Court File and Parties

COURT FILE NO.: CR-17-206-AP DATE: 20181205 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – JOHN ADAMOVSKY Appellant

Counsel: Kathryn Hull for the Crown John Adamovsky in person

HEARD: October 29, 2018

Ruling on Appeal

BOSWELL J.

I. Introduction

[1] Mr. Adamovsky is, by his own account, a 250 pound, conditioned strongman with salon-quality hair. He is definitely those things, but he is also an extremely bright, well-educated and articulate person. He is an aerospace science engineer. And an artist. And, in one respect at least, a little misguided.

[2] Mr. Adamovsky’s family lived, for many years, on Georgian Bay. They had a waterfront home at 34 Parklane Court in Tiny Township. Mr. Adamovsky loves the water. Though his parents have sold their home and moved on, he still refers to the area as the “geometric centre of [his] faith”.

[3] Mr. Adamovsky had a grand vision for his family’s waterfront. He wanted to make a paradise that tied the lands into the waters, similar to a beachfront he had seen on Christian Island. Depending on one’s particular tastes, he may well have succeeded. As a result of a combination of enormous time, effort and ingenuity, he converted the shoreline in front of 34 Parklane from its unspoiled, natural condition – somewhat rough and rocky – to a pristine beach, with its own protective breakwaters.

[4] He similarly converted the shoreline in front of 36 Parklane to a pristine beach. The problem is that his family did not own 36 Parklane. That property was, and remains, owned by Dr. and Mrs. Munn. They did not share Mr. Adamovsky’s grand vision for the waterfront. Indeed, they did not consent to the changes Mr. Adamovsky made to their lands. He was warned not to trespass on their lands. He was warned to stop altering the shoreline and waterbed of Georgian Bay. He had no permit to do so. When he persisted in his efforts, he was charged with three counts of mischief, on two separate informations.

[5] On July 24, 2017, following a six day trial in the Ontario Court of Justice, Meijers J. convicted Mr. Adamovsky on all three counts. He suspended the passing of sentence and imposed a two year period of probation.

[6] Mr. Adamovsky appeals his conviction. The following reasons explain why the appeal fails.

II. The Grounds of Appeal

[7] Mr. Adamovsky represented himself throughout the trial and the appeal. The language he chose to use in his Notice of Appeal and Supplementary Notice of Appeal does not make it entirely clear what his legal grounds for appeal are. Reading the documents generously, however, I would define his grounds as follows:

(a) The trial judge erred by admitting and relying on presumptively inadmissible hearsay evidence;

(b) The trial judge erred in concluding that the Crown’s principal witness, Dr. Munn, was credible;

(c) The trial judge misapprehended material parts of the evidence; and,

(d) The verdict was unreasonable.

[8] I will deal with these assertions in turn. Before doing so, I will put the issues into context with a brief factual overview.

III. Factual Overview

[9] Mr. Adamovsky’s parents used to own a seasonal residence located at 34 Parklane Court in Tiny Township. They sold the property in the summer of 2016. Just to the south of them was a year round residence located at 36 Parklane Court. It was, at all material times, and remains the property of Dr. John Munn and his wife.

[10] The Adamovsky and Munn properties both front onto Georgian Bay in a little bay roughly at the end of the 18th Concession of Tiny Township.

[11] One of the things Dr. Munn liked about his property was the waterfront. He enjoyed its rough, natural condition, with sand and rocks and plants.

[12] Mr. Adamovsky had other ideas for the lands. He made it his life’s mission to transform the waterfront in front of his parents’ lands and the Munns’ lands into a pristine, sandy beach. He achieved that and more. He constructed two rock groynes with breakwaters and a small island just off the shore. He considered the project a work of art. He dedicated many hundreds of hours to it over a number of years.

[13] Dr. Munn described the structures built by Mr. Adamovsky as “amazing”. He thought they would likely stand for a thousand years. But what Mr. Adamovsky fails to appreciate is that this case is not about his looks, or his skills, or the ingenuity he has demonstrated in his work. Nor is it about the aesthetic quality of his work. It is about his illegal interference with lands that do not belong to him. It is about him making choices for others that he was not lawfully entitled to make.

