[September 24, 2024] Causing a Disturbance and Mischief [Justice A.A. Fradsham]
AUTHOR’S NOTE: In this case, Justice Fradsham tackled the nuanced boundary between the constitutionally protected right to freedom of expression and the criminal offences of causing a disturbance or mischief. The case involved an individual protesting a library event—a drag queen story hour for children—during which the protester vocally expressed his disapproval of the event. The central legal issue was whether the protester’s actions, though an exercise of free speech, amounted to criminal conduct by disturbing the peace or causing damage to public order.
Justice Fradsham provided a detailed examination of the criminal law on causing a disturbance and mischief, focusing on the need to assess the intent and impact of the protester’s actions in context. The law typically looks at whether the accused’s behavior went beyond the normal range of activities acceptable in that public space and whether it created a significant disruption or caused harm.
In this instance, the protester’s intent was clear—he was loudly protesting what he considered to be an inappropriate event for children. However, the Court found that the protest remained within the acceptable bounds of expression. The key issue in Justice Fradsham’s reasoning was that the protester’s actions did not themselves cause substantial disturbance or damage; rather, the unexpected and emotional reactions of others present escalated the situation. The disruption that followed was more attributable to the reactions of the audience than to the protester’s protest itself.
Introduction
[2] The Crown elected to proceed by way of summary conviction procedure.
[3] As will be explained in the “Facts” portion of these Reasons, these charges arise from Mr. Reimer’s attendance at the Seton branch of the Calgary Public Library where he expressed his disapproval of a library-organized event called “Reading with Royalty” in which “drag queens”1 were reading stories to, and interacting with, young children and adults. Opinions about such events can be strongly divergent, and because that is so, it is important to be crystal clear on what this judgment is about and what it is not about.
[4] This judgment is not in any way concerned with the arguments either in favour of, or opposed to, the “Reading with Royalty” event, or similar events.
[5] This judgment is concerned solely with whether or not the Crown has proven beyond a reasonable doubt that the accused committed one or both of the alleged offences.
[6] In these Reasons, a reference to a section number is, unless otherwise stated, a reference to that section number in the Criminal Code.
[10] The Seton branch of the Calgary Public Library is located at 4995 Market Street S.E., in Calgary, Alberta, and was first opened on January 16, 2019. I will sometimes refer to it simply as “the Seton library”. The Seton Library is physically adjacent to a YMCA facility.
[11] The Seton library is not operated in the style of the traditional “make no noise” library depicted in novels and movies. Ms. Gray described the library as having areas which are much more vibrant. Her evidence on the point, which I accept, was as follows:
“Q I take it that the Seton Library is similar to what we have come to understand as a library complete with books available for sign-out by the public and quiet spaces to learn and read?
A Yes. Quiet is said in quotation marks but, yes.
Q Okay. Why is that?
A We encourage play in the library especially for the younger children. So, we do have quite rambunctious children sometimes in the library so I will not say it is a quiet library by any means but we do have quieter spaces. We have a quiet room and then we have a couple of rooms that patrons are allowed to book for their own study and there’s a couple — or sorry, one — one program room that they are allowed to book that they can have their own birthday parties or their own different events in there.
A — but adults are allowed to hold conversations. If they want they can hold debates or occasionally there is an argument but we do ask them to keep it below a certain level as long as they are not disturbing other patrons in the area especially if they are up in the program room area or on the mezzanine level which is our study space. That is what we have reserved for our quiet space. So, we don’t encourage people to do a lot of talking up there. Like, little questions here and there but don’t have like a coffee date there. We ask them to be elsewhere in the library for that.
[12] Prior to February 25, 2023, the Seton library had a programme known as “Reading with Royalty” which Ms. Gray generally described (and I accept her description) in these words:
A So, Reading with Royalty is a story-time program that we have partnered with Calgary Pride for. So, it is designed for all ages and what it is its — participants come. One of the facilitators, so a worker from the library, would then work with one or two readers from Calgary Pride who are in drag. They would work together and we read stories. We do songs. We do rhymes. We do dances. At the end of the program we have a dress-up period so the kids can enjoy themselves and participate a little bit in that and then there is a ‘Q’ and ‘A’ session with some of the Royal readers just to kind of get the public familiarized with them and their life and what drag is and that culture and we also will give out sometimes there’s colouring sheets and informative — we have a gingerbread person that has some info on it that we give out to the parents if they like. There’s buttons that kids can make. Sometimes I had those for my program. Yeah. It’s just a fun program that is a little bit different than the story-times that we normally put on.
