Regina v. Beyo [Indexed as: R. v. Beyo]

47 O.R. (3d) 712

[2000] O.J. No. 888

No. C24991

Court of Appeal for Ontario

Abella, Rosenberg and MacPherson JJ.A.

March 23, 2000

*Application for leave to appeal to the Supreme Court of

Canada dismissed October 5, 2000 (McLachlin C.J., Iacobucci

and Major JJ.). S.C.C. Bulletin, 2000, p. 1610.

Criminal law -- Appeals -- Fresh evidence on appeal -- Due diligence in obtaining evidence -- Accused seeking to introduce affidavit as fresh evidence listing inconsistencies between evidence of witnesses at preliminary hearing, first trial and second trial -- Defence counsel at second trial choosing not to cross-examine on these inconsistencies -- Proposed evidence not meeting due diligence test -- Admission of fresh evidence would not have affected verdict -- Evidence not admitted.

Criminal law -- Indictment and information -- Included offences -- Accused found guilty of mischief as included offence of break and enter with intent to commit indictable offence -- Accused charged with breaking and entering into dwelling of estranged wife's family -- Unlawful entry into dwelling not necessarily including offence of mischief -- Conviction for mischief quashed.

Criminal law -- Evidence -- Proof of intent -- Inference that accused intends natural consequences of acts -- Accused charged with mischief -- Accused's child inside house of estranged wife's family -- Accused agitated and searching for wife and child -- Accused testifying that he pounded on window to attract attention and that he had not intended to break it -- Trial judge holding that inference of intent to commit mischief can be drawn from fact of accused breaking window -- Trial judge erring by holding inference of intent from acts mandatory and by failing to consider whether accused possessed necessary specific intent required for mischief -- Verdict not necessarily the same but for error -- Conviction quashed.

The accused's wife left him, taking their son with her and not telling him where they were going. He went to the home of his wife's parents to look for her. According to his mother-in- law, he began banging on a window in the front door, breaking the glass, wedged his foot in the door and grabbed her breast while shouting, "We know how to deal with people like you. We'll get you." The accused backed off when his father-in- law appeared. He was charged with mischief in breaking the glass, entering his in-laws' dwelling-house without lawful excuse with intent to commit an indictable offence, and threatening and assaulting his mother-in-law. His first trial was not completed due to the judge's illness. At his second trial, the trial judge convicted him of mischief in breaking the glass in the door, uttering threats and assault. The trial judge acquitted him of unlawful entry but convicted him of what he described as the included offence of mischief. The accused appealed. He sought to introduce fresh evidence on appeal in the form of his affidavit listing inconsistencies in the testimony of witnesses at the preliminary inquiry, the first trial and the second trial. Trial counsel for the accused had not confronted the witnesses with those inconsistencies. The accused also argued that the trial judge erred in concluding that mischief was an included offence within breaking and entering a dwelling-house with intent.

Held, the appeal should be allowed in part.

The fresh evidence was not admissible. The transcripts of the preliminary inquiry and the first trial were available at the time of the second trial. The lack of due diligence was not determinative, and the fresh evidence would still be admissible if it was compelling and if the interests of justice required that it be admitted. However, the fresh evidence was not compelling and its admission was not required in the interests of justice. The accused did not allege that his experienced trial counsel was incompetent in failing to cross-examine the witnesses on the earlier transcripts. He also offered no explanation for counsel's failure to use the transcripts to impeach the witness' credibility, and he produced no affidavit from trial counsel to explain his conduct of the trial. The suggested cross-examination set out in the proposed fresh evidence would not have changed the result at trial.

One way to determine whether one offence is included in another is to ask whether the main offence may be committed without committing the "included" offence. The offence of unlawful entry into a dwelling-house does not necessarily include the offence of mischief as set out in s. 430(1)(c) or (d) of the Criminal Code. Mischief is not an included offence of unlawful entry, and the trial judge erred in convicting the accused of that offence.

The trial judge also erred in applying an objective test for mens rea with respect to the charge of mischief for wilfully destroying or damaging property be breaking the window in the door. There is no presumption that a person intends the natural consequences of his acts. Mischief requires proof either of intention or recklessness as defined in s. 429 of the Criminal Code. Both are subjective states of mind and the trial judge was therefore in error if he held that a person's intent "must" be presumed from his acts. He was also in error if he applied that presumption to the accused because "any reasonable person" must know that his actions were likely to break the glass. The conviction for mischief should be set aside.

The trial judge did not err in convicting the accused of assault and uttering threats.

APPEAL from a conviction for mischief, uttering threats and assault.