[14] Mr. Adamovsky’s artistic expression began to become bothersome to the Munns in 2014. Mr. Adamovsky would work from mid-day to sundown on his project. He did so from April to October over a number of years.

[15] He began to remove rocks and gravel from the Munns’ property, which they did not want removed. He used it in the construction of his island and breakwaters. Dr. Munn asked Mr. Adamovsky to cease removing material from his property. He persisted.

[16] In the spring of 2015 a confrontation occurred between Dr. Munn and Mr. Adamovsky over Mr. Adamovsky crossing the Munns’ septic system with his wheelbarrow and tools. The Munns were trying to grow a garden in the area. As a result of this confrontation Dr. Munn contacted the police.

[17] On April 25, 2015 Mr. Adamovsky was served with a Notice of Trespass by OPP officer Richard Roulston. In other words, he was warned in writing not to trespass on the Munns’ property anymore.

[18] The trespass notice was not effective. It appears that Mr. Adamovsky may in fact have intensified his work. He continued to remove gravel from the Munns’ property. He designed and built a strainer to separate gravel from sand. He would shovel mixed aggregate from the Munns’ property into his device, take the gravel and leave the sand on the Munns’ shoreline. The device had a motor and would run for hours on end, day after day.

[19] A significant amount of debris was also piled up along the property line between the two neighbouring properties.

[20] Mr. Adamovsky was ultimately charged with two counts of mischief on October 27, 2015. The first count was for wilfully damaging the Munns’ property. The second was for wilfully interfering with the Munns’ lawful enjoyment of their property by altering their waterfront.

[21] Notwithstanding the charges laid in the fall of 2015 and notwithstanding that his parents moved from the area in the summer of 2016, Mr. Adamovsky continued to work on his “art project”. On October 3, 2016 he was observed by an OPP officer and an officer of the Ministry of Natural Resources in the water digging up rocks and putting them on a rock island in front of the Munns’ property. He was charged with one count of mischief on this occasion, for altering the landscape of the waters of Georgian Bay without legal justification.

[22] Having set out that brief factual background, I will turn to Mr. Adamovsky’s grounds of appeal, insofar as I understand them. Ordinarily I would set out the parties’ respective positions in relation to each of the issues raised on appeal. In this instance, the Crown has a single, overarching position. It contends that there is no merit whatsoever to any of the grounds of appeal being pressed by Mr. Adamovsky. In the result, I will spare any further reference to the Crown’s position and recite only Mr. Adamovsky’s position with respect to each ground of appeal.

IV. Discussion

(a) The Hearsay Issue

[23] Mr. Adamovsky takes issue with the admission of a statement purportedly uttered by Mrs. Munn. Mrs. Munn did not testify during the trial. Dr. Munn described, during his examination in chief, a purported altercation between his wife and Mr. Adamovsky that took place in December 2014. Mr. Adamovsky was apparently upset that Mrs. Munn’s vehicle was blocking a shared driveway. Dr. Munn testified that Mr. Adamovksy pounded on their door, then opened it and yelled at his wife to move the car. He said his wife was in the washroom getting dressed for church. She told Mr. Adamovksy she’d be out in a while. He said this confrontation made her anxious and angry.

[24] Mr. Adamovsky objected to the admissibility of the evidence about the purported encounter between him and Mrs. Munn on the basis that it was all hearsay. The trial judge allowed the evidence to go in, ruling that it was admissible as, in effect, lay opinion evidence about Mrs. Munn’s emotional condition.

[25] Canadian evidence law is made up of a great many rules. It adheres, generally, to the overarching principle that all relevant evidence is admissible. Such a principle generally tends to support the truth-finding function of a trial. Common sense would suggest that triers of fact are more likely to get at the truth when they have access to all relevant evidence.

