Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Denis Robitaille

Before: Justice David Paciocco

Reasons for Judgment released on: March 21, 2012

Counsel:

• Ms. Louise Tansey-Miller for the Crown
• Ms. Meaghan Thomas for the accused Denis Robitaille

PACIOCCO J.:

[1] Charges and Facts

Denis Robitaille was charged with a number of offences including breaking and entering into 304-B 2041 Arrowsmith Drive and committing therein the indictable offence of assault, contrary to section 348(1)(b) of the Criminal Code of Canada. This was alleged to have occurred on 23 December 2010 in the context of a domestic disturbance involving Mr. Robitaille and Ms. Candyrose Freeman. Mr. Robitaille did apply force against Ms. Freeman in that apartment unit on the evening in question. During the trial it was also proved beyond a reasonable doubt that before this happened Mr. Robitaille kicked his way into unit 304-B, causing extensive damage to the external door.

The prosecution of the break and enter charge nonetheless failed because the Crown did not prove that Mr. Robitaille was not lawfully entitled to enter unit 304-B. If he was lawfully entitled to be in the apartment, he could force his way in without committing a break and entry. In this case no evidence was led that would enable me to conclude that he was not a leaseholder. Indeed, the only pertinent evidence before me was that while Ms. Freeman lived there for several years and was clearly entitled to possession of the apartment unit, Mr. Robitaille had been living with Ms. Freeman in unit 304-B for approximately a year before 23 December 2010 and was still living there at the time. I therefore had a reasonable doubt about whether Mr. Robitaille was lawfully entitled to enter the apartment, even over Ms. Freeman's protests. I also had a reasonable doubt whether he had the right to use the modest degree of physical resistance he did to keep from being evicted from the apartment by Ms. Freeman. He was accordingly acquitted of both the break enter and commit an indictable offence charge, and the assault charge.

The Crown has asked that I nonetheless convict Mr. Robitaille of mischief, contrary to section 430(1) of the Criminal Code of Canada for having kicked down the door, on the basis that mischief is an "included offence" within the break, enter and commit an indictable offence charge contrary to section 348(1)(b).

[2] Crown's Mischief Theory

The Crown's mischief theory is not based on damage to the apartment building itself. This is no doubt because no evidence was led as to who owned the building, again necessarily leaving me in a reasonable doubt as to whether Mr. Robitaille had damaged someone else's property. The theory of the Crown is that even if Mr. Robitaille had lawful authority to enter and break his way into the apartment unit, the damage to the external door interfered with Ms. Freeman's lawful enjoyment of the property. It is obvious that it would have. The locking mechanism from the door, required to secure the apartment was clearly inoperable given the damage to the door. On the facts before me, Ms. Freeman would have been left without the security required to fully enjoy the property.

Ms. Thomas therefore concedes on behalf of Mr. Robitaille that if mischief had been charged, Mr. Robitaille's act of kicking the door down in the circumstances would have supported a conviction. The sole question is therefore whether mischief is an included offence within the meaning of section 662(1) of the Criminal Code of Canada in the charge of break and enter that was laid.

[3] The Test for Included Offences

The test for whether an offence is "included" was described by the Supreme Court of Canada in R. v. G.R., 2005 SCC 45, at para. 25:

"An offence is 'included' if its elements are embraced in the offence charged (as described in the enactment creating it or as charged in the count) or if it is expressly stated to be included in the Criminal Code itself."

The Court cautioned that the test is strict. The offence must "necessarily" be included in the sense that it is an "apparent and essential constituent of the offence charged": R. v. G.R. at para. 26, citing R. v. Manuel (1960), 128 C.C.C. 383 (B.C.C.A.). In other words, if it is possible to commit the charged offence without committing the offence the Crown is seeking conviction for, then the offence the Crown is seeking conviction for is not an "included offence."

[4] Fair Trial Protections

The purpose of this strict requirement was described in R. v. G.R. at para. 2: "It is fundamental to a fair trial that an accused knows the charge or charges he or she must meet." The Crown has argued in its written submissions that disclosure put Mr. Robitaille on notice that his break and enter charge was predicated upon his act of kicking in the door and therefore he should have come prepared to defend against the mischief charge. The issue, however, is not what the accused knows about the facts of the case when coming into the courtroom, whether from disclosure or personal knowledge: R. v. G.R. at para. 40. It is whether the accused is aware "from the indictment the offence or offences with which he is faced" that he would face the charge the Crown ultimately seeks to convict him of: R. v. Harmer and Miller (1977), 33 C.C.C. (2d) 17 at 10.

The pertinent question is whether the break and enter charge that was laid against Mr. Robitaille necessarily alerted him that he was also facing an allegation that he committed the offence of mischief.

[5] Three Modes of Inclusion

In R. v. G.R. at para. 29 Justice Binnie explained that there are only three ways in which an offence can come to be included in a charged offence:

(a) offence included by statute, e.g., those offences specified in s.662(2) to (6), and attempt provided for in s.660;

(b) offences included in the enactment creating the offence charged, e.g., common assault in a charge of sexual assault;

(c) offences which become included by the addition of apt words of description in the principle charge.

