Court File and Parties

Court File No.: 11/11268 Date: August 26, 2014 Ontario Court of Justice

Between: Her Majesty the Queen — and — Michael Edward Mosgrove

Before: Justice Ronald A. Marion

Heard: July 10, 2014

Counsel:

• S. Pratt, for the Crown
• F. Miller, for the Accused

MARION J.: REASONS FOR JUDGMENT

1: THE PROCEEDING

[1] Mr. Mosgrove is charged on Count 1, that on or about March 29, 2011, at the Town of Essex he committed an assault on Siham Dirrhami contrary to s. 266 of the Criminal Code of Canada. On Count 2, that on or about March 29, 2011 he uttered a threat to Siham Dirrhami to cause death and bodily harm to Siham Dirrhami contrary to s. 264.1(1)(a) of the Criminal Code of Canada.

[2] The complainant and accused are former common-law spouses. They are the parents of a 10 year old child. Identity, date and jurisdiction were not an issue.

[3] The parties have, it appears, concluded the disentangling of their financial matters and continue to be engaged in negotiation of the terms of access by Mr. Mosgrove with his daughter.

[4] It is clear from the evidence that the financial resolution reached is not satisfactory to the complainant. The accused appears to have continuing concerns with regard to access to his daughter.

[5] There is no dispute that some altercation between the two parties occurred on March 29, 2011. A video viewed during the trial illustrated the extent of the altercation. What is in dispute, is the surrounding circumstances that gave rise to the confrontation. Essentially, Mr. Mosgrove contends that the complainant was a trespasser on his property on the evening in question and that any use of force by himself was in defence of property and reasonable.

[6] Ms. Siham Dirrhami, the complainant, gave evidence and made a number of allegations against Mr. Mosgrove and police services. In significant areas, the parties gave conflicting evidence and credibility is a major issue in this trial.

2: THE LAW

[7] The law governing self-defence and the defence of property was changed on March 11, 2013. The repealed legislation applicable in this case is as follows:

"41(1) Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary."

[8] The new legislation is as follows:

"35(1) A person is not guilty of an offence if

(a) every one in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;

(b) they believe on reasonable grounds that another person

(i) is about to enter, is entering or has entered the property without being entitled by law to do so,

(ii) is about to take the property, is doing so or has just done so, or

(iii) is about to damage or destroy the property, or make it inoperative, or is doing so;

(c) the act that constitutes the offence is committed for the purpose of

(i) preventing the other person from entering the property, or removing that person from the property, or

(ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and

(d) the act committed is reasonable in the circumstances."

2.1: Which Legislation Applies?

[9] The legislation is silent as to its retrospective application. The Court of Appeal has not addressed whether the new self-defence provisions should apply to trials involving events occurring prior to the effective date of the Citizen's Arrest and Self-Defence Act, S.C. 2012, c. 9 on March 11, 2013. [1] It is my view that the regime existing at the time of the offence applies. There is, however, some argument that the new legislation applies retrospectively if it affords an accused a defence which may not have been recognized in the pre-existing legislation. This submission would be premised on the principle that it is fundamentally unjust that someone could be convicted of an offence which is no longer considered a crime.

[10] The prevailing view in Ontario is that the new legislation applies to cases tried after the operative date for alleged events occurring before the operative date. [2] In my view, this would be the case provided it does not eliminate a defence available to an accused.

[11] In my opinion, it is not necessary for me in this case to arrive at a determination of retrospectivity. I will outline the facts in this case and then my analysis as it applies to both regimes. The repealed legislation and new legislation, as they apply to the facts of this case, are substantially similar. The same principles apply as to availability of the defence.

3: THE FACTS

[12] The complainant drove to 1019 Erie St. South, in the Town of Essex. This residential property is owned by FSD Inc., a company owned and operated by the accused. When asked if the complainant had given Mr. Mosgrove some notice that she was coming to the property, she said she must have given him a call. Mr. Mosgrove said he did not receive any prior notice nor did he give her permission to come onto the property. Mr. Mosgrove also said he had exclusive possession of the residential property. She drove up the driveway, went through the garage and entered the residence by using the door from inside the garage. Words were exchanged between the two. There was no evidence of an expressed or an implied invitation for her to come onto the property.

[13] The complainant was taking issue with the corporation FSD Inc. and the accused's connection to the company. She said Mr. Mosgrove did not appreciate her words and came at her in a threatening fashion, but they only exchanged words in the house. Mr. Mosgrove said that on the way out of the residence the complainant picked up a can filled with gas and she threatened to torch the house. He removed it from her hands and told her to leave. In giving her evidence, Ms. Dirrhami stated that she does not remember any of the conversation she had with Mr. Mosgrove on the night in question but stated that she did not threaten to set fire to the house or pick up a gas can.

[14] The video camera affixed to the house displays a good view of the driveway entrance. On exiting the house, she gets into her car and closes the car door. Mr. Mosgrove follows her to the driver's side and opens the car door. He testified that he was telling her to calm down and trying to ensure that his access to his daughter was not affected negatively by the night's events. He opened the car door twice. After he opened the car door the second time, Ms. Dirrhami got out as if striding to go back to the house. She pushes by him with incidental minor contact. He then appears to prevent her forward progress by placing his forearm across her upper chest and shoulders pushing her against the car. No further contact between the parties occurred. No blows or gesturing to that effect occurred.

