Court File and Parties

Court File No.: CR16-045-0000 Date: 2017-02-21

Ontario Superior Court of Justice

Between: Her Majesty the Queen Mr. Michael Martin, for the Crown

- and -

Steve Scott Henry Ms. Lori MacIntosh, for the Accused Accused

Heard: February 13, 14, 15 & 16, 2017

Reasons for Judgment

Conlan J.

I. Introduction

[1] Alone at the home that she used to share with the accused, one evening in late June 2016, Monica Blais was terrorized at the hands of her ex-husband, Steven Henry.

[2] He showed up unannounced, three years and some after their separation. Litigation was ongoing. Months had passed since a consent Order had been made by a Superior Court Judge. That Order contemplated that she would live there until he paid her $10,000.00 dollars; then she had sixty days to vacate the home.

[3] He had paid her the money, but the sixty days had not yet elapsed.

[4] As the sole title holder of the home, he grew impatient. Though that is an understatement.

[5] As she dozed off on the couch with her little dog, he tried to force his way into the home. They exchanged words. Still outside, he went wild. He grabbed a baseball bat that was on the deck and started smashing the kitchen window. She grabbed her rifle and fired off a shot.

[6] That only enraged him further. He went to the sliding glass door and whacked and whacked it with the bat, eventually causing a large hole through which he stuck his head. She managed to put another shell in the gun and fired a second time.

[7] He continued to smash through the sliding door, showering her with the broken shards of glass.

[8] She went for a third round, however, he disappeared, ending the altercation.

[9] It turns out that he had been shot in the chest.

[10] It all sounds like a horror film, but according to Ms. Blais, it was no work of fiction. It happened. He was trying to enter that house to, in her eyes, kill her.

[11] Mr. Henry has not much to say about the basic facts, really.

[12] In his police statement given the next morning, he confessed to many of the underpinnings of the offences: (i) that he knocked on the door, but she would not answer (page 3 of the transcript); (ii) that he smashed the kitchen window and the side window and then was shot (page 4); (iii) that he did what he did because “it’s my fucking house” (page 5); and (iv) that he just “lost it” and “fucked up” (pages 11 and 12).

[13] At trial, Mr. Henry again admitted many of the salient facts. He smashed the kitchen window. He smashed one of the panes of glass in the sliding door. He did those things to enter the home, although he stated that was simply to retrieve the keys. Once he saw Ms. Blais inside, he stopped the smashing of the glass. He never intended for any glass to shower Ms. Blais, nor did he see any broken glass spray into the home. She fired a shot. He took off.

[14] In cross-examination at trial, very soon after it commenced, Mr. Henry admitted that he knew, on June 30th, that Ms. Blais did not have to be out of the house until July 9th. That was by virtue of the Court Order made in the family case.

The Background

[15] None of the following is in dispute.

[16] Ms. Blais was born in 1962. Mr. Henry was born in 1958.

[17] The parties met in 2003. They have no children together.

[18] Ms. Blais and Mr. Henry, soon after they met, moved in together in a rather isolated and very modest home near Oliphant, Ontario. 174 Oliphant Way, to be precise.

[19] They married in April 2005, and they separated in September 2013.

[20] Post-separation, Ms. Blais continued to reside at 174 Oliphant Way. Mr. Henry did not.

[21] Family litigation ensued between the parties. They each had counsel.

[22] In the course of the family litigation, an Order was made on February 3, 2016, in accordance with Minutes of Settlement. In other words, it was made on consent. The parties were divorced. Clauses 6 and 15 of the Order read as follows:

6. The Applicant, Mary Monica Blais Henry, shall vacate the matrimonial home within sixty (60) days of receiving ten thousand dollars ($10,000.00). The Applicant, Mary Monica Blais Henry, shall remove only her personal belongings and will leave the Respondent, Steven Scott Henry’s possessions at the property.

7. The Respondent, Steven Scott Henry, shall have exclusive possession of the matrimonial home from April 2, 2016, onward.