[6] First Mode: Statutory Inclusion

The first mode can quickly be dispensed with here. There are no relevant statutory provisions making the offence of mischief an included offence in the offence of break and enter and commit contrary to section 348(1)(b) of the Criminal Code of Canada.

[7] Second Mode: Inclusion in the Enactment

Nor is the offence of mischief an included offence in the enactment creating the charge. This is so even though the offence of mischief contrary to section 430 of the Criminal Code of Canada can be committed in 4 distinct ways, namely, where a person wilfully:

(a) destroys or damages property;

(b) renders property dangerous, useless, inoperative or ineffective;

(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.

It is entirely possible for the offence of break and enter and commit an indictable offence contrary to section 348(1)(b) to be committed without committing mischief in any form.

[8] Constructive Breaking

With respect to the offence in section 430(a), in spite of the usual meaning of the term "break" it is entirely possible to "break" into a place without destroying or damaging any property. Similarly, it is possible to do so without rendering property dangerous, useless, inoperative or ineffective contrary to section 430(b). This is because the law of break and enter includes concepts of "constructive breaking" which can be apply if the accused simply opens anything that is intended to be used to close or cover an internal or external opening and enters (s.321 of the Criminal Code of Canada), or gains entry by artifice (s.350(b)(i) of the Criminal Code of Canada) or enters through a permanent opening such as a chimney (s.350(b)(ii) of the Criminal Code of Canada).

[9] Actual Interference Required

Nor is it necessary in order to commit break and enter and commit an indictable offence contrary to section 348(1)(b) to "obstruct, interrupt or interfere with the lawful use, enjoyment or operation of the property" or "obstruct, interrupt or interfere with any person in the lawful use, enjoyment or operation of property." To be sure, in the abstract the simple fact of a break and entry can create a sense on the part of an owner that the sanctity of their place has been violated, but included offences cannot be predicated upon abstract notions. As the Ontario Court of Appeal put it in R. v. Beyo at para. 33, "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." The offence of mischief is predicated upon proof of actual interference with the enjoyment of property.

[10] Hypothetical Examples

In R. v. Beyo the Court posited a case in which someone committed an unlawful entry that the owner never learned about. Were this to happen the offence of unlawful entry would be committed but there would be no impact, even an emotional impact, on the ability of the owner to enjoy their property. Hence mischief is not an included offence where unlawful entry has been charged. The same can be said where a break and entry occurs, even one in which an indictable offence has occurred inside. For example, there is no legal requirement that the indictable offence occur against the interest of the property owner whose place is broken into. Someone could break into a restaurant and steal from a common area a coat that belongs to a restaurant patron. If that theft was never reported by the coat-owner to the restaurant owner the break and enter would have no impact on the enjoyment of the place by the restaurant by the owner.

[11] Mischief Not Necessarily Included

The offence of mischief is therefore not necessarily committed whenever a break and enter and commit an indictable offence occurs, contrary to section 348(1)(b). While it is extremely likely that something satisfying the mischief offence will occur during a break and entry where an indictable offence is committed that is not the legal standard. Before qualifying as an included offence, the relevant offence must necessarily be committed every time the offence charged is committed. This is manifestly not the case for mischief when a break and enter and commit is charged.

[12] Distinguishing R. v. Schizgal

The Crown relies upon the decision of R. v. Schizgal, [2001] B.C.J. No. 646 (B.C.C.A.), in which the B.C.C.A. found that mischief was an included offence in a charge of break, enter and commit contrary to section 348(1)(b). The B.C.C.A. did not, however, make this finding on the footing that the offence of mischief is included in the enactment of section 348(1)(b). Schizgal turned on the fact that the wording of the specific offence charged against Mr. Schizgal described the offence of mischief. Specifically Mr. Schizgal was charged with "break and enter a place, a dwelling house ... and commit the indictable offence therein, mischief." Mr. Schizgal was therefore alerted that he should come prepared to defend a mischief allegation not by section 348(1)(b) but by the specific wording of the information.

Schizgal is an illustration of the third mode in which an offence can come to be included in a charge – "by the addition of apt words of description in the principle charge." In this case, there are no comparable words in the offence charged that would have alerted Mr. Robitaille that he would be facing a mischief charge.

[13] Conclusion

In conclusion, in this case none of the required modes for qualifying mischief as an included offence in the charge of break and enter and commit an indictable offence contrary to section 348(1)(b) are present. There is no statutory provision making mischief an included offence in a break and enter charge; the charge of break and enter and commit an indictable offence can be committed without the offence of mischief occurring, and there are no words in the specific allegation against Mr. Robitaille alerting him that he is being prosecuted for the offence of mischief. That being so, even though the evidence shows that Mr. Robitaille committed the offence mischief he cannot be convicted of the offence of mischief. I therefore find Mr. Robitaille not guilty of the offence of mischief.

[14] Sentencing

Mr. Robitaille will be sentenced solely on Count 1 for breaching his probation by failing to keep the peace and be of good behaviour as required by his probation order of 23 December 2009, which was then in force.

Released: March 21, 2012

The Honourable Justice David M. Paciocco