[26] But there are many limits and qualifications to the general principle of inclusion. And there are many specific rules of exclusion.

[27] The rule against hearsay evidence is one rule of exclusion. Hearsay evidence is not excluded on the basis of relevance. It is excluded principally because of concerns about its reliability and/or about the inability to test its reliability. The hearsay rule involves many exceptions. It can be difficult to apply at times. In the result, it has occupied the time and thoughts of a great many academics and jurists alike.

[28] Justice Charron described the essential features of the exclusionary hearsay rule in R. v. Khelawon, 2006 SCC 57, at para. 35. An out-of-court utterance is hearsay and presumptively inadmissible where: (1) it is adduced for the truth of its contents and (2) there is an absence of a contemporaneous opportunity to cross-examine the declarant.

[29] It is essential, therefore, when addressing the admissibility of an out-of-court utterance, to have an understanding of the purpose for which the utterance is tendered. If it is not tendered for the truth of its contents, then it does not offend the hearsay rule.

[30] Having reviewed the testimony of Dr. Munn, it is apparent to me that the entire incident involving Mrs. Munn was not tendered for the truth of its contents. Rather it was offered in part as declaratory evidence and in part as Dr. Munn’s observations of his wife’s emotional state. In other words, Dr. Munn described things that his wife had told him and he described his observations of her emotional state. Together, these things informed Dr. Munn’s state of mind. In particular, he said this incident caused him to conclude that “enough was enough” and more serious steps needed to be taken to address Mr. Adamovsky’s conduct. Within several months the trespass notice was issued.

[31] I conclude that the evidence was adduced for a non-hearsay purpose and its entry into the evidentiary record does not offend the hearsay rule.

[32] Ultimately, the trial judge used the impugned evidence for just the purpose I have described.

[33] This ground of appeal fails.

(b) The Credibility Issue

[34] It is well-settled law that a trial judge’s credibility findings are subject to deference. In other words, an appeal court must defer to the trial judge on findings of credibility, absent palpable and overriding error: see H.L. v. Canada (Attorney General), 2005 SCC 25, at para. 53.

[35] Moreover, it is rare for an appeal court to intervene based on deficiencies in the manner in which the trial judge has articulated his or her credibility analysis: R. v. Dinardo, 2008 SCC 24.

[36] Deference is accorded to a trial judge’s credibility findings because of the difference in vantage points between the trial judge and an appellate judge. The trial judge is in the unique position of seeing and hearing the witnesses first hand. That point of view is a significant advantage: see R. v. J.J.B., 2013 ONCA 268, at para. 23. A trial judge’s credibility determination can only be overturned in the rare case that it is not reasonably supported after a review of all the evidence: J.J.B., at para. 24.

[37] Justice Meijers found Dr. Munn to be a credible witness. He described Dr. Munn’s testimony in the following general terms:

Dr. Munn gave clear, calm and straightforward evidence. He was subjected to a long, often irrelevant, rambling and at times sarcastic cross-examination by Mr. Adamovsky. Dr. Munn did not get riled, but remained fair and pleasant, and answered all the questions put to him thoughtfully. I could sense no trace of animosity in him towards Mr. Adamovsky. I accept his evidence and rely on it.

[38] Mr. Adamovsky has failed to persuade me that there is any basis upon which to intervene in the trial decision based on Justice Meijers’ assessment of Dr. Munn’s credibility.

[39] If I understand his submissions correctly, Mr. Adamovsky suggests that Dr. Munn is merely the puppet of his wife and that his testimony did not reflect his own views, but rather those of his wife. In support of this assertion, he submitted that Dr. Munn is somewhat weak and unsuccessful because he is still carrying a mortgage on his property at a time when he should be, in Mr. Adamovsky’s estimation, retiring. Moreover, Mr. Adamovsky contends that he was getting along rather famously with Dr. Munn until the dispute arose between Mr. Adamovsky and Mrs. Munn over the use of a shared driveway. Following this dispute, Dr. Munn’s attitude changed and the trajectory of their relationship became markedly negative.