R. v. Warsing, 1998 775 (SCC), [1998] 3 S.C.R. 579, 59 B.C.L.R. (3d) 47, 233 N.R. 319, [1999] 6 W.W.R. 372, 130 C.C.C. (3d) 259, 21 C.R. (5th) 75, apld Luckett v. R., 1980 185 (SCC), [1980] 1 S.C.R. 1140, 105 D.L.R. (3d) 577, 30 N.R 344, [1980] 3 W.W.R. 673, 50 C.C.C. (2d) 489, 20 C.R. (3d) 393; R. v. Simpson (No. 2) (1981), 1981 3284 (ON CA), 58 C.C.C. (2d) 122, 20 C.R. (3d) 36 (Ont. C.A.), consd R. v. E. (S.), 1993 3410 (NWT CA), [1993] N.W.T.R. 97, 80 C.C.C. (3d) 502 (C.A.), not folld Other cases referred to Johnson v. R., 1977 229 (SCC), [1977] 2 S.C.R. 646, 34 C.C.C. (2d) 12; R. v. Clemente, 1994 49 (SCC), [1994] 2 S.C.R. 758, 95 Man. R. (2d) 161, 168 N.R. 310, 70 W.A.C. 161, 91 C.C.C. (3d) 1, 31 C.R. (4th) 28; R. v. Dooling (1994), 1994 10215 (NL CA), 124 Nfld. & P.E.I.R. 149, 384 A.P.R. 149, 94 C.C.C. (3d) 525 (Nfld. T.D.); R. v. Drake (1974), 1974 1526 (NS CA), 16 C.C.C. (2d) 505 (N.S.C.A.); R. v. Drapeau (1995), 1995 5099 (QC CA), 96 C.C.C. (3d) 554, 37 C.R. (4th) 180 (Que. C.A.); R. v. Giannotti, 1956 160 (ON CA), [1956] O.R. 349, 115 C.C.C. 203, 23 C.R. 259 (C.A.); R. v. Harmer (1976), 1976 570 (ON CA), 15 O.R. (2d) 84, 33 C.C.C. (2d) 17, 75 D.L..R. (3d) 20 (C.A.); R. v. Henderson (1999), 1999 2358 (ON CA), 44 O.R. (3d) 628, 134 C.C.C. (3d) 131 (C.A.); R. v. McCraw, 1991 29 (SCC), [1991] 3 S.C.R. 72, 49 O.A.C. 47, 128 N.R. 299, 66 C.C.C. (3d) 517, 7 C.R. (4th) 314; R. v. Symes (1989), 1989 7173 (ON CA), 32 O.A.C. 102, 49 C.C.C. (3d) 81 (C.A.); R. v. Tomsett (1998), 1998 3614 (NS SC), 165 N.S.R. (2d) 228, 495 A.P.R. 228, [1998] N.S.J. No. 33 (S.C.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46 (am. R.S.C. 1985, c. 27 (1st Supp.), s. 38; 1997, c. 18, s. 21), ss. 2 "dwelling- house", 264.1, 349, 429, 430(1)(c), (d), 662

Alan D. Gold, for appellant. Alexander Alvaro, for the Crown, respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- On March 22, 1992, the appellant attended at the home of relatives of his estranged wife. He was attempting to see his son, because a month earlier his wife had left the matrimonial home with their son without telling the appellant where she was going. The appellant suspected that his wife's relatives, the Pilarskis, knew where she was. As it turned out, the appellant's wife and son were at the Pilarskis' home for a birthday party. The prosecution alleged that the appellant attempted to break into the home and that in the course of doing so he broke a window, attempted to use a Mace- like weapon, threatened the Pilarskis, and assaulted Mrs. Pilarski. The appellant was charged with eight criminal offences. He was found guilty of four offences. On his appeal from conviction, the appellant raises grounds of appeal in relation to each of the convictions and also applies to introduce fresh evidence. For the reasons that follow I would allow the appeal in part.

The Facts

[2] At the time of the trial, the appellant was 48 years old. He has a Master's degree in polymer science and technology. He married his wife, Ruth, in 1991. They have one son. Unfortunately, the infant had certain health problems, possibly epilepsy. The appellant had earlier worked in the United States while his wife and son remained in Canada. The relations between the appellant and his wife were strained. On February 2, 1992, the appellant returned to the United States after a brief visit with his family. He had been dismissed from his employment and was going back to the United States to find work. February 2 was the last time the appellant saw his son. The appellant returned to Canada on February 6, 1992. At that time, he learned that his wife and son had left the home. He spent the next month and a half attempting to make contact with them. He obtained some information indicating that Mr. Pilarski's brother Richard had helped his wife move out of the house. Mr. Pilarski is the appellant's wife's cou sin. The appellant called the Pilarskis in an attempt to speak to his wife and see his son. They claimed that they did not know where she was. They were, however, in contact with her and on at least one occasion the appellant delivered a bag of clothing to Mrs. Pilarski for delivery to the appellant's wife.

[3] In the early morning hours of March 22, 1992, the appellant called Richard Pilarski. The appellant was angry and accusatory. The appellant was charged with threatening Richard. Richard testified that he did not take any of the threats seriously and this charge was dismissed.

