R. v. Gabrielli and Little, (1985) 63 N.B.R.(2d) 207 (TD)

• Judge: Miller, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: July 31, 1985
• Jurisdiction: New Brunswick
• Citations: (1985), 63 N.B.R.(2d) 207 (TD)

R. v. Gabrielli (1985), 63 N.B.R.(2d) 207 (TD);

    63 R.N.-B.(2e) 207; 164 A.P.R. 207

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R. v. Gabrielli, Little and Little

(No. F/CR/17/84 Appeal)

Indexed As: R. v. Gabrielli and Little

Répertorié: R. v. Gabrielli and Little

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Miller, J.

July 31, 1985.

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 main lease between Mr. T. and the landlord and the franchise agreement 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 or with colour of right".

The New Brunswick Provincial Court, in a judgment reported (1985), 58 N.B.R.(2d) 427; 151 A.P.R. 427, 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. The accused appealed.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appeal.

Courts - Topic 592

Judges - Duties - To conduct fair and impartial proceedings - The New Brunswick Court of Queen's Bench, Trial Division, discussed a trial judge's duty not to unduly interfere in the conduct of a trial so as to deny the accused the right to a fair trial - The court stated that "the role of a trial judge is to listen - not talk" - See paragraphs 54 to 58.

Criminal Law - Topic 230

Statutory defences or exceptions - Justification or excuse - Colour of right - The accused surreptiously 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 Court of Queen's Bench, Trial Division, affirmed the trial judge's rejection of 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 31 to 48.

Landlord and Tenant - Topic 6603

Termination, forfeiture and re-entry - Eviction - Statutory restrictions - The New Brunswick Court of Queen's Bench, Trial Division, affirmed that s. 42(1) of the Criminal Code of Canada 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 40 to 44.

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 42(1) [para. 41]; sect. 386(2) [para. 32].

Counsel:

Charles D. Whelly, for the appellants;

Manu C. Patel, for the respondent.

This appeal was heard before Miller, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following judgment on July 31, 1985.