R. v. Simpson (A.) et al., (2015) 473 N.R. 94 (SCC)

• Judge: Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 12, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 473 N.R. 94 (SCC);2015 SCC 40;[2015] 2 SCR 827;[2015] SCJ No 40 (QL)

R. v. Simpson (A.) (2015), 473 N.R. 94 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.R. TBEd. JL.015

Her Majesty the Queen (appellant) v. Andrew Simpson and Kizzy-Ann Farrell (respondents) and City of Montréal (intervener)

(35971; 2015 SCC 40; 2015 CSC 40)

Indexed As: R. v. Simpson (A.) et al.

Supreme Court of Canada

Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté, JJ.

July 30, 2015.

Summary:

The two accused were occupying the ground floor of a commercial building. Building inspectors and police officers attended on February 1, 2011. An altercation ensued and drugs were discovered on the male accused. The accused were each charged with one count of breaking and entering and committing mischief, and one count of assaulting a police officer. In addition, the male accused was charged with one count of assault with a weapon and two counts of drug possession. On February 9, an inspector issued an order prohibiting the use of the ground floor of the building because it was dangerous and unsanitary. On February 18, inspectors realized that the non-occupation notices had been removed from the building and that the accused were again occupying the ground floor. The accused were arrested a second time and charged with one count each of breaking and entering and committing mischief.

The Court of Quebec, in a decision with neutral citation 2014 QCCA 1143, concluded that the police officers' forced entry into the commercial space constituted a violation of the accused's right to be free from unreasonable search or seizure (Charter, s. 8). The court applied s. 24(2) and excluded the evidence "that was obtained following the violation". The accused were acquitted of all the charges. The Crown appealed.

The Quebec Court of Appeal dismissed the appeal. Thibault, J.A., dissenting, would have allowed the appeal, set aside the acquittals, and ordered a new trial on all charges. The Crown appealed.

The Supreme Court of Canada allowed the appeal and set aside the acquittals, and ordered a new trial on all charges.

Criminal Law - Topic 214.1

General principles - Common law defences - Colour of right - The Supreme Court of Canada stated that "[t]he colour of right defence is most commonly invoked in relation to the offence of theft under s. 322 of the Criminal Code, which prohibits the taking of an object or its conversion 'fraudulently and without colour of right '. ... The colour of right defence would also appear to apply to other property-related offences, including breaking and entering ... . To put the defence of colour of right into play, an accused bears the onus of showing that there is an 'air of reality' to the asserted defence - i.e., whether there is some evidence upon which a trier of fact, properly instructed and acting reasonably, could be left in a state of reasonable doubt about colour of right ... . Once this hurdle is met, the burden falls on the Crown to disprove the defence beyond a reasonable doubt." - See paragraphs 31 and 32.

Criminal Law - Topic 214.1

General principles - Common law defences - Colour of right - The two accused were occupying the ground floor of a commercial building - Building inspectors and police officers attended on February 1, 2011 - An altercation ensued and drugs were discovered on the male accused - The accused were each charged with one count of breaking and entering and committing mischief, and one count of assaulting a police officer - The male accused was also charged with one count of assault with a weapon and two counts of drug possession - On February 9, an inspector issued an order prohibiting the use of the ground floor of the building because it was dangerous and unsanitary - On February 18, inspectors realized that non-occupation notices had been removed from the building and the accused were again occupying the ground floor - They were arrested a second time and charged with one count each of breaking and entering and committing mischief - The Court of Quebec concluded that the police officers' forced entry into the commercial space violated the accused's right to be free from unreasonable search or seizure (Charter, s. 8) - The court applied s. 24(2) and excluded the evidence "that was obtained following the violation" - The accused were acquitted of all the charges - The Quebec Court of Appeal, Thibault, J.A., dissenting, dismissed a Crown appeal - On a further appeal, the Supreme Court of Canada set aside the acquittals and ordered a new trial on all the charges - The court stated that "... neither the trial judge nor the Court of Appeal distinguished between the first and second set of breaking and entering charges. However, given that Thibault J.A. would have ordered a new trial on all charges, I will address the February 18 breaking and entering charges specifically. ... [T]he trial judge should have analyzed the events of February 18 separately from those of February 1. I find it difficult to conceive that the respondents had an honest belief in their right to occupy the commercial space on February 18. ... [O]n February 9, non-occupation notices were plastered on the entrances to the commercial space. These notices clearly indicated that no one was to enter the premises. In spite of this, the respondents returned to the ground floor of the building and began residing in it once again. However, because the Crown did not request an alternate remedy, I would send the February 18 breaking and entering charges back for a new trial along with the remaining charges." - See paragraph 54.

Criminal Law - Topic 214.1

General principles - Common law defences - Colour of right - [See Criminal Law - Topic 4944 ].

Criminal Law - Topic 2254

Wilful acts respecting property - Mischief - Defences - Justification or colour of right - [See second Criminal Law - Topic 214.1 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Criminal Law - Topic 4944 ].