[13] A session of that programme was scheduled for February 25, 2023. Initially it was planned to conduct the programme in the open area by the children’s area. However, concerns about a possible protest led the library staff to move the event to the adult programme area.
[14] During the course of the event, there were three incidents. While it is the third of the incidents which forms the subject matter of the two charges before the Court, knowing what happened in the first two incidents will assist in understanding what occurred during the third incident.
[16] Ms. Gray described what occurred:
….A woman — a blonde woman in a blue jacket stood up. She had been sitting in the chairs given to the adult. She was in the middle. She stood up and said something along the lines of do you know what you are exposing your children to. She had a phone in front of her and appeared to be filming us.
So, at that point one of my readers Nolan (phonetic) was still reading the book and participants had asked the woman to leave. She initially was not leaving the program. So, that adult participants of the program did crowd around her to block her sight and block the — the phone from the rest of the room and they kind of crowded — crowded her to leave the room. At this point I did stand up to go provide aid but by the time I had gotten to the back of the room the participants had already removed the woman from the room.
A It distracted the flow of the program for sure but not enough that we didn’t feel confident going forward and everybody still seemed to quite okay with continuing with the program.”
[17] I accept that description
[19] After the woman was removed from the room by the adult audience members, the reader (Nolan) finished the reading of the book. Ms. Gray then led the children in rhymes and a song (“for the children to get up and move around”). A man came into the room and went along the back glass wall. He was yelling. Ms. Gray described the man as “shouting religious jargon”.
[21] Ms. Gray testified that the adult participants in the programme “crowded around the person, asked him to leave”, and when he did not, they “just crowded around him until he left the room”. In cross-examination, she testified that the man involved in this second incident was in the room for much less time than the woman in the first incident. The man in the second incident was in the room approximately 30 to 60 seconds. Subject to my comment about Ms. Gray’s evidence about what the man said (in the second incident), I accept her description of the second incident.
[22] Ms. Gray testified that the effect of this event was “a little bit more jarring”. She said, “there were supposed to be people outside the room preventing others from coming into the room and that had not — was not working.” While I accept her evidence on that point, I am of the view that her reference to “people outside the room preventing others from coming in” was a description of an informal, ad hoc measure; this session of the Reading with Royalty programme had not lost its character of being a “drop-in programme”. Indeed, in cross-examination, Ms. Gray was clear that even though the programme was being held in a programme room, it remained an “open programme”: those wishing to attend the programme were permitted to enter the room.
[23] During this second incident, Ms. Gray was “actively running the programme”. She testified that she was “focussed on the children and the rhyme and song that I was currently singing.” I accept that.
[24] In cross-examination, Ms. Gray agreed that the woman involved in the first incident was forced out of the room within about 60 seconds of her making her comments. The man involved in the second incident entered the room approximately three minutes later. He made some statements and was forced out of the room; he was in the room between 30 to 60 seconds. I accept that evidence.
[25] Ms. Gray described the third incident (which is the one which forms the subject matter of the charges before the Court):
A So, after that, I — I was continuing on with the rhyme and song that I was doing with the kids and then within a minute or two while I was still on the same tune — song, we then had a third man enter the room. He was taller, wearing dark clothing, and came in the room and he started yelling or talking extremely loudly, and I cannot remember a hundred percent what was being said but at that point he started to come towards the front of the room along the side glass wall.
A So, at that point I believe he was also asked to leave the room. He continued to walk forward. The adult participants of the program attempted again to surround him and not let him continue coming into the room. Just — but that in this case did not work. He continued to come into the room speaking extremely loudly and moving forward towards the front of the room where myself, the readers, and the children were located. And then at that point he was getting quite close to where the children were located. So, myself and my readers we tried to get the children to move away from that wall and that area because we did have some toddlers on the floor in that area”.
