CITATION : R. v. Bilusak, 2024 ONSC 6861

COURT FILE NO.: CR 22-064-AP DATE: 2024/12/09

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – BILUSAK, Royce Appellant

COUNSEL: P. Lambert-Bélanger, for the Respondent Self-represented, for the Appellant

HEARD: July 31, 2024

REASONS FOR DECISION ON APPEAL

Wilcox, J.

INTRODUCTION

[1] The appellant appealed his convictions by Mathias J. in the OCJ. The appeal is hereby dismissed for the following reasons.

BACKGROUND

[2] Royce Bilusak was charged with seven counts across two Informations. The first Information contained five counts alleging that he:

(1) Did commit mischief by willfully damaging without legal justification or excuse and without colour of right property, to wit, the fence of Pierrette Levesque, the value of which did not exceed five thousand dollars, contrary to section 430(4) of the Criminal Code.

(2) Did steal wood, the property of Pierrette Levesque of a value not exceeding five thousand dollars, contrary to section 334(b) of the Criminal Code.

(3) Did commit mischief by willfully damaging without legal justification or excuse and with colour of right property, to wit a brick patio of Pierrette Levesque, the value of which did not exceed five thousand dollars, contrary to section 430(4) of the Criminal Code.

(4) Did steal bricks, the property of Pierrette Levesque of a value not exceeding five thousand dollars, contrary to section 334(b) of the Criminal Code.

(5) Did without legal justification or excuse and without colour of right, commit mischief by obstructing, interrupting or interfering with the lawful use, enjoyment or operation of property, to wit, the property of Pierrette Levesque contrary to section 430(4) of the Criminal Code.

[3] The second Information contained two counts alleging that he:

(1) Did commit mischief by willfully damaging without legal justification or excuse and without colour of right, property to wit hedges of Pierrette Levesque, the value of which did not exceed five thousand dollars, contrary to section 430(4) of the Criminal Code.

(2) Did while being at large on an undertaking and being bound to comply with a condition of that undertaking, fail, without lawful excuse, to comply with that undertaking to wit the condition that you must not go to 678 Moffat Avenue, North Bay, Ontario, contrary to Section 145(4)(a) of the Criminal Code.

[4] The charges arose out of a dispute with a neighbour, the complainant, Pierrette Levesque. The Appellant resided at 662 Moffat Avenue in North Bay, Ontario, from 1989. The complainant lived next door at 678 Moffat Avenue from 1979. Others involved were the Corkishes who lived across the street at 669 Moffat Avenue from 1976.

[5] The Appellant was found guilty of all five counts from the first Information and count 2 from the second one. The trial judge imposed a two-year period of probation. In addition to the statutory terms, he was required to report to a probation officer within two days and thereafter as directed, to cooperate with the probation officer, not to have contact or communication with Pierrette Levesque or Carol Corkish, to attend, complete and provide proof thereof of all assessments, treatment, counselling or rehabilitative programs directed by the probation officer, and not to attend 669 and 678 Moffat Avenue, North Bay. He was also to make restitution to Pierrette Leveque of $500 by February 1, 2023.

[6] The Appellant appealed his convictions. The grounds of the appeal stated in the Notice of Appeal were:

(1) The apprehension of bias.

(2) The Appellant’s ability to make full answer in defence was unjustly curtailed.

(3) The decision was clearly wrong in that the trial judge failed to accept the Applicant’s submissions.

His submissions at the appeal hearing went beyond these, but will be dealt with.

[7] The relief sought was an acquittal or, in the alternative, a mistrial.

STANDARD of review on appeal

[8] The leading case on the standard of review on appeal is Housen v. Nikolaisen. [1] It confirmed that an appeal is not a re-trial of a case. Rather, the issue on appeal is whether the trial judge made an appealable error, the test for which depends on the type of issue in question. [2] “(T)he standard of review on a question of law is that of correctness”. [3] “The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a palpable and overriding error”. [4] This is an error that is plainly seen. [5] A high degree of deference is to be given to a trial judge’s findings of fact. [6]

Preliminary

[9] For the appeal hearing, the Appellant filed and sought to rely on a three-page point form document organized by count (the written summary) saying that a medical condition affected his ability to speak. The Crown said that that was fine. Fortunately, the Appellant was able to make oral submissions. In those, he referred to this document and to his factum. All three sources have been taken into account in considering his appeal.

