R. v. J.S., 2026 ONCJ 421

ONTARIO COURT OF JUSTICE

CITATION: R. v. J.S., 2026 ONCJ 421 DATE: 2026 07 17 COURT FILE No.: Pembroke 998-25-37100950

BETWEEN:

His Majesty the King

— AND —

JS

Before Justice J.R. Richardson

Heard on June 2, 3, 2026 Reasons for Judgment released on July 17, 2026

Conor X. Kyte..................................................................................... Counsel for the Crown Mark Huckabone......................................................................... Counsel for the defendant

J. R. Richardson, J.:

Introduction

1JS was subject to a release order that prohibited him from going to 215 W. Road in Laurentian Valley Township or from having any communication with CS.

2On October 5, 2025, JS was supposed to have a visit with his three children. The visit was cancelled because one of the children was not feeling well.

3Earlier that day, JS had picked up some homemade cookies from a church fundraiser. He intended to give the cookies to the children when he saw them.

4When the visit was cancelled, he went to 215 W. Road in Laurentian Valley Township to leave the cookies in the roadside mailbox for his kids. He texted the children after he left.

5CS saw him and called police to report the breach of his release order.

6JS largely admitted responsibility for going near 215 W. Road. He said that he did so based on the advice that he received from the releasing police officer on the meaning of that term. He did not admit that he set foot on the property of 215 W. Road. He stated that he was always on the roadway.

7I must decide whether JS is entitled to the legal excuses of de minimus non curat lex or officially induced error.

8For reasons set out below, I find that JS cannot avail himself of the excuse of de minimus. I find, however, that he has successfully established an excuse of officially induced error, and on that basis, I judicially stay the charge against him.

Evidence of CS

9CS has lived at 215 W Road in Laurentian Valley Township since 2020. Although she was born in Arizona, she grew up in Pembroke. She lived in Germany for a short period of time, where she met JS.

10CS and JS separated on April 14, 2024. They have three children, AS (15), CaS (13) and LS (11). After separation the children resided with CS on W Road.

11CS explained that W Road is in a rural area. They do not have many neighbours.

12On October 5, 2025, CS knew that JS was bound by a condition that he not go to 215 W Road in Laurentian Valley Township. He also was not to communicate with her. A copy of the Undertaking that JS was bound by was filed as Exhibit 1.

13That day, JS was scheduled to have parenting time with his children. Parenting time is supervised through the Supervised Centre in nearby Pembroke. CaS was not feeling well so the children decided to stay home.

14CS was standing outside on a small mound in front of her house between 4:30 and 5:00 p.m. It was a beautiful day. She was speaking with her sister on her cell phone. She saw CS’s vehicle drive slowly by her residence.

15CS took two photos which were entered into evidence as Exhibits 2(a) and 2(b).

16Exhibit 2(a) is a photo which shows the end of the driveway at 215 W Road. To the right of the driveway is a mailbox and a hedgerow with a wire fence. JS was standing near the mailbox. CS moved closer to JS to take the photo. She estimated that the photo was taken at distance of about 100 meters. The family dog, Max, is in the lower portion of the photo.

17CS stated that JS was standing on the grass between the mailbox and the hedgerow/fence. The photo is not clear enough to corroborate her evidence.

18CS estimated that the distance between her house and the end of the driveway was about 200 feet. I note that something is off with CS’s estimates. Her estimate of 200 feet cannot be accurate if she took the photo of JS from a distance of 100 meters.

19Photo 2(b) is a photo that CS took at the end of the driveway. JS’s car is visible in the photograph. At the edge of the travelled portion of the roadway is the mailbox. From the vantage point of the photograph, the post of the mailbox is on the grass abutting the driveway to CS’s home. Importantly, it is possible for someone to put something in the mailbox without exiting the street and entering the grassy area.