[4] In the afternoon of March 22, the Pilarskis threw a birthday party for one of their daughters. The party was at their residence at 14 Doncrest Drive, in the Town of Markham. The appellant's wife and son attended the party. By 5:00 p.m., all of the guests had left except for the appellant's wife and son and the Pilarskis were preparing to drive them home. There was then a knock at the door and Mrs. Pilarski went to answer the door. She testified that she saw the appellant through the window in the door and so she only opened the door a crack and asked him what he wanted. The appellant asked her if his son was there. Mrs. Pilarski hesitated and looked back to the kitchen. The appellant said, "My wife is here. He's here, my son is here." According to Mrs. Pilarski, the appellant began to push on the door and the door hit her. She pushed back and told the appellant that he could not come in.

[5] According to Mrs. Pilarski, there was then a lot of yelling and screaming with the appellant accusing the Pilarskis of kidnapping his son and saying that, "We know how to deal with people like you. We'll get you, you fucking Pilarskis." The appellant began banging on the window in the door and the window broke. The appellant also wedged his foot in the door and reached his hand around and grabbed her breast. Mrs. Pilarski called out for her husband. At some point, the appellant reached around with a small black bottle and attempted to spray them. Nothing came out. The appellant was charged with assault with a weapon and possession of a prohibited weapon, "to wit, tear gas", as a result of this aspect of the incident. These two charges were dismissed on a directed verdict because the prosecution was unable to prove that a bottle seized from the appellant contained tear gas. The appellant was, however, found guilty of mischief for breaking the window, assault on Mrs. Pilarski, and threatening to cause ser ious bodily harm to Mrs. Pilarski.

[6] After Mr. Pilarski came to the door, Mrs. Pilarski backed off and went to call the police. At some point, prior to the attendance of the police, the appellant gained entry to the house. However, when Mr. Pilarski, who is much bigger than the appellant, confronted him, the appellant backed off and left the home. He continued to scream at the Pilarskis until the police arrived.

[7] The appellant was charged with entering the Pilarski home without lawful excuse with intent to commit an indictable offence. The trial judge was not satisfied that the appellant intended to commit an indictable offence. He therefore acquitted the appellant of this charge but found him guilty of mischief. As one of his grounds of appeal, the appellant argues that mischief is not an included offence. The appellant was charged with threatening to cause serious bodily harm to Mr. Pilarski. This charge was dismissed because Mr. Pilarski testified that he did not take the threat seriously.

[8] The appellant testified. He admitted to using vulgar language and accusing the Pilarskis of kidnapping his son. He admitted banging on the glass but denied he intended to break it and testified that he immediately offered to pay for it. He denied threatening the Pilarskis or using force against them. He claimed that Mrs. Pilarski actually opened the door at one point to let him in and that it was the Pilarskis who pushed him outside.

[9] The police attended at the Pilarski home and arrested the appellant. To summarize, the appellant was acquitted of unlawful entry with intent to commit an indictable offence but found guilty of mischief as an included offence. He was found guilty of assaulting and threatening Mrs. Pilarski and he was found guilty of mischief for breaking the window.

[10] There were two prior proceedings in relation to these charges. The appellant originally elected trial by judge and jury and a preliminary inquiry was held before Bogusky Prov. Ct. J. The appellant subsequently re-elected trial before a provincial court judge. The trial commenced before Osbourne Prov. Ct. J. but was not completed due to the judge's illness. The second trial, giving rise to this appeal, commenced before Lampkin J. in August 1995.

The Grounds of Appeal

[11] On behalf of the appellant, Mr. Gold raises the following grounds of appeal:

(1) Mischief is not an included offence of unlawful entry as charged in the information.

(2) The trial judge misdirected himself as to the mens rea of mischief.

(3) The trial judge misdirected himself as to the elements of the offence of threatening.

(4) The verdicts are unreasonable.

[12] In addition, the appellant applies to have fresh evidence admitted. The fresh evidence consists of a lengthy affidavit from the appellant. In the affidavit, the appellant has meticulously reviewed the transcripts of the three proceedings and pointed out what he claims are serious inconsistencies in the versions of events given by the Pilarskis. Trial counsel for the appellant did not confront the Pilarskis with the version of events as given on the prior occasions. However, Mr. Gold does not allege that trial counsel was incompetent.

Analysis

The fresh evidence

[13] The Supreme Court of Canada has set out the test for fresh evidence in a number of cases, most recently in R. v. Warsing, 1998 775 (SCC), [1998] 3 S.C.R. 579 at p. 592, 130 C.C.C. (3d) 259:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases . . .

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[14] Lack of due diligence looms large in this case since the transcripts of the preliminary inquiry and the first trial were not only available but were used by trial counsel in cross- examining the Crown witnesses. Nevertheless, the lack of due diligence is not determinative. In Warsing, the accused failed to raise the defence of not criminally responsible on account of mental disorder and failed to lead certain psychiatric evidence that could have been obtained prior to trial. There was no explanation from trial counsel for his failure to lead this evidence because the accused had refused to waive privilege. Nevertheless, as Major J. said in Warsing at p. 607, "It is desirable that due diligence remain only one factor and its absence, particularly in criminal cases, should be assessed in light of other circumstances. If the evidence is compelling and the interests of justice require that it be admitted then the failure to meet the test should yield to permit its admission."

[15] In my view, the fresh evidence should not be admitted. It is not compelling and its admission is not required in the interests of justice. As I have indicated, the appellant does not allege that his very experienced trial counsel was incompetent in failing to cross-examine the witnesses on the earlier transcripts. He has also offered no explanation for counsel's failure to use the transcripts in the manner about which he now complains. Finally, he has produced no affidavit from trial counsel to explain his conduct of the trial. While Mr. Gold argues that there could have been no tactical advantage for counsel to have failed to confront the witnesses with their prior testimony, the absence of any explanation is troubling and is a factor to be considered, although, in light of Warsing, it is not determinative.

[16] In his submissions, Mr. Gold referred to two examples that he argued demonstrated the compelling nature of the fresh evidence. I have reviewed the entire affidavit as well as the testimony of the witnesses referred to in the affidavit. Almost without exception, the appellant's complaints are picayune and by no stretch of the imagination could the suggested cross- examination have changed the result. The appellant has attempted to elevate what are no more than minor and inconsequential inconsistencies. The lack of an affidavit from trial counsel is particularly telling with respect to these many examples, not merely on the question of due diligence but in assessing the weight of this fresh evidence. At trial, counsel made extensive use of the prior transcripts and also the statements the witnesses had given to the police. He highlighted major inconsistencies in the versions of events. My impression from having read the materials and the trial transcript is that counsel did not raise these other points be cause in the context of the trial they were trivial.

[17] As to the two examples upon which Mr. Gold particularly relied, in my view they are not compelling. The first is an excerpt from the preliminary inquiry where Mrs. Pilarski testified as follows in response to a question as to how long her injuries hurt:

A. The breast didn't hurt very long, but the ribs were sore for about two weeks after that. And I assume, that I got hit by the door and wasn't aware of it, and my doctor has a full report, and there were X-rays that had to be taken.

Q. You can't tell us what your doctors told you.

A. That's fine. I was in pain for quite a while after that. But I don't . . . I want to be honest and open, I don't think that it had to do with his hit. I believe it was the door that hit me as he was trying to push it in.

[18] As I understand it, the appellant argues that this contradicts Mrs. Pilarski's evidence that the door hit her when the appellant pushed the door into her because in this excerpt the witness merely said that she assumed or believed she was hit with the door. This submission makes far too much of the witness's use of language. These answers are also open to the interpretation that the witness was being frank with the court in stating that she could not be sure which act by the appellant caused the injury to her ribs and was prepared to give the appellant the benefit of the doubt that this more serious injury was not caused by the appellant's act of grabbing at her breasts.

[19] At trial, defence counsel cross-examined Mrs. Pilarski at length about what happened at the door with a view to demonstrating that in fact Mrs. Pilarski had let the appellant into the home. He made use of her statement to the police, other parts of the preliminary inquiry transcript and the transcript from the first trial. He was in an ideal position to determine whether the evidence now said to be crucial demonstrated a serious inconsistency. It is worth noting as well that another very experienced counsel, who represented the appellant at the first trial, likewise did not cross-examine the witness on this piece of evidence.

[20] All this simply demonstrates that the contest at trial was whether Mrs. Pilarski let the appellant into the house or whether she tried to stop him from entering as he pushed the door against her. If the appellant pushed the door against Mrs. Pilarski when she was trying to keep him out, as was her right, this was an assault, whether or not it caused any injury to the witness.

[21] The second item of evidence comes from Mrs. Pilarski's testimony at the first trial that the appellant never made threats to her personally. The appellant claims that this testimony demonstrates that the appellant did not threaten her. The excerpt from the first trial is as follows:

Q. . . . did Mr. Beyo, make any threats to you personally?

A. No, not that I can remember.

Q. Did he make any threats upon you?

A. Well, he was at the door. Everything together, I don't know it you could call that a threat -- "I'm going to get you Pilarskis". I don't know if that's a threat or just words spoken in anger. I don't know.

[22] This passage must be seen in context. The witness had earlier given the same evidence about the threatening words as she gave at the second trial. It becomes clear when she gave further evidence that the witness understood the question about threats to her "personally" that she was being asked if the appellant had actually used her name. She never retreated from the evidence that the appellant said he was going to "get" the Pilarskis and that "we know how to deal with you fucking Pilarskis". A threat to get the "Pilarskis" was capable of being a threat to her as well as her husband.