[23] After much back and forth between the lawyers, ‎the $10,000.00 was paid on May 10, 2016.

[24] The sixty days elapsed more than a week after the date of the altercation on June 30, 2016.

[25] Only Mr. Henry's name was on the Deed of the property at 174 Oliphant Way.

The Charges and Their Essential Elements

[26] There are three offences before the Court.

[27] Mr. Henry is charged with assault with a weapon. The formal charge reads:

COUNT 1: HER MAJESTY THE QUEEN PRESENTS THAT STEVE SCOTT HENRY on the 30th day of June, 2016, at the Municipality of South Bruce Peninsula, in the said region did in committing an assault upon Mary Blaise carry a weapon to wit, a baseball bat, contrary to Section 267 (a) of the Criminal Code of Canada.

[28] I pause here to note two housekeeping items. Mary Blaise is the same person as Monica Blais. I used “Monica Blais” above in these Reasons because she gave that name when she was affirmed in the witness box at trial. And Steve Scott Henry is the same person as Steven Henry. I used “Steven” above as that was the name referenced by Ms. Blais in her evidence at trial, and that was how the accused gave his name when he testified.

[29] For the Court to find Mr. Henry guilty of assault with a weapon, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that Mr. Henry intentionally applied force to Ms. Blais; ii. that Ms. Blais did not consent to the force that Mr. Henry intentionally applied; iii. that Mr. Henry knew that Ms. Blais did not consent to the force that he intentionally applied; and iv. that a weapon was involved in Mr. Henry’s assault of Ms. Blais.

[30] If Crown counsel has not satisfied me beyond a reasonable doubt of each of those essential elements, I must find Mr. Henry not guilty of assault with a weapon.

[31] Mr. Henry is also charged with attempted break and enter, with intent. The formal charge reads:

COUNT 2: AND STEVE SCOTT HENRY FURTHER STANDS CHARGED THAT on or about the 30th day of June, 2016 at the Municipality of South Bruce Peninsula, in said region did attempt to break and enter a certain place, to wit, a dwelling house situate at 174 Oliphant Way, in the Municipality of South Bruce Peninsula, with the intent of committing an indictable offence therein, contrary to Section 348(1) (b) of the Criminal Code of Canada.

[32] For the Court to find Mr. Henry guilty on count 2, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that Mr. Henry attempted to break and enter a place, namely, the dwelling house at 174 Oliphant Way; and ii. that Mr. Henry did that with the intent of committing an indictable offence therein.

[33] If the Crown has not satisfied me beyond a reasonable doubt of each of those essential elements, I must find Mr. Henry not guilty of attempted break and enter, with intent.

[34] Finally, Mr. Henry is charged with attempted forcible entry. The formal charge reads:

COUNT 3: AND STEVE SCOTT HENRY FURTHER STANDS CHARGED THAT on or about the 30th day of June, 2016 at the Municipality of South Bruce Peninsula, in said region did attempt to commit a forcible entry into real property located at 174 Oliphant Way, in the Municipality of South Bruce Peninsula, a property which at the time was in the actual and peaceable possession of MARY BLAISE, in a manner which was likely to cause a breach of the peace or the reasonable apprehension of a breach of the peace, contrary to section 72 of the Criminal Code of Canada.

[35] For the Court to find Mr. Henry guilty on count 3, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that Mr. Henry attempted to forcibly enter real property, namely, the dwelling house at 174 Oliphant Way; ii. that the said property was, at the time, in the actual and peaceable possession of Ms. Blais; and iii. that Mr. Henry’s attempted forcible entry was likely to cause a breach of the peace or a reasonable apprehension of a breach of the peace.

[36] If the Crown has not satisfied me beyond a reasonable doubt of each of those essential elements, I must find Mr. Henry not guilty of attempted forcible entry.

The Basic Legal Principles

[37] Mr. Henry is presumed to be innocent of every charge that he is facing. He has no burden to prove anything.

[38] The Crown must prove, beyond a reasonable doubt, every essential element of each charge.

