CITATION: R. v. Tremblay, 2010 ONCA 469
DATE: 20100629
DOCKET: C50646
COURT OF APPEAL FOR ONTARIO
Blair and LaForme JJ.A. and Durno J. (ad hoc)
BETWEEN:
Her Majesty the Queen
Respondent
and
Richard Tremblay
Appellant
Lawrence Greenspon and Eric Granger, for the appellant
Joanne Stuart for the respondent
Heard: March 16, 2010
On appeal from the Order of Justice D. Power of the Superior Court of Justice, dated May 25, 2009, dismissing an appeal from a conviction imposed by Justice David Wake of the Ontario Court of Justice, dated March 4, 2008.
R.A. Blair J.A.:
Background
[1] Mr. Tremblay and his next-door neighbours – the complainants, Pierre Huppé and Deanna Perry – were engaged in an un-neighbourly dispute. The dispute had its origins in some flood damage that occurred on the Huppė/Perry property and that they attributed to run-off from a drain Mr. Tremblay had installed on his property when constructing his house.
[2] Ill-will developed between the neighbours and the dispute festered over a number of years, starting in 2003. In 2004 Mr. Huppé and Ms. Perry decided to list their property for sale, but they encountered serious difficulties in marketing it, and by the Fall of 2006 had still not found a purchaser. In the meantime, the dispute had escalated further with the commencement of a civil suit by the complainants against Mr. Tremblay in May of that year. Although Mr. Huppé and Ms. Perry had a litany of complaints about the conduct of Mr. Tremblay which formed the basis of their civil action, and of the subsequent criminal proceedings providing the framework for this appeal, the conduct that is central to the appeal began in September, 2006.
[3] On September 27, 2006, in an apparent display of pique, Mr. Tremblay placed his old rusted and beat-up van on the grass alongside the property line he shared with his neighbours. He threw three old tires on top of the van and left one on the hood, leaning against the front window. Needless to say, this was an eyesore, visible to anyone, and particularly to potential buyers coming to view the complainants’ home. Then, on October 9 – shortly after Mr. Huppé and Ms. Perry’s realtor posted a sign on their front lawn advertising an open house for the upcoming weekend – Mr. Tremblay spray painted, in fluorescent orange paint, the words, “I AM NOT RESPONSIBLE FOR YOUR BASEMENT FLOODS,” on the side of the van facing his neighbour’s property. On the theory that a picture is worth at least a page of words, I attach a photo of the offending van as Appendix “A” to these reasons.
[4] As a result of these actions, the complainants cancelled their open house. A few days later, at the request of Mr. Huppé and Ms. Perry through their civil counsel and on the advice of his own, Mr. Tremblay removed the van. Ultimately, the complainants sold their house and moved out in January 2007.
[5] For this conduct Mr. Tremblay was found guilty in the Ontario Court of Justice of the offence of mischief for his wilful interference with his neighbour’s lawful use and enjoyment of their property, and was granted a conditional discharge. Justice Wake acquitted him on four companion counts of watching and besetting (x2) and criminal harassment (x2).
[6] Mr. Tremblay’s summary conviction appeal from the finding of guilt was dismissed by Justice Power in Superior Court. He now seeks leave to appeal, and if leave is granted, appeals from the finding of guilt. For the reasons that follow, I would grant leave to appeal and allow the appeal.
Issues and Findings Below
[7] Mr. Tremblay argues that even though his acts may have interrupted or interfered with his neighbour’s lawful use and enjoyment of their property, he is nonetheless entitled to rely upon the defence provided by subsection 430(7) of the Criminal Code because his actions were only for the purpose of communicating information. The issue on the appeal is the scope and interpretation of that defence.
[8] The Crown accepts that the proposed appeal raises a question of law of sufficient significance that leave to appeal should be granted in accordance with the principles set out in Regina v. R.(R.) (2008), 2008 ONCA 497, 90 O.R. (3d) 641 (C.A.). I agree and would therefore grant leave to appeal.