[23] In my view, the proposed fresh evidence would not have affected the verdict. Accordingly, I would dismiss the application to admit the fresh evidence.

The included offence

[24] The first count in the information charged the appellant with the offence contrary to s. 349 of the Criminal Code, R.S.C. 1985, c. C-46 and reads in part as follows:

. . . without lawful excuse did enter the dwelling house of Alex Pilarski situated at 14 Doncrest Dr. with intent to commit an indictable offence therein.

[25] As indicated, the trial judge held that the Crown had failed to prove that the appellant entered the house with intent to commit an indictable offence and he convicted the appellant of mischief as an included offence. The two offences in question, as they read at the time, are as follows:

349(1) Every person who, without lawful excuse, the proof of which lies on him, enters or is in a dwelling-house with intent to commit an indictable offence therein is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

430(1) Every one commits mischief who wilfully

(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or

(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

[26] In concluding that mischief was an included offence, the trial judge relied upon the decision of the Northwest Territories Court of Appeal in R. v. E. (S.) (1993), 1993 3410 (NWT CA), 80 C.C.C. (3d) 502, [1993] N.W.T.R. 97. In that case, the court held that mischief as described in s. 430(1)(d) is included in the offence of unlawful entry. The court appears to have accepted the argument of Crown counsel that the essential element of mischief under s. 430(1)(d) is violation of privacy and that entry into a dwelling-house and interfering with the lawful use, enjoyment or operation of property share the common element of interference with privacy. The more serious offence of unlawful entry includes the additional element of intent to commit an indictable offence in the dwelling-house. The core of the reasoning of the Court of Appeal can be found in this passage from p. 506:

It seems to me that any entry into a dwelling-house without lawful excuse is at least an interference with the resident's use of the property. A person occupying or keeping space in a structure as a residence has the right to control that space subject only to any legal restrictions on that right. He has the right to exclude those who have no legal entitlement to enter. This is an important aspect of his use of the property. It is this aspect which results in his feeling of security and privacy in his residence. Any entry into it without lawful excuse, even if the resident is not aware of it, detracts from the right to control and therefore interferes with his use of the property.

I therefore agree with counsel for the Crown that interference with a person's use of property is necessarily involved in any entry into a dwelling-house without lawful excuse as described in s. 349. The entry constitutes interference. If the entry is intentional, it follows that the interference is intentional.

(Emphasis added)

[27] In reaching this conclusion, the court refused to follow the earlier case of R. v. Drake (1974), 1974 1526 (NS CA), 16 C.C.C. (2d) 505 (N.S.C.A.). I agree that Drake is of limited assistance in resolving the issue in this case, as it turned on whether mischief as defined in s. 430(1)(a) was an included offence. [See Note 1 at end of document] That paragraph defines mischief as wilfully destroying or damaging property. Only in passing did the Appellate Division also hold that mischief as defined in s-ss. (1)(c) or (d) were not included offences. At p. 508, MacDonald J.A. wrote the following:

It was urged upon this Court in the argument that the offence of mischief as defined in s. 387(1)(c) and (d) of the Criminal Code was included in the offence of break and enter with intent. I am of the opinion that these offences are not necessarily included in the offence charged in the present bill of indictment or in s. 306(1)(a) of the Criminal Code. In other words, the whole offence charged in the present case does not necessarily include the commission of the offence of mischief under s. 387(1)(c) or (d). However, even if these latter offences were included in the charge set forth in the present bill of indictment I feel there was no evidence indicating their commission. I say this primarily because the evidence clearly indicated that the premises were unoccupied at all material times. [Note: s. 387 is now s. 430.]

[28] In R. v. Harmer (1977), 1976 570 (ON CA), 15 O.R. (2d) 84 at p. 85, 33 C.C.C. (2d) 17 at p. 19 (C.A.), Evans J.A. referred to the three ways in which, although an accused cannot be convicted of the offence charged, he or she may be convicted of another offence. They are: (1) offences included in the enactment creating the offence charged; (2) offences included by statute, as in s. 662(2) to (6); and (3) offences that become included by apt word of description in the count as charged in the information. This case only involves the first method by which one offence can be included in another.