[39] Beyond a reasonable doubt means more than proof of probable or likely guilt. But it falls short of proof to an absolute certainty. It requires that the Court be sure of the guilt of the accused before finding him so.

[40] Of course, the verdicts need not be the same across the three counts.

[41] As Mr. Henry testified, a W.(D.) instruction is required. That does not really fit here, though, because Mr. Henry’s own evidence at trial was inculpatory in many respects. It is not accurate to say that, for example, if the Court accepts his evidence, he must be acquitted of the charges.

[42] There are parts of Mr. Henry’s evidence, however, that are exculpatory. If I believe those parts, or if I am left with a reasonable doubt as a result of that evidence, then Mr. Henry must be acquitted of the offence in question.

[43] For example, Mr. Henry was adamant at trial that he never intended to and never did in fact hit or injure Ms. Blais with anything, whether the baseball bat or broken glass. If I accept that evidence, or if I am left with a reasonable doubt because of it, then the accused cannot be found guilty of the assault with a weapon charge.

[44] As another example, Mr. Henry testified at trial that he had no intention of committing any offence inside the home, such as hurting Ms. Blais, once he entered. If I accept that evidence, or if I am left with a reasonable doubt because of it, then Mr. Henry must be acquitted of the attempted break and enter with intent charge.

[45] As a third example, Mr. Henry testified at trial that he caused no damage to any glass and did not in any way try to enter the home once he discovered for the first time that Ms. Blais was inside. That evidence, if believed or if it leaves the Court with a reasonable doubt, must result in an acquittal on the attempted forcible entry charge.

[46] On each of the three charges, even if I am not left with a reasonable doubt by the evidence of Mr. Henry, he still must be acquitted unless the rest of the evidence at trial that I do accept convinces me of his guilt beyond a reasonable doubt.

The Trial

[47] This trial took place in Owen Sound over four days in February 2017.

[48] For the Crown, I heard from Ms. Blais, her son Richard Gagnon, and three police officers: Michael Ouwendyk, Mark Thompson and Henry Thalen. The first two officers were called simply to outline the investigative steps taken in the hours following the incident, including the search for the accused, his ultimate arrest at a friend’s place in Sauble Beach, and his treatment at the hospital where a bullet was removed from his chest area. Detective Thalen was called to introduce the accused’s audio-video statement to the police given just after 4:00 a.m. on July 1st (less than 12 hours after the incident).

[49] The voluntariness of that statement was conceded by the Defence. There was no Charter Application.

[50] Mr. Gagnon arrived at the house moments after Mr. Henry disappeared on June 30th. He actually saw the accused in the vicinity. He had rushed to the property after receiving a text from his mother that stated simply "help". There was a physical altercation between Mr. Gagnon and Mr. Henry not far from the property.

[51] For the Defence, I heard from the accused, Mr. Henry, and his friend, Ronald Milne.

[52] There were times when Mr. Henry’s testimony was difficult to follow. For example, on the important matter of when he thought Ms. Blais had to be out of the house, he gave at least four different answers: (i) on July 9th, (ii) on July 1st, (iii) at midnight on June 30th, and (iv) some time prior to June 30th. As another example, on whether he intended anything nefarious when he arrived at the property on June 30th, Mr. Henry agreed with the Crown’s suggestion near the end of cross-examination that he went there to do what the legal system was not doing – to get her out of the house. He admitted further that, immediately after leaving the property, he knew that he had done wrong. Yet he also testified that he had no intention of entering the home, never mind committing any offence inside it, once he knew that Ms. Blais was there.

[53] As for Defence witness Ronald Milne, the accused’s friend, that evidence hurt the accused more than it helped him. Mr. Henry had testified that he was not aware of Ms. Blais being at the home on June 30th when he first arrived, nor did he suspect that she likely was. That is contrary to the evidence of Mr. Milne that Mr. Henry had arranged for some of his friends to accompany him onto the property on July 1st in order to be the accused’s witnesses in the event that the police became involved. Police involvement was not at all unlikely as, according to Mr. Milne, as of June 30th, everyone, including Mr. Henry, “figured” or believed that Ms. Blais was probably still there.