20CS did not interact with JS. She called 911. She stated that she was afraid. She knew that he was not permitted to go to her address. JS got in his vehicle and drove away. She surmised that he saw her when she started to take photos. The vehicle departed the area a lot more quickly than when it came.

21In cross-examination, defence counsel attempted to establish an inconsistency in the timing of CS’s 911 call between her evidence in Court and what she told the police. I find that to the extent that any inconsistency exists, it is a distinction without a difference.

22In cross-examination, CS admitted that despite her fear of JS, she got closer to JS in order to take the photos. She agreed that she did not run back towards her home and that she was alone outside. She disagreed with the suggestion that she was not frightened at all and was using this opportunity to breach JS.

23CS stated that her brother, who was also a resident of 215 W Road, later found some cookies in the mailbox. CS stated that the cookies had her (and the accused’s and the children’s) last name on them. There was nothing other than the cookies in the mailbox.

24CS gave a statement to the police that evening.

25A great deal of time was spent attempting to establish where exactly JS was in relation to the property lines of 215 W Road. I am ultimately assisted in this by the Court of Appeal’s decision in R. v. Bilusack, 2026 ONCA 14, which I discuss below.

26I also heard a lot of testimony about the parenting time arrangements and the fact that JS has supervised parenting time. The exchanges are supervised at the centre in Pembroke and JS exercises his parenting time in the community under the supervision of CS’s father.

27I note that the parenting time is not supervised pursuant to Court Order. The parties are before the Family Court and parenting time is one of the issues that they are dealing with.

28I later learned that JS is now bound by a Probation Order that he not have any contact or communication with CS, or attend within 250 meters of her residence, but that Order does not extend to their children. From what I can glean, JS has tolerated CS’s requirement that his parenting time be supervised pending the hopeful resolution of this issue in Family Court.

Evidence of JS

29JS testified in his own defence.

30He was born in East Germany (as it then was). After the collapse of East Germany and reunification with the West, he attended a bible school in the southern part of Germany. It was here that he met CS. They ultimately married.

31He stated that they both adhered to the Baptist denomination of the Christian religion which he said has strict views on some things, including pornography, alcohol, premarital sex and extra-marital sex.

32He testified that in April 2024, when the parties separated, he was charged with another offence that did not have anything to do with the children. He participated in a sexual behaviours assessment and that matter has now resolved by way of Conditional Discharge with Probation. This is the Probation Order that I referred to above.

33JS stated that once he was charged, and he was separated from CS (he described it as being “evicted” from his home), he was completely cut off from all communication or visitation with his children. For the first month, he had one phone call a week. After that it took about a month for him to start getting supervised visits.

34He stated that his visits with his children are rarely cancelled, and he agreed that they were only cancelled for good cause. He does not communicate with CS.

35JS testified that he has taken significant steps to avoid CS. He only communicates with her about the children through counsel. Although they worshipped at the same church, he started going to a later service to avoid her. He also arrives at the last minute in order to avoid potential contact. In the summertime, when the church has just one service, he goes to a different church. He could not attend church events for the children. He consults with the Pastor of the church, and if it is possible that CS will be present, he stays away.

36JS stated that he also stayed away from anything pertaining to the children’s school activities, including parent-teacher events, sports, or music. He stated that it hurts him that he cannot go to these activities. He is not permitted to attend his children’s soccer games.

37JS is musical and he plays several instruments. Because of the general lack of contact with his children, he has not been able to encourage them to pursue taking up an instrument.

38JS testified that both he and CS are fluent in German. Despite this, he has not been permitted to speak German to his children until recently. He stated that he is not permitted to speak German at the Supervised Centre because none of the supervisors speak it.

39JS testified that since the February Probation Order, he now must attend a different church completely. He struggles with that because he does not agree with that church’s theology. He stated that he felt he had been “robbed” of his religious freedom by the current Order. He cannot attend church services, even those where there is no chance of seeing CS, including Wednesday night prayers (which she does not attend) or a men’s breakfast.