[26] Ms. Gray testified that she “was continuing with my song”. She said she “was attempting to keep the children focussed on me and not focussed on what was going on elsewhere in the room.” She said the “man continued up along the wall and he did get behind us at one point”. Ms. Gray could not recall what the man was saying. I will note here that the evidence is clear, and I accept, that it was the accused who was the man described in the third incident.
[28] Ms. Gray described the effect of the third incident:
“A This particular disruption had quite a bit more effect on the room. By this point I had adults who were visibly shaken. We had children that were crying. I had one younger – – or like a preteen, so he was probably about 10 or 11 years old from what he looked like to me, come from where the adults were — kind of like the back of the carpeted area — come run up to the front, grab his little brother, and then run and try to leave. I did notice at this point we did have participants leaving. So, we — from what I could see most of the people in the room were visually (sic) shaken.
Q You said it was at that point similar to the other interruptions, Mr. Reimer was surrounded by some of the attendees?
A Yes.”
[29] The accused was able to “continue up the room”, but Ms. Gray did not know how he was able to get past the surrounding adults. She did say that when Mr. Reimer was behind her and Nolan, Mr. Reimer was surrounded by people.
[31] Ms. Gray said she did not see Mr. Reimer once the surrounding group had him at the door to the room. She said she was focussed on “keeping the children engaged with me”. I accept that.
[32] Ms. Gray said that she was shaken by “Mr. Reimer’s behaviour”, and that she was worried about the children in the room and just in what was going on.” She said she was focussed on “keeping the children calm”.
[33] Ms. Gray was asked about the effect these events had on the Reading with Royalty programme that day:
“Q All right. What effect did this interruption have upon the Reading with Royalty program that day?
A Like, I had previously stated, we did have people leaving the program. Quite a few. And not returning. It — it affected the feel of the program. Normally it is a very happy program. Normally there’s a lot of smiling faces and we are having fun. There afterwards were less smiling faces than I would normally have and continuing forward it wasn’t as upbeat as the program’s normally run. And the ‘Q’ and ‘A’ session afterwards did not really happen. Yeah.
[34] In cross-examination, Ms. Gray explained that the way she would “generally end the story time portion of the programme is that I invited the participants of the programme that if they have any questions to feel free to come and chat or if they want to raise their hand.” She extended that invitation at the end of the February 25 session; her view was that the audience did not respond as they had at the end of previous sessions. I accept that she perceived a difference in audience participation.
[35] She said that Mr. Reimer “ultimately did leave the room” but she could not describe how that occurred. She said that after Mr. Reimer left the room, he “continued yelling” such that he could be heard through the glass walls. At “one point”, he was “knocking and banging on the back glass wall.” She said that “the adult participants of the programme were still quite aware and monitoring where he was”.
[36] In re-examination, Ms. Gray said that the incident with Mr. Reimer lasted longer than the second incident. From the whole of the evidence, I find that the incident with Mr. Reimer lasted no more than two minutes.
[38] Ms. Gray testified that the Calgary Public Library continues to offer the “Reading with Royalty” programme, but it is now a “registered” programme instead of a “drop in “programme. The programme is now always held in a programme room (as it was in the Seton library on February 25, 2023).
[40] As noted, I also heard evidence from Ms. Ellert who had attended the February 25 “Reading with Royalty” event with her two children. She said that there were “maybe like a dozen adults and maybe about that many children.” In cross-examination, she confirmed that there were about 12 adults and 12 children in the room. As previously noted, I accept that as being an accurate estimate of the number of people in the room during the incident with Mr. Reimer.
[41] She also testified that some of the children in the audience were crying after the second incident. I accept that.
[44] Ms. Ellert said that she was “very scared”. When asked why she was scared, she gave this explanation:
“A Well, I didn’t understand why he was in the room yelling at us and I was scared for the children that were on the rug that he almost stepped on and the performers that were trying to provide this event for us and they couldn’t but I was — I was quite shaken at the point. Very nervous about the whole situation. I just — I wasn’t sure what he — what his purpose was or like what he was capable of when he was doing that in that room.”
[45] I accept that Ms. Ellert felt the way she described.
[47] As to the audience reaction to the totality of the events, Ms. Ellert said that one of the male audience members was crying, and “many of the children were crying. The parents were comforting each other.” I accept that.
