Court File and Parties
Ontario Court of Justice
Date: September 5, 2025
Court File No.: Newmarket 4911-998-24-91110589-00
Between:
His Majesty the King
— and —
Leon Stanley Wickham
Before: Justice Michael Perlin
Heard on: July 16, August 7, and September 4, 2025
Reasons for Judgment released on: September 5, 2025
Counsel:
Lindsay Young — counsel for the Crown
The defendant Leon Wickham — on his own behalf
Reasons for Judgment
Perlin J.:
A. Overview
[1] Leon Wickham is charged with assault. He represented himself at trial. There were three Crown witnesses: Marika Edwards; Michael Green; and David Velaapin. Mr. Wickham chose not to testify or call other defence evidence. On the day judgment was to be delivered, Mr. Wickham applied to re-open his cross-examination of Ms. Edwards. The Crown consented and I allowed further cross-examination.
[2] Ms. Edwards is the complainant. She and her ex-husband own a large residential property in Richmond Hill, which Mr. Wickham leases and lives in.
[3] Ms. Edwards was notified by the City of Richmond Hill that it had detected a continuous water flow on the property, which may have been indicative of a water leak. On November 14, 2024, she attended the property with Mr. Green and Mr. Velaapin, two plumbers whom she had hired to investigate the issue.
[4] The evidence of all three witnesses was consistent that Ms. Edwards knocked and rang the doorbell. After receiving no answer, Ms. Edwards used a key to unlock the door and enter. While the witnesses' evidence varied on precisely what happened next, they agreed that while Ms. Edwards was in the process of entering, Mr. Wickham (whom they all identified in court) loudly confronted her and used his hands to push her out. There has been no suggestion that this was consensual. Whether this conduct is a criminal assault depends on the application of the defence of property in s. 35 of the Criminal Code, R.S.C. 1985, c. C-46.
B. Issues
[5] To determine whether Mr. Wickham has a valid defence under s. 35, I will (1) make findings of fact, (2) discuss general principles regarding the defence of property, and (3) discuss the application of each of its four elements.
C. Analysis
1. Factual findings
[6] Ms. Edwards testified that she attended the property after providing proper notice. (I will discuss the notice issue later in these reasons.) She met the plumbers. They investigated the water issue in a second unit at the property, not occupied by Mr. Wickham's family. Next, she attended Mr. Wickham's unit. She rang the doorbell and knocked. She unlocked the door, yelled "hello" several times and entered. She recalls putting her key in her pocket and turning to the plumbers who were behind her, still outside the front door. She was three or four feet inside when she found Mr. Wickham in her face yelling "Get out". She testified that Mr. Wickham's son tried to shut the door and that Mr. Wickham shoved her several times toward the door. He turned her around and shoved her "super hard" on her back, expelling her from the property. He closed the door.
[7] Some things became clear during Ms. Edwards' testimony—particularly during cross examination by Mr. Wickham and in further cross-examination when she was recalled. The landlord-tenant relationship between them has become highly acrimonious. Ms. Edwards disagrees with Mr. Wickham on many issues relating to the tenancy. She expressed frustration with what she believes to have been thwarted, legal efforts to manage the property while Mr. Wickham has resided in it. In her evidence, including when she was recalled, she referred to ongoing proceedings in other forums relating to the property. Many of these issues fall far beyond the scope of these proceedings. I do not need to resolve them and do not have an evidentiary record to do so.
[8] The acrimonious relationship is relevant in that it gives me reason to be cautious about Ms. Edwards' evidence. In light of the issues between Mr. Wickham and Ms. Edwards, the Crown and Mr. Wickham both urge me to rely on the evidence of Mr. Green and Mr. Velaapin. Neither witness had any relationship of any significance with either Ms. Edwards or Mr. Wickham. They are independent and have no apparent reason to mislead the court.
[9] Mr. Green testified that the whole altercation took "a minute or less". Ms. Edwards,
knocked three times, rung [sic] the doorbell a few times, and then, once […] there was no luck with that, she, uh, attempted to enter. Used the key. Uh, she put one foot in, as soon as she got to the doorway, then she met, um, she met Leon, I believe, uh, Mr. Wickham, and he just, as soon as she went in, he just pushed her out. That was just basically it. She kind of fell backwards into me.