[29] In R. v. Simpson (No. 2) (1981), 1981 3284 (ON CA), 58 C.C.C. (2d) 122 at p. 133, 20 C.R. (3d) 36 (Ont. C.A.), Martin J.A. described the two principles that underlie the included offence analysis. First, an included offence is part of the main offence. The main offence "must contain the essential elements of the offence said to be included". Second, the description of the offence as set out in the enactment creating it must be sufficient "to inform the accused of the included offences which he must meet". This latter requirement implies a test of "necessarily included". After referring to the leading decision on included offences from the Supreme Court of Canada, Luckett v. R., 1980 185 (SCC), [1980] 1 S.C.R. 1140, 50 C.C.C. (2d) 489, which dealt with robbery under former s. 302, Martin J.A. described that test in these terms at p. 139 of Simpson:

In the case of an offence such as robbery, which may be committed in the different ways described in a number of subsections, where the indictment charges the offence without reference to a specific subsection, all the ways in which the offence as described in the enactment may be committed are placed in issue, and the accused is put on notice that he must meet the offence as defined in any and all the subsections. In those circumstances, the accused may be convicted of any offence necessarily included in any of the ways in which the offence, as described in the enactment, may be committed. To put the matter in another way, each subsection carries with it the offences necessarily included in that subsection, and where the indictment charging robbery under s. 302 makes no reference to a specific subsection, the accused is put on notice that he must meet the included offences contained in any and all the subsections.

(Emphasis added)

[30] A way to determine whether one offence is included in another as it is described in the Criminal Code is to ask whether the main offence may be committed without committing the "included" offence. Put another way, does the commission of the main offence as described in the enactment necessarily include the other offence? In accordance with Simpson and Luckett, mischief as described in s. 430 would be an included offence of unlawful entry into a dwelling house if that offence necessarily included any of the offences described in s. 430.

[31] In my view, the offence of unlawful entry into a dwelling house does not necessarily include the offence of mischief as set out in s. 430(1)(c) or (d). It does not contain the essential elements of the mischief offence in any of the ways the offence is described in those paragraphs. In my view, the error by the Northwest Territories Court of Appeal is in generalizing the elements of the unlawful entry offence and the mischief offence as involving violations of privacy. That may or may not be an accurate description of the purpose of the two offences, but application of the included offence rule, for these purposes, depends upon comparing the elements of the offences as described in the enactment.

[32] The decision in E. (S.) depends upon accepting the proposition that any entry into a dwelling house without lawful excuse, even if the resident is not aware of it, detracts from the right to control the property and therefore interferes with the use of the property (s-s. (1)(c)) or the person's use of the property (s-s. (1)(d)). I cannot agree with this proposition. It would mean that an accused could be convicted of the mischief offence by application of a wholly abstract concept. To take an example, assume an accused comes upon a cottage that is temporarily vacant (which meets the definition of "dwelling-house" in s. 2 of the Code [See Note 2 at end of document]). He notices that a window has been left open. He puts his head through the window (which meets the definition of "enters" in s. 350 [See Note 3 at end of document]) and leaves. Assume that he had no lawful excuse for putting his head into the cottage. No person was home at the time and, in fact, no resident of the cottage ever becomes aware of the accused's act ion. Although the accused has entered a dwelling house without lawful excuse within the meaning of s. 349, in my view, this is not criminal conduct that could attract liability for mischief. The effect of the decision in E. (S.) is to transform every trespass into a dwelling house, no matter how trivial the conduct, into a criminal offence. Section 430 was not intended to capture mere trespass: R. v. Dooling (1994), 1994 10215 (NL CA), 94 C.C.C. (3d) 525, 124 Nfld. & P.E.I.R. 149 (T.D.).

[33] To return to the wording of s. 430(1), such conduct clearly does not obstruct or interrupt the lawful use, enjoyment or operation of the property or of any person's use, enjoyment or operation. And, in my view, it is not an "interference" with such use, enjoyment or operation. The broadest basis for liability under s. 430(1) in these circumstances would still require proof that the acts of the accused interfered with the enjoyment of the property or interfered with the person's enjoyment of the property. If the person never becomes aware of the entry, I fail to see how there could be any interference with enjoyment of the property. In R. v. Drapeau (1995), 1995 5099 (QC CA), 96 C.C.C. (3d) 554 at p. 567, 37 C.R. (4th) 180 (Que. C.A.), Chamberlain J.A., dissenting, adopted the widest possible definition of enjoyment of property for the purposes of s. 430(1)(d) as including "the action of obtaining from property, which a person lawfully holds, the satisfaction that this property can provide to that pers on". In my view, not even this definition would be wide enough to capture this conduct. Wholly abstract notions or feelings of privacy and security and interference with theoretical rights to control access to property, even a dwelling-house, cannot be transformed into criminal conduct.

[34] One final observation. The offence created by s. 349 can be committed in two ways. It is an offence to "enter" or be "in" a dwelling house without lawful excuse with intent to commit an indictable offence. My comments have been directed solely to the "enter" mode of committing the offence, as the appellant was charged with that offence. This is not a case like Luckett where the accused was charged with "robbery" and therefore the court was required to consider all of the ways that robbery may be committed to determine the various included offences. There was no application to amend the information at trial to charge the other mode of committing the s. 349 offence and Mr. Alvaro did not seek such an amendment here. It is therefore not necessary to consider whether mischief is an included offence of the "in" mode of the s. 349 offence and whether this court would have acceded to a request to amend: see R. v. Symes (1989), 1989 7173 (ON CA), 49 C.C.C. (3d) 81, 32 O.A.C. 102 (C.A.).