40JS also feels that he must have a witness with him whenever he has parenting time. He leans on a group of people from his church to help him with this. If someone is not available to go with him, he does not have the visit.

41In cross-examination, he disagreed with the suggestion that he takes someone with him as a check on his own behaviour and to ensure that he does not breach his conditions. He stated that he does so to avoid other obstacles to his parenting time being put in his way. I infer that this was understated way of saying that he takes a witness so that he cannot be falsely accused of doing something that will have an impact on his quest for more parenting time, or to preserve the parenting time he has.

42JS agreed that the parties are now in Family Court to try to resolve their disagreement. He is seeking shared parenting with CS, which is something he has been seeking since they originally separated. He stated that they are trying to set up a Case Conference and the matter is scheduled for trial in November.

43With respect to the events in question, JS stated that in the summer of 2025, he was attending a different church. That church had a fundraiser for the youth of the church which involved the sale of cookies. JS signed up for some cookies. He picked up the cookies at church the day the visitation was cancelled. He hoped to give the cookies to the children when he visited with them.

44He reiterated that he was sure that the cancellation was legitimate. He stated that even if the children didn’t want to come, he did not feel it appropriate to make them come. In cross-examination about this, he was unshaken that he was not upset or frustrated with the cancellation of the visit.

45In cross-examination, he agreed, however, that he was generally frustrated about his plight with respect to parenting time with his children. “It is something I have to live with”, he stated. “I think I am doing quite well with all the restrictions and obstacles in my way”, he added.

46As he was driving home, he didn’t know what he was going to do with the cookies. He wanted to give the cookies to the children. He recalled that when he spoke with Constable Holland about his release order, Constable Holland told him that he could be near 215 W Road provided he was not on the property.

47Defence later filed Exhibit 4, which was a partial transcript of JS’s conversation about the release conditions. The following conversation took place when Constable Holland reviewed the undertaking with JS:

JS: Last question, I hope.

Constable Holland: Sure.

JS: So, since I have two cars, I will fill them as much as I can with the stuff I have.

Constable Holland: Sure.

JS: How far away from the driveway would I have to park, to not be trespassing just to leave one vehicle there with all the stuff there, for now.

Constable Holland: So you,

JS: And use the other vehicle to go to work and stuff.

Constable Holland: So, you, you,

JS: But eventually I’m going to pick it up, of course.

Constable Holland: Yeah.

JS: For the night.

Constable Holland: You’ll have to do that with police. So you won’t be able to go to that residence without police.

JS: So my question is, like, how far would be far enough,

Constable Holland: Like what are you asking?

JS: So, like, I will (inaud)

Constable Holland: Sure,

JS: So it’s like there’s three houses on the whole road, basically.

Constable Holland: Yeah.

JS: So I would park one car outside of the, like on the street.

Constable Holland: Sure.

JS: How far away on the street would I have to park to be able to access my car and pick it up?

Constable Holland: Without police?

JS: Without police, like,

Constable Holland: I see.

JS: Like, I’m not going on the property.

Constable Holland: Yeah, you’re asking how far? You just can’t be on the property.

JS: Just on the property.

Constable Holland: It’s not a,

JS: It doesn’t matter if I’m 10 meter or a kilometer away?

Constable Holland: Yeah, doesn’t matter as long as you, we didn’t put a restriction on there, you can’t be within a certain area.

JS: Okay.

Constable Holland: So, yeah, as long as you’re off the property and you’re not directly communicating with her, with your wife. Then you’re fine.

JS: Okay.

Constable Holland: All right.

JS: Good, that makes it clear thanks.

48Thus, JS decided to deliver the cookies to 215 W Road and leave them in the mailbox for the children. He surmised that the bag of cookies had the name “[S]” written on them to help the organizers of the fundraiser keep the orders straight.

