. She says that everywhere she goes now, she looks for hidden cameras. She stated that while renting the place initially, she stayed there perhaps four times a week, as she worked across the street. After finding the camera, she stayed at her parents, notwithstanding the three and a half hour daily commute involved. She testified: "It was awful, I thought this was the kind of thing that happened to people in movies, how could it be happening to me".

31Given the conclusions I draw concerning the immateriality of the precise status in landlord and tenant terms, in relation to the nature of the women's residency in the apartment, I will not review in minute detail Ms. Moncada's testimony about her exchanges with Mr. Manoux and her statements to police about her stay in the apartment. It is apparent, even on the excerpts reproduced above, that Ms. Moncada was not internally consistent in her testimony, and there are differences in her testimony with that of other witnesses. I assess her as not perhaps having the acuity in answering questions as the reason for these vagaries. I do not attribute it to any ill will or motivation due to pending lawsuit. I do not think Ms. Moncada was linking her answer to points at issue in the lawsuit, whatever they may be. I think she had perhaps a less complete memory than other witnesses, and was possibly more suggestible in cross-examination. Her testimony about the arrangement she entered into is consistent, in my view, with that of a somewhat unsophisticated young woman renting lodging with a roommate, away from her parents' home for the first time. She may not have been attuned to the legal niceties of the arrangement but had ordinary expectations of amenities like parking and access to her place of residence. Most significant, she considered the place to be her residence, a place to which she and Ms. O'Shaughnessy had access, to which Mr. Manoux could be expected to return and enter with some notice, and which was otherwise a private residence. Her description of the impact the incident had on her sounded like a genuine and deeply negative experience, of having her privacy invaded. I don't doubt her assertion that it led to insecurity at any home away from her parents. That is an unfortunate consequence for this young woman, particularly given her chosen field, in travel, hospitality and tourism.

(iii) Jean Paul Manoux

32Mr. Manoux was 47 at the time he testified on the trial. Born in California, he maintains a home in Toronto at least in part because of his success as an actor and director in a Canadian produced television series. As indicated in the overview of the facts, Mr. Manoux had owned a house in Toronto where he rented out parts of it through Airbnb, widely known as a "home sharing" site. I understand from Mr. Manoux's testimony that he sold the house in 2012, then bought an unbuilt condo. While that home was being completed, he leased the condo apartment in question, from Ms. Ruggiero, near Queen and Dufferin. As described earlier, he had sublet on Airbnb, notwithstanding explicit prohibitions on such conduct, whether by Airbnb or any other means. Nonetheless, he continued to make a commercial arrangement for others to use his condo apartment for residential use, surrendering all his keys to them, and receiving money in exchange. In this case, it was arranged via a Faceboook group called "Sublets for Gypsys". He attempted to conceal the sublet by insisting on quiet behavior, limited visitors and no contact by the residents with building management. He went so far, as excerpted above, as to caution Ms. Moncada "not to fall into a conversational trap about paying rent… you aren't paying me or the landlady anything. Visiting friend and guest". He had made the same point to Ms. O'Shaughnessy in an early text exchange, December 28.

33He testified, in a most affable and earnest manner, to his early discussions with the prospective tenants, that he intended to keep some presence in his apartment and that he would be "like a third roommate, a hardworking flight attendant". As indicated, neither woman recalled such a turn of phrase being used, nor being definitive of his ongoing presence, but certainly it was clear that his possessions remained in the place, including, according to Ms. O'Shaughnessy, a cabinet which they were not permitted to access. It was clear to them that he might return before the end of their tenancy there. Their expectation of notice corresponded with his actual practice, though not with his words on the topic. He confirmed that he anticipated being based in California for the four months from early December until end of March.

34Mr. Manoux described how he came to install the webcam in the Blu-ray player, which he modified for that purpose. I understand that he was bemoaning the loss of the insurance policy which Airbnb provided to him, in the event of a thieving or destructive "guest". His brother, residing in Santa Barbara, told him that he had hardwired security cameras everywhere on his property, and urged Mr. Manoux to safeguard his property. I do not know whether the brother had the cameras inside or outside his property, and whether he used the cameras to spy on tenants, family members or employees in his home. However, I do know, that Mr. Manoux was inspired by his brother's suggestion, and he testified in great detail about the steps he took to acquire, install and test the equipment. Although he expressed some doubt about the ability of the system to record, it was plain that he found it to be operational: he does not deny looking in on the activities at the apartment. In fact, he captured "screen grabs" of some of what he viewed. He set up the modified Blu-ray on a piece of furniture in the living area. He focused the camera to capture the couch, part of the kitchen counter and the entrance area to the apartment. He was able to view remotely, through the internet connection facilitated by the Ethernet cable. The evidence is uncontroversial, that he viewed, at a minimum, a number of people on the couch on New Year's Day, and that he was viewing the people in the apartment on January 22, and that earlier in December he had taken a look as well. He described his viewing frequency as "a handful of times".

