R. v. Gabrielli and Little, (1984) 58 N.B.R.(2d) 427 (PC)

• Judge: Harper, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: November 16, 1984
• Jurisdiction: New Brunswick
• Citations: (1984), 58 N.B.R.(2d) 427 (PC)

R. v. Gabrielli (1984), 58 N.B.R.(2d) 427 (PC);

    58 R.N.-B.(2e) 427; 151 A.P.R. 427

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R. v. Gabrielli, Little and Little

Indexed As: R. v. Gabrielli and Little

Répertorié: R. v. Gabrielli and Little

New Brunswick Provincial Court

Harper, P.C.J.

November 16, 1984.

Summary:

Résumé:

Mr. Transmission (Mr. T.) leased premises to establish a franchise. Pickles entered a franchise agreement with Mr. T. and offered to sublet. No formal sublease was executed, but the parties acted upon the executed offer to sublease. Pickles paid rent to and dealt directly with the landlord. After both the franchise agreement and the main lease between Mr. T. and the landlord were terminated, Mr. T. took it upon itself to evict Pickles, even though it had no right to do so. A Mr. T. employee and two Securall guards (the accused) surreptitiously broke into the leased premises at night and changed the locks. The accused were charged with mischief, contrary to s. 387(4)(b) of the Criminal Code of Canada. The accused submitted that s. 386(2) of the Criminal Code precluded a conviction where they "acted with legal justification or excuse and with colour of right".

The New Brunswick Provincial Court rejected the defence of colour of right and convicted the accused. The court held that there were no grounds for the accused to reasonably believe in a state of facts, which if they existed, would provide legal justification or excuse for their acts.

Criminal Law - Topic 230

Statutory defences or exceptions - Justification or excuse - Colour of right - The accused surreptitiously broke into leased premises at night and changed the locks - Although it was now clear that they had no right to do so, the accused submitted that s. 386(2) of the Criminal Code of Canada precluded a conviction for mischief because they "acted with legal justification or excuse and with colour of right" - The New Brunswick Provincial Court rejected the defence of colour of right, where the circumstances surrounding the accused's actions did not provide grounds for their reasonably believing in a state of facts, which if they existed, would provide legal justification or excuse for their acts - See paragraphs 63 to 81.

Landlord and Tenant - Topic 6603

Termination, forfeiture and re-entry - Eviction - Statutory restrictions - The New Brunswick Provincial Court held that ss. 42(1) and 42(2)(a) and (b) of the Criminal Code of Canada, plus the provisions of the Landlord and Tenant Act, made it clear that re-entry to evict a tenant could only be done peaceably, in the daytime and by a person entitled to re-enter the premises - See paragraphs 66 to 67.

Words and Phrases

Colour of Right - The New Brunswick Provincial Court held that the words "colour of right", in s. 386(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34, precluded a conviction only where an accused had an honest belief in a state of facts, which if they existed, would provide legal justification or excuse for his actions - The court also stated that there must be fair and reasonable grounds for the honest belief - See paragraphs 63 to 72.

Cases Noticed:

R. v. Bernhard, [1938] 2 K.B. 264, dist. [para. 64].

R. v. DeMarco (1973), 22 C.R.N.S. 258, refd to. [para. 65].

Goff v. Peasley (1942), 78 C.C.C. 237, appld. [para. 65].

R. v. Doucette, 33 C.R. 174 (Ont. C.A.), refd to. [para. 70].

R. v. Davy (1900), 4 C.C.C. 28 (Ont. C.A.), appld. [para. 72].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 42(1), sect. 42(2)(a), sect. 42(2)(b) [para. 66]; sect. 386(2) [para. 63].

Landlord and Tenant Act, R.S.N.B. 1973, c. L-1, generally [para. 68].

Counsel:

Manu C. Patel, for the Crown;

Charles D. Whelly, for the accused.

This charge was heard before Harper, P.C.J., of the New Brunswick Provincial Court, who delivered the following judgment on November 16, 1984.