49He agreed that the car in the photos was his and he went to 215 W Road. He was focused on staying on the public road in accordance with Constable Holland’s instructions so as not to breach the condition. He put the cookies in the mailbox and left. He never stepped off the gravel of the roadway.

50He saw CS’s car in the driveway when he went by. This surprised him as he thought they might have gone to the cottage to enjoy the weather. He did not see CS. The family dog Max came running to see him. He said, “Hey Max” just before he drove off.

51“I was there for a maximum of 20 seconds”, he stated.

52In cross-examination, he stated that he was not concerned that Max had come on the road. He described Max as a “typical Canadian farm dog, from what I understand of Canadian farm dogs” and stated that when he was living at the house, they did not pursue Max when he went on the road, unless he was going after a bicyclist.

53He reiterated when he was shown the photos that he did not step on the property. He disagreed with CS’s evidence that he stepped on the grass between the edge of the road and wire fence. He was unshaken about this in cross-examination.

54When he got to the end of the road, JS texted his children to tell them that there were cookies in the mailbox.

55In cross-examination, JS stated that he understood why the police put him on the condition in question. He agreed that it made sense so as not to “complicate things”.

56In cross-examination, JS reiterated that he followed what Constable Holland told him to do. “I like to play by the rules”, he stated. “I was convinced that I could drive by, drop off the cookies, stay on the public road, and leave. I thought I remembered well what he told me that night. After reading the transcript, I was relieved.” He told Crown counsel that he “played by the rules” when he dropped off the cookies.

57Crown counsel asked JS about whether he ever took advantage of the Undertaking term granting a one-time visit to pick up his belongings with the police. He stated that he was diabetic and he realized the night he was released that he did not have his insulin. He had to go back to the residence to pick some up. At the same time, he got a toothbrush and some diabetic supplies. This was his “one-time” visit to pick up his belongings. Some of his belongings are still there.

58Crown counsel asked JS why he was not more careful to avoid going to 215 W Road. He stated that he wanted to give his children freshly baked cookies and he relied on Constable Holland’s explanation. He stated that he was not trying to upset CS and he did not expect her to be there. He agreed that he could have asked persons from the church to go and drop off the cookies, but he did not do so.

59Crown counsel asked JS why he had not gone by the residence to drop things off before. He stated that he usually saw the children at visitation. This time was different because “it was the cookie thing”.

60He agreed that he was driving about 30 kilometers an hour as he approached and stopped at CS’s home because he had done some work on the rocker panels of his car and he did not want the work disturbed because of the gravel roadway.

61He disagreed that he left faster than when he arrived.

62JS agreed that when he realized that CS’s vehicle was there, he thought she was there.

63Crown counsel asked JS why he parked out of view from the house. He stated that he parked where he parked because it was directly adjacent to the mailbox where he deposited the cookies.

Submissions of Defence

64Defence counsel relied on two defences: de minimus non curat lex, and officially-induced error.

65Defence counsel argued that this was a petty dispute over a technical breach of the release order and therefore the defence of de minimus should apply.

66In the alternative, defence counsel argued that Constable Holland gave explicit instructions to JS that if he did not step on the property, he was “good”. Thus, if JS was in breach by attending on the roadway adjacent to 215 W Road, the evidence is clear that he did not go on the property and therefore he was entitled to rely on this defence.

67Defence counsel argued that JS has gone to great lengths to avoid breaching his order. There is every reason to believe that he would not have breached the non-attendance condition if not for Constable Holland’s instructions.

Submissions of the Crown

68Crown counsel argued that on the strength of R. v. Bilusack, supra, the issue of whether JS was technically on the property does not matter. He was in breach of the condition by being near the 215 W Road.

69With respect to officially-induced error, Crown counsel argued that JS did not sufficiently inquire to ensure that he was not in breach. Crown counsel pointed to the fact that the wording of the transcript has to do with the retrieval of JS’s belongings, not general attendances at CS’s home. Crown counsel argued that JS was wilfully blind or reckless about his attendance that day. He was aware that there was a danger that his conduct would bring about a breach of the law and he nonetheless ignored that breach and proceeded to attend at CS’s address.