Criminal Law - Topic 4944

Appeals - Indictable offences - New trials - When available - General - The two accused were occupying the ground floor of a commercial building - Building inspectors and police officers attended on February 1, 2011 - An altercation ensued and drugs were discovered on the male accused - The accused were each charged with one count of breaking and entering and committing mischief, and one count of assaulting a police officer - The male accused was also charged with one count of assault with a weapon and two counts of drug possession - On February 9, an inspector issued an order prohibiting the use of the ground floor of the building because it was dangerous and unsanitary - On February 18, inspectors realized that non-occupation notices had been removed from the building and the accused were again occupying the ground floor - They were arrested a second time and charged with one count each of breaking and entering and committing mischief - The Court of Quebec concluded that the police officers' forced entry into the commercial space violated the accused's right to be free from unreasonable search or seizure (Charter, s. 8) - The court applied s. 24(2) and excluded the evidence "that was obtained following the violation" - The accused were acquitted of all the charges - The Quebec Court of Appeal, Thibault, J.A., dissenting, dismissed a Crown appeal - On a further appeal, the Supreme Court of Canada allowed the appeal and set aside the acquittals - The building's owner, Marius Arcand, was elderly and in declining health - A mandate in case of incapacity had been sanctioned in April 2010, giving his son, Jean-Marc, authority over the management of the property - In determining that the requisite evidential foundation for a colour of right defence had been met, the trial judge relied on two pieces of evidence - One of these, Jean-Marc's lack of knowledge of what his father might have done, was clearly of no value and should not have been considered - The trial judge's error in factoring Jean-Marc's evidence into the air of reality assessment might reasonably be thought to have had a material bearing on the overall colour of right issue, and thus on the resulting acquittals respecting the February 1 breaking and entering charges - The court held that it was "... prudent to leave for a new trial the issue of whether the inspector was lawfully entitled to enter the premises under the authority of municipal bylaws and whether the police were lawfully entitled to accompany the inspector and conduct a search of the premises. That important legal issue was not fully addressed by the trial judge or the Court of Appeal, and it is one that should be assessed on a proper record after full legal argument and analysis. ..." - See paragraph 53.

Criminal Law - Topic 4956

Appeals - Indictable offences - New trials - Grounds - Admission of evidence - [See Criminal Law - Topic 4944 ].

Criminal Law - Topic 5415

Evidence and witnesses - Witnesses - Cross-examination of - The Supreme Court of Canada stated that "... a proposition put to a witness during cross-examination does not constitute evidence of the proposition, unless the witness adopts it as true ... . This rule applies even where the proposition was put to the witness by the trial judge." - See paragraph 37.

Cases Noticed:

R. v. DeMarco (1973), 13 C.C.C.(2d) 369 (Ont. C.A.), refd to. [para. 31].

Adgey v. R., [1975] 2 S.C.R. 426, refd to. [para. 31].

R. v. Charters (P.R.) (2007), 319 N.B.R.(2d) 179; 823 A.P.R. 17; 2007 NBCA 66, refd to. [para. 31].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, appld. [para. 32].

R. v. Skedden (D.), [2013] O.A.C. Uned. 34; 2013 ONCA 49, refd to. [para. 37].

R. v. Zebedee (J.) et al. (2006), 212 O.A.C. 23; 81 O.R.(3d) 583 (C.A.), refd to. [para. 37].

R. v. M.B.M. (2002), 170 Man.R.(2d) 131; 285 W.A.C. 131; 2002 MBCA 154, refd to. [para. 37].

R. v. Rojas (M.A.) et al., [2008] 3 S.C.R. 111; 380 N.R. 211; 260 B.C.A.C. 258; 439 W.A.C. 258; 2008 SCC 56, folld. [para. 41].

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 42].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 47].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 47].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 47].

R. v. Lauda (J.M.), [1998] 2 S.C.R. 683; 232 N.R. 1; 115 O.A.C. 293, refd to. [para. 51].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81, refd to. [para. 51].

Counsel:

Dennis Galiatsatos and Christian Jarry, for the appellant;

Andrew Simpson, on his own behalf;

Kizzy-Ann Farrell, on her own behalf;

Walid Hijazi, as amicus curiae;

Éric Couture, for the intervener;

Director of Criminal and Penal Prosecutions of Quebec, for the appellant.

Solicitors of Record:

Director of Criminal and Penal Prosecutions of Quebec, Montreal, Quebec, for the appellant;

Desrosiers, Joncas, Nouraie, Massicotte, Montreal, Quebec, appointed by the Court as amicus curiae;

Dagenais Gagnier Biron, Montreal, Quebec, for the intervener.

This appeal was heard on February 12, 2015, by Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté, JJ., of the Supreme Court of Canada. Moldaver, J., delivered the following decision for the court, in both official languages, on July 30, 2015.