Crown Concessions

[10] At the outset of the hearing, the Crown conceded the appeal of the convictions on two counts of theft and two counts of mischief related to the bricks and to the fence. These are counts one through four of the five count Information. This was not a concession that the appeal of those counts had any merit. The Crown opined that it could have proceeded on the merits. Crown counsel observed that the defence was one of colour of right based on a survey that had been filed at the trial, but that the Appellant had not brought any expert evidence (e.g., from a surveyor) to explain what the survey meant. The Crown acknowledged that, to a lay person, the survey could have given rise to a colour of right argument. Given the lapse of time since the convictions and the amount of resources already spent on the matter, the Crown did not want to be asking the court to send the case back to the Ontario Court of Justice to receive expert evidence on that issue. It submitted that, in the interests of efficiency and the proper use of judicial resources, it would not be in the public interest to send the case back to the OCJ on the colour of right issue.

[11] That left count five on the first Information, being a count of mischief for preventing the complainant from enjoying her property, and count two on the two-count Information, being a count of breach of undertaking by going to 678 Moffat Avenue.

Bias

[12] The appellant’s contention that there was bias or the appearance thereof on the part of the trial judge was not well founded.

[13] At the outset of the trial, the Appellant was arraigned. The seventh count alleged that he had failed to comply with the condition of his undertaking that he not go to 669 or 678 Moffat Avenue, North Bay. Hearing that, the trial judge then had the Crown list its witnesses. There were two civilian witnesses other than the complainant, Carol Corkish and her son, James Corkish. The trial judge said that she had “lived at 677 Moffat Avenue for a period of time” and had the Corkishes brought into the courtroom to see if she was familiar with them. She then stated that she did not know either of them. They did not say otherwise.

[14] When the trial judge confirmed to the Appellant that she was not familiar with those two people, he responded that he “wouldn’t object anyway”.

[15] The trial judge had wondered in particular if the witnesses were ones that she had shared a driveway with and had conversed with. In that context, she explained to the Appellant that it would be incorrect for her to hear the trial of the people she had spoken to. The trial judge was clearly trying to explain the concept of a conflict of interest to the Appellant in a brief fashion. She repeated that the witnesses were not the people she had had conversation with.

[16] Then, in court on March 30, 2022, after being found guilty of most counts, the Appellant moved for a mistrial on the grounds that the trial judge had lived next door to Carol Corkish and directly opposite to the complainant, Pierrette Levesque, and that Bill Corkish had shovelled the trial judge’s shared driveway so that she was indebted to him.

[17] The trial judge referred back to the start of the trial when she had addressed this issue on the record and said that the witnesses were not familiar to her. She added that she had never spoken with Ms. Levesque, the complainant.

[18] I see nothing in the Appellant’s evidence nor in his cross-examination at trial of the complainant or of Carol Corkish or James Corkish with respect to their acquaintance with the trial judge. There is no evidence at all on this point, let alone any that contradicts the trial judge’s statement that she was not familiar with the Corkishes.

[19] Nonetheless, the Appellant attributed the trial judge’s findings against him to bias and went as far as to accuse her of lying about it. As previously noted, the trial judge was careful at the outset of the trial to address even the appearance of bias, and the Appellant appeared then to accept that. He raised it again only after the trial judge’s decision went against him. The trial judge responded with reference to the remarks about this issue that she had made at the start of the trial. That she did not recall by memory and use the exact same words on March 30, 2022, the day she gave her judgment, as she had on April 6, 2021, when the trial started, is hardly evidence of her lying, as the Appellant contends. A fair reading of what she said on both occasions does not support the allegation that she was lying. However, the Appellant, when given the opportunity, was not even open to the suggestion that any perceived inaccuracy might have been the result of her being mistaken or forgetting. This is but one example of the extreme nature of some of the Appellant’s comments.

Count 2 on the Second Information

(i) The Appellant’s Argument re. the Extent of the Complainant’s Property

[20] The trial judge found the Appellant guilty of count two of the second Information. That count alleged that he, on or about September 3, 2020, had breached a condition of the undertaking that he not go to 678 Moffat Avenue. That was the complainant’s residence. Proof of this beyond a reasonable doubt was found in Exhibit 9 filed at the trial, being a photograph of the Appellant in the complainant’s driveway, sweeping it. James Corkish had testified for the Crown that he took that photo.