II. Analysis

Count 1 – Assault with a Weapon

[54] The Defence makes three submissions on this count. I will address each one of them.

[55] First, the Defence submits that Ms. Blais is not credible, and thus, the Court cannot be satisfied that she was sprayed with glass as a result of Mr. Henry smashing the sliding door. I disagree.

[56] Not a single internal inconsistency in her testimony at trial, material or otherwise, was pointed out by Defence counsel with regard to the evidence of Ms. Blais.

[57] Not a single prior inconsistent statement, material or otherwise, was pointed out by Defence counsel with regard to the evidence of Ms. Blais.

[58] I reject the submission by the Defence that Ms. Blais was not truthful with the police at the scene, for example, in advising that she had shot at Mr. Henry. She did tell Detective Thompson that, very shortly after he arrived at the property and within seconds of them speaking about the incident. She stated that “I think I shot him in the stomach”.

[59] I reject the submission by the Defence that Ms. Blais’ evidence was materially inconsistent with that of her son, Mr. Gagnon. It was not. She testified to remembering one text message that she sent to her son, “help”. He mentioned having received two texts from her. There is no evidence, however, that the message about the accused being at the mailbox was sent around the same time as the “help” text. In fact, the testimony of Mr. Gagnon about very poor cellular telephone reception in the area supports the real possibility that the two messages were not sent around the same time. Besides, whether one or two texts were sent is largely immaterial, in my view. As for the weapons around the house that Ms. Blais admitted to but which Mr. Gagnon was unaware of, that is not an inconsistency. It is simply a function of the fact that Ms. Blais did not display the weapons or the rifle in her son’s presence.

[60] Second, the Defence submits that there is insufficient evidence before the Court that Ms. Blais was sprayed or showered with broken glass. I disagree.

[61] I accept the evidence of Ms. Blais in that regard. There were pieces of broken glass in her face, hair and clothing.

[62] That evidence is corroborated by the photographs of the scene. Numerous small pieces of shattered glass are evident in the area of the couch, where Ms. Blais was standing when Mr. Henry was smashing the sliding glass door.

[63] That evidence also makes common sense. If one is standing on the other side of glass that is being struck with a baseball bat, that glass is likely to move in the direction of the swinging, towards the inside of the home, if indeed the pane breaks.

[64] That evidence is also consistent with the police evidence, which I accept. Detective Thompson testified to observing shattered glass in the area where Ms. Blais stated she was standing.

[65] Third, the Defence submits that the glass that struck Ms. Blais may have been from the gun shot. I reject that submission as being wholly speculative. There is absolutely no evidence to support that as being a reasonable possibility, not even from Mr. Henry. Further, it is contrary to the evidence of Ms. Blais, whom I believe.

[66] I make the following findings. Mr. Henry smashed the kitchen window with the baseball bat, a weapon. Both he and Ms. Blais agree on that. Mr. Henry then smashed the sliding glass door with the same bat. Both he and Ms. Blais agree on that. At least some of the smashing of the sliding glass door occurred after Mr. Henry knew that Ms. Blais was inside the home, just feet away from the accused who was outside on the deck. I accept Ms. Blais’ evidence on that point. She testified that he looked into her eyes and continued smashing the sliding glass door with the bat. The smashing of the sliding glass door caused a hole in the glass such that Mr. Henry stuck his head through it and into the interior of the home. I accept Ms. Blais’ evidence on that point. The accused’s smashing of the sliding glass door caused broken shards to hit Ms. Blais, something that Mr. Henry intended or at least was a natural consequence of Mr. Henry’s reckless conduct. I accept Ms. Blais’ evidence on that point. Consent and honest but mistaken belief in consent are not live issues in this case.

[67] Those findings constitute the offence of assault with a weapon. It is unnecessary to address the Crown’s alternative argument about an assault by act or gesture but absent any broken glass actually hitting Ms. Blais.