[10] Mr. Green had been standing behind Ms. Edwards. He testified that Mr. Wickham "seemed a bit excited" saying "you're not supposed to be doing that". He recalled hearing, "[y]ou did not give notice. You can't come in here. Are you crazy?" He recalled after "the shoving", hearing Mr. Wickham say, "this is not right". He recalled Ms. Edwards "was in shock maybe".
[11] Mr. Velaapin testified that Ms. Edwards rang the doorbell three times and knocked on the door three times. She then used her key and announced her presence. He testified that "[w]hen she opened the door [Mr. Wickham] kinda shouted at her to get out of the house. That's when there were a few segments of struggling. And then she was just pushed out."
[12] Mr. Wickham argues that I should reject Ms. Edwards' evidence because it is inconsistent with the evidence of Mr. Green and Mr. Velaapin in some respects. For example, she testified that she entered three or four feet into the home. Mr. Green testified she only entered about one foot. Mr. Velaapin disagreed with aspects of Ms. Edwards' account.
[13] I am not persuaded that any inconsistencies between their evidence are significant or undermine Ms. Edwards' credibility. All three witnesses provided varying accounts on precisely what happened. This is not surprising, as they were each asked—in different ways—to parse the details of an exceedingly short interaction that occurred about eight months earlier. I do not find that the variations undermine the credibility or reliability of their overall accounts.
[14] I accept the evidence of all three witnesses on the points on which they agree. First, Ms. Edwards rang the doorbell and knocked on the door. Second, she was in the process of entering when Mr. Wickham confronted her. Third, Mr. Wickham used his hands to push Ms. Edwards out of the home. Fourth, in the very brief time surrounding the pushing, Mr. Wickham made various utterances: like "get out" (as Ms. Edwards and Mr. Green recalled) or "get the fuck out" (as Mr. Velaapin recalled), "[y]ou did not give notice. You can't come in here. Are you crazy?" (as Mr. Green recalled), and "this is not right" or "you're not supposed to be doing that" (as Mr. Green recalled).
[15] Further, I accept the evidence of Mr. Green that the pushing expelled Ms. Edwards from the home causing her to fall back into Mr. Green, who was standing behind her when all this occurred. This evidence is consistent with Ms. Edwards' description of a final, forceful shove that expelled her from the property. Mr. Velaapin did not describe this event. He also did not suggest it did not occur.
[16] Mr. Wickham asks the court to conclude that Ms. Edwards was an equal aggressor in this interaction. He submits that in cross-examination Mr. Velaapin described Ms. Edwards trying to push the door open while the accused pushed back against the door. In Mr. Wickham's submission, Mr. Velaapin's evidence depicted Ms. Edwards physically resisting Mr. Wickham's efforts to expel her.
[17] Having listened carefully to Mr. Velaapin's recorded evidence, I do not understand him to have described a struggle in which Ms. Edwards was an aggressor, actively resisting Mr. Wickham's efforts to expel her. I do not understand Mr. Velaapin to have suggested that Ms. Edwards pushed on the door, appearing to know that someone else was on the opposite side.
[18] Rather, I understand him to have testified that Ms. Edwards was leaning on the door simply to enter, at which point she faced resistance – the accused or his son pushing back against the door and then the accused pushing her body with his hands. Mr. Velaapin testified that he observed Mr. Wickham "trying to, uh, put her out of the house, firstly pushing the door." I do not understand Mr. Velaapin to have suggested that Ms. Edwards, upon facing resistance, responded with force of her own. Mr. Velaapin testified that at that point he heard Mr. Wickham tell Ms. Edwards, "just to get out of the house". He described Ms. Edwards' response to Mr. Wickham's initial efforts to expel her: she "was still trying to remove the key and just trying to remove her feet from where she was in the door and the outside". She was able to do that "after you kind of push her".