35Mr. Manoux testified about the circumstances of his return on January 19. He testified to his flying in to Toronto on January 19, preceded by text messages with Ms. Moncada. He messaged her as well, early that morning, because "he didn't want to wake her by barging in". He referred to himself as "her third roommate" in a message - to which, as noted earlier – she responded LOL – "laugh out loud". Exactly what Ms. Moncada meant by that is unclear, but I am prepared to find that it was consistent with a laugh of incredulity, that the man was in fact her roommate.

36Mr. Manoux clearly expressed his belief that he was entitled to install the camera, which he called a nannycam, to safeguard his possessions and to ensure that the terms he exacted for occupancy, in terms of a low profile in the building and as little company as possible, were being respected. He said, in connection with the January 22 exchange concerning Ms. O'Shaughnessy's presence in the apartment, that "I figured they were not telling me the truth, too many times, so I wanted to evict them".

37Mr. Manoux maintained that this level of contact was consistent with his intent to be the "third roommate". It is clear that he retained his furniture and personal papers in the apartment and expected a liberal right of access to the apartment. It was consistent with the informality of the arrangement that he have access to the apartment to retrieve items, and that Ms. O'Shaughnessy and Ms. Moncada might offer him the opportunity to "crash" on the couch, should the guest suite or some other accommodation not be available to him. Clearly, the expectation was that while the women were residing there, Mr. Manoux was not, although his property remained there, and he was able to exercise reasonable access, upon notice to the residents. He had deliberately created a situation of considerable ambiguity, however, as his continued leasehold of the premise depended on his not subletting the place to others. He worked hard to create a situation which could be construed as "house sitters", or "home sharing", or friends looking in on his place while he was gone, using his parking space for that purpose only. He created a situation of ambiguity, which he was well aware contravened the terms of his lease and the condo rules. He seemed to think that if he advertised the sublet on a site other than Airbnb, and told the people paying him money for the use of the apartment, that he had a landlady who disapproved and a nosy neighbor who might report excessive noise and too many visitors, that he was somehow avoiding the consequences of breaking the lease and condo conditions. He used another set of words in his last panicked text communication, upon becoming aware that the hidden camera had been disabled, instructing the women explicitly that they were house sitters, former Facebook friends, not his tenants. The core of the arrangement remained the same, however, for the significant aspects of my decision. He might use what words he wanted, but the facts amount to letting out his residence for the exclusive use of others, subject to his access on notice, in exchange for an agreed monthly sum. A commercial arrangement between strangers for residential use. Clearly, Mr. Manoux was quite happy to bend the truth of the matter to suit his purposes. Sublets for Gypsys, or Airbnb, he was breaching the terms of his agreements, quite deliberately.

38The defendant attempts to manipulate words to avoid the truth on the issue of use of hidden webcam in the apartment, also. Mr. Manoux's resort to a concealed camera to secure his concerns about his property was his answer to not benefitting by the insurance, which came along with Airbnb. He used "Sublets for Gypsys", according to his evidence, because his prior use of Airbnb got him into trouble with his landlady on a previous occasion. Losing the insurance protection, which came along with Airbnb, he used a different means to ensure his possessions' security. He gained the additional benefit of being able to monitor compliance by his tenants with his rules. One wonders, why not simply get another insurance policy? I find that his characterisation of his actions in that regard does not detract from the essential nature of his means to achieve that end: he was intruding by electronic means on the private living space of the individuals who were paying him for the condo apartment residence. Installing a secret camera in the household he provided to these two women, in exchange for money, was just that. He might say it was for the purpose of securing his property, but his use of it clearly shows that it was in furtherance of his evasion of the terms of his lease. I will explore the implications to the issues on this trial, as I sort out the legal issues which apply.

39Having commented on the credibility of the complainants as I review their testimony, I wish to provide the framework in which I view Mr. Manoux's testimony. It is common ground, boiler plate law, in criminal law, that if I accept Mr. Manoux's testimony and it provides a defence to the charges, even if otherwise proven by the evidence, then I must acquit. Similarly, if I am not entirely convinced of the account he gives, but find that it might reasonably be true, again, an acquittal follows. If I reject his testimony, and the Crown's case is otherwise proven to the requisite standard, then I must find guilt. The well-known Supreme Court decision in R. v. W.D. directs me on this key aspect of the trial.

