DATE: 20031009 DOCKET: C37633

COURT OF APPEAL FOR ONTARIO

RE:

JOHN ALMEIDA (Appellant) v. HER MAJESTY THE QUEEN (Respondent)

BEFORE:

O'CONNOR A.C.J.O., CATZMAN and MOLDAVER JJ.A.

COUNSEL:

Donald H. Crawford for the appellant

Scott C. Hutchison and Melissa Ragsdale for the respondent

HEARD & ENDORSED:

October 2, 2003

On appeal from the order of Justice Donnelly dated January 7, 2002.

APPEAL BOOK ENDORSEMENT

[1] After several complaints to his neighbour about her dogs barking during the night, the appellant installed a video surveillance camera on his second floor balcony, facing over the neighbour's eight foot privacy fence into her backyard. The camera was turned on 24 hours per day, seven days per week for over one month (even though the dogs barked only at night). The neighbour wrote to the appellant to tell him that he was invading her privacy and asking him to end the constant electronic surveillance. The appellant stopped taping for a day then resumed.

[2] As a result of these facts, the appellant was charged with mischief in that he obstructed and interfered with the lawful use and enjoyment of his neighbour's property contrary to s. 430(1)(c) of the Criminal Code. He was acquitted at trial and found guilty on a summary conviction appeal.

[3] In the present case, the actus reus of the offence was wilfully engaging in conduct that he obstructed and interfered with the enjoyment of the neighbour's property. The mens rea was engaging in such conduct, knowing or being reckless to the fact that such conduct was interfering with the enjoyment of the neighbour's property.

[4] In our view, the elements of the offence are made out on the undisputed facts. The video camera surveillance was carried out on a 24 hour basis, seven days a week over an extended period of time. We are satisfied that both on a subjective and objective basis, that conduct interfered with the neighbour's enjoyment of her property. We are also satisfied that, having particular regard to the letter of objection written by the neighbour, the appellant engaged in this conduct knowing or being reckless to the fact that it was interfering with the neighbour's enjoyment of her property.

[5] Leave to appeal is granted and the appeal is dismissed.