[19] Elsewhere in his evidence, Mr. Velaapin described a "struggle". Mr. Wickham pointed to this as evidence that Ms. Edwards was an aggressor. I reject that interpretation of the evidence. I understand Mr. Velaapin to have used the word "struggle" as a synonym for "altercation", without intending to suggest that the altercation involved two mutual aggressors. Elsewhere in his evidence he described what he meant by "struggle". He testified that when Ms. Edwards "opened the door [you, Mr. Wickham] kinda shouted at her to get out of the house. That's when there were a few segments of struggling. And then she was just pushed out." He explained, "the struggling was like trying to push her out […] the door. And then she was like pushed with the hands."
[20] In any event, if I am wrong and there is any ambiguity in Mr. Velaapin's evidence and whether it suggests Ms. Edwards was also an aggressor, the record contains the evidence of Mr. Green, describing Mr. Wickham as the only aggressor and Ms. Edwards as simply a recipient of that aggression. I accept this unambiguous description of the events to be true. I reject Mr. Wickham's suggestion that the evidence shows Ms. Edwards was an aggressor. The evidence does not raise any doubt on that issue.
2. The defence of property
[21] The defence of property is found in s. 35(1) of the Criminal Code. It provides a complete defence to an offence where
i. The accused believes "on reasonable grounds that they are in peaceable possession of property",
ii. The accused believes "on reasonable grounds that another person […] is about to enter, is entering or has entered the property without being entitled by law to do so",
iii. The "act that constitutes the offence" was "committed for the purpose of […] removing that person from the property" and
iv. The "act committed" was "reasonable in the circumstances".
[22] I am satisfied that the defence of property has an air of reality in this case and I must consider it. The air of reality test is satisfied where "there is evidence on the record upon which a properly instructed jury acting reasonably could acquit": see e.g., R. v. Edowen, 2021 ONSC 2157, at paras. 16-18. As I will explain, two elements of the defence are clearly satisfied, and there is a live dispute whether the others are satisfied. The defence is in play.[1]
[23] Once the defence is in play, Mr. Wickham, as the accused, has no burden of proof. His defence will succeed unless the Crown discharges its burden of proof. The Crown's burden is to prove beyond a reasonable doubt that at least one element of the defence is absent: see e.g., R. v. Khill, 2021 SCC 37, at para. 18.
3. Elements 1 and 3: peaceable possession and defensive purpose
[24] The Crown concedes it cannot prove the first and third elements are absent. I agree.
[25] Although Mr. Wickham did not testify, I accept he believed on reasonable grounds that he was in peaceable possession of the property. The trial record includes emails and text-messages between Ms. Edwards and a phone number and email address she used to correspond with Mr. Wickham. The email address is in his name. The email signature refers to the phone number with which Ms. Edwards was corresponding. I find that he authored, or was at least aware of, the correspondence purportedly from him. The text messages to Ms. Edwards assert Mr. Wickham's right to "[q]uiet enjoyment" of the property. His subjective belief that he had peaceable possession of the property was objectively reasonable. He and his family, as tenants, enjoyed statutory rights to privacy and "reasonable enjoyment of the rental unit": see Residential Tenancies Act, 2006, S.O. 2006, c. 17, ss. 22, 25.
[26] The third branch of the defence is a defensive purpose – i.e., that the offence (here, the alleged assault) was committed to prevent entry of, or remove, an intruder. I accept Mr. Wickham applied force to remove Ms. Edwards from the property, which she had entered or was at least in the process of entering. His utterances to Ms. Edwards that she "get out" or "get the fuck out" and his actions in pushing her out show his intention was to expel a person he believed was an intruder.
4. Element 2: reasonable belief of no lawful authority to enter
[27] A landlord's authority to enter a tenanted property with notice is found in s. 27 the Residential Tenancies Act. In part, s. 27(1) provides that "[a] landlord may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry […] [t]o carry out a repair or replacement or do work in the rental unit." Subsection 27(3) specifies that "[t]he written notice under subsection (1) […] shall specify the reason for entry, the day of entry and a time of entry between the hours of 8 a.m. and 8 p.m." Subsection 191(1) provides that "[a] notice or document is sufficiently given to a person" if it is delivered in various ways, including "(d) by leaving it in the mail box where mail is ordinarily delivered to the person" or "(e) if there is no mail box, by leaving it at the place where mail is ordinarily delivered to the person". The Act does not require that the notice be received for the notice to be effective.