Analysis

The WD Formulation

70In deciding this case, I am governed by the following legal principles:

a) JS is presumed innocent until the Crown proves his guilt beyond a reasonable doubt.

b) Only when the Crown proves that JS committed all elements of the crime of breach of release order is the presumption of innocence overcome.

c) “Reasonable doubt” is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt that is based on reason and common sense. It is a doubt that logically arises from the evidence or the absence of evidence.

d) To be satisfied beyond a reasonable doubt, I have to be sure with respect to JS’s guilt. If I am not sure, I must find him not guilty.

e) If I do not know who to believe, I must find him not guilty. Even if I believe JS probably breached his release order, that is not a sufficient basis on which to find him guilty. Probable guilt is not proof of guilt beyond a reasonable doubt.

f) In this case, there are two witnesses with two very diametrically opposed versions of what took place. I cannot compare their accounts and decide which account I like better.

g) If I believe JS, I must find him not guilty.

h) Even if I do not believe him, if I am left in doubt by his evidence, I must find him not guilty.

i) Even if I do not believe him and am not left in doubt by what he says, if I am left in doubt on the basis of the evidence of CS which I do accept, I must find him not guilty. Only if I am satisfied beyond a reasonable doubt on the basis of the evidence of CS can I find him guilty.

j) I rely on my experience, reason and common sense. I must not, however, engage in stereotypical or mythological reasoning which masquerades as “common sense”.

Do I Believe JS?

71Yes.

72I found that his evidence was fair, measured and he was unshaken in cross-examination. I note that through his counsel, JS is offering two “excuses” for his conduct, de minimus and officially induced error.

73This is not a case where he made no admissions. He freely admitted that he was on the roadway near the driveway near CS’s residence at 215 W Road. He acknowledged accessing the mailbox. He gave an explanation for the speed of his vehicle, where he parked it, his surprise that CS was there and his decision to leave right after he deposited the cookies in the mailbox.

74I accept his evidence about the steps that he has taken to avoid CS as much as possible, which has had a significant impact on his time with his children and his ability to worship as his conscience allows. He has taken every step imaginable to follow the Order.

75I accept his evidence that he has acquiesced in CS’s demand that he exercise parenting time on a supervised basis, subject only to whatever ruling the Superior Court may ultimately render.

Do I have a doubt on the evidence of CS?

76Yes.

77Although CS had the presence of mind to take a photograph which proved that JS was at 215 W Road, I find that the photograph is not clear enough to corroborate CS’s evidence that she saw JS on the strip of grass between the edge of the roadway and the hedgerow.

78I also find that CS is motivated by the upcoming family court proceedings.

79I accept that the release order was designed to allow her a sphere of safety and privacy without interference by JS. I also accept that the original charges, from which this offence flows, have now been dealt with and JS has entered a plea and been sentenced. CS continues to be entitled to a sphere of safety and privacy without interference from JS.

Is De Minimus Available As a Defence?

80The maxim De Minimus Non Curat Lex (the law does not concern itself with trifles) is, technically, not a defence. It is an excuse. Essentially, it is designed to shield persons who perform acts of a trivial nature from the crushing power of the criminal law. It enhances community respect for the repute of the administration of justice by ensuring that only serious matters are pursued and prosecuted.

81I addressed this issue recently in R. v. SC, currently unreported. SC was an assault case where some of the assaultive behaviour was alleged to have occurred in the presence of children.

82I found that the presence of children ruled out the application of de minimus, even though in that case the complainant went to the police to report another incident, and she thought that the three incidents that were prosecuted were minor.

83In doing so, I relied on the decision of the Court of Appeal in R. v. Carson, 2004 CanLII 21635 (ONCA), my own decision in R. v. CM, 2022 ONCJ 505, and Justice Jones’ decision in R. v. Grizzle, 2024 ONCJ 300.