[40] Mr. Adamovksy urges the court to conclude that Dr. Munn was merely doing his wife’s bidding during the trial, which should raise serious concerns about his credibility. In Mr. Adamovsky’s words, Mrs. Munn “told Dr. Munn a sob story and reduced him to penury.” He added that the trial judge’s acceptance of Dr. Munn’s testimony reflects the “Me Too” movement stretched to the extent that “we must now believe all stories told by men that women told them to say.”

[41] Secondarily, Mr. Adamovsky submitted that Dr. Munn had a poor memory. This is more of a complaint about reliability than credibility. It has no basis in the evidentiary record in my view. Dr. Munn testified about events that were reasonably fresh in his mind. He also had notes which he was able to utilize as an aide-memoire. Moreover, much of what he testified about is documented in photographs.

[42] I reject this ground of appeal. Mr. Adamovsky’ submissions on this issue appear entirely unfounded, speculative, insulting and grossly insufficient to overcome the high degree of deference accorded to a trial judge’s credibility findings.

(c) The Allegation of Misapprehended Evidence

[43] Appellate courts have made it very clear that an appeal grounded in a purported misapprehension of evidence will be subject to a stringent standard of review: see R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2.

[44] The standard is only met where (1) it is demonstrated that the trial judge was mistaken as to the substance of material parts of the evidence; and (2) the error(s) played an essential part in the reasoning process resulting in a conviction: See R. v. Morrisey (1995), 97 C.C.C. (3d) 193, R. v. Lohrer, as above, and R. v. Bonnington, 2015 ONCA 122.

[45] In oral submissions, Mr. Adamovsky walked the court through ten areas in which the trial judge got it wrong in his view. Some I will dispose of summarily. Others will require a little more comment. They were:

(i) He was never convicted of trespass.

[46] It appears to be true that Mr. Adamovsky was never convicted of trespassing on the Munns’ property. That said, the trial judge did not mistakenly conclude that he had been. I take Mr. Adamovsky’s assertion to be that the absence of a trespassing conviction is circumstantial evidence that points towards his innocence of the charged offences. In my view, if the evidence is relevant at all, it is of extremely slight probative value. The fact that the trial judge did not mention it or rely on it is not surprising.

(ii) An assertion that he broke some tree branches on Dr. Munn’s property is false.

[47] Mr. Adamovsky produced a series of photographs that tend to suggest no branches were broken. He may well be correct, but the broken branches had little, if anything, to do with the outcome of the case;

(iii) The trial judge mentioned confrontations occurring between Mr. Adamovsky and Dr. Munn. He failed to appreciate that there were no verbal confrontations following the delivery of the trespass notice in April 2015.

[48] Mr. Adamovksy was not convicted of having verbal confrontations. The trial judge’s references to confrontations between Dr. Munn and Mr. Adamovsky were for narrative purposes. They help to explain why the Munns were concerned about sitting out on their deck. They wanted to avoid future confrontations given the ones that had occurred in the past. In my view, there was no misapprehension of the evidence about confrontations, or about their significance.

(iv) Dr. Munn never made a noise complaint.

[49] This is a similar issue to the absence of a conviction for trespass. On its own it means nothing. Mr. Adamovsky suggests, however, that the absence of any documented noise complaint undermines Dr. Munn’s credibility about being negatively impacted by the noise of Mr. Adamovksy’s activities.

[50] I do not know whether the trial judge took into account the absence of noise complaints when he considered Dr. Munn’s credibility. It is not necessary for a trial judge to recite in his or her reasons every single factor that he or she has considered.

[51] The absence of a noise complaint, at its highest and best, offers weak support for the inference that the level of noise created by Mr. Adamovsky did not rise to the level of an interference with the Munns’ enjoyment of their property. It is not surprising that it was not mentioned by the trial judge. In my view, the trial judge’s credibility analysis, which I discussed above, is in no way undermined by his failure to mention the absence of a noise complaint.