[28] I am satisfied that Mr. Wickham subjectively believed Ms. Edwards lacked lawful authority to enter. Although he did not testify, his utterances during the alleged assault suggest he subjectively believed Ms. Edwards was entering unlawfully: "[y]ou did not give notice. You can't come in here. Are you crazy?"
[29] There are good reasons to question whether Mr. Wickham's belief was objectively reasonable. A reasonable person in Mr. Wickham's situation on November 14 would have expected Ms. Edwards to enter only if she had good reason to believe she was doing so lawfully. I accept Ms. Edwards' evidence that she drafted a notice letter referrable to November 14 (exhibit 3) and believed it had been delivered. It was apparent from the various forms of correspondence that were exhibits at trial—including those she was cross-examined on when she was recalled—that Ms. Edwards was diligently trying to comply with the requirements of the Act. She believed she needed to enter the property with plumbers and was trying to do so lawfully. In text messages, she told Mr. Wickham this letter had been left for him. They debated the effectiveness of serving notice in that manner. Even if the notice was not received, a reasonable person in the circumstances informed of the law would have known that for notice to be effective, notice must be provided, but need not be received. The reasonable person would also know that Ms. Edwards was trying to comply with the law as she understood it. These factors undermine the objective reasonableness of Mr. Wickham's belief that Ms. Edwards would enter without at least believing she had lawful authority.
[30] That said, I find that the Crown has not proved beyond a reasonable doubt that Mr. Wickham's belief that Ms. Edwards lacked lawful authority was objectively unreasonable. This is because the Crown did not prove that the notice was given, so has not established Ms. Edwards had lawful authority to enter.
[31] A notice letter (exhibit 1) was initially provided to Mr. Wickham on November 2 for a proposed November 9 entry with plumbers. In his text messages with Ms. Edwards on November 2 (exhibit 2), Mr. Wickham demonstrated knowledge of the letter's contents, implicitly showing he had received it. However, Ms. Edwards did not attend on November 9. The letter providing notice of entry for November 9 could not authorize her entry on November 14, when the alleged assault occurred. Subsection 27(3) of the Act requires that notice specify "the day of entry".
[32] Ms. Edwards testified that a second notice letter—providing notice of entry for November 14 (exhibit 3)—was left outside the doorway to the rental property by either her or her ex-husband. She could not recall whether she or her ex-husband had delivered that letter. In a text message she sent to Mr. Wickham shortly after the letter was purportedly delivered, Ms. Edwards wrote "[a] letter has been dropped off to you". The passive voice suggests that Ms. Edwards had not personally delivered the letter. In the text messages between the parties, Ms. Edwards sometimes referred to letters having been dropped off, and at other times refers to having personally delivered a letter: i.e., "I left you a letter at your front door."
[33] I cannot find that Ms. Edwards personally delivered the letter. She believed that if she did not deliver it, her ex-husband did. She did not explain why she held this belief. It would appear to be based on inadmissible hearsay. The Crown called no other evidence to prove the letter was delivered.
[34] The Crown points to the text exchange on November 8 after the letter was purportedly delivered. In it, Ms. Edwards told Mr. Wickham a letter had been delivered. He responded he "would not have received the letter" unless it was put in the mailbox. These texts do not prove the letter was delivered. Ms. Edwards' text reflects her belief, potentially based on hearsay, that the letter had been delivered. In Mr. Wickham's texts, it is apparent that he understood the letter to be about notice to enter the property. I do not take this an implicit admission to having received the letter: it would have been clear that the letter Ms. Edwards referenced was a notice letter, even without receiving it; the text messages on November 8 follow days of text messages back and forth about notice to enter. Mr. Wickham's texts come close, but ultimately do not satisfy me that notice was provided.