84I also pointed out that in R. v. RM, 2024 ONCJ 272, Justice Campitelli found at paragraph 22:

I do not find it rises to a level of criminality, such that it warrants the application of criminal law. The harm occasioned by society as a result of domestic violence cannot be understated; however, we must continue to see the forest from the trees. Criminal law is reserved for serious misconduct and the collateral consequences associated with a criminal conviction are severe. The contact associated with the September 13, 2020, interaction was trivial in nature, and the defence of de minimis non curat lex will succeed. The charge associated with Count #2 is accordingly dismissed.

85I confess that as I was pondering the facts in this case, I was thinking about Justice Campitelli’s decision and thinking that the facts before me might well be one of those rare intimate partner cases where de minimus should apply.

86As I listened to the evidence and arguments in this case, which consumed about one day of court time (over two days), in an extremely busy jurisdiction, Justice Arbour’s dissent in Canadian Foundation of Children, Youth and the Law v. Canada, 2004 SCC 4 at paragraph 200 also haunted me:

The good judgment of prosecutors in eliminating trivial cases is necessary but not sufficient to the workings of the criminal law. There must be legal protection against convictions for conduct undeserving of punishment. And indeed there is. The judicial system is not plagued by a multitude of insignificant prosecutions for conduct that merely meets the technical requirements of “a crime” (e.g., theft of a penny) because prosecutorial discretion is effective and because the common law defence of de minimis non curat lex (the law does not care for small or trifling matters) is available to judges.

87However I then considered the words of Justice Dellandrea, who considered the application of the doctrine in R. v. Feliciano, 2019 ONCJ 263. In that case, the accused was charged with Breach of Recognizance after he sent an email to his wife which included his son’s baseball schedule. He added the line, “Please take Lucas to baseball please.” The accused sent the email after receiving advice from his family law lawyer that the email would not be considered a breach.

88Her Honour noted at paragraphs 53 to 55:

The conduct at issue here does not include any form of violence, either threatened or applied. It consists in the forwarding of information relevant to a child’s sports schedule, to which a polite salutation and request was added. The content of the communication was not related in any way to the domestic assault allegations, or aimed at engaging the complainant in any form of dialogue, although the complainant interpreted it as “demanding”. On its face, the purpose of the email was presumably to identify, for Ms. Feliciano’s convenience, the time and location of their son’s first practice, given her role as the custodial parent. Viewed in isolation, the conduct could well be described as trivial, and leading to no personal or societal harm, such that the de minimus principle should be applied.

Yet in considering the application of the de minimus principle in a criminal case, context is critical. This particular communication, however helpfully that it might have been intended, was transmitted in contravention of a recently imposed court order arising from multiple allegations of domestic assault. I consider Justice Hill’s observations in rejecting a similar argument in J.F., [2001] O.J. No. 2054 (S.C.J.) to be particularly instructive here:

The appellant's approach fundamentally misunderstands the objective of a term or condition such as bound the appellant. While recognizing that the sexual offenses charges amounted to allegations only, the bail system seeks to favour pre-trial liberty in balance with protection of those said to be victims of crime. Especially in instances of sexual or domestic violence, the sight or sound of the alleged perpetrator can evoke feelings of terror, insecurity, re-invasion of privacy, and mistrust of the criminal justice's system resolve to protect those who report crimes. Communications and physically proximate attendances, whether innocuous from the accused's perspective, frequently generate adverse experiences for those who are in fact victims of crime. I agree with the observation of Gary Trotter in The Law of Bail in Canada (2d ed., 1999) at page 259 as to the role of a non-communication term or condition:

Dealing first with restrictions on communication, s. 515(4)(d) and s. 515(4.2) have a dual aspect. First, they protect the victim from threats or entreaties by the accused regarding future court testimony. This may be crucial when the alleged offence involves the domination of the victim, as in the case of child sexual abuse or spousal abuse. Also, by imposing a non-communication condition, the victim may be provided with some peace of mind while the accused is at large during the interval between arrest and trial. It hardly seems reasonable to send the victim into hiding if there is a reasonable likelihood of interference or harassment.