[15] The complainant explained that she was getting out of the car and was going around Mr. Mosgrove to get back in the driver's seat. This explanation is absurd. The video does display Ms. Dirrhami's momentum as being in the direction of the house. Mr. Mosgrove stated that he did not want her to go back into the house in view of her previous threat which he perceived as real.

[16] The video shows that she gets back into the car and he leaves and goes into the house. She backs out to the end of the driveway but then drives forward toward the house and re-enters with the car lights on and the driver's door open. Mr. Mosgrove said he did not leave his chair when she re-entered briefly. She is then seen leaving hurriedly and driving away. He said that he took her threats to torch the house seriously based on past experiences.

[17] Ms. Dirrhami made allegations of previously reported incidents of assault. Police records revealed none. She claimed to have documents and a video tape of police attending her mother's residence and apologizing to her for failing to follow up prior incident reports. She made numerous allegations of a proprietary nature regarding the accused and FSD Inc. None of these allegations were corroborated. She was provided a brief adjournment to produce the video which she claimed to be in the possession of her mother however she never produced it after the trial resumed.

[18] Police records, as requested by counsel for the Crown, did not reveal any choking incident as allegedly reported in 2008 by the complainant to Windsor Police. Ms. Dirrhami claimed she went to the house because her personal "stuff" is in that home. She admits smirking at the camera when he pinned her against the car. She said she would "...have my day in court because I'm going to prove what he did to me." Ms. Dirrhami appeared to be particularly troubled by the fact that she believes Mr. Mosgrove cheated her out of a fair property settlement.

[19] The accused testified. He was the sole occupant of the residence at 1019 Erie Street South, in the Town of Essex. When she came in, he said, she was angry because he was on the computer with a girlfriend. They argued and she took a gas can and said she would burn down the house with him in it. He said he watched her from the window the first time after she got into her car. She did not leave so he went out to tell her to calm down and discuss access to his daughter. He says he told her to leave and when she tried to get out and walk in the direction of the house he prevented her from entering.

[20] There is an unfortunate and bitter history between Mr. Mosgrove and Ms. Dirrhami. She is evidently angry at what she described as an unfair prior relationship. She was clearly pleased that some form of physical contact was captured on the security video as she testified that it confirmed an alleged prior abusive relationship.

4: ANALYSIS

[21] The Crown bears the burden of proving that an assault took place. Where there is an "air of reality" on each of the constituent elements of the defence of property, the Crown bears the burden of establishing beyond a reasonable doubt that the defendant did not act in defence of property.

[22] The four elements of the offence under the new legislation are:

1. Was the accused in peaceable possession of the property;
2. Did the accused believe on reasonable grounds that the complainant was about to enter or attempt to enter or damage the property;
3. Was he acting to prevent her entering the property; and
4. Was the action he took reasonable?

[23] Under the old legislation there is reference to "peaceable possession", using force to prevent trespassing but the use of force must not be any more than necessary.

[24] There is an air of reality to the defence in this case. Ms. Dirrhami acknowledges she was upset when she attended the residence. She admits saying things that Mr. Mosgrove did not appreciate. Mr. Mosgrove gave evidence that she picked up a can of gas in the garage and threatened to burn down the house. These assertions are not inconsistent with his principal narrative. In addition, Ms. Dirrhami repeatedly said she could not recollect any of the verbal exchanges between the two on the evening in question. She did, however, deny making a threat as alleged.

[25] It is permissible for the trial judge to engage in limited weighing of the evidence to assess whether the elements of the defence can be inferred from the evidence. [3]

[26] There is no doubt that Mr. Mosgrove exercised some physical force in impeding Ms. Dirrhami's forward progress in the direction of the house. Ms. Dirrhami was, in effect, a trespasser when she attended at 1019 Erie Street South. She was not invited nor did she seek permission. It could be argued that she had implied consent, but based on evidence heard of the past experiences between the parties and ongoing animosity I cannot come to that conclusion.

[27] A person coming onto property may be an invitee but by virtue of their conduct may have their status expressly revoked by the lawful owner. A person may also be an invitee as it concerns some part of the property but a trespasser as it concerns another. For example, a person can be invited to come onto property to purchase goods which are on the property but not in the residence proper. If they enter the residence uninvited and without implied license they are trespassers. A person may also have an invitation or licence to enter property for a lawful or specific purpose but that status is lost once they engage in activity which is unlawful or unrelated to their anticipated use of the property.

[28] The Crown argues, if the old regime applies as follows:

"4. In the present case, the conduct of the accused calls into question the complainant's status as a "trespasser". When she first entered the home (where, notably, she stated to the Court that some of her belongings were kept), she was not immediately told to leave. Even in the driveway, after she apparently threatened to burn the house down, the accused testified that rather than telling her to leave, he embarked on a conversation about access to their daughter. Despite her apparent anger, it was the accused who opened her car door twice, after she had entered the car and closed the door, to continue the conversation.