[9] The trial judge made the following unchallenged findings of fact:
[Mr. Tremblay has] provided the Court with an explanation concerning the van, and it was that he simply wanted to communicate a message to the complainants. He admitted that he was frustrated over the lawsuit and he conceded in cross-examination that he hoped it would provoke a reaction from the complainants that would lead to the withdrawal of their lawsuit, at least in relation to the flooding portion of their complaint. When further pressed, he indicated that he wanted a message to go out that these were dishonest people, referring to the complainants, because of the allegations they had made in their lawsuit.
I’ll deal with the mischief count first, and without making any findings in relation to the other allegations, I am able to say that it is clear that there was some degree of ill will between the parties since the complaint was made to the City concerning the French drain in 2003.
This was accentuated in May of 2006 when the lawsuit was filed. I find it difficult to believe the defendant when he testified in cross-examination that he had no animosity to the complainants, and that he was only saddened by them, and at worst frustrated by their actions. This is to be stacked up against the fact that he would go to the lengths he did, to place, what can only be termed an eyesore, against the property line, and with his evidence that he wanted to send a message that the complainants were dishonest people. In short, I do not believe his evidence in that regard.
He was aware that the complainants had been trying to sell their property for some time, and that they had frequent open houses. In fact, as already indicated, he attended one of them. I have no doubt that by placing his van with spray paint, in the words [“I AM NOT RESPONSIBLE FOR YOUR BASEMENT FLOODS”], that he intended to affect the ability of the complainants to display their house, and to draw their attention to the flooding problem that they had experienced in their home, in an attempt to get the complainants to withdraw their lawsuit, at least in relation to the flooding.
[10] Having concluded on those facts that Mr. Tremblay’s conduct interfered with the lawful enjoyment by Mr. Huppé and Ms. Perry of their property (s. 430(1)), the trial judge went on to consider the s. 430(7) defence. After reviewing the jurisprudence provided to him (picketing cases, to which I will return momentarily), he rejected the application of the defence, based on the following finding:
With respect, I cannot see that the action of Mr. Tremblay, of placing his aged van with the tires removed and placed on the roof, next to the property line, in order to attract attention to it, and thereby rendering it to be an eyesore, and then spray painting his defiant message, had anything to do with communicating information in order to persuade by rational argument. [Emphasis added.]
[11] On appeal, Power J. concluded that Justice Wake had erred by qualifying and restricting the scope of the s. 430(7) defence to situations where information is communicated “in order to persuade by rational argument.” However, he agreed with the trial judge’s ultimate finding that Mr. Tremblay was not entitled to rely on the defence. He said:
The facts, as found by Justice Wake, clearly justify his conclusion that the accused placed an eyesore near the complainants’ property for the purpose of sending a message that the complainants were dishonest people and, as well, to negatively affect their ability to display and sell their home. His further intention, as found by the trial judge, was that he was attempting to draw attention to prospective purchasers of a flooding problem connected to the complainants’ property. His motive, of course, was to attempt to have them withdraw the whole or part of their lawsuit.
… it is clear to me that the appellant did not attend at or near the complainants’ house for the purpose only of communicating information. I agree with [Crown counsel’s] argument that we are not here simply concerned with communication of information... No Charter challenge has been made to either subsection (1) or (7) of s. 430 of the Criminal Code. Therefore, in my opinion, it is not possible for the appellant simply to overlay, as he does, s. 2(b) of the Charter on top of subsection (7) of s. 430 of the Code.
Relevant Provisions of the Criminal Code
[12] Subsections 430(1) and (7) of the Criminal Code state:
430(1) Every one commits mischief who wilfully
(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; …
(7) No person commits mischief within the meaning of this section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information. [Emphasis added.]
Analysis
[13] I agree with the Summary Conviction Appeal Judge (“SCAJ”) that the trial judge erred by restricting the scope of the s. 430(7) defence to the communication of information “in order to persuade by rational argument.” Not all communication consists of persuasion by rational argument, and it does not follow that just because the communication of information for that purpose is protected – see R v. Dooling (1994) 94 C.C.C. (3d) 5245 (Nfld. S.C.) – communication that is not made to persuade by rational argument is not protected.