(v) The trial judge wrongly admitted hearsay evidence about a driveway dispute between Mr. Adamovksy and Mrs. Munn.

[52] As I noted above, my view is that this evidence was properly admitted and properly used by the trial judge.

(vi) The trial judge was improperly influenced by Dr. Munn’s “sob story” relating to the driveway dispute.

[53] There is no support for this submission in the record.

[54] The next two issues raised by Mr. Adamovsky are related and I intend to address them together. They tend, in my view, go to the heart of Mr. Adamovsky’s concerns about the result at trial.

(vii) The trial judge mistook Mr. Adamovsky’s work for “damage” when in fact it was an improvement on the lands; and,

(viii) The trial judge failed to give sufficient recognition or weight to Dr. Munn’s evidence that the structures built by Mr. Adamovsky were amazing and the sand immaculate.

[55] Section 430(1) of the Criminal Code provides that every one commits mischief who wilfully:

(a) destroys or damages property;

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

(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or

(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

[56] Mr. Adamovsky was convicted under both sub-paragraphs (a) and (c). His assertion is that he ought not to have been found liable under sub-paragraph (a) in light of the fact that he actually improved and beautified the Munns’ lands.

[57] The trial judge addressed this argument in his reasons. He dealt with it quite succinctly, and correctly in my view, in the following paragraph:

There was no doubt that Mr. Adamovsky saw all of this as an improvement, but his own subjective opinion as to the consequence or beauty of his actions does not rule the day here. In this case, the physical damage that Mr. Adamovsky caused included pulling out the land surveying stakes, excavating sizeable holes in Dr. Munn’s beachfront property causing the boundary of the beach to non-beach on Dr. Munn’s property to recede, removing the substrata from Dr. Munn’s beach causing a more or less permanent change in the appearance and composition of Dr. Munn’s beach contrary to his wishes or preference. In my view, the damage is more than negligible or a minor inconvenience and has rendered it less suited for its intended purpose, specifically, as a rugged, natural beachfront that Dr. Munn purchased and wanted to preserve.

[58] I am not persuaded that the trial judge was mistaken about any of the material parts of the evidence. He was correct to conclude that Mr. Adamovsky’s subjective views of the merits of his art project were irrelevant. Mr. Adamovsky’s actions were undoubtedly wilful and they caused damage to the Munns’ shoreline as that term is objectively understood.

(ix) The trial judge failed to conclude that this case was really a civil dispute and not properly a criminal matter.

[59] I will deal with this issue in the section to come.

(x) The trial judge’s conclusion that Dr. Munn’s enjoyment of his property was interfered with was against the weight of the evidence.

[60] Mr. Adamovsky offered pictures and videos of children enjoying the beach. He asserted that the only reason Dr. Munn would not go outside was because his wife would not let him. He claimed to have been an “ideal” neighbour.

[61] Having reviewed the trial evidence as a whole, I am satisfied that there was ample evidence to support the conclusion that Dr. Munn’s enjoyment of his property was interfered with. The trial judge found that Mr. Adamovsky had created noise that kept the Munns inside their home with the windows closed. Moreover, that his aggressiveness kept them off of their deck for fear of confrontation.

[62] The trial judge quoted the following part of Mr. Adamovsky’s closing submissions:

The difference for JohnPaul Adamovksy is that he is a 263.4 pound, conditioned, athletic, strongman, capable at a moment’s notice of physically overpowering practically everybody he meets. He’s not easily intimidated and has no material possessions to lose. JohnPaul can easily apply an enormous and cruel amount of leverage to anything he can reach.

[63] Mr. Adamovsky’s own submission aptly captures why the Munns were justifiably concerned about confrontations with him and why they largely suffered in silence.

[64] In addition to the ten issues raised by Mr. Adamovsky in his oral argument, he made reference in his Supplementary Notice of Appeal to the trial judge “quoting testimony about alleged events outside the time scope of the charges (in 2014).” I am satisfied that any references to events outside of the time periods referenced in the charge were used for narrative purposes only. In other words, to assist in providing a cohesive and understandable picture of the events that followed. The trial judge was careful to ground the convictions on events taking place within the time ranges specified in the informations.

