Court File and Parties

CITATION: R. v. Foy, 2017 ONSC 7036

COURT FILE NO.: 15-1460

DATE: 2017/11/23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN, Respondent

AND:

FRANK FOY, Appellant

BEFORE: MR. JUSTICE CALUM MACLEOD

COUNSEL: Peter Napier, for the Crown Michael Swinwood, for the Appellant

HEARD: November 23, 2017

REASONS

[1] The appellant appeals to this court from his conviction on three criminal charges before the Honourable Justice R. Selkirk of the Ontario Court of Justice sitting in Pembroke on June 9^th, 2016. Following a short trial, Mr. Foy was convicted of “theft under” contrary to s. 334 (b) of the Criminal Code, “mischief” contrary to s. 430 (4) of the Code and “breach of an undertaking” contrary to s. 145 (5.1).

[2] The manner of proceeding at trial was unorthodox but it was approved by the appellant and his counsel. The question that arises on the appeal is a narrow one. Having admitted facts and agreed on the method of proceeding, can the appellant now complain about the result?

The Facts

[3] The appellant is the owner of lots 16 & 17, Concession 9 in the Township of North Algona. These are bush lots with no municipal access road and are adjoined by unpatented Crown land adjacent to Dan’s Lake which includes lots 18 & 19 to the west of the lake. The lots can be accessed by the Pakatina snowmobile trail which runs along an unopened road allowance between Concessions 9 & 10 and by a rough road that was apparently built by Mr. Foy’s grandfather but which runs in part over Crown land.

[4] At some point prior to the events in question, the appellant had been convicted of provincial offences relating to posting of no trespassing signs on Crown land. This is relevant because there had been an appeal which was heard by Justice Selkirk and which resulted in a guilty plea. Secondly, at the time these charges were laid Mr. Foy was subject to a probation order which prohibited him from posting items on Crown land.

[5] The current charges arose because it was alleged that Mr. Foy had once again been posting no trespassing signs on the road and along the snowmobile trail. He also apparently challenged people using the trail and advised them they were trespassing. In particular he challenged a Mr. Ronald Wagner who was on lot 18, Concession 9 and was intending to set up a portable hunt camp. Mr. Wagner left the hunt camp and subsequently gifted it to Darryl and Clayton Dumbroskie. When the Dumbroskie brothers went to get the camp, they found Mr. Foy dragging the walls behind his ATV and taking them to his property where he placed them behind a locked gate. He retained possession of the portable hunt camp locked on his property for a significant period of time before he apparently returned the walls to the Crown land.

[6] These events led to the three criminal charges as well as charges under the Provincial Offences Act. The criminal charges and the POA charges had been scheduled to be heard together and there had been a Judicial Pre-trial conducted by Justice Selkirk. At the time of this particular trial, the Crown (Mr. Quintal), the lawyer for the defence (Mr. McCann), the accused (Mr. Foy) and the judge (Justice Selkirk) were all familiar with the facts and much of the evidence that had previously been before the court.

[7] At the opening of the trial, the Crown advised Justice Selkirk of his previous involvement in the appeal and the pre-trial and it was confirmed that both the Crown and the accused consented to Justice Selkirk conducting the trial. The Crown also advised the court that counsel had been working on an agreed statement of facts in anticipation of a combined criminal and POA trial but in light of the recent decision in Saichi [sic] it was not permissible to have a joint trial.[^1] Instead it was proposed that the judge would conduct the criminal trial and deal with the POA offences separately.

[8] The Crown then advised the court of the admitted facts but did not file a written statement of agreed facts. Instead the facts were read into the record and it is apparent from the transcript that the facts included reference to exhibits used and marked up in earlier proceedings. There was also a number of questions posed by the court or by defence counsel which led to clarifications. Ultimately all of the facts stated by the Crown were admitted.

[9] Mr. McCann confirmed that the facts were admitted at page 11 of the transcript and at page 14. In fact he had added to the narrative by making his own contributions and by posing questions to Mr. Quintal. At no time did Mr. McCann suggest any discomfort with the admitted facts and when the Crown closed its case at page 15 of the transcript he indicated he would just call Mr. Foy. In fact at page 1 of the transcript, Mr. McCann had advised the court that “Mr. Foy is essentially admitted [sic] the Crown’s case.” He had indicated that Mr. Foy just wanted to take the stand and “give his version of his understanding of you know where the line is and what property he believes he owns”.

[10] As a consequence of the admitted facts, the Crown called no evidence.

[11] The accused was called to testify. In the course of his testimony he explained that there had at one time been some confusion about where the lots were located and he had at one time believed he owned the land to the west of Dan’s lake. In fact he testified that his grandfather had cattle there and at one time there had been a hunt camp and a barn. But he testified that the gate to his property was on lot 17.