40Mr. Manoux is clearly a likeable, worldly and sophisticated man, who has enjoyed success in his chosen field. He has had success on a material plane as well, owning property in Los Angeles and Toronto. His drive to maintain his property, in the limited sense that concerns this trial, comes through clearly. It comes through to the extent that he micro-managed the arrangement that he set up, knowing that he needed to tread a fine line, in order not to be liable for violating the rules of his condo lease. He knew that, having determined he ought not use Airbnb with its built-in insurance, he still had concerns about the security of the condo and its contents. He clearly preferred not to reveal his installation of a concealed webcam, or "nannycam", in the premises he was leaving in the hands of strangers, the women who were paying to use the place as their home for approximately four months. I note that in the final frantic text messages, he does reveal what he did and gives them a "work-around" for the time they were actually in the apartment. In his evidence, notwithstanding this message to the women, he professes confidence in the propriety and social acceptability of what he did. He also uses ever so many different words to express the agreement he had with the women, in order not to use the words "sublet" or "rent". Whichever words he used, guests paying a nominal fee, or house sitters, the effect was the same, and his evasion of his agreement, on which he previously been called to account, and warned, was clearly the only reason he attempted to describe the arrangement differently. I cannot rely on his account of a belief that he says he honestly held, that he was entitled to do as he did. It was like the words he used concerning the arrangements with Ms. O'Shaughnessy and Ms. Moncada: designed to achieve a purpose, in this case, in the criminal court. Mr. Manoux, as noted, is a sophisticated modern man. His appreciation of privacy cannot be so much at odds with the time-honoured value, which this society places on privacy in one's home. I reject his account to the extent that I view it as an attempt to avoid liability for acts he clearly and knowingly committed. I will detail the impact on the legal defences in the following analysis.

Issues

41The findings of fact are critical as regards the two primary defences raised by Mr. Manoux. He asks me to find, first, that the women had no entitlement to lawful enjoyment of property, as it related to the condo apartment. In the alternative, he claims colour of right in using that hidden camera, in the sense that he was protecting his property and the law permits him to take a step such as this, so long as that belief is honestly held; its reasonableness being a key component of that assessment. Section 429(2) permits a person accused of mischief in this context to assert colour of right:

"No person shall be convicted of an offence under sections 430 to 446 where he proves that he acted with legal justification or excuse and with colour of right"

Mr. Manoux relies on the law as stated in R. v. DeMarco:

"One who is honestly asserting what he believes to be an honest claim cannot be said to act "without colour of right" even though it may be unfounded in law or in fact… the term "colour of right is also used to denote an honest belief in a state of facts which, if it actually existed would at law justify or excuse the act done"

See also R. v. Simpson 2015 SCC 40 (CanLII), [2015] 2 S.C.R. 827 @ 31; test more recently stated in R. v. Watson (Nfld CA)

He asserts an air of reality in his claim, as, among other things, he was sharing his apartment and Ms. O'Shaughnessy and Ms. Moncada had no reasonable expectation of privacy in the common areas of the condo apartment. Counsel refers me to the statements of the Supreme Court of Canada in R. v. Cinuous, 2002 SCC 29 (CanLII), [2002] 2 S.C.R. 3, on the application of the "air of reality" test.

42Mr. Manoux further asserts that given the nature of their occupancy in the apartment, the women could not rely on having "lawful" enjoyment or use of the premises, and that in any event, "lawful enjoyment or use" does not include the "emotional impact" described by the complainants. He urges the Court to conclude that the actus reus of the offence is not made out. He urges further that the court conclude that even if the law permits an interpretation of the section to include his action as a mischief, the facts do not support it in this case.

43He says as well that there is no evidence that any protected interest of the two women, included in the legal meaning of "lawful enjoyment" was affected, and so no mischief in the sense of the criminal law was effected.

44Defence argues further that Parliament's intention, by enacting Section 162(1) of the Criminal Code, was to limit situations of criminal liability for surreptitious recording. Section 162(1), the voyeurism offence, deems the surreptitious observation or recording, by mechanical, electronic or other means, of nudity related images in a sexual context, to be a criminal offence. Mr. Manoux's actions in surreptitiously recording his tenants are not alleged to be voyeurism offences, thus explicitly exempt from criminal prosecution by the Parliamentary drafting. Parliament, excluded all other instances of surreptitious observation or recording, in the defence submission, by enacting this offence.

45Mr. Manoux argues that evidence of the mental element was missing, in the proof of the mischief offence. The statute prohibits "wilful… interference with the lawful use or enjoyment of property": section 429(2). He asserts that he did not wilfully engage in the activity complained of, to the extent that it interfered with lawful use or enjoyment of property.

46Crown takes the position that all these defences fail. She contends that the definition of mischief clearly includes the interference with the lawful enjoyment of the condo, ordinary residential uses, because it interferes with the right to privacy. The right to privacy is critical to lawful enjoyment in the sense intended by the Criminal Code. She argues that no colour of right can be established, not even to the extent of evincing an air of reality, given the ancient and essential nature of the entitlement to privacy in one's home. She refutes the argument on the wilfulness element on the facts.

The Law

47To understand the first two facets of defence, it is necessary to examine the statute and the jurisprudence on each point in some detail.

Section 430 of the Criminal Code creates the following offence:

(1)(c) Everyone commits mischief who willfully obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property.

Section 429 provides for certain defences and provisions in relation to this among other offences: (Section 429(1), (2))

(1) Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to have caused the occurrence of the event.

Colour of Right

(2) No person shall be convicted of an offence under sections 430 to 446 where he proves that he acted with legal justification or excuse and with colour of right.

Section 162(1) provides as follows:

(1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;

(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or

(c) the observation or recording is done for a sexual purpose.