[65] Having considered Mr. Adamovsky’s concerns, both individually and cumulatively, I am entirely unpersuaded that the trial judge misapprehended any of the evidence.

[66] In the result, this ground of appeal fails.

(d) The Assertion that the Verdict was Unreasonable

[67] Mr. Adamovsky challenges the reasonableness of the guilty verdict on a number of grounds. He asserts alternatively that the issues between him and Dr. Munn are civil and not criminal in nature and that he, in fact, improved Dr. Munn’s lands and did not thereby commit mischief.

[68] Under s. 686(1)(a)(i) of the Criminal Code, this court may allow an appeal against a summary conviction where satisfied that the verdict is unreasonable or cannot be supported by the evidence. It must be clearly understood, however, that an appeal is not a rehearing of the trial. An appeal court is not permitted to substitute its views for those of the trial judge as to what an appropriate verdict ought to be.

[69] There are very specific principles of law that must be adhered to when a party challenges the reasonableness of a verdict. Justice Watt described them in R. v. Roks, 2011 ONCA 526, where he said, at para. 120:

When a verdict or a finding of guilt is challenged as unreasonable or unsupported by the evidence, an appeal court must determine whether the verdict or finding of guilt is one that a properly instructed trier of fact, acting judicially, could reasonably have rendered: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; R. v. Yebes, [1987] 2 S.C.R. 168, at p. 185; and R. v. Corbett, [1975] 2 S.C.R. 275, at p. 282. The test includes both objective and subjective assessments of the evidence adduced at trial. The appeal court must determine what verdict a reasonable trier of fact, properly instructed, could reasonably have rendered. In carrying out its mandate, the appeal court must review, analyze and, within the limits of appellate disadvantage, weigh the evidence. We must examine the weight of the evidence, not its bare sufficiency: Biniaris, at para. 36.

[70] When applying the foregoing principles, the appeal court must view the whole of the evidence “through the lens of judicial experience”: Biniaris, at para. 40.

[71] This is an unfortunate case. I do not entirely disagree with Mr. Adamovsky’s suggestion that this matter might more appropriately have been dealt with in the civil courts as opposed to the criminal courts. I am not sure that in the big picture criminalizing Mr. Adamovsky’s actions, with the resultant stigma that he will carry with him now as a result of three criminal convictions, was the most appropriate means of addressing the dispute between neighbours.

[72] The trial Crown appeared to recognize that the circumstances of this case may not warrant the long term stigmatization of Mr. Adamovsky as a convicted criminal. She therefore sought a conditional sentence with a relatively modest period of probation.

[73] The trial judge obviously thought otherwise.

[74] Having said all of that, I recognize that efforts were attempted, short of engaging the criminal law, to persuade Mr. Adamovsky to cease his activities on the Munns’ property. Those efforts failed. I also recognize that the trial judge concluded that the Crown had established the essential elements of mischief to the reasonable doubt standard. I do not quarrel with his conclusions in that respect.

[75] The issue on appeal is not whether it was reasonable to have resorted to the use of the criminal law in the facts and circumstances of this case. The issue is whether, having chosen to proceed with criminal charges, the Crown adduced sufficient evidence to support the guilty verdicts rendered.

[76] In my view there was a sufficient evidentiary basis for the trial judge’s findings. The verdicts were ones that a trier of fact, properly instructed and acting judicially, could reasonably have rendered.

[77] I have already addressed the “improvement vs. damage” issue. If there is any unreasonableness present here, it is Mr. Adamovsky’s unreasonable expectation that he had the right to alter his neighbours’ shoreline, without lawful authority to do so, provided his alterations were aesthetically pleasing according to his own standards.

[78] This ground of appeal fails.

[79] The appeal is dismissed.

Boswell J. Released: December 5, 2018