Viewed in its proper context, I cannot conclude that the defendant’s email communication to his wife, sent in contravention of the absolute prohibition contained in his recognizance related to his charges of domestic assault, can be characterized as trivial or trifling. To relieve the defendant from responsibility for such a communication would be to potentially jeopardize the public’s trust in the criminal justice system’s goal of protecting those who report crimes. [Emphasis mine]

89The purpose of the condition was to ensure that CS was free of the sight or sound of JS in the context of an intimate partner violence matter. Conditions of this nature are designed to ensure that complainants maintain the safety and sanctuary of their home and are free from harassment or intimidation.

90Admittedly with great reluctance, I find that de minimus is not available here.

What Does “Do Not Go to 215 W. Road” Mean?

91In R. v. Bilusack, supra, the accused was charged with, among other things, breach of a release order condition that prevented him from going to 678 Moffat Avenue in North Bay. The trial came on before Justice Matthias, who convicted. Unfortunately, her reasons for judgment do not appear to be reported. The accused appealed, arguing a number of grounds, one of which was the argument that Justice Matthias erred by finding that he had gone to that address when he was on the street and not on the property.

92On appeal to the Superior Court, Justice Wilcox stated at paragraph 29:

Even if the Undertaking is to be read more narrowly, such that the Appellant was not to go to 678 Moffat Avenue, what does that mean? I would find that such wording was intended and would reasonably be understood to encompass the complainant’s home and yards at 678 Moffat, without any reference to surveys or city road allowances. To find otherwise would create an absurd situation in which technicality would triumph over common sense and enforceability. I would take judicial notice that, when property at a municipal address is spoken of in circumstances such as those the Undertaking was made in, the property is thought of as extending to points such as the sidewalk or travelled portion of the road, as the case might be, not just to the limit of the road allowance. [Emphasis mine]

Early in the appeal hearing, the Appellant had submitted that the trial judge had (quite correctly) emphasized that the onus of proof rests with the Crown. Therefore, the Appellant surmised, he did not have to prove anything. If he thinks that he should be acquitted of the fail to comply charge because the Crown did not have a surveyor testify as to where the property line was, with respect, that argument fails. Once the evidence showed that the Appellant was in the complainant’s driveway, without evidence to the contrary, that would be sufficient to prove the charge beyond a reasonable doubt.

93The Court of Appeal upheld this finding.

94It should be noted that in the case before me, unlike Bilusack, there is evidence that the accused never left the public roadway. There is, however, unequivocal agreement with the fact that the accused accessed the complainant’s mailbox.

95As I was listening to the evidence, I was anticipating lengthy arguments, such as we commonly see in section 8 Charter litigation, about whether the mailbox is part of the curtilage of 215 W Road. Fortunately, Mr. Kyte held Bilusack high in his hand and I was spared of that.

96I find that in going to 215 W Road and accessing the complainant’s mailbox, the accused is in breach of the condition. To find otherwise, would be exactly the kind of triumph of technicality over common sense and enforceability envisioned in Bilusack.

The Excuse of Officially Induced Error

97Like De Minimus, officially induced error is not a defence. It is an excuse. The actus reus of the offence has been made out but the mens rea necessary is absent due to accused being lulled into an error by someone acting in an official capacity who provides erroneous information.