48Mr. Manoux contends that the complainants were not in lawful occupancy of the apartment, and thus not entitled to "lawful enjoyment or use" of the premises. He argues further that his actions, installing the hidden webcam, were not "wilful," as required by the section.

49Various cases have considered just what meaning should be ascribed to the word "lawful" in this subsection. My colleague Justice Knazan considered an allegation of mischief under this subsection in R. v. Kirchner, [2005] O.J. No.663, where both complainant and defendant were using places zoned for commercial use as their respective residences. Complainant called police defendant was playing music at 3 a.m., so loud that she couldn't sleep. Police initially considered moving against the noisy neighbor under a bylaw, restricting use of the premises to industrial or commercial uses, but decided to prosecute under the mischief section of the Criminal Code after speaking with the aggrieved and sleep deprived complainant. Justice Knazan entertained a careful consideration of the meaning of "enjoyment" in Section 430(1)(c). He considers not only the leading case in Ontario on this point, R. v. Maddeaux, and some of the related authorities, notably, the dissenting decision on the Quebec Court of Appeal in Drapeau, which was adopted by our Court in Maddeaux; he goes further and considers the interpretation of the section in French. He takes the phrase "lawful enjoyment, expressed in the French version of Section 430(1) as "jouissance legitime" and focuses further on the interpretation of "legitime" in context of a decision of the Supreme Court of Canada under the Radio Communications Act. He concluded in the case of the noisy neighbours using commercial premises for residential purposes, that because the bylaw proscribed that residential use, the complainant resident could not complain that her lawful enjoyment of the place was infringed. The essence of his reasoning is in paragraph 20:

"This does not mean that anyone charged with mischief can find any law or regulation such as a fire code that the person whose enjoyment they are interrupting is violating and argue that there is no lawful enjoyment. In my opinion the unlawfulness would have to relate to the enjoyment. The facts will determine the result. Here the every enjoyment specified in the information is enjoyment of the property as a residence and that is not lawful enjoyment. (emphasis added)

50The Superior Court of Justice considered an appeal from a conviction on a charge under Section 430(1)(c). In that case, Mr. Janusas was found guilty of mischief because he threw red paint and built an immoveable obstruction, a wooden box filled with debris, in a laneway over which his neighbor the complainant had a right of way, and which was shared by properties opening onto the laneway. He had made it impossible for the complainant to use his right-of-way over the five feet of the laneway owned by the appellant and his neighbors. As it was a point which the Crown had explicitly not relied on at trial, Justice Lederer's comments on the point are obiter, but are nonetheless instructive. That point relates to the "lawful use, enjoyment or operation" of the laneway. It appears that it would not have been lawful to use the laneway as a "driveway", because the width of the right of way fell short of the requirement of the bylaw for a driveway. However, it was not only that use, arguably contrary to the by-law, but any use, which was rendered impossible by Janusas' actions. As a result, Justice Lederer concluded that the Appellant interfered with the lawful use of the laneway by the complainant. (R. v. Janusas, [2010] O.J. No. 1641)

51The decision of our Court of appeal in R. v. Maddeaux, 1997 CanLII 1934 (ON CA), [1997] O.J. No. 1184, is the leading case in Ontario on the question of "lawful use enjoyment or operation" of properties. Justice Austin, for the Court, provides a sweeping and incisive review of the decisions in Ontario and across the country on the issue. Once again, the factual backdrop of the case involved a neighbours' dispute. The complainant lived in an apartment immediately above that of the complainant. Justice Austin follows the development of a line of reasoning which crisscrossed the country during the 1990's, drawing out a line of jurisprudence to equate enjoyment with possession, and debating the meaning of enjoyment in its ordinary meaning, or as derived from the term of art as it is used in real property law. Essentially the line of cases rested on the statutory interpretation of the word in terms of "possession". When the issue came before the Quebec Court of Appeal in the case of Drapeau (1995), 1995 CanLII 5099 (QC CA), 96 C.C.C.(3d) 554, Justice Austin, in Maddeaux reviewed the decision of the Court on this point in these terms:

"I am not clear from his reasons what position Beauregard J.A. took on the significance of the word "enjoyment." It is clear, however, that Fish J.A. put himself on the Phoenix side of the argument. Chamberland J.A., in dissenting, said at pp. 567 and 568:

Parliament intended to criminally sanction the actions of every person who wilfully prevents a person, for example, a neighbour, from enjoying his property for example, the immovable that he purchased and, in my view it clearly expressed itself in s. 430(1) (d) of the Criminal Code. I do not believe that the enumeration of situations, which are often borderline cases, where a charge of mischief could be brought, would justify us obscuring the ordinary meaning of words, and in particular, of the word "enjoyment."

If parliament had intended that the word "enjoyment" mean "possession," it would have used the word "possession." Section 430(1) (d) is drafted in such a way as to cover property in its dynamic aspect (employment, enjoyment or the exploitation of property), rather than its static aspect (ownership, rental or possession). The use of the word "enjoyment" comes completely within this logic.