[21] In finding so, the trial judge acknowledged the Appellant’s argument that the part of the driveway that the photo showed him standing on was city property, not the complainant’s. This argument was based on a survey. However, the court found that there was nothing to identify where the city property boundary was.

[22] The Appellant submitted that the trial judge had erred in finding as a fact that he was on the complainant’s property in the face of evidence that he was in fact on a portion of her driveway that was on city property.

[23] The Crown’s first submission in response was that the Appellant’s argument was based on evidence that was not before the court. That would be the evidence of a surveyor, such as the Crown had spoken of at the outset of the hearing.

[24] In addition, the Crown submitted a second point. That was, even if the Appellant’s position that he was standing in a portion of the complainant’s driveway that was city property was accepted, it was still caught by the Undertaking which said that the Appellant was not to go to “places which are related to” the complainant. Consequently, he submitted, there was no basis for overturning that conviction.

[25] The Undertaking stated that the Appellant “must not go to (places which are related to the person(s) mentioned in the conditions set out in paragraph (d)) 678 Moffat Avenue, North Bay, Ontario, and 669 Moffat Avenue, North Bay, Ontario, except in accordance with the following conditions: Save and except through counsel.”

[26] Paragraph (d) had identified the complainant, Pierrette Levesque. The undertaking did not define 678 Moffat Avenue in terms of a survey, and it did not say that the Appellant was not to go to the complainant’s property at that address. Nor would it be expected to.

[27] The Appellant might well be correct that the road allowance, which is city property, not the homeowner’s, does extend somewhat past the part of that allowance that is developed and travelled as a public road, as the trial judge acknowledged. However, I think that that misses the point.

[28] The Undertaking’s wording has been noted above. If the wording is to be read as broadly as the Crown suggests, that would completely negate the Appellant’s argument. He was clearly on a place “related to”.

[29] Even if the Undertaking is to be read more narrowly, such that the Appellant was not to go to 678 Moffat Avenue, what does that mean? I would find that such wording was intended and would reasonably be understood to encompass the complainant’s home and yards at 678 Moffat, without any reference to surveys or city road allowances. To find otherwise would create an absurd situation in which technicality would triumph over common sense and enforceability. I would take judicial notice that, when property at a municipal address is spoken of in circumstances such as those the Undertaking was made in, the property is thought of as extending to points such as the sidewalk or travelled portion of the road, as the case might be, not just to the limit of the road allowance.

[30] It is clear that even the Appellant thought this way as, in submissions at the appeal hearing, he said at various times that, “… I am on (the complainant’s) driveway, but I am on the city portion”, “always staying on my property, or, in this case, the city portion of my property”, and “…Exhibit 10 shows me on the city portion of my driveway”.

[31] The Appellant relies to an extent on the complainant’s acknowledgement that some of the area in front of her residence was technically city property. She had indicated that about the part of the hedge that the Appellant had removed, which removal had resulted in a mischief charge. Her awareness that the hedge extended onto the city road allowance appears to have been the basis for her indicating, according to the trial judge’s reasons, that the hedge was ultimately not on her property, although she had maintained it. However, the trial judge noted with respect to this count that there was no expert evidence to interpret the survey as to where the boundary was. Therefore, she found the complainant not guilty of that mischief charge for removing the part of the hedge, not because of the Appellant’s argument about the survey and boundary but, because the complainant had said the hedge was not hers. Consequently, I find that the acquittal on that count does not, as the Appellant suggests, support his submission that he should be acquitted of the fail to comply charge based on the survey.

[32] Early in the appeal hearing, the Appellant had submitted that the trial judge had (quite correctly) emphasized that the onus of proof rests with the Crown. Therefore, the Appellant surmised, he did not have to prove anything. If he thinks that he should be acquitted of the fail to comply charge because the Crown did not have a surveyor testify as to where the property line was, with respect, that argument fails. Once the evidence showed that the Appellant was in the complainant’s driveway, without evidence to the contrary, that would be sufficient to prove the charge beyond a reasonable doubt.

[33] In view of the above, I do not find that the trial judge erred as the Appellant alleged.