[68] I must pause here to comment on the evidence of Mr. Henry. I do not believe his denial of smashing the sliding glass door all the way through, or his denial of knowing that Ms. Blais was there while he smashed it, or his denial of sticking his head through the opening of the glass, or his denial of wanting to hurt Ms. Blais.

[69] Nor am I left with a reasonable doubt as a result of the evidence of Mr. Henry.

[70] The evidence of Ms. Blais, coupled with the photographs, clearly demonstrate that the sliding glass door was broken all the way through, including the screen.

[71] The photographs illustrate that the hole was large enough for the accused to have stuck his head through. It makes perfect sense that he did so in order to get a better look at the rifle that he saw Ms. Blais trying to load.

[72] On whether Mr. Henry knew that Ms. Blais was there, I find that he knew that for certain once he tried the locked door and heard her voice and the barking of the dog, before he smashed any glass. But he suspected that even earlier, as evidenced by the testimony of Mr. Milne, which I accept. He suspected that she was home before he walked up the driveway. As Mr. Henry told the police officer hours after the incident, he went there on June 30th to kick her out of the house (page 5 of the transcript).

[73] As for his intentions, I am convinced that, once he realized that the door was locked, that Ms. Blais was for certain inside, and that she was not about to let him in, he intended to enter that home however he could. He “lost it”, as he told the police officer (page 11 of the transcript); he “fucked up” (page 12). He wanted to hurt Ms. Blais.

[74] There are a host of reasons why this Court must reject the denials of Mr. Henry. They are inconsistent with the evidence that I do accept, particularly Ms. Blais and Mr. Milne. In some respects, they are inconsistent with the accused’s own police statement, which evidence I prefer as it was given within hours of the incident. And they are a product of a witness, Mr. Henry, who said some clearly outrageous things while in the witness box.

[75] Just a few examples of the latter are (i) his comment that he is not a violent person and has never intended to harm Ms. Blais, in the face of his conviction for assaulting her (Exhibit 1); (ii) the moving target of when he thought he could move back to the house; and (iii) his testimony that he did not know that he had been shot even though he saw Ms. Blais point a gun at him, immediately felt pain in his chest and was bleeding.

Count 2 – Attempted Break and Enter, with Intent

[76] The Defence makes one submission, namely, that Mr. Henry did not have any criminal intent, mens rea, because it was his house, and he had every right to be there. I disagree.

[77] The Crown has filed three helpful decisions on the defence of colour of right. The following is taken from paragraph 10 of an older decision of the Court of Appeal for Ontario in R. v. Ainey, [1980] O.J. No. 1081.

10 When we turn to the issue of “colour of right” the Court must consider whether there was an honest belief in a state of facts which, if they actually existed, would at law excuse the act done. The test for the determination of the presence of an honest belief is a subjective one, and, although the unreasonableness of the belief is a factor in determining the truthfulness of the accused’s claim that he holds such a belief, it does not of itself necessarily negative colour of right. The learned trial judge did not direct his mind to this issue in light of that statement of principle.

[78] In R. v. Pena, [1997] B.C.J. No. 1405, Josephson J. of the British Columbia Supreme Court stated the following, at paragraph 22.

22 As set out in Howson, DeMarco, Cinq-Mars and Creaghan, supra, there are three conditions to the application of the defence of colour of right:

1. The accused must be mistaken about the state of a private law, not a moral right.
2. That law, if it existed, would provide a legal justification or excuse.
3. The mistaken belief must be honestly held.

[79] More recently, the Supreme Court of Canada held as follows, at paragraphs 31-32 of its decision in R. v. Simpson, 2015 SCC 40, [2015] S.C.J. No. 40.