[51] In cross-examination, Ms. Ellert was asked these questions and gave these answers:
“Q So, I want to make sure I understand. Mr. Reimer tries to go into the room; right?
A Yeah.
Q There’s a group of adults who try to prevent him from getting into the room.
A Yes. 26 27
Q He gets past the group of adults; right?
A Yes. 29 30
Q He makes some statements?
A Yes.
Q People make statements right back at him; right?
A Yeah.
Q He makes his way around the edges of the room to the front of the room.
A Through people but, yeah.
Q Right?
A Yeah.
Q And at that point that’s when as you say in your statement these five or six adults surrounded him and to use your words “almost physically drag him out of the room”; right?
A Yes.
Q And then it was at the door after being dragged to the front of the room where there was what you describe as a physical altercation that resulted in him falling.
A Yes.
Q Okay. Did you see Mr. Reimer land on the ground?
A No.”
[52] I accept that evidence.
[53] Ms. Ellert said that Mr. Reimer “knocked” on the glass once after he had been expelled from the room. She said she could hear him “yelling” outside the room, but “couldn’t make out what he was saying through the glass.” I accept that evidence.
[54] From the contents of the video marked as Exhibit 2, I find that Mr. Reimer was physically ejected from the room by a group of adults. He was ejected with sufficient force that he fell to the floor. He did not respond with force.
[55] In addition to the evidence which I have already stated as being accepted by me, I find the following facts concerning what happened in the programme room:
6. The third incident involved Mr. Reimer. He was able to enter the room and made his way along the side of the room to the front of the room while being followed by audience members. Some children who were sitting on the floor moved away from him as he walked to the front of the room being followed by audience members. Mr. Reimer was yelling. There is no evidence which allows me to determine what Mr. Reimer said. There is evidence that he made some “comments about Jesus”, and I accept that, but beyond that I do not know what he said. Mr. Reimer was then surrounded by adult members of the audience and was physically escorted and ejected from the room. He was ejected with enough force that he fell to the ground. There is no evidence that Mr. Reimer resorted to force.
7. About one-half of the adult audience members of the audience were involved in ejecting Mr. Reimer from the room.
8. Some children in the audience were crying after the second incident and before Mr. Reimer made his appearance.
9. When Mr. Reimer entered the room and made his way to the front while “speaking extremely loudly”, Ms. Gray “was continuing with [her] song. [She] was attempting to keep the children focussed on [her] and not focussed on what was going on elsewhere in the room.”
[57] Jordan Blasetti, a supervisor at the Seton branch of the Calgary Public Library, testified. He testified that once Mr. Reimer was ejected from the programme room, Mr. Blasetti spoke with him and followed him as he walked.
[58] The video does not show Mr. Reimer doing anything other than walking and talking loudly. He did not interfere with any other users of the library space, and other users of the library did not appear to change what they were doing. Mr. Reimer was asked to leave the library, but he did not do so until the police arrived and made the same request of him.
Law and Analysis
Causing a disturbance (Count 2)
[64] Section 175(1)(a) creates the offence colloquially known as causing a disturbance in a public place, and sections 175(1)(a)(i)-(iii) set out the various ways in which that offence can be committed.
[65] Mr. Reimer is charged with committing the offence contrary to section 175(1)(a)(i) which reads:
“Everyone who (a) not being in a dwelling-house, causes a disturbance in or near a public place, (i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language…is guilty of an offence punishable on summary conviction.”
[66] In R v Lohnes (1992) 69 CCC (3d) 289, the Supreme Court of Canada discussed what “constitutes a public disturbance under section 175(1)(a) of the Criminal Code … which makes it an offence to cause a disturbance in or near a public place by, inter alia, fighting, screaming, shouting, swearing, singing or using insulting or obscene language.” The Court noted that “shouting or swearing or singing are not in themselves criminal offences. They become criminal only when they cause a disturbance in or near a public place.” (p 290)
[67] At p 299, McLachlin J. stated:
The weight of the authorities, the principles of statutory construction and policy considerations, taken together, lead me to the conclusion that the disturbance contemplated by s 175(1)(a) is something more than mere emotional upset. There must be an externally manifested disturbance of the public peace, in the sense of interference with the ordinary and customary use of the premises by the public. There may be direct evidence of such an effect or interference, or it may be inferred from the evidence of a police officer as to the conduct of a person or persons under s. 175(2). The disturbance may consist of the impugned act itself, as in the case of a fight interfering with the peaceful use of a barroom, or it may flow as a consequence of the impugned act, as where shouting and swearing produce a scuffle. As the cases illustrate, the interference with the ordinary and customary conduct in or near the public place may consist in something as small as being distracted from one’s work. But it must be present and it must be externally manifested. In accordance with the principle of legality, the disturbance must be one which may reasonably have been foreseen in the particular circumstances of time and place.