[12] Mr. Foy also testified that as of at least 2006 he was aware that the MNR believed the land to the west of Dan’s Lake was Crown land. The critical point for the trial however was the fact that when questioned by the court, Mr. Foy agreed that the markings on the map marked A,B and D were outside the “grid” which he was showing the court. The “grid” referred to markings on a topographical map (prepared by the government of Canada) which Mr. Foy had at one time believed illustrated his land. These were the locations marked on the map where Mr. Foy had put up signs and from where he had taken the portable hunt club walls. The markings and their significance were part of the admissions on page 7 of the transcript.

[13] The confirmation by Mr. Foy that A, B and D were outside the area he had believed to be his land is found at page 27 of the transcript. Mr. McCann in response to the court’s question asked “Is that correct, Mr. Foy?” and the appellant answered in the affirmative. Mr. McCann then advised the court “I think that’s probably fair” before suggesting the map be marked as an exhibit. The appellant also agreed that he took the portable hunt camp and dragged it behind his gate where he kept it for at least three weeks. He did not offer any explanation or assert that he owned the portable hunt camp.

[14] When the Crown stood up to cross examine Mr. Foy, the judge indicated that he did not think it was necessary because “unless I’m missing something, there’s no need for any cross examination because Mr. Foy has identified that A D and B on Exhibit 5 are outside of his property.” The Crown then added “and he’s admitted to taking the property”. No one in the court room could at that point have been under any illusion about the significance attached to those admissions. When asked if he had any further evidence, Mr. McCann replied that he did not. He did not challenge the significance of the admissions when he made his submissions.

Analysis

[15] The notice of appeal listed several grounds for appeal but in argument Mr. Swinwood simply took the position that there should have been no conviction because the elements of the various offences had not been proven. It is important to note that the appeal was not based on any allegation of lack of capacity or understanding. Nor was there any allegation that Mr. McCann did not adequately represent the appellant.

[16] It is unusual for the Crown not to call any evidence but it is not necessary to do so if the facts are admitted. S. 655 of the Criminal Code provides that where an accused is on trial for an indictable offence, he or his counsel may admit any fact alleged against him for the purpose of dispensing with proof thereof”. By virtue of s. 795 of the Code this provision also applies to summary conviction offences. Providing the facts are stated clearly by the Crown and admitted by the accused then they are to be taken as conclusively proven.[^2]

[17] The elements of theft are made out if the accused fraudulently and without colour of right takes or converts to his use anything with intent to deprive the owner or a person who has an interest in it either temporarily or absolutely. The offence is committed when with intent to steal, the accused moves the item. On the admitted facts, the portable hunt camp did not belong to the appellant and he did not assert that any colour of right. By moving it behind his locked gate he deprived the owner of its use. Though I do not consider it material whether Mr. Dombroskie or Mr. Wagner was the rightful owner, the admitted facts are that Mr. Wagner gave it to Mr. Dombroskie. I would not interfere with this conviction.

[18] Mischief is committed when an accused wilfully interferes with the lawful use of property. The admissions indicate that the no trespassing signs were posted on Crown land and caused lawful users of the trail to turn back. The admissions also show that the appellant knew he was posting on land he did not own. Moreover the admissions show that even when provincial officials had changed the signs to green from red, the accused changed them back again. I would not interfere with this conviction.

[19] Finally there can be no doubt on these admissions that the appellant breached the terms of his probation order by carrying out the very activity he had been prohibited from doing. I would not interfere with the conviction under s. 145 (5.1).

[20] There were no submissions directed towards the sentences.

Conclusion

[21] In conclusion, I am satisfied that the admissions were sufficient to prove the elements of the offence and there was nothing in the evidence of the accused sufficient to displace those admissions or to raise a reasonable doubt. The sentencing submissions revealed that the appellant had previously been convicted of provincial offences on almost the same facts and evidence. He had been cautioned by Justice Selkirk not to continue to post on Crown land on an earlier occasion and of course he had been given probation terms that prohibited him from doing so.

[22] It would have been preferable to have had all of the admissions reduced to writing and signed by the accused himself. I understand that had been done but the document was not put in as an exhibit. It appears from the transcript that had something to do with the co-mingling of criminal code and provincial offences.

[23] The trial was less formal than it might have been and the manner of putting in the admissions was sloppy. It could have been conducted with greater precision and it is possible it was coloured by the trial judge’s previous acquaintance with the facts. It is clear from the transcript however that all participants wished to avoid calling evidence that had previously been heard and evaluated in another forum. They were entitled to do that. They were entitled to agree to have the pre-trial judge conduct the trial. The accused cannot now make the failure to call witnesses the grounds for appeal and the accused is not entitled to resile from his admissions.

[24] The appeal is dismissed.

Mr. Justice Calum MacLeod

Date: November 23, 2017

[^1]: See R. v. Sciascia, 2016 ONCA 411 [^2]: R. v. Castellani, 1969 57 (SCC), [1970] SCR 310; R. v. Baksh (2005) 2005 24918 (ON SC), 199 CCC (3d) 201 (SCJ)