[35] On this record, I cannot find that notice was provided. In the absence of notice, I cannot find there was lawful authority to enter. Absent proof that there was lawful authority, I cannot say Mr. Wickham's belief that there was no lawful authority was objectively unreasonable. This branch of the defence is satisfied. To be clear, I do not find his belief was objectively reasonable; I only find that the Crown has not proven beyond a reasonable doubt that it was objectively unreasonable.
[36] Having reached this conclusion, I need not address the arguments on whether the proposed manner of service (leaving a letter outside the front door) was sufficient or whether the purpose of Ms. Edwards' entry (to investigate the water issue) provided a lawful basis for her to enter if notice was provided.
5. Element 4: was the force used reasonable in the circumstances?
a. The reasonableness standard under s. 35(1)(d)
[37] The reasonableness standard is objective. The analysis is conducted from the perspective of a reasonable person in the circumstances of the accused, armed with the information known to the accused: see e.g., R. v. Fleming, 2014 ONCJ 26, at para. 19; R. v. Green, 2017 ONCJ 705, at para. 85. There is no closed list of factors that a court should consider in determining whether conduct in defence of property is reasonable under s. 35(1)(d). The provision directs courts to consider "the circumstances", which I take to mean all relevant circumstances.
[38] When deciding which circumstances are relevant, it may be helpful to refer to the enumerated factors that a court must consider when applying the self-defence provision in s. 34 of the Criminal Code. Both ss. 34 and 35 include a requirement that "the act committed is reasonable in the circumstances." In s. 34—but not s. 35—Parliament listed factors that a court must consider when conducting the reasonableness analysis.
[39] I do not understand Parliament's decision to omit a list of factors in s. 35 as a direction that courts may not consider the s. 34 factors in applying s. 35. Parliament chose to make the factors mandatory only under s. 34, so needed to list them there, but not under s. 35. Parliament clearly saw the factors as important indicators of whether defensive conduct is reasonable. Although they are not mandatory under s. 35, a court may find them helpful when assessing whether a defensive purpose in relation to property can justify criminal conduct.
[40] I accept that necessity and proportionality of the accused's response are important indicia of reasonableness. Provisions like s. 35 have long been interpreted in accordance with the common-law principle that force used to defend person or property must be no more than necessary to defend and must not be disproportionate "to the injury or harm [the force] is intended to prevent". When discussing provisions like s. 35, the Supreme Court has treated the concept of reasonable force as synonymous with both proportionality and necessity. See R. v. Szczerbaniwicz, 2010 SCC 15, at paras. 20, 21; R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.), at p. 113; R. v. Gunning, 2005 SCC 27, at paras. 24-25; R. v. Khill, 2021 SCC 37, at paras. 62, 63; Manning, Mewett & Sankoff: Criminal Law, 5th ed., at paras. 14.63-64.
[41] I accept the Crown's submission that the court should consider other options open to the accused at the time. Doing so helps to assess whether the option selected was necessary and proportionate. Other options may include using less force, or even waiting before responding: see e.g., R. v. Trudeau, 2017 ONCJ 793, at para. 95.
[42] The reasonableness standard does not require perfection. Assessed in hindsight and outside the "stressful and dangerous situation" faced by an accused person, it might be easy to find alternative options or to say that the force used was excessive. Recognizing this, our law provides that when defensive force is applied, it need not be weighed to a nicety and may be invoked based on reasonable mistakes of fact: see e.g., Szczerbaniwicz, at para. 35, per Binnie J. (dissenting, but not on this point); R. v. Cunha, 2016 ONCA 491, at paras. 7-8, 24-27 (discussing s. 34). The s. 35 defence will succeed unless the Crown proves beyond a reasonable doubt that the force used was not reasonable in the circumstances.
b. Was the force used reasonable in the circumstances?
[43] As noted above, the evidence disclosed a short sequence of events in which the complainant was in the process of entering the residence, and was perhaps only a foot past the threshold, when the accused yelled at her, demanded that she leave, and used his hands to push her out the door. He pushed her hard enough to cause her to fall back into Mr. Green.