[68] At p 298 of R v Lohnes, supra, Justice McLachlin endorsed the comment of Chief Justice MacKeigan in R v Swinimer (1978) 40 CCC (2d) 432 (NSCA) that “the test for a disturbance in or near a public place under s. 175(1)(a) should permit the court to weigh the degree and intensity of the conduct complained of against the degree and nature of the peace which can be expected to prevail in a given place at a given time.”
[69] A helpful summary of the law is found in R v Enchin-Dixon 2021 BCPC 45 at paragraph 98:
1. It is something more than mere emotional upset or annoyance.
2. The conduct must cause an externally manifested disturbance of the public peace, in the sense of an interference with the ordinary and customary use by the public of the place in question.
3. The interference may be minor but it must be present.
4. The disturbance may be proven by direct evidence or be inferred from the evidence.
5. The disturbance may consist of the impugned act itself or it may flow as a consequence of the impugned act.
6. The disturbance must be one which may be reasonably foreseen in the particular circumstances of time and place.
[70] Justice Cooke said in R v Lawrence (1992) 74 CCC (3d) 493 (Alta QB) at p 504 that “it is clear that the purpose of the section is not to limit freedom of expression but rather to prevent the disruption of the public’s normal activity and use of a public place by externally manifested disorder.”
[74] The mens rea of the offence was explained in R v Brazau 2017 ONSC 2975 by Justice Goldstein:
[37] The mens rea required is not the intention to cause the disturbance itself. The intent required is to do one of the things set out in the Code: for example, one must possess the intention to fight, scream, shout, or use insulting language. The disturbance is the by-product. The disturbance must cause interference with the ordinary and customary use of the public place. In other words, the offence catches those who intend to do the things that cause a disturbance. That is exactly what Mr. Brazau intended: he meant to convey his opinion by screaming, shouting, or the use of insulting or obscene language. His reason for the acts – his motive – was irrelevant.
[76] “Shouting” is not defined in the Criminal Code. However, I respectfully adopt the definition provided by Justice Hutcheon in R v Reed (1992), 76 CCC (3d) 204 (BCCA) at p 207: “The word ‘shouting’ in its ordinary sense involves a loud, vehement human voice without the aid of an amplified sound device.”
[77] The evidence satisfies me that Mr. Reimer engaged in shouting both while in the programme room of the library and while outside that room (after he was ejected from the programme room).
[81] In the case at bar, nothing is known about what Mr. Reimer said in the programming room (apart from some “comments about Jesus”). Consequently, it has not been proven that Mr. Reimer used “insulting language” in the programming room.
[82] After Mr. Reimer was ejected from the programming room, and while he walked back and forth in the large area outside that room, he uttered the following words and phrases: “to have a pervert dressed up like that is wrong and evil…That they’re having this pervert hour – we have this pervert hour at so many libraries…it’s perverted…We’re coming against this perversion, perversion of drag queens, perverting our children….”
[84] I am satisfied that the words uttered by the accused outside the programming room, and which I have set out above, constituted “insulting language” as referred to in section 175(1)(a)(i).
[85] I am satisfied that both the adult programming room and the area outside it were public places. The public was permitted access to both.
[86] Did the accused, by either shouting, or using insulting language, cause a disturbance in either or both of those public places?