[14] Respectfully, however, the SCAJ made two errors that require the finding of guilt to be set aside. First, in holding that the appellant did not attend at or near the complainants’ house only for the purpose of communicating information, the SCAJ erroneously conflated an act of attendance for the purpose only of communicating information with the consequences of that act. Secondly, the SCAJ erred in failing to recognize the ambiguous nature of the phrase “for the purpose only of communicating information,” and therefore the need to adopt an interpretation that is consistent with the s. 2(b) Charter value of freedom of expression.
“Communicating” Information
[15] I say that the SCAJ erroneously conflated an act of attendance for the purpose only of communicating information with the consequences of that act, and therefore mistakenly concluded that the protection of s. 430(7) was not available to the appellant, for these reasons.
[16] First, as Mr. Greenspon points out, this interpretation overlooks the reality that the s. 430(7) defence only comes into play – by definition – where it is applied to communication that would otherwise be culpable as mischief pursuant to s. 430(1). Put another way, the communication of information will already carry with it the wilful intention or purpose to interrupt or interfere with the lawful use or enjoyment of property, or recklessness in that regard, before the s. 430(7) defence can even be activated. To hold that communication with those consequences alone cannot trigger the defence because such communication is not intended only for the purpose of communicating information (as the SCAJ did), or that it does not constitute an attempt to persuade by rational argument (as the trial judge did), would be to render the defence ineffective. That cannot have been Parliament’s intent.
[17] Secondly, the gravamen of the s. 430(7) defence is that the accused person’s acts (the “attendance” and its surrounding circumstances) be only incidental to the purpose of communicating information. However, the fact that the consequences of the communication may be to persuade others to act in a way that interrupts or interferes with someone else’s property is not fatal to the availability of the defence. All “communication has a purpose or intention underlying it. That is its raison d’être. By definition, to communicate in this context is “to give or pass on [information].”[^1] In this regard, I agree generally with the following observations of Green J. (as he then was) in Dooling, at paras. 34-35 and 38-39:
I turn now to the applicability of subsection 430(7) to this case. It provides that no person commits mischief within the meaning of s. 430 by reason only that he or she attends at or near a place “for the purpose only of obtaining or communicating information”. Whether this is to be interpreted as an exception to the general charging provision or is to be regarded as an aid in the interpretation of it, the end result is the same: acts which might otherwise be technically regarded as resulting in an obstruction, interruption or interference will not be so regarded for the purpose of the offence of mischief if the nature of the act is such that it amounts to mere presence (“attendance”) at a place and is incidental to a purpose of communicating information. …
If the acts of the accused involve more than mere attending at or near a place for the purpose of communicating information, subsection 430(7) will, of course, not apply. Thus, if the acts complained of constitute something more than mere presence at a place in a manner that is reasonably necessary to communicate information or if the communication is in fact a mask or subterfuge for a different purpose (and thus the attendance at the place is not necessary to accomplish the purpose of the communication) the accused will not be able to take advantage of subsection 430(7).
It would be a rare case indeed where someone communicates information in the abstract without intending to accomplish some other purpose as a result of that communication. Unless one is writing in one’s personal diary, the expression of information in written form must be designed to educate, convince or persuade.
The fact that the communication of information will likely be for the purpose of persuasion ought not to take the case out of Subsection 430(7) if all that is done is the communication of that information. In my view, if the result – indeed, even the intended result – of the communication of information is to interfere with an employer’s business in the course of a lawful labour dispute the defence of Subsection 430(7) remains available provided the only thing done is the communication of that information. The results of the communication are irrelevant. [Emphasis added.]
See also Williams et al v. Aristocratic Restaurants (1974) Limited, 1951 CanLII 24 (SCC), [1951] 3 D.L.R. 769 (S.C.C.), per Rand J. at p. 788.
