Court of Appeal for Ontario

Citation: R. v. Janusas, 2011 ONCA 742 Date: 2011-11-28 Docket: C52112

Between: Her Majesty the Queen (Respondent) and Stanley Janusas (Appellant)

Before: MacPherson, Simmons and Blair JJ.A.

Counsel: David E. Harris, for the appellant Catherine Mullaly, for the respondent

Heard: November 23, 2011

On appeal from the Order of Lederer J. of the Superior Court of Justice dated April 22, 2010, upholding a judgment of Cleary J. of the Ontario Court of Justice dated February 20, 2008.

ENDORSEMENT

[1] Mr. Janusas seeks leave to appeal, and if leave is granted, appeals from the order of Lederer J. of the Superior Court of Justice dated April 22, 2010. Sitting in his capacity as a Summary Conviction Appeal judge, Lederer J. upheld the judgment of Cleary J. of the Ontario Court of Justice, dated February 20, 2008, finding Mr. Janusas guilty of mischief to property for blocking a shared laneway belonging to him and to his neighbour, the complainant, Guiseppe Pileggi.

Overview

[2] The shared laneway runs along the property line between the two properties. Mr. Janusas and Mr. Pileggi each own a part of the laneway and each has a right of way over the part of the laneway owned by the other.

[3] Mr. Pileggi uses the laneway as a driveway in order to park his car at the back of his house. It is a narrow laneway and a tight fit for his car. A dispute arose because Mr. Janusas believes that Mr. Pileggi damaged his (Mr. Janusas') fence while manoeuvring the car along the laneway. Apparently to prevent this from happening again, Mr. Janusas threw a bucket of red paint onto the laneway while Mr. Pileggi was attempting to negotiate his way along it. Mr. Janusas then placed a two-foot-high pile of debris on his side of the laneway and later replaced the pile with a wooden box full of debris. Both the pile and the box had the effect of inhibiting Mr. Pileggi's use of the laneway.

[4] After Mr. Janusas failed to comply with police requests to remove the box, and a violation notice from the City, he was charged with committing mischief to property by "wilfully obstructing and interfering with the lawful use and enjoyment and operation of property without a legal justification or excuse, or without colour of right".

[5] It is important for Mr. Janusas' purposes to note that the laneway is narrower than that called for by the City's by-law requiring that a driveway servicing a detached house be at least 2.6 metres in width. The laneway here is only 2.234 metres wide.

[6] Mr. Janasus was self-represented at trial. He did not testify. He argued, (1) that he did not place the debris in the laneway, (2) that the debris did not interfere with any lawful use of the affected property, and (3) that if he placed the debris on the laneway, he did so under colour of right. Cleary J. rejected these arguments and found Mr. Janusas guilty. Lederer J. upheld this decision.

Argument

[7] On behalf of Mr. Janusas, Mr. Harris submits that the summary conviction appeal judge erred in failing,

a) to find that the trial Crown (and the trial judge) conceded that Mr. Janusas had an honest belief in his colour of right to do what he did;

b) to hold that the colour of right defence entitled Mr. Janusas to an acquittal because Mr. Pileggi's use of the laneway was unlawful on the basis that it did not comply with the required by-law width (and, therefore, Mr. Janusas was not interfering with the "lawful" use of property, and could not be convicted of mischief on that basis);

c) to find that the trial judge did not breach his duty to Mr. Janusas, as an unrepresented litigant, by not explaining to him that if he did not testify he would not be able to establish his honest belief in his colour of right; and,

d) to hold that the trial judge's reasons were insufficient regarding the colour of right defence.

Analysis and Disposition

[8] We would not grant leave to appeal.

[9] Before and since the decision of Doherty J.A. in R. v. R.R., 2008 ONCA 497, [2008] O.J. No. 2468, this Court has only granted leave to appeal in summary conviction cases sparingly. An appeal to this Court in those circumstances represents a second level of appeal. Leave is only granted with respect to an error of law and then only when (1) the appeal raises important legal questions having significance to the general administration of criminal justice beyond the particular case, and (2) the merits of the appeal are strong. Leave may be granted where criterion (1) is met, even where the merits of the appeal may not be particularly strong, though the grounds must be at least arguable. As well, where the merits are "very strong," leave may be granted even if the issues have not great general significance. See R.R., at para. 37.

[10] Here, Mr. Janusas' proposed appeal does not cross the first threshold. The issue outlined in para. 7(a) above is not an issue giving rise to an error in law; at best, it is a question of mixed law and fact. The issues outlined in paras. 7(b) and (d) involve questions of law, but not questions of law that have jurisprudential significance beyond the boundaries of this case. The issue raised in para. 7(c) – the trial judge's duty to an unrepresented accused – is an issue of public importance, but again, as it arises here, does not go beyond the parameters of this case. The real dispute is not so much the legal extent of the trial judge's duty to an unrepresented accused, but rather a fact-specific inquiry into whether the trial judge's decision not to give advice about the evidentiary burden of the colour of right defence resulted in an unfair trial. In any event, the principles applying in such circumstances have been fully articulated in this Court's earlier decision in R. v. Tran, (2001), 2001 CanLII 5555 (ON CA), 156 C.C.C. (3d) 1 (Ont. C.A.).

[11] Mr. Harris submits that, even if the issues raised do not go beyond this particular case, the merits of the appeal are strong and leave should nonetheless be granted. We do not see it the same way and are not persuaded that the merits are sufficiently strong to counterbalance the lack of general importance in the issues raised.

[12] The transcript does not support Mr. Janusas' theory that the trial Crown (and the trial judge) implicitly conceded the honesty of his belief in the legality of his actions, thereby lulling him into believing that he need not testify. In other respects, there was evidence to support the trial judge's finding that Mr. Janusas did not have an honest belief in the legality of his actions, and the Summary Court Appeal judge made no error in accepting this finding. Moreover, we are not persuaded that the Summary Court Appeal judge erred in upholding the trial judge's finding that Mr. Janusas' conduct interfered with the lawful use of the laneway by Mr. Pigelli, either for the purposes of driving his car over it or for other uses to which he could have put the laneway but for the obstruction put in place by Mr. Janusas.

Disposition

[13] The application for leave to appeal is therefore dismissed.

"J.C. MacPherson J.A."

"J.M. Simmons J.A."

"R.A. Blair J.A."