(ii) The Appellant’s Jurisdiction Argument re. the Second Information

[34] I will deal quickly with the Appellant’s submission, made in reply, that the Crown had no jurisdiction to bring the two counts on the second Information because, he contended, they involve city property and the Crown was representing Pierrette Levesque, not the city. This mistakes who the Crown represents, which is society at large, not an individual complainant. The police lay charges which the Crown carries on the prosecution of, and the court decides the result based on the application of the law to the facts found.

Count 5 on the first Information

[35] I will repeat for convenience that count five on the first Information charged that, between August 1, 2019, and August 19, 2020, the Appellant, without legal justification or excuse and without colour of right, committed mischief by obstructing, interrupting or interfering with the lawful use, enjoyment or operation of Pierrette Levesque’s property.

[36] The trial judge began her reasons by summarizing the charges, the evidence, and the submissions of the Crown and the Appellant before reviewing the evidence and stating her finding for each count. In finding the Appellant guilty of this mischief count, she summarized that she had heard in evidence instances of how things had deteriorated between the complainant and the Appellant such that the complainant felt that she could no longer stay out in her yard. The situation had created stress. The complainant had not been able to enjoy her property. The court found that there were many instances where the complainant’s enjoyment of her property was obstructed and interfered with by the Appellant in that period.

[37] The Appellant submitted that the trial judge erred in stating her reasons by referring to a “snow story” that preceded and was outside of the timeframe of the mischief charge.

[38] This can be dealt with quickly. As noted above, the trial judge began her reasons by outlining the situation, including the “snow story”, before dealing with the individual counts. This gave context and background. However, when dealing with this specific charge, she began by explicitly stating what the timeframe of it was. There is nothing to show that she took into account an event that fell outside the relevant timeframe in finding the Appellant guilty of that charge. This submission is, therefore, rejected.

[39] The Appellant confirmed that his argument was that the trial judge erred in her factual findings. His submissions certainly showed that he disagreed with those findings. However, that does not make them wrong. I find that he has not demonstrated that the trial judge made a palpable and overriding error in her findings of fact in convicting the Appellant on this count.

The W.(D.) Test

[40] The Appellant submitted that the trial judge misquoted and misapplied the (W.(D.) test. The trial judge explicitly set out the three commonly referred to parts of the (W.(D.) test. Clearly, she was aware of it. The Appellant took issue with some of the words that she used in setting out the test. I note in this regard that it has been held that the test is not some “magical incantation”. It is the idea behind it, not the exact wording, that is important.

[41] Code J.’s often cited explanation of (W.(D.) in R. v. Thomas, 2012 ONSC 6653 [7] is of assistance. He stated:

23 (W.(D.) does not describe three sequential analytical steps that a trier of fact must pass through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the Appellant’s exculpatory account…, complete acceptance of the Crown witnesses’ inculpatory account…, or uncertainty as to which account to believe… .

24 … A trier of fact must look at all the evidence, when deciding whether to accept the Appellant’s evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond reasonable doubt and whether the Appellant’s contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called “three steps” in (W.(D.) are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence.

[42] It was open to the trial judge to accept the Crown’s evidence and reject the Appellant’s, as the Appellant complains that she did.

Failure to Provide Sufficiently Intelligible Reasons

[43] The Appellant gave no oral submissions on the topic of sufficiency of reasons, nor was it a discreet topic within his factum. However, it was touched on in his three-page written summary, so I will address it. Under this heading, there is only a quote from R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 [8] about the importance of sufficient reasons. There is nothing further to explain how this applies to this case. Having said that, the Appellant questioned the trial judge’s conduct and findings throughout his oral and written submissions. It appears not to be a situation of insufficient reasons but, rather, one where no amount of explanation would satisfy the Appellant that his conduct supported the convictions.

Excessive Punishment

[44] The Appellant’s factum included excessive punishment as a ground for appeal. The Appellant claimed that two years of probation and $500 in restitution, which the trial judge imposed as a global sentence, was excessive punishment and clearly revealed bias against him. However, no authority was provided to support this submission. In the circumstances, there is nothing to persuade me that it is excessive.

Wilcox, J. Released: December 9, 2024

[1] [2022] S.C.R. 235. [2] Para. 7 [3] Para. 8 [4] Para. 10 [5] Para. 6 [6] Para. 10 [7] 2012 ONSC 6653, paras. 23 and 24 [8] [2022] 1 S.C.R. 869