[35] Accordingly, I would allow the appeal from the conviction for mischief in relation to count 1 on the information and enter an acquittal on that count.

The mens rea of mischief

[36] Count 3 in the information charged the appellant with mischief as described in s. 430(1)(a), for wilfully destroying or damaging property by breaking the window in the door. The appellant admittedly broke the window and the only issue was whether he had the requisite mens rea. The appellant argues that the trial judge erred in applying an objective test for mens rea. This submission is based on the following part of the trial judge's reasons:

The mischief offence, this is with regard to the breaking of the window now, [defence counsel] submits that it must be wilful. Well, I think the old common law had laid down that every man's intention must be presumed from the manner in which he behaves.

There is a glass door and Mr. Beyo is an educated man. He has got a B.Sc., which he earned in Israel, and a Master's in polymer chemistry, which he earned in England. He is employed as a polymer chemist. He must know that continued hitting of that glass is likely to break it. Any reasonable person must know that and he would therefore be found guilty of the mischief with regard to the offence of breaking the window.

(Emphasis added)

[37] It is well settled that there is no presumption that a person intends the natural consequences of his acts. Thus, in R. v. Giannotti, 1956 160 (ON CA), [1956] O.R. 349 at p. 364, 115 C.C.C. 203 (C.A.), Roach J.A. wrote as follows:

That a person intends the natural consequences of his acts is not a presumption of law. Lord Justice Denning dealt with that matter in Hosegood v. Hosegood, (1950), 66 T.L.R. Pt. 1, 735 at 738, which incidentally, was a civil case, thus. "When people say that a man must be taken to intend the natural consequences of his acts, they fall into error; there is no 'must' about it: it is only 'may.' The presumption of intention is not a proposition of law but a proposition of ordinary good sense. It means this: that, as a man is usually able to foresee what are the natural consequences of his acts, so it is, as a rule, reasonable to infer that he did foresee them and intend them. But, while that is an inference which may be drawn, it is not one which must be drawn. If on all the facts of the case it is not the correct inference, then it should not be drawn."

(Emphasis added)

[38] While Giannotti was a murder case and therefore required proof of specific intent, mischief requires proof either of intention or recklessness as defined in s. 429 of the Criminal Code. Both are subjective states of mind and the trial judge was therefore in error if he held that a person's intent "must" be presumed from his acts. He was also in error if he applied that presumption to the appellant because "any reasonable person" must know that his actions were likely to break the glass.

[39] There was a conflict in the evidence as to how the glass broke. Mr. Pilarski testified that the appellant repeatedly pounded on the glass with a closed fist in what seemed to be an attempt to break the glass to gain entry into the house. The appellant testified that he was banging on the glass to make noise to attract attention. By this time, he knew his son was in the house and he wanted the police to come because the Pilarskis had kidnapped his son. The appellant testified that he did not intend to break the glass and as soon as it broke he immediately offered to pay for the damage. If Mr. Pilarski's version of events were accepted, a finding of guilt was inevitable and no substantial wrong was occasioned by the trial judge's self-misdirection. However, if the appellant's version of events were accepted, a finding of guilt, while possible, was not inevitable. His state of mind had to be determined by a consideration of the evidence including the appellant's testimony, the evidence of others that he w as obviously in an agitated state and concerned for the welfare of his son. It could not be determined by application of any legal presumption nor solely from a comparison with what a reasonable person would know.

[40] This was a very experienced trial judge and it may well be that his reference to the legal presumption was nothing more than a reference to the law as it used to be, "the old common law". Further, as Mr. Alvaro pointed out, even after referring to the presumption, the trial judge went on to consider some of the appellant's personal characteristics. Unfortunately, at this point the trial judge made no reference to the appellant's evidence nor to the other evidence that could bear on the question of his state of mind. In the result, I cannot be satisfied that the verdict would necessarily have been the same had the trial judge properly directed himself. Accordingly, I would set aside the finding of guilt of mischief. I will consider the proper disposition of this count after I deal with the other grounds of appeal.

The elements of the offence of threatening

[41] The trial judge gave the following reasons for finding the appellant guilty of threatening Mrs. Pilarski:

And it is for that reason with regard to the threat, however, to Hanna Ostrowiecki, a woman who was trying to keep him out of the premises before the arrival of her husband, I'm going to find him guilty of the offence of threatening Hanna, though the offence of threatening Alex, her husband, would be dismissed.

But Hanna is a woman. She is trying to keep him out, and he did indeed say, "I'm going to get you." And although that is not specific as to what is said, the form in which it is said, the words that are used, the circumstances surrounding it, the fact that it is said to a woman, she was clearly disturbed and upset and thought that there was a threat to be taken seriously and there will be a finding of guilt with respect to that.

