Case Report – Ont. C.A. says communication defence to mischief offence should be broadly construed

Yesterday, the Ontario Court of Appeal acquitted an individual accused of mischief for parking an old van on his front lawn while his neighbors attempted to sell their house (as displayed below). The Court held that the defence in section 430(7) of the Criminal Code applied notwithstanding the accused admitted that he employed the prop as an admitted tactic for causing his neighbors to withdraw an unrelated lawsuit.

Section 430(7) reads:

No person commits mischief within the meaning of this section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.

The Court of Appeal stated that this provision, “protects acts done for the purpose of communicating information that would otherwise constitute mischief regardless of whether the intended results of that communication were to interfere with or interrupt the use or enjoyment of another person’s property.” It also held that the defence, as ambiguous in meaning, must be interpreted applied consistently with the values embodied in section 2(b) of the Charter. Recognizing that the line between lawful and unlawful communication “will not always be easily drawn,” it suggested the degree to which the communication obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property will differentiate lawful from unlawful communication. Not easily drawn indeed!

R. v. Tremblay, 2010 ONCA 469.

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