[18] Dooling was a picketing case. Green J. found that, although the conduct of the picketers constituted obstruction, interruption and interference with respect to the employer’s business – and was, in fact, intended to have that very effect and to pressure the employer into a more favourable collective agreement – the s. 430(7) defence was nonetheless available to them because they were attending at the premises “for the purpose only of … communicating information.” To a similar effect is the decision of Rand J. (with which Cartwright J. agreed) in Williams et al v. Aristocratic Restaurants(1974) Limited.[^2]
[19] That Dooling and Williams arose in the context of labour disputes where the alleged offenders had a statutory and common law right to protest and to picket is not a material distinction, in my view. They simply used that legal-right platform to attempt to dissuade third-parties from doing business with their employers, in order to pressure and persuade the employer to agree to a contract more in their favour. Here, Mr. Tremblay was communicating information for a similar type of reasons. He did nothing otherwise illegal. He was not trespassing. He was not watching and besetting or harassing Mr. Huppé and Ms. Perry (or, at least was found not guilty in that regard). All he was doing was using his own property and his beat-up van to communicate the information he wished to communicate.
[20] I see no difference between the labour dispute scenario and the case at bar in this respect. If peaceful picketing in order to persuade and pressure an employer to enter into a favourable employment contract by interfering with the employer’s business is “for the purposes only of … communicating information,” within the meaning of s. 430(7), I see no reason why peaceful (albeit unconventional and colourful) messaging in order to persuade and pressure a neighbour to settle a lawsuit by interfering with their efforts to sell their home is not similarly “for the purposes only of … communicating”. Both involve the wilful interruption of or interference with the lawful use or enjoyment of property. Both involve an attendance at premises (in this case, the appellant’s own premises) to communicate a message. But both – as is the case with nearly all communication – also involve an ulterior purpose to the communicative act itself. In my view, the two situations are indistinguishable for these purposes.
[21] As Mr. Greenspon submits, the conduct “may be unneighbourly, it may be unkind, it may be unwise, and it may not be the sort of behaviour most in society would engage in or want others to engage in.”[^3] But is it, and should it be, criminal? I think not. In my view, s. 430(7) protects acts done for the purpose of communicating information that would otherwise constitute mischief regardless of whether the intended results of that communication were to interfere with or interrupt the use or enjoyment of another person’s property.
Interpretation with an Eye on the Charter
[22] This is consistent with the preservation of the s. 2(b) Charter right to freedom of thought and expression. Parliament intended to limit significantly the circumstances in which conduct would amount to public mischief where the otherwise culpable conduct takes the form of communication because communication is an exercise of freedom of expression, an idea that is very highly valued in Canadian society.[^4] That is the purpose of the s. 430(7) defence.
[23] The SCAJ appreciated that there is “an interplay” between the s. 430(7) defence and the s. 2(b) Charter right, i.e. “the preservation of a healthy tolerance for freedom of expression.” He correctly observed that “the purpose of subsection (7) is to clearly recognize, protect, and preserve public debate and free speech,” and he gave a non-exhaustive series of examples of persons entitled to its protection – pollsters, election enumerators, political candidates, sales people, peaceful picketers, solicitors of funds, political advocacy groups and the media. He concluded, however, that in the absence of an express Charter challenge – not present here – Charter values were of little moment in this case because “[they] do not justify rewriting the clear language of a statutory provision”: Daley v. Economical Mutual Insurance Co. (2005), 2005 CanLII 47590 (ON CA), 206 O.A.C. 33 (C.A.).
[24] Respectfully, I disagree. The language of the statutory provision is not clear, but there is no need to rewrite it.
[25] Charter factors only come into play in the statutory interpretation exercise where there is a genuine ambiguity in the language of the statute. That is, where the language permits of two different, but equally plausible, interpretations – each equally consistent with the apparent purpose of the statute – the interpretation that accords with Charter principles is to be preferred. See R v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554 at para. 18; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 62.