[44] In deciding whether this response was proportionate, I have considered the threat Ms. Edwards posed. I find it was negligible. A reasonable person in Mr. Wickham's shoes, with his knowledge, would have found no urgent need to expel her from the property immediately. Mr. Wickham and Ms. Edwards knew one another. I find based on Mr. Wickham's utterances—"[y]ou did not give notice. You can't come in here."—his unchanged, angry demeanour throughout their entire interaction on November 14, and his close proximity to her when he shoved her that he recognized Ms. Edwards as he began shoving her. Their prior correspondence demonstrates he knew she wished to enter the property with plumbers to investigate a plumbing issue. He knew from the texts on November 8 that she took the view that she had provided proper notice to enter. A reasonable person in his situation with this knowledge would have perceived little if any threat: a landlord, known to him, who was entering to address a plumbing issue, albeit at an unexpected time (assuming the second notice letter was not received). There was no true threat to his property rights. There is no suggestion that Ms. Edwards or the men she was with were, or appeared to be, armed. A reasonable person would not have perceived that Ms. Edwards and the men meant to cause Mr. Wickham or his family any harm, meant to occupy, damage or steal from the property, or meant to displace Mr. Wickham's family from it. A reasonable person would have expected Ms. Edwards and the plumbers to investigate the water issue, perhaps make repairs, and leave. Assuming notice was not provided, at most, the intrusion involved a violation of the Residential Tenancies Act by someone who would have the right to enter—even over Mr. Wickham's express objections—simply by complying with the notice provisions of that Act.
[45] Mr. Wickham emphasized that Ms. Edwards is taller than him. That may be so. But it does not undermine my conclusion that the threat she posed to Mr. Wickham was negligible. As noted above, I do not accept Mr. Wickham's submission that the evidence suggests Ms. Edwards was the aggressor, applying physical force to try to enter the property over Mr. Wickham's protests. I reject that interpretation of the evidence.
[46] The force used was more than necessary to address that threat. I am satisfied that there were other clear options open to Mr. Wickham that he should have taken before resorting to violence, even allowing for the fact that Mr. Wickham may have experienced stress, surprise and anger at seeing Ms. Edwards entering his home unexpectedly. A conversation was the logical first step. Only if that failed should he have contemplated more aggressive actions. People should generally not be allowed to resort to physical violence to defend a very minor intrusion into real property without first at least trying to use words to resolve the situation.
[47] Another option would have been to loudly protest Ms. Edwards' entry and demand—even angrily—that she leave. Mr. Wickham did demand that Ms. Edwards "get out" or "get the fuck out". However, he did so either immediately before, immediately after, or while pushing her. This was not a reasonable approach in the circumstances. At a minimum, upon demanding that Ms. Edwards leave, Mr. Wickham needed to give her reasonable time to do so before using physical force to expel her.
[48] Going further and pushing her was unreasonable. I am satisfied that Mr. Wickham's choice to forcefully push Ms. Edwards out of his home was entirely disproportionate to the negligible threat she posed.
D. Disposition
[49] People in Canada enjoy the right to defend their real property from reasonably perceived unlawful threats, but only when they take reasonable steps to do so. On the facts of this case, the force used was a clearly disproportionate response to a negligible threat. I am satisfied beyond a reasonable doubt that it was unreasonable for Mr. Wickham to push Ms. Edwards forcefully out of the property.
[50] Since I am satisfied beyond a reasonable doubt that Mr. Wickham did not use reasonable force in the circumstances, within the meaning of s. 35(1)(d), his defence under s. 35 fails. I find him guilty of assault.
Released: September 5, 2025
Signed: Justice Michael Perlin
Footnote
[1] Considering my findings that Ms. Edwards was not an aggressor, there is no air of reality to the defence of person under s. 34(1). There was no air of reality that Mr. Wickham could have believed on reasonable grounds that force was being used against him or someone else, or that there was a threat of such force (s. 34(1)(a)). There is no air of reality for a suggestion that the act of pushing was committed to defend Mr. Wickham or another person from force or a threat of force (s. 34(1)(b)).