98The leading case on the doctrine of Officially Induced Error is R. v. Jorgensen, 1995 CanLII 85 (SCC). Jorgensen establishes the following principles:

a) The error must be one of law or of mixed law and fact. To avoid the doctrine Ignorantia Lex Non Excusat (ignorance of the law is no excuse), mistakes of law are exculpatory only in “narrowly defined circumstances”.

b) The accused must have considered the legal consequences of her actions. The accused must have asked herself whether her conduct might be illegal and sought advice as a consequence. The accused cannot simply assume that her conduct is permissible.

c) The advice obtained must be from “an appropriate official”. “Government officials who are involved in the administration of law” meet this definition. The official must be “one whom a reasonable individual in the position of the accused would normally consider responsible for advice about the particular law in question.”

d) The accused “must demonstrate that the advice was reasonable in the circumstances.” Reasonableness is not assessed “at a high threshold”. “If an appropriate official is consulted, the advice is presumed reasonable unless on it appears on its face to be utterly unreasonable.”

e) The advice must have been erroneous.

f) The accused “must demonstrate reliance on the official advice”. The accused must show that their actions were “specifically tailored” to her situation.

99See also Levis (City) v. Tetreault, 2006 SCC 12.

100Applying these principles to the facts before me, I find as follows:

a) The error made by the accused is an error of law. He presumed that he was not violating a prohibition on going to 215 W Road on the basis that the mailbox and roadway was not included in that address. On the strength of Bilusack, it is. I note that Bilusack was recently decided. The Summary Conviction Appeal Court decision dates from 2025. As discussed above, I could not find Justice Matthias’ original decision at trial. I note that the accused has filed an Application for Leave to Appeal to the Supreme Court of Canada and a decision on that issue has not yet been made.

As I stated, until I saw Bilusack, I anticipated lengthy argument on the issue of whether being on the roadway adjacent to 215 W Road was sufficient. While judges are presumed to know the law, I was certainly unaware of Bilusack when I heard this case. I therefore conclude that by going to that address, without leaving the roadway or setting foot on the property, the accused made an error of law.

b) With respect to whether JS assumed that his conduct was permissible, the transcript of the accused’s interaction with Constable Holland when the officer released him on the condition makes it clear that the JS specifically asked about the parameters of what going to 215 W Road actually meant. He was specifically told by Constable Holland that he was not put on a specific restriction.

In this regard, I note that it is not unusual for the police to specify a radius condition on undertakings. In Renfrew County, the usual radius is 100 meters. For some reason, that is not what happened in this case.

Further, JS was specifically told by Constable Holland that “…as long as you’re off the property and you’re not directly communicating with her, with your wife. Then you’re fine.”

JS based his decision on the delivery of the cookies on this advice. This is not a case where he assumed his conduct was permissible or was reckless or reasonably blind about it. I therefore find that JS has established the second component of the Jorgensen criteria.

c) JS has also easily established that Constable Holland was a government official involved in the administration of law. Constable Holland had arrested him on another offence and was releasing him on that offence. JS rightly and reasonably concluded that if anyone could give this advice, Constable Holland could. The third component of the Jorgensen criteria is made out.

d) I further find that the advice given is presumed reasonable. There is no suggestion that it is utterly unreasonable. The fourth component of the Jorgensen criteria is established.

e) On the strength of Bilusack, the advice was clearly erroneous, making out the fifth criteria.

f) Finally, the accused has shown that his reliance on the advice was specifically tailored to the situation. He did not pull into the driveway. He did not go to the door. He accessed the mailbox from the roadway and drove off. He was there for less than a minute. He texted the children to let them know that the cookies were in the mailbox. He followed the advice he received from Constable Holland to a tee.

In my view the sixth and final element of the Jorgensen criteria, did not, in this case, require JS to call Constable Holland, or another officer, or his lawyer, and double-check that he was in the right. There may be situations where the advice is so clearly erroneous that a person in JS’s shoes might be required to double-check and make sure.

I find that this is not one of them.

101In summary, I found that JS has successfully established the excuse of Officially Induced Error.

Conclusion

102The authorities I have reviewed make it clear that where an excuse is made out, the appropriate remedy is not an acquittal but a judicial stay of proceedings.

103For all of these reasons, I make that order.