[26] Here, there is a genuine ambiguity in the language of s. 430(7) concerning the meaning and scope of the words “communicating information,” in my opinion. It is not clear whether the phrase “for the purpose only of … communicating information” means for the purpose only of engaging in the act of expression without regard to the information conveyed or its underlying purpose, or whether the phrase includes communication with the intention of accomplishing some other purpose as a consequence of that communication – in this case the wilful intent to interfere with the lawful enjoyment by Mr. Huppé and Ms. Perry of their property in order to persuade them to settle their lawsuit.
[27] The latter interpretation is the one that is more consistent with the s. 2(b) Charter value of freedom of expression, in my view, and should be favoured for that reason. But it is also the one that most accords with the language of s. 430(7) of the [Criminal ]Code and with the purpose and object of that provision – for the reasons outlined above – and is therefore one that conforms to the overarching principle of statutory interpretation, namely, that:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
See Sharpe, para 33; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; R. v. McIntosh, 1995 CanLII 124 (SCC), [1995] 1 S.C.R. 686, at para. 21.
[28] Of course, the communication must be peaceful and non-violent, to be entitled to protection. And, it must not simply be a mask or subterfuge for conduct that is not solely communicative and that has some entirely different purpose. This line will not always be easily drawn and will depend upon the circumstances of the case. The following, however, are some examples of conduct held not to be “for purposes only of … communicating information.”
[29] In R v. Tan, 1992 CanLII 312 (B.C.C.A), the offenders – who were anti-nuclear protesters – climbed the anchor chain of a United States aircraft carrier, believing there were nuclear warheads aboard and intending to display a radiation symbol flag. Two of them fastened themselves to the anchor chain, one with a padlock. The Court held that the protestors did more than merely attend at the site for purposes of communicating information. Their acts “went beyond trespass” on the US Navy’s property; they seriously interfered with “a very crucial part of the moorings of a very large vessel.”
[30] In R. v. Conforti, [1989] O.J. No. 3151 (Prov. Ct., Crim. Div.), the accused told a court official that he had a bomb to blow the place up and showed a device which resemble a bomb causing the courthouse to be evacuated. In R. v. Drainville , 1991 CanLII 13897 (ON CJ), [1991] O.J. No. 340 (Prov. Ct), the accused, an aboriginal protester, blocked a private parcel of land that was the subject of a land claim dispute in order to protest construction of a road. He was convicted of mischief on the basis that freedom of expression did not include a right to use someone else’s private property without permission and did not justify forms of expression that were inconsistent with public order. Without determining whether the same rationale would be applied in today’s environment, Drainville provides an example of the kind of conduct that has been held to go beyond attendance at a site for the purposes only of communicating information.
[31] Here, by contrast to all three examples above, Mr. Tremblay’s acts constituted no more than the communication of his message. They did not constitute trespass or harassment. They did not endanger anyone, and they posed no potential risk of damage to the Huppé/Perry property. The fact that potential purchasers made their own decisions, based upon the message, and thereby negatively affected the ability of Mr. Huppé and Ms. Perry to sell, does not take Mr. Tremblay’s conduct beyond the reach of the s. 430(7) defence, in my view.
Disposition
[32] For the foregoing reasons, I would allow the appeal, set aside the finding of guilt against Mr. Tremblay, and enter an acquittal.
“R.A. Blair J.A.”
I agree H.S. LaForme J.A.”
“I agree B. Durno J. (ad hoc)
RELEASED: June 29, 2010
Appendix A
[^1]: The New Lexicon Webster’s Encyclopedic Dictionary of the English Language, Canadian ed., s.v. “communicate”, “communicating.”
[^2]: Williams was an injunction case. However, in determining whether the conduct in question was illegal, Rand J. was required to interpret a very similarly worded exception to the watching and besetting provision of the then s. 501 of the Criminal Code that referred to acts done “in order merely to obtain or communicate information.”
[^3]: See Appellant’s factum, para. 35.
[^4]: As to the importance of the value of freedom of opinion, belief and expression, see R v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at paras. 21-23.