In my view, the word "enjoyment" here has a much more inclusive meaning than just the fact of being the holder of a right to possess the property; it included the action of obtaining from property, which a person lawfully holds, the satisfaction that this property can provided to that person. In short, the person who driven by guilty intent, wilfully interferes with his neighbour in the enjoyment of his property, exposes himself to having to answer to a charge of mischief brought under s. 430(1) (d) of the Criminal Code. The offence obviously requires that the Crown call evidence of the wilful actions of the accused and of his guilty mind (mens rea).

With respect, I prefer the opinion of Chamberland J.A." (emphasis added)

52Thus, the law in Ontario according to the binding authority of our Court of Appeal on this point adopts the reasons of Chamberland J.A. in the Drapeau case. The court finds the focus of the criminal law so clearly on the "dynamic aspect" (employment, enjoyment or the exploitation of property), rather than its "static aspect" (ownership, rental, or possession)", that it was not even necessary to resolve any ambiguity by resort to the "rule of strict construction of penal statutes".

53The plain intent of Section 430(1)(c) (which differs in an immaterial way from Section 430(1)(d)) is to criminalize the "dynamic aspect" of the enjoyment of property – the employment, enjoyment or exploitation of property – rather than its "static aspect" – ownership, rental or possession. Mr. Manoux's argument must therefore fail, when he argues that because the complainants lived in the apartment in contravention of the condo rules and his own lease agreement, they had no claim of lawful use or enjoyment. Their actual use of the apartment was lawful: it was the residential use which the place was built for and for which it was leased by Mr. Manoux. Assuming for the moment that his admonition to Ms. O'Shaughnessy and Ms. Moncada on January 23 was accurate, that they were "house-sitting", friends occupying the place merely to assist their friend while he was away, that occupancy would be a purpose equally "lawful" in the sense of furthering residential purposes. They were not destroying the place, obstructing access to it or even creating such a din in the middle of the night as to disturb the neighbours. They were quietly living there, keeping it tidy, having their meals, and doing what people do when they are at home. The fact that Mr. Manoux set up the condition of "illegal" occupation, having set up the arrangement without plain disclosure of those facts makes his wish to fallback on such a defence unseemly. However, it is not on that basis that I reject his claim. I am bound to follow the law as explained by our Court of Appeal in the case of Maddeaux. To the extent that counsel submits this conclusion to be at odds with Justice Knazan's decision in Kirchner, I am content to respectfully differ. In fact, however, the facts are fundamentally different in the two cases. Here, the suggestion that the complainants have no claim to lawful enjoyment goes to the very core of their activity at the premises: using the place as their home. That is what the place was intended for and zoned for. The nature of their contractual arrangement is another issue. I refer again to Justice Austin's rubric of dynamic interpretation of the use, in the Maddeaux decision. It is not the manner in which they did so which is at issue. They were living there openly, paying rent, using the facilities of the building and doing the ordinary things one does in one's home. The lawfulness at issue is the lawful enjoyment or use of property, not the lawfulness of possession. I will therefore not delve into the issue subsequently determined by the Residential Tenancies Board, although I do note the right of possession which remains in a person whose tenancy is disputed. My conclusion is amplified by the interpretation of a right to privacy, which follows.

The Right to Privacy

54Does the lawful enjoyment of residential premises includes a right to be free of surreptitious surveillance, or as Mr. Manoux called it a nannycam, a security camera hidden in the middle of the living space, set up to be available to his remote viewing at any time? Can Mr. Manoux claim an honest belief in a state of fact, which amounts to a colour of right? In my view the answer is clearly no, as the right to privacy is nowhere as significant as in one's home.

55Mr. Manoux contends that the only circumstance, in which surreptitious or hidden observation of individuals by other individual (as opposed to state) actors is a criminal offence, is the one described in Section 162 of the Criminal Code, the voyeurism offence. I reject that contention. The protection of privacy is fundamental to civil society in the Anglo-Canadian tradition, and much more broadly that in his foundational work, Privacy and Freedom (1968: Atheneum, New York), Alan F. Westin undertakes a survey of the privacy practices around the world and establishes handily that privacy in the home is not a passing fad or a recent innovation in our society. Professor Westin's work has been cited by the Supreme Court of Canada in the Tessling decision (2004) 2004 SCC 67 (CanLII), 189 C.C.C. (3d) 129 para 23. His anticipation of the incursions by private actors, as opposed to government actors, is made clear against the American legal climate of the time: see pages 348, 349.

56The development of technology has complicated the protection of privacy in modern society. This is reflected on the one hand, in the expansion of protection from government intrusion, both by statute and at law, particularly in light of Charter protections. The ubiquity of the camera and the miniaturisation of the related technology has made invasion of privacy increasingly contentious. Where the extent to which a listening device physically penetrated a wall might have been determinative of invasion of privacy at a rather literal level in the context of the '60's (ref: Westin, supra), the Supreme Court in Tessling considered the invasion of privacy by government agents by means of recording and interpreting the heat emanations from a residence by FLIR technology.

