Court File and Parties

Court File No.: Hamilton 13-911 Ontario Court of Justice

Between: Her Majesty the Queen — and — James Fleming

Before: Justice M. Speyer

Heard: November 27 & 28, 2013

Reasons for Judgment Released: January 13, 2014

Counsel:

• Victoria Reid, for the Crown
• Dean Paquette, for the accused James Fleming

SPEYER, J.:

Introduction

[1] The accused, Bruce Fleming, is charged with assault causing bodily harm to Gail Rusby. The date of the alleged offence is January 2, 2013.

[2] The complainant, Gail Rusby, was the sole witness for the Crown, and Mr. Fleming testified in his defence. Their evidence is largely consistent with each other. Mr. Fleming does not dispute that he used force to remove a set of apartment keys from the hands of Ms. Rusby and that he forcibly dragged her out of the apartment by her legs. He takes the position that he was justified in doing so as he honestly and reasonably believed that she was a trespasser and that he was entitled to remove her by force. Mr. Fleming relies on the recently amended section 35 of the Criminal Code which deals with persons acting in defence of property.

The Evidence

[3] Before I address s. 35 of the Code, I will review the evidence and my findings of fact, which are as follows:

[4] At the time of this incident, Bruce Fleming and the complainant Ms. Rusby were roommates living at 350 Quigley Road, apartment 317 in Hamilton. They had been friends and had moved into that apartment together on August 1, 2012. The one year lease was signed by Mr. Fleming, who is listed as a tenant. Ms. Rusby is listed as an occupant (see exhibit 5). By mutual agreement, Ms. Rusby paid $400 per month for rent, utilities, internet, cable and auto insurance directly to Mr. Fleming. As of January 2, 2013, Ms. Rusby was not in arrears of her rent.

[5] The relationship between Ms. Rusby and Mr. Fleming deteriorated after Ms. Rusby underwent knee replacement surgery on August 17, 2012. Mr. Fleming testified that he believed he was doing the lion's share of household tasks and that Ms. Rusby was not doing enough. By mid-December of 2012 the relationship had deteriorated to the point where Mr. Fleming advised Ms. Rusby that he was not going to renew the lease when it ended on July 31, 2013, and she would have to find another place to live. Ms. Rusby agreed to move out at the end of the lease, or sooner if she found another residence.

[6] Mr. Fleming and Ms. Rusby both testified that Mr. Fleming began to pack Ms. Rusby's belongings in mid-December of 2012. Mr. Fleming testified that he did this in anticipation of Ms. Rusby finding a new residence prior to July 31, 2013, although he admitted that he had told her she could stay until the lease expired. Ms. Rusby testified that she mostly ignored Mr. Fleming's request to pack as she had not yet found a new place to live.

[7] By Christmas, the relationship between the two had deteriorated to the point where Mr. Fleming was communicating to Ms. Rusby by letters. Some of these letters have been filed as exhibits and assist me in determining when certain events transpired. I find as a fact that by December 29, 2012, Mr. Fleming was intent on moving all of Ms. Rusby's possessions into boxes, even the contents of her bedroom (see exhibit 8).

[8] Ms. Rusby testified that sometime between Christmas and December 31, 2012, she told Mr. Fleming that she believed she had rights to the apartment and that she did not want him to enter her bedroom or move her possessions. She testified that Mr. Fleming became furious with her and yelled and screamed at her to the point where she became afraid of him and she threatened to phone the police.

[9] With respect to this incident, I accept Fleming's evidence that it occurred on December 30, 2012. The letters and e-mail filed as exhibits support this conclusion. Mr. Fleming testified that he became angry when Ms. Rusby asserted her right as a tenant and threatened to call the police if he moved her belongings. He testified that he told her that as a guest in his home, she had no legal rights. In his view, Ms. Rusby was merely an occupant who was there only with his permission. In his mind, her threat to call the police had "crossed a line in the sand". Consequently, he told her she had until December 31, 2012 to vacate the apartment. Mr. Fleming conceded in cross-examination that Ms. Rusby never agreed to move out by December 31, 2012, that she never relinquished her keys to the apartment, and that she told him she would be back to the apartment after visiting her sister over the New Year.