[42] The appellant argues that the trial judge placed undue reliance on the complainant's gender, failed to consider whether the appellant had the requisite intent, and did not properly consider whether the words were a threat. He also submits that the trial judge failed to take into account that the complainant never testified that she was disturbed or upset or thought that there was a threat to be taken seriously.

[43] The Supreme Court of Canada set out the elements of the offence of threatening under s. 264.1 of the Criminal Code in R. v. Clemente, 1994 49 (SCC), [1994] 2 S.C.R. 758 at p. 763, 91 C.C.C. (3d) 1, as follows:

Under the present section, the actus reus of the offence is the uttering of threats of death or serious bodily harm. The mens rea is that the words be spoken or written as a threat to cause death or serious bodily harm; that is, they were meant to intimidate or to be taken seriously.

[44] As to whether the words spoken constituted "threats", this is to be determined by an objective test as described in R. v. McCraw, 1991 29 (SCC), [1991] 3 S.C.R. 72 at p. 83, 66 C.C.C. (3d) 517:

Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person?

(Emphasis added)

[45] In Clemente at p. 763, Cory J. expanded on the element of threat:

To determine if a reasonable person would consider that the words were uttered as a threat the court must regard them objectively, and review them in light of the circumstances in which they were uttered, the manner in which they were spoken, and the person to whom they were addressed.

Obviously, words spoken in jest or in such a manner that they could not be taken seriously could not lead a reasonable person to conclude that the words conveyed a threat.

(Emphasis added)

[46] In his reasons, the trial judge referred to Clemente and accurately set out the elements of the offence, including the requirement that the words were meant by the accused to intimidate or to be taken seriously. He referred specifically to the need to have regard to the context in which the words were uttered and the person to whom they were uttered. For that reason, while he found that the threatening charges in relation to Mr. Pilarski and his brother were not made out, he was satisfied that the charge relating to Mrs. Pilarski was established.

[47] In my view, the trial judge did not misdirect himself nor place undue emphasis on the complainant's gender. He had the opportunity to observe the witnesses and was satisfied that the words used in the context would convey a threat of serious bodily harm to her.

The reasonableness of the verdicts

[48] This ground of appeal relates to the threatening and assault convictions. The trial judge was very aware of the frailties in the evidence of the two principal Crown witnesses, especially Mrs. Pilarski. I am satisfied that there was sufficient evidence upon which the trial judge could convict of the threatening charge.

[49] As to the assault charge, the trial judge's reasons are somewhat sparse. After reviewing the evidence, and noting the various inconsistencies in the testimony of the Pilarskis, the trial judge said the following:

Now, having said that, however, I am satisfied that there was clearly an attempt to enter the premises. Ms. Ostrowiecki did open the door to Mr. Beyo, and he did ask about his son. I don't agree that the door was opened a crack, as she submits. It was open and there may have been an invitation or in his mind an invitation to enter.

I accept, however, that when she hesitated and looked back as she said, he then realized fully that his son was in the premises and attempted to enter further. And at that time, she did attempt to close the door on him. I accept that there was an assault upon her, that he did indeed hit her.

[50] The trial judge did not need to determine the exact nature of the assault, whether it was only with the door or whether the appellant actually reached around and pushed Mrs. Pilarski with his hand and grabbed her breast, in order to find the appellant guilty. There was evidence to support a finding of assault on any of those bases. The trial judge was not bound to accept the appellant's evidence that, in effect, he was the victim and that the complainant and her husband were pushing him. I would not interfere with the findings of guilt for assault and threatening.

Disposition

[51] Accordingly, I would dismiss the appeal as it relates to the charges of threatening and assault. I would allow the appeal with respect to the charge of mischief as an included offence on count one and enter an acquittal. I would also allow the appeal from the conviction on count 3. It remains to determine the proper disposition of that charge. The appellant was given a conditional discharge on that count. It is now over eight years since these events and the appellant has been through a preliminary inquiry and two trials. Accordingly, I would allow the appeal from the finding of guilt on count 3, set aside the verdict, order a new trial and enter a stay of proceedings on that count only. See R. v. Henderson (1999), 1999 2358 (ON CA), 44 O.R. (3d) 628 at pp. 645-46, 134 C.C.C. (3d) 131 at pp. 151-52 (C.A.).

Appeal allowed in part.

Notes

Note 1: See R. v. Tomsett, 1998 3614 (NS SC), [1998] N.S.J. No. 33, 165 N.S.R. (2d) 228 (S.C.).

Note 2: Section 2 defines "dwelling-house" to mean "the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence".

Note 3: Section 350 provides that for the purposses of s. 349, "(a) a person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered". As to the breadth of this provisiion, see Johnson v. R., 1977 229 (SCC), [1977] 2 S.C.R. 646, 34 C.C.C. (2d) 12.