57A most recent re-iteration of the sanctity of the home may be found in the Supreme Court's statement in R. v. Morelli, 2010 SCC 8 (CanLII), [2010] 1 S.C.R. 253: Fish J. observed that "it is difficult to imagine a more intrusive invasion of privacy than the search of one's home and personal computer" (para. 105). Again referable to government intrusion into privacy, it is plain that the courts have interpreted the law according to the factual situations which present themselves. The enactment of Section 162 to respond to a perceived gap in the law, as technology enables expanded opportunities for anti-social and criminal behaviour, cannot be seen as limiting the historic and deep-rooted protection of privacy in the home. That gap is described in an excerpt from the Parliamentary consultation leading up to the enactment of Section 162, my colleague Justice Green refers to it in the R. v. Lebenfisch decision 2014 ONCJ 130 (CanLII), [2014] O.J. No. 1261 para. 20:

The rapid technological developments of recent years have brought many benefits to Canadian society, but they have also had implications for such basic matters as privacy and the role of the law. Web cameras, for example, which can transmit live images over the internet, have raised concerns about the potential for abuse, notably the secret viewing or recording of citizens for sexual purposes or where the viewing or recording involves a serious breach of privacy…

In the Lebenfisch case, the issue was whether a man taking photographs of a woman and of others, unaware of the photographer, on the nude beach at Hanlan's Point on Toronto Island amounted to the voyeurism offence. Although the decision in that case turned on a number of other factual and legal issues, I surmise that in the terms of the consultation paper cited above, this was not a breach of privacy attracting the sanction of the criminal law. To exclude consideration of privacy in the home from the issues arising in the present case solely on the basis of Section 162 as a legislative response to evolving social issues is something I am not prepared to do.

58I am guided, rather, by the statements of the Supreme Court in the decisions of Tessling, (2004) 2004 SCC 67 (CanLII), 189 C.C.C.(3d) 129 para 25:

"Privacy is a protean concept, and the difficult issue is where the "reasonableness" line should be drawn"

Justice Binnie, in that same decision, traces the evolution of privacy at law, starting as a trespass-grounded protection, but evolving as social conditions developed:

"As technology developed, the protection offered by property rights diminished… Courts were reluctant to accept that as technology developed, the sphere of protection for private life must shrink". (para 16)

He continues, citing the admonition developed in Hunter v. Southam, that privacy protects people, not places. He recalls as well the rubric for application of Section 8, in privacy determinations, by Justice Cory in the Edwards decision [1996] 1. S.C.R. 128 (para 45), that the section must be considered in the totality of circumstances, bearing in mind the existence of a subjective expectation of privacy and the objective reasonableness of the expectation.

59The contours of privacy determine a number of aspects of the defence, as the Crown has argued. It informs the meaning of lawful enjoyment of the residential premises. As well, the primacy of privacy must be assessed in the analysis of the defendant's claim of colour of right, setting up the webcam as he did. Finally, it assists in understanding whether his act of setting up the webcam amounted to a wilful interference with the lawful enjoyment of the condo apartment by Ms. O'Shaughnessy and Ms. Moncada.

60It should be evident that private enjoyment of one's home is a fundamental facet of having a home; indeed it is almost definitive of it. The ringing pronouncements in our jurisprudence make that clear: R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at para. 140, per Cory J.: "[t]here is no place on earth where persons can have a greater expectation of privacy than within their 'dwelling-house'". Consistent with the idea that privacy protects people, not places, it is clear that the nature of the relationship at law with the home is only one feature of the extent of privacy protection. A car, a school, even a prison cell offers some facets of privacy protection (Weatherall v. Canada (Attorney General), 1993 CanLII 112 (SCC), [1993] 2 S.C.R. 872 @ 877). The adage, "a house is not a home" takes on new meaning in this context: it is the use to which a place is put, not the structure itself which is significant, in the determining the extent of privacy which may be protected.

61Thus there is no question but that privacy is an aspect of the lawful enjoyment of the residential premises used by Ms. O'Shaughnessy and Ms. Moncada. It is clear that they were not fully "masters in their own home": they were using Mr. Manoux's furniture, and had agreed, even if on an awkwardly intrusively and evolving basis, to deal with the condo management through him; and they had agreed to his returning to the apartment during the time they were in residence there. However, I find that there was no expectation on their part that he might stay there at will, and it is clear that he made his time of return abundantly clear to the women. In fact he had made other arrangements to stay elsewhere during his return. Indeed, he had relinquished his key fob, and was dependant on them to actually re-enter the place. They were in lawful enjoyment of the entire condo apartment with limited allowance for his return to fetch personal possession, on reasonable notice and with their assistance in gaining access. Their claim of lawful enjoyment of the residence was clear, and as is normally the case, that enjoyment included a right to privacy.