[31] The colour of right defence is most commonly invoked in relation to the offence of theft under s. 322 of the Code, which prohibits the taking of an object or its conversion “fraudulently and without colour of right”. In R. v. DeMarco (1973), 13 C.C.C. (2d) 369 (Ont. C.A.), at p. 372, Martin J.A. described the term “colour of right” in that section as follows:

The term “colour of right” generally, although not exclusively, refers to a situation where there is an assertion of a proprietary or possessory right to the thing which is the subject-matter of the alleged theft. One who is honestly asserting what he believes to be an honest claim cannot be said to act “without colour of right”, even though it may be unfounded in law or in fact . . . . The term “colour of right” is also used to denote an honest belief in a state of facts which, if it actually existed would at law justify or excuse the act done . . . . The term when used in the latter sense is merely a particular application of the doctrine of mistake of fact. [Citations omitted.]

The colour of right defence would also appear to apply to other property-related offences, including breaking and entering: R. v. Adgey, [1975] 2 S.C.R. 426, at pp. 432-33; R. v. Charters, 2007 NBCA 66, 319 N.B.R. (2d) 179, at para. 12.

[32] To put the defence of colour of right into play, an accused bears the onus of showing that there is an “air of reality” to the asserted defence — i.e., whether there is some evidence upon which a trier of fact, properly instructed and acting reasonably, could be left in a state of reasonable doubt about colour of right: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 49-53 and 83. Once this hurdle is met, the burden falls on the Crown to disprove the defence beyond a reasonable doubt. Applying these principles here, the respondents bore the burden of pointing to some evidence upon which a trier of fact could be left in a state of reasonable doubt about the respondents’ asserted claim of a colour of right to occupy the commercial space.

[80] Clause 6 of the consent Court Order made in February 2016 (Exhibit 3 at trial) is crystal clear. Even Mr. Henry testified at trial that he was aware of and understood that provision on June 30th. He was to pay Ms. Blais $10,000.00. Once that was done, she had sixty days to get out of the house.

[81] It is undisputed that the money was paid on May 10, 2016.

[82] Obviously, June 30th is less than sixty days after May 10th. Hence, Ms. Blais had no obligation to vacate the home before or on June 30th, and Mr. Henry had no right to be there on June 30th.

[83] The Order clearly contemplates only one of the two persons living at the home. Clause 15 must be read in conjunction with clause 6.

[84] Not even the lawyers on the family case were relying upon clause 15. Exhibits 4 and 5, the correspondence between them, all confirm that.

[85] And not even Mr. Henry was relying upon clause 15. His police statement and his testimony at trial both support that.

[86] If clause 15 was the governing provision, regardless of anything else in the Court Order, then neither Mr. Henry nor his family lawyer would have had any concern about the $10,000.00. Once April 2nd arrived, he would have simply moved back home.

[87] By the Defence, this trial became an expose on why Ms. Blais was procrastinating in getting out of the house. That has nothing to do with my task. If Mr. Henry or his family lawyer thought that Ms. Blais and/or her family lawyer was/were dragging their feet in accepting the $10,000.00, or if Mr. Henry or his family lawyer thought that Ms. Blais had already been paid all or some of the $10,000.00 as a result of drawing funds from a line of credit, then the family case ought to have been brought back to Court to vary the consent Order made in February 2016. Self-help was not the appropriate course of action for Mr. Henry to have taken.

[88] I conclude that not even the first criterion of a colour of right defence exists here; Mr. Henry had no honest belief that he had the right to enter the home on June 30th. He either thought that he could enter sixty days after May 10th, or he thought that he could enter at midnight on June 30th/July 1st, or he thought that he could enter on July 1st, all things that he testified to at trial.

[89] Although Mr. Henry also said at trial that he thought that he could move back to the home well before June 30th, I reject that. If he thought that, then he would have done so.

[90] Yes, Mr. Henry’s name, alone, was on title to the home. That is neither here nor there. Having dismissed the only argument made by the Defence, and having already indicated that I accept the evidence of Ms. Blais, and having already outlined the reasons for neither accepting nor being left in a reasonable doubt by the denials of Mr. Henry, I find that Mr. Henry did attempt to break and enter the home on the date in question. He did so by smashing the glass.

[91] What did he intend to do once inside? As already alluded to, I find that he intended to forcibly remove Ms. Blais, which forcible ejection would have necessarily included the indictable offence of assault. Thus, count 2 is made out.