[10] On January 2, 2013, Ms. Rusby returned to the apartment. She found a letter addressed to her taped to the outside of the apartment door. She ignored it and used her key to unlock the door. She found that the interior latch had been engaged. She called out to Mr. Fleming to unlatch the door. He did so and as she stepped into the apartment, he pounced on her, forcibly removing the keys from her hands. She testified that in the struggle over the keys, he broke the middle and ring fingers of her left hand. Ms. Rusby testified that she tried to go to the kitchen to call the police, but that Mr. Fleming pushed her to the floor and dragged her on her backside by the ankles out of the apartment. He then shut and locked the door behind her. She agreed that at some point, she tried to take Mr. Fleming's keys from the kitchen, and is not sure why she did this.

[11] In addition to two broken fingers on her left hand, Ms. Rusby testified she sustained two cracked ribs and pain and swelling to her wrist that lasted about a month. Her hand was in a cast for two months and she may have to undergo further surgery to one of her fingers.

[12] Mr. Fleming does not dispute much of Ms. Rusby's evidence regarding the events of January 2, 2013. Mr. Fleming testified that he knew that Ms. Rusby would return to the apartment after visiting her sister. He testified that he put a letter (exhibit 3) on the door of the apartment. The letter advises Ms. Rusby that as an occupant she has no legal right to possess the apartment without Mr. Fleming's permission. The letter is dated January 1, 2013. Mr. Fleming testified he taped the letter to the door to give notice to Ms. Rusby that she was not permitted to enter the apartment without his permission and that she had to immediately return the keys to him or the building's office. Mr. Fleming had also sent an e-mail to members of Ms. Rusby's family after their argument on December 30, 2012, advising them that Ms. Rusby had until December 31, 2012 to move out (see exhibit 4).

[13] Mr. Fleming admits that he forcibly took the keys from Ms. Rusby's hands and that her fingers may have been broken in the process. He testified when he unlatched and opened the door, he told Ms. Rusby she could not enter the apartment until she returned the keys to him. When she refused to give him the keys, he tried to take them from a table by the front door where she had put them. He testified that they both went for the keys at the same time and that he forcibly removed them from her hand by pulling her coat over her head. As he took the keys from her she fell over a box and landed on her back. She said, "you idiot you broke my finger".

[14] Mr. Fleming testified that Ms. Rusby then got up off the floor and went to the kitchen where she took his set of keys. He was able to easily take them back from her. Somehow she fell a second time and once she was on the floor, he decided to remove her from the apartment by dragging her out by the ankles. He denies pushing her to the floor prior to dragging her out. He testified that she tried to hit and bite him in the struggle for her keys and that she tried to hit him with a dining room chair when she was on the floor.

[15] On the above evidence, I am satisfied beyond a reasonable doubt and find as a fact, that Mr. Fleming intentionally applied force to Ms. Rusby to remove her keys from her hand and drag her out of the apartment. I am left in some doubt by the conflict in the evidence as to whether he also pushed her. I am also satisfied beyond a reasonable doubt that Ms. Rusby suffered bodily harm as a result of the force applied to her by the accused. The issue to be determined is whether Mr. Fleming was justified in applying such force.

Analysis

[16] Section 35 of the Criminal Code came into effect on March 11, 2013, after the events that led to the charge before the court. Neither Crown nor defence counsel made submissions regarding the retrospective application of the section and proceeded on the basis that it applied to this case. While I am aware of conflicting decisions as to the retrospective application of the new self-defence provisions of the Code, I am not aware of, and nor has counsel provided me with any case law regarding whether s. 35 dealing with defence of property, applies retrospectively. For the reasons expressed by Justice McDonnell in R. v. Pandurevic, I am satisfied that the amendments do apply retrospectively. As observed by Justice McDonnell, to hold otherwise would be to frustrate the remedial aims of the legislation by leaving in place for several more years the significant mischief that Parliament manifestly meant to eradicate.