62Those same facts bring into question Mr. Manoux's claim that he believed he was acting with colour of right in setting up a hidden webcam. Clearly he did not disclose its presence to the women, upon their taking up occupancy. Yet in his final text message to them, he seemed to concede, albeit somewhat desperately, that they might keep it running only when they were not in the apartment, if it bothered them to have it running while there. This belies two of his previous claims: one that he needed it running and positioned to ensure the sanctity of his possessions, and the peaceful occupancy of the apartment on his conditions; and second, that it was an innocuous virtual presence. He did not claim or argue in that last text message that their wish to not be surveilled was unreasonable. He did not suggest that running the webcam was a sine qua non to their continued presence there. This is consistent with a tacit acceptance of the premise we all seem to live by: that one is entitled to a reasonable measure of privacy from prying eyes in one's home.

63Mr. Manoux claims that he authentically believed he acted lawfully in setting up the hidden surveillance camera in the apartment without disclosing its presence to the women paying him for the opportunity to live there. He refers to his experience as an Airbnb "host", which he did for years in a house he owned in Toronto and for a while in the condo he was leasing, where these events took place. He said that at the house, on one occasion, a "guest" stole a laptop and some cash. The Airbnb plan provides substantial insurance to a "host" providing services, and I understand that Mr. Manoux's loss was compensated through that insurance. Because he understood that his landlady, Carmelana Ruggiero, specifically forbade him from advertising the condo on Airbnb, Mr. Manoux reasoned that as he had no other protection from thieving or destructive "guests", he needed to protect his property by installing the camera. Of course, his reasoning regarding the proscription to list on Airbnb was handily avoided by him in some way satisfactory to his reasoning, by listing on "Sublets for Gypsys". The possibility of a security deposit, reference checks or even disclosing some form of security in the apartment did not seem to occur to him: he was neither examined in chief nor cross examined about other methods available to him, to ensure that persons staying in the apartment were not removing or damaging his property. He asserts in this trial his honest belief, which he says is reasonably held, that he was entitled to install the secret web camera to serve his purpose.

64This is the foundation for a defence of colour of right, he argues. The law makes it plain that while such a defence may be available, it must be an honest belief. That assessment must be made on factors including the reasonableness of the belief. I cannot find in the circumstances of this case that any such claim was honest or reasonable. I will briefly review the law on colour of right.

Colour of Right

65An interesting discussion of the "colour of right" defence arises in the case of R. v. DeMarco, decided by our Court of Appeal in 1972. There, the Appellant had rented a car from "Hertz Drive Yourself Stations of Ontario Ltd" in order to assist her in moving. She contracted to return the vehicle the day after she rented it. As she was moving, the address she gave changed once she moved, and she did not return the car; unable to contact her at the address she had given, police were brought in. Ms. DeMarco testified that she simply did not think she had to phone to extend the rental, and that she had the means and the intention to pay for the rental upon returning the vehicle.

66In that case, the elements of theft would only be made out where the defendant acted "fraudulently and without colour of right." The statement of law frequently cited from that decision is that "one who is honestly asserting what he believes to be an honest claim cannot be said to act "without colour of right", even though it may be unfounded in law or in fact… The term "colour of right" is also used to denote an honest belief in a state of facts which, if it actually existed would at law justify or excuse the act done.

67However, in describing how the existence of a colour of right negatives fraud, the court notes that conduct is not fraudulent merely because it is unauthorized "unless it is dishonest and morally wrong". The Court drew on earlier jurisprudence to describe how a colour of right works to negative fraud. These observations informed the appellate consideration of the adequacy of the charge to the jury, and ultimately the reversal of the conviction. Seen through that analytical lens, Ms. DeMarco was found to be acting on her honest belief, reasonably held, that she was not required to return the vehicle on a certain date. That belief negatived the mens rea required for fraud.

68Counsel refers me to an appeal from a conviction on a mischief charge, where the succinct statement of law by Justice Martin in our Court of Appeal in 1982, in the case of R. v. Creaghan, considers whether the phrase "without legal justification or excuse and colour of right" is meant to be read inclusively – that is to say, that both excuse and colour of right be shown; or whether it is disjunctive, such that the phrase "legal justification or excuse" be read separate from "colour of right". The issue arose then, as now, as this is an express proviso to the offence delineated currently in Section 430 of the Code, then section 387. The subsection at the time was Subsection 386(2): now it is 429(2). Justice Martin said:

"We think that "colour of right" in this context means an honest belief in a state of facts which, if it existed, would be a legal justification or excuse."

69On the legal doctrine, he refers to the case of R. v. Johnson (1904), 1904 CanLII 102 (ON SC), 8 C.C.C. 123. In that case, a peroration of land titles law and the arcana of the factual determination related to the existence of a gate at a certain point in time, was required to decide the charge of mischief. Given the vagueness of the criteria underlying land title at the time, it is not surprising, perhaps, that honest belief in a state of fact, if it existed, would be all that needed by shown, in the opinion of the Chancellor (does this mean it was a claim at equity?) would stand as a defence.

