35971    Her Majesty the Queen v. Andrew Simpson and Kizzy-Ann Farell

Charter of Rights - Unreasonable search and seizure - Breaking and entering

On appeal from the Quebec Court of Appeal (2014 QCCA 1143), affirming the acquittals of the respondents.

S and F, after having been lawfully evicted from their upstairs apartment, took up residence in the vacant commercial space on the ground floor of the same building in contravention of municipal bylaws. On February 1, 2011, the Chief Municipal Inspector, joined by three police officers as a safety measure, decided to inspect the premises. During the municipal building inspection, S and F attacked the police. They were both arrested for assault. Police searched S incident to his arrest and discovered methamphetamine and ecstasy pills. S and F were charged with breaking and entering and assaulting a police officer. In addition, S was charged with one count of assault with a weapon and two counts of drug possession. On February 18, inspectors realized that S and F were again occupying the ground floor, despite an order prohibiting its use. S and F were arrested a second time, and again charged with breaking and entering. The trial judge acquitted S and F of all charges. She held that S and F’s s. 8 Charter rights were violated and excluded all evidence of what occurred inside the commercial space. The trial judge also found that there was an air of reality to S and F’s asserted colour of right defence, and that the Crown had failed to disprove it beyond a reasonable doubt. A majority of the Court of Appeal upheld the acquittals.

Held (7:0) : The appeal should be allowed, the acquittals set aside, and a new trial ordered on all charges.

The term “colour of right” denotes an honest belief in a state of facts which, if true, would at law justify or excuse the act done. 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.

Here, the trial judge’s finding that there was an air of reality to the colour of right defence in relation to the February 1 breaking and entering charges was tainted by her improper reliance on certain evidence that did not, in fact, support the existence of a colour of right. In particular, the trial judge erred in relying on the landlord’s acknowledgment on cross-examination that it is possible that his father, who once had control of the building, had a verbal agreement with S and F for the use of the commercial space, and had given them the keys to the space. A proposition put to a witness during cross-examination does not constitute evidence of the proposition, unless the witness adopts it as true. The landlord’s inability to reject the suggestions put to him does not shed any light on whether those suggestions are true or not. His testimony cannot be used in assessing whether the asserted colour of right defence passes the air of reality threshold. The trial judge’s error in factoring this 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 in respect of the February 1 breaking and entering charges.

With respect to F’s charge of assaulting a police officer, the trial judge acquitted her on the basis of self-defence. The acquittal turns on the trial judge’s finding that F honestly believed it was unlawful for the police officers to restrain S and place him under arrest for having attacked them inside the commercial space. Implicit in this finding is an additional one: that F honestly believed that she and S had a right to occupy the commercial space and, by extension, a right to repel the police. Absent a colour of right defence, there could be no basis for S and F’s purported belief that they had a right to repel the police. The trial judge’s error on colour of right tainted her finding that F acted in self-defence, and might reasonably be thought to have had a material bearing on F’s acquittal on the assault charge.

The trial judge’s error on the colour of right issue also tainted the acquittals on S’s assault and drug possession charges. The basis for these acquittals was the trial judge’s finding that S and F’s s. 8 rights were violated, and the resulting exclusion of evidence. Section 8 of the Charter only confers protection against unreasonable searches and seizures to the extent that an individual establishes a reasonable expectation of privacy, on a balance of probabilities. On the facts of this case, the trial judge’s error on the colour of right issue brings into doubt whether there was a subjective expectation of privacy, much less a reasonable one. To the extent that s. 8 of the Charter was not properly engaged, the trial judge was not in a position to exclude any evidence. Accordingly, the trial judge’s error might reasonably be thought to have had a material bearing on S’s acquittals for the assault and drug possession charges.

Neither the trial judge nor the Court of Appeal distinguished between the first and second set of breaking and entering charges. The February 18 breaking and entering charges should have been analyzed separately from those of February 1. In light of the undisputed evidence, it is difficult to conceive that S and F had an honest belief in their right to occupy the commercial space on February 18. However, because the Crown did not request an alternate remedy, the February 18 breaking and entering charges should be sent back for a new trial along with the remaining charges.

Reasons for judgment by Moldaver J, writing for the Court.

Neutral Citation: 2015 SCC 40. Docket No. 35971

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15477/index.do