[90] While the combination of these events (the shouting, Mr. Reimer’s physical movement toward the front of the room, and the adults trying to follow/envelop him) caused some emotional upset, it did not result in an externally manifested disturbance. Those presenting the “Reading with Royalty” programme continued with their work. To the extent that those presenters monitored where Mr. Reimer was in the room, they did so while continuing with their presentation, and did so not because of his shouting, but because of the physical movement of Mr. Reimer into the room and the reaction of those who wanted to remove him from the room. The evidence does not enable me to decide whether those who wanted to remove Mr. Reimer from the room did so because of the content of what Mr. Reimer was saying or because he was shouting it or simply because he was moving to the front of the room. [Emphasis by PJM]
[91] I find that the Crown has not proven beyond a reasonable doubt that Mr. Reimer caused a disturbance in the adult programming room by one of the actions enumerated in section 175(1)(a)(i). He caused emotional upset which may have been caused, in part, by his shouting. If I am wrong, and there was a disturbance in the adult programming room, then it is not at all clear whether it was the result of some of the audience members’ reaction to Mr. Reimer’s physical movement within the room, or to the content of what he was saying, or to his shouting.
[92] In the public area outside the adult programming room, three things occurred which may have attracted attention:
1. Mr. Reimer being ejected from the adult programming room with such violence that he fell to the floor in the open area.
2. Mr. Reimer shouting as he walked around the open area.
3. Mr. Reimer using insulting language.
[93] Some people within the library looked at what was occurring in that open area. There is no evidence that they were deterred or prevented or impeded from their normal use of the library space. There is no evidence which would allow one to reasonably conclude, much less conclude beyond a reasonable doubt, that their attention was momentarily drawn to Mr. Reimer’s shouting or use of insulting language rather than being drawn to the act of Mr. Reimer being physically thrown to the floor. Further, I find that the physical act of throwing Mr. Reimer to the floor as he was ejected from the adult programming room was not a reasonably foreseeable consequence flowing from the act of shouting within that room….
Mischief (Count 1)
[94] Section 430(1)(d) states: “Everyone commits mischief who wilfully…(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.”
[99] In R v Maddeaux (1997), 115 CCC (3d) 122 (Ont CA), Justice Austin, speaking for the Court, interpreted the words “use, enjoyment or operation” as they are found in section 430(1)(c). I am satisfied that his Lordship’s comments equally apply to those words as they are found in section 430(1)(d). At p 127 of R v Maddeaux, supra, Justice Austin said:
“…In my view, the words “use, enjoyment or operation” in s. 430(1)(c) are to be read ejusdem generis. “Use” of this property would include being present in the apartment for the purposes of cooking, eating, cleaning, resting, sleeping, listening to the radio and watching television. The word “enjoyment” might include any or all of those uses. “Operation” would not normally be employed in connection with a residential property, such as an apartment, but would be used in connection with a commercial, institutional or industrial enterprise as, for instance, a music shop, a grocery store, a library, or a mill.”
[100] Justice Veit, in paragraph 45 of R v Hnatiuk 2000 ABQB 314,….
….can provide”
[101] Justice Veit then went on to explain that actions which interfere with “enjoyment” must also be wrongful if they are to be made criminal by section 430(1). Justice Veit said, at paragraph 46:
[46]….Common sense tells us that the doing of something which is not illegal is not transformed into a crime by the fact that it annoys a neighbour. However, the doing of something which is wrongful – for example causing a loud disturbance in the middle of the night which contravenes a municipal by-law may also constitute a crime if it disturbs, or interferes with, a neighbour’s sleep. A purposive interpretation of the words of s. 430 leads us to the conclusion that, although the words themselves are broad, they mean that a person who engages in wrongful behaviour which interferes with the lawful enjoyment of property is guilty of a crime. …
[102] In my respectful view, that same logic applies to conduct which is said to unlawfully interfere with the operation of property (which is at the core of what is alleged against Mr. Reimer in Count 1). Before those acts which interfere with the operation of property become criminal by virtue of section 430(1), they must be wrongful (“unlawfully interfere”).
[103] I respectfully agree with Justice Veit that in order for an act to be wrongful it must contravene a municipal by-law, or some statutory regulation, or constitute a civil wrong…. [PJM emphasis]
[104] Consequently, I am of the view that in order for Mr. Reimer to be convicted on Count 1, the Crown must prove beyond a reasonable doubt that acts of Mr. Reimer interfered with the Calgary Public Library Board’s operation of the Seton branch of the Calgary Public Library, and that those acts were wrongful.