[17] Section 35 states as follows:

35. (1) A person is not guilty of an offence if

(a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;

(b) they believe on reasonable grounds that another person

(i) is about to enter, is entering or has entered the property without being entitled by law to do so,

(ii) is about to take the property, is doing so or has just done so, or

(iii) is about to damage or destroy the property, or make it inoperative, or is doing so;

(c) the act that constitutes the offence is committed for the purpose of

(i) preventing the other person from entering the property, or removing that person from the property, or

(ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and

(d) the act committed is reasonable in the circumstances.

[18] There are now four basic elements to the defence of property, regardless of the type of property. To succeed based on this defence, the accused must raise a doubt that he or she:

• had a reasonable belief in the peaceable possession of the property
• had a reasonable belief in an actual or pending trespass, theft of or damage to it
• acted for the purpose of preventing the trespass, theft or damage, and
• acted reasonably in the circumstances.

The onus remains on the Crown to negate the defence.

[19] The use of the words "reasonable grounds" imparts an objective/subjective test into the analysis. The accused must subjectively believe that he or she has peaceable possession, that the property is at risk and the actions in question must, subjectively, be for the purpose of protecting the property against theft, damage or trespass. However, there is an overarching requirement that the actions be reasonable. This will continue to require a modified objective analysis based on the perspective of a reasonable person standing in the shoes of the accused. The new s. 35 does not enumerate the factors that apply in assessing reasonableness and each case must be assessed on its own unique set of circumstances.

[20] On the evidence before me, I am satisfied beyond a reasonable doubt that Mr. Fleming was not legally justified in using force. I find that Mr. Fleming may have subjectively believed that he had the right to forcibly eject Ms. Rusby as a trespasser, but such belief was not objectively reasonable and his actions were not reasonable in the circumstances. Any reasonable person standing in the shoes of the accused would not have concluded that Ms. Rusby was a trespasser to the apartment. I come to this conclusion because of the following evidence.

[21] Mr. Fleming admitted that although only his name was on the lease, the intention of the parties was that Ms. Rusby would be a tenant and enjoy the same rights as he did. On his own evidence, he admitted that the fact that her name was not on the lease as a tenant was a mere formality. Ms. Rusby had paid rent to Mr. Fleming and was not in arrears. In light of this, I found his evidence that he relied on the definition of "occupant" in the Landlord and Tenant Act as a justification for his actions to be self-serving and unreasonable. He knew full well that Ms. Rusby was more than a mere "occupant", and any reasonable person standing in Mr. Fleming's position, with his knowledge of the facts, would not have concluded otherwise.

[22] Mr. Fleming's demand on December 30, 2012 that Ms. Rusby move out by December 31 was completely unreasonable. He unilaterally imposed this deadline because he was angry that she had asserted her rights to stay in the apartment until the end of the lease. He was also angry that she demanded, rightly in my view, that he stop boxing up her possessions. It was also unreasonable for him to expect that she would comply with his demand to move out the very next day, when he knew she had no other place to live. In his e-mail to her family he wrote; "Someone come take her away."

[23] Mr. Fleming was aware that Ms. Rusby never agreed to move out by December 31, 2012. He knew that she still had her keys when she left to visit her sister and knew that she was returning to their apartment on January 2, 2013. Mr. Fleming was unhappy with the arrangement and did not like the fact that Ms. Rusby was not complying with his demand to move out of the apartment. However this displeasure did not give him the right to use force to remove Ms. Rusby who was, at the material time, also in peaceful possession of the apartment.

[24] At no time did Ms. Rusby threaten to harm Mr. Fleming, or pose a risk to him or his property. The only time Ms. Rusby may have acted improperly was when she took Mr. Fleming's keys. However, this was only after he had taken her keys and, as Mr. Fleming testified, he was able to easily get them back from her. Once he had his keys back, Mr. Fleming could not continue to use force to remove her from the premises.

[25] For the above stated reasons, Mr. Fleming was not justified in using force to take Ms. Rusby's keys and eject her from the apartment. His conduct was, in the circumstances, unreasonable and I find him guilty of assault causing bodily harm.

Released: January 13, 2014

Signed: Justice M. Speyer