70The context at issue in the case of R. v. Creaghan arose where a driver was frightening his passenger, by the manner of driving. In fact the driving was so erratic that a collision with an oncoming car resulted. It was the passenger who faced the charge of mischief however, due to his alleged interference with the driver's ability to guide the vehicle. The passenger, Creaghan, wanted the driver to pull over and get off the road, because of the behaviour of the driver. Creaghan reached over and turned off the ignition of the car momentarily. When the driver still did not pull off the road, the passenger, the defendant, again turned off the ignition. The driver testified that this locked the steering wheel, endangering his ability to steer the vehicle. Consequently, the vehicle drifted across the highway into oncoming traffic and collided with an oncoming car. The mechanical consequence of turning off the ignition was alleged to be a criminal mischief, to which the passenger/defendant claimed a colour or right, statutorily provided in then-section 386(2).

71In considering the application of the doctrine of colour of right in that context Justice Martin continued, on behalf of the Court:

"The respondent's position, in substance, was that he believed he was entitled to do what he did; that he did not intend to injure or damage the car in which they were both riding or to interfere with [the driver's] lawful use of the car but to terminate temporarily [the driver's] driving of the car because of the danger the respondent perceived… The respondent's evidence as to his purpose in turning off the ignition appears therefore to have been accepted…"

72More recently, the Saskatchewan Court of Queen's Bench in 2014 case of R. v. Kishayinew, [2014] S.J. No. 174 applied the defence of colour of right where the appellant damaged a laptop used by his wife. The appellant asserted a colour of right in the property, as he had paid for it, and for its maintenance. In failing to consider whether the Appellant held an honest belief that he was the owner of the laptop, as this belief, even if not reasonable, might give rise to a colour of right the Appellant believed he had to damage the laptop. However, the Court adds, the reasonableness of the belief is a factor to consider in assessing whether it was an honest one.

73In this case, Mr. Manoux asserts that he had an honest belief, reasonably held, that he might operate the webcam without knowledge of the complainants, who were clearly in residence at the apartment, to his exclusion except on prior arrangement. He presents as being hip; a suave and successful member of the arts community; a man who owns property here and in Los Angeles. I cannot accept that he does not share the widely held fundamental value of privacy at home. It defies the limits of reasonableness, to suggest that such a casual invasion of privacy, all the while dancing around his own initiative in violating his contractual and leasehold obligations, was reasonable. In this court, on this very serious issue, Mr. Manoux cannot make the words mean so many different things. An invasion of privacy by technological and surreptitious means cannot be justified by a concern over property rights. That concern may well have been there, but far more significant in acting as he did was the invasion of privacy.

74His brother may have promoted the use of a camera for security purposes, but I know so little about this, that even if his brother in California installed cameras in his home for some purpose it would not be determinative. As to the suggestion that the use of a camera to monitor employees in one's residence might equally be subject to a determination that the camera in this case was operated without colour of right, I can only say that those are not the facts before me. An employment situation in the residence is clearly a different situation that the one in this case however.

75I reject the contention that Mr. Manoux honestly believed he was entitled on reasonable grounds to operate the camera as he did.

76For similar reasons, I reject his position that he did not wilfully interfere with the privacy of the complainants by installing and operating the webcam. I have noted earlier that Mr. Manoux seems all too facile in attempting to cloak illicit activities with words appearing to transform them into reasonable ones: he rented on Sublets for Gypsys because he was cautioned not to use Airbnb; he was not however subletting, in his words, he was in a house-sharing or house sitting situation or having friends drop in to water plants or something or allowing people to stay in his place who were kindly giving him some money in exchange. Whatever it was, he used words to describe his actions as other than what they plainly were: he was renting out his apartment on a casual agreement, in violation of his lease the condo agreement and contrary to the explicit caution of his landlady, Ms. Ruggiero. All else is prevarication.

77As a result I have real caution about accepting his words, that he did not act wilfully in interfering with lawful enjoyment because he did not, among other things, see privacy as an entitlement. In fact I do not accept that assertion. He knew that in setting up the camera he was able to view their activities of ordinary life at home. It may not have been scenes of a sexual nature, but intimate, in the sense of being home life. Absolutely incontrovertible, Mr. Manoux knew that he was directing the view of the hidden webcam into the private home, the living space of the complainants, Ms. O'Shaughnessy and Ms. Moncada.

78The response of the complainants is entirely reasonable. The fact that they were not experiencing discomfort at the time of the surreptitious surveillance is an illogical position. It goes, again to the heart of the rationale of protecting privacy. Certainly, the discomfort experienced, particularly by Ms. Moncada, upon learning of the surveillance, was particularly acute. It shows the naïve unvarnished reality of the expectation of privacy.

79I find that Mr. Manoux acted wilfully in setting up the camera to provide him with a view of the homelife of the complainants. I reject his claim of a colour of right. In so doing, he interfered with their lawful enjoyment of the premises.

80On that basis, sir, I find you guilty on both counts.

Released: January 11, 2017

Signed: Justice S.R. Shamai