[105] During the course of all of the events of February 25, 2023, as found from the evidence, the operation of the Seton branch of the library by the Calgary Public Library Board continued unabated. The library stayed open, the library staff performed their duties, the public had access to the facility, the library spaces were used as intended by staff and public, and normal library functions continued.
[106] I find that the acts of Mr. Reimer did not obstruct, interrupt or interfere with the Calgary Public Library Board’s lawful use, enjoyment or operation of the Seton branch of the library.
[107] Further, though I need not decide this in light of my finding, no evidence before me would allow me to conclude that Mr. Reimer’s acts were “wrongful” as that term was used by Justice Veit in R v Maddeaux, supra.
Verdicts
[119] My task is a narrow one. It is to determine whether the Crown has proven beyond a reasonable doubt that the accused committed one or both of the criminal offences with which he has been charged.
[120] Not all actions which are inconsiderate or disrespectful of others are criminal. The actions committed by Mr. Reimer on February 25, 2023, in the Seton branch of the Calgary Public Library may have been many things, and some of them, on any objective basis, were inconsiderate and disrespectful of others, but, for the reasons which I have set out above, I am of the view that they did not cross the line into criminal acts.
[121] I find the accused not guilty of Counts 1 and 2.
[July 10, 2024] Re-opening Appeal concluded without resolution of the Substance of the Issue [Reasons of Bourgeois J.A. with Fichaud and Beaton JJ.A. concurring]
AUTHOR’S NOTE: This case offers a comprehensive analysis of the legal principles governing the reopening of appeals that were previously abandoned without being decided on their merits. In the present case, the appellant, who was dealing with mental health issues, had initially chosen to abandon his appeal. However, he later sought to revive it, arguing that his mental health problems had influenced his decision to abandon the appeal prematurely.
The Court took into account several important factors in deciding to allow the reopening of the appeal. First, the seriousness of the offences for which the appellant had been convicted played a significant role. The Court was mindful of the fact that the gravity of the crimes warranted a careful examination on appeal, as these were not trivial matters that could easily be disregarded.
Second, the Court considered the timing and diligence with which the appellant sought to revive his appeal. The appellant acted with relative dispatch once he had a change of heart and decided to pursue the appeal again, suggesting that he was not simply delaying the process without cause but had a genuine interest in having the merits of his case reviewed.
Given these factors, and the overarching principle that justice should not be denied due to procedural missteps when the merits of a case have not yet been addressed, the Court ruled in favor of reopening the appeal. The appellant’s mental health issues were deemed a valid reason for his initial abandonment, further supporting the decision to give him a chance to have his appeal heard on the merits.
This case highlights the importance of balancing procedural fairness with the need to consider the individual circumstances of appellants, particularly when mental health and the seriousness of the charges are involved.
Reasons for judgment:
[1] On June 12, 2024, this Court heard a motion brought by Christian Enang Clyke, in which he seeks to re-open an appeal in relation to his conviction for second degree murder. That appeal was dismissed by order of this Court on June 29, 2022.
[2] Although it is exceptionally rare to do so, for the reasons to follow, I would grant the motion, set aside the Court’s earlier order and direct Mr. Clyke’s appeal be re-opened.
Background
[3] On May 1, 2019, Mr. Clyke was convicted of second degree murder and received a life sentence with no eligibility for parole for 12 years. Mr. Clyke is schizophrenic and has had periods of profound dysregulation which have waxed and waned depending on the treatment received from time to time.
[4] Mr. Clyke filed a Notice of Appeal challenging his conviction, and was eventually provided legal counsel for his appeal. His appeal counsel, Mr. David Mahoney, K.C., filed a Second Amended Notice of Appeal, in which two grounds of appeal were alleged: that the conviction constituted a miscarriage of justice due to the ineffective assistance of trial counsel, and that his right to make a full answer and defence as guaranteed by s. 7 of the Charter of Rights and Freedoms, had been breached by the Crown’s failure to disclose an audio recording of a statement he had given to police.
[5] Shortly before his scheduled hearing, Mr. Clyke fired his appeal lawyer. In his evidence on the motion, Mr. Mahoney indicated Mr. Clyke had insisted he obtain a transcript of a civil proceeding which, according to Mr. Clyke, would invalidate the murder conviction. The relationship broke down when Mr. Mahoney didn’t obtain the transcript.
[6] Mr