5. After what he claims was his use of force to remove her from the property, she came back. She re-entered the house. The accused wasn't even sufficiently bothered to get out of her chair. This is not, the Crown respectfully submits, the actions of a person anxious to remove a trespasser from his property. The evidence before this Honourable Court proves that the complainant was not a trespasser. If that argument is accepted, a necessary element of the defence is absent. The defence must consequently fail."

[29] The status of a trespasser is not determined by the failure of the property owner to immediately respond by words to eject the person from his property. In the context of an ongoing parental link between the parties, some restraint would be reasonably expected in ensuring that the other custodial parent leaves the property. Mr. Mosgrove appeared to be content with Ms. Dirrhami being in her car, in his driveway, but this did not give her any license beyond that. He did instruct her to leave but tried to ensure that the event did not cause him more grief in seeing his daughter. There was no threat to himself or property when she was sitting in the car. His conduct in speaking with her did not, by words spoken or by implication, change her status.

[30] It is evident by his reaction that he did not perceive Ms. Dirrhami as having any licence to re-enter the residential property or venture outside of her car. There is no evidence that he invited her back in after telling her to leave.

[31] I am of the view that Ms. Dirrhami's status was that of a trespasser after she was instructed to leave. It was likely that her status was that of a trespasser during the entire time of her attendance at the property on the evening in question.

[32] Mr. Mosgrove testified that she had a gas can in her hand and threatened to burn down the house. He believed that this was a serious and real danger. Ms. Dirrhami denies she made such a threat but she has blanked out all recollection of words spoken between them that evening. Reasonable doubt must be resolved in favour of the accused. Any doubt as to the testimony of the accused that such a threat was made, where there is no recollection by Ms. Dirrhami, must be resolved in favour of the accused.

[33] As it concerns the force used to prevent Ms. Dirrhami from entering the house, no excessive force appears to have been used by Mr. Mosgrove. Ms. Dirrhami testified that she felt no pain and suffered no injuries, no bruising or marks. It can, under the circumstances, hardly be described as disproportionate or excessive. In view of the absence of any injury, marks or pain, her smirking on the video and her return into the house after the altercation, I have some concern as to whether the video truly illustrates the extent of the application of force to her or may have been subject to exaggeration.

[34] Ms. Dirrhami, after the altercation, drove to the end of the long driveway and paused there for a considerable time. She then drove back up the driveway to the house and re-entered. The Crown argues that the accused was not even bothered to get out of his chair at this point. It is argued that he could not have been worried about her threats or anxious to remove a trespasser. From the video, it appears she went into the house briefly and left hurriedly. She left the car running and lights on which signaled her intention to be brief and leave. There was no evidence to indicate her demeanour at this time. The accused simply testified he did not at this point perceive it was necessary to get up and take any action. It is fortunate that he did exercise restraint under the circumstances. In my view, it does not alter the validity of his previous perception of a threat nor Ms. Dirrhami's status as a trespasser.

[35] It is further argued that if the new legislative amendments are retrospective, there is a missing element in the defence in that the threat to property is not "about to" occur. When Mr. Mosgrove impedes Ms. Dirrhami in leaving her car and heading to the house, she had no gasoline can and she was 15 to 20 feet from the garage. It is argued that the threat presumably had dissipated. It is argued that the complainant was not "about to damage or destroy property" as set out in s. 35(1)(b)(iii) of the Code.

[36] Section 35(1)(b) provides a defence if a person believes on reasonable grounds, under subsection (i) that someone "is about to enter...the property without being entitled to do so," and in subsection (iii) "is about to damage property."

[37] The imminent nature of the threat in regard to property must, in these circumstances, not be taken to mean that the gas can must be held in one's hand and the match lit before a property owner acts. It is presumed by the legislation that entry on the property may not even have taken place. The reasonable connection between a threat made or perceived and the response to that threat must be reviewed in each case to give meaning to the phrase "about to" as set out in the legislation. In the circumstances of this case Mr. Mosgrove's act to impede her was reasonable as the threat had occurred minutes before the altercation.

[38] I find that Mr. Mosgrove was in peaceable possession. I also find that Ms. Dirrhami was a trespasser, at least at the time of the altercation. The Crown has failed to satisfy me beyond a reasonable doubt that the constituent elements of defence of property are not present. Under the old legislation, I would describe the force used by Mr. Mosgrove as "no more force than is necessary." Under the new legislation, I would describe his actions in preventing her to leave her vehicle as "reasonable in the circumstances."

[39] After reviewing the totality of the evidence, I find the accused not guilty of the charge of assault as described in count one.

[40] There was no evidence of any threat made to the complainant and Mr. Mosgrove will be found not guilty of the offence described in count two.

Released Orally: August 26, 2014

"released to Judicial Research"

Ronald A. Marion Justice

Footnotes

[1] See R. v. Mohamed at para. 53

[2] See R. v. Parker, 2013 ONCJ 195, [2013] O.J. No. 1755 (Q.L.) (O.C.J.) at para. 2 to para. 5, and see also R. v. Pandurevic

[3] See R. v. Cinous, 2002 SCC 29 at para. 13 and para. 91