Count 3 – Attempted Forcible Entry

[92] First, a word about the governing law. The following is taken from paragraphs 21 and 23 of the decision of the Court of Appeal for Ontario in R. v. J.D., [2002] O.J. No. 4916.

[21] My reading of s. 72(1) also assists in arriving at the shared meaning of s. 72(1.1). While the English version speaks of an intention to take possession of the property as being immaterial, the French version speaks of an intention to take over the property for good or definitely as immaterial. An interpretation of the provisions which requires a taking of possession in the sense of an interference with the peaceable possession of the person in actual possession, but does not require an intention to take over possession of the property is consistent with the French and English versions of the sections and the purpose of the section. For example, an intruder who forces his or her way into a home over the objection of the person in actual possession intending only to run through the house and out the back door would have no intention of taking over possession of the residence in any permanent sense. The intruder’s conduct would, however, interfere, albeit briefly, with the owner’s peaceable possession of the residence. On my reading of s. 72(1) and s. 72(1.1), the fact that the intruder intended only to run through the house and out the back door would not foreclose conviction for forcible entry since there was a taking of possession in that there was an interference, albeit a brief one, with the peaceable possession of the person in actual possession of the property: see R. v. Nickerson, [1997] B.C.J. No. 3121 (B.C. Prov. Ct.) at para. 31.

[23] The direct link between the manner in which possession is taken and the breach or apprehended breach of the peace found in the language of s. 72(1) is consistent with the purpose underlying the offence, that being to prevent breaches of the peace which can arise from confrontations between those seeking to take possession of real property and those in actual and peaceable possession of that real property.

[93] The Defence makes two submissions. I reject them both.

[94] I disagree that Ms. Blais was not in peaceable possession of the home on June 30th. Her evidence and the clear wording of clause 6 of the consent Order prove that she was.

[95] And I disagree that Mr. Henry did not intend to regain possession of the home for himself. Beyond the fact that the said submission overlooks the legal test as set out in the decision cited above, which test does not require any intention by Mr. Henry to permanently take back possession of the property, the facts prove that the accused did clearly intend exactly that. As he told the police officer, he went there to kick her out of the house (page 5 of the transcript).

[96] Having dismissed the two arguments made by the Defence, and having already indicated that I accept the evidence of Ms. Blais and reject the denials of Mr. Henry, I find that Mr. Henry did attempt to forcibly enter the home on the date in question. He did so by smashing the glass.

Other Submissions Made by the Defence

[97] There were a few other arguments raised by the Defence, and those can be dealt with summarily.

[98] The Defence takes issue with the post-offence conduct evidence relied upon by the Crown, namely, that Mr. Henry fled to a friend’s place in Sauble Beach instead of reporting the shooting and the beating by Mr. Gagnon to the authorities and/or seeking medical assistance. I need not address that. Every essential element of every charge has been proven by the prosecution without regard to the post-offence conduct evidence.

[99] The Defence attacks the credibility of Mr. Gagnon. It matters not. His evidence is not necessary to make out any of the charges.

[100] The Defence attacks Ms. Blais for things like keeping a rifle in the living room, unlocked. I do not find that to adversely affect her credibility. It only serves to bolster her genuine fear of the accused.

III. Conclusion

[101] I am sure that (i) Mr. Henry assaulted Ms. Blais while using a weapon (the bat), (ii) he attempted to break and enter the home with the intention of assaulting Ms. Blais and forcibly removing her, and (iii) he attempted to forcibly enter the home in a way that caused a breach of the peace.

[102] The only thing that saved the situation from getting even worse was Ms. Blais firing the rifle. Fortunately, that ended Mr. Henry’s attempted armed intrusion. And, also fortunately, Mr. Henry was not killed or more seriously wounded.

[103] For all of the reasons outlined above, I find Mr. Henry guilty on all counts.

[104] Any submissions on the applicability of the Kienapple principle will be entertained at the time of sentencing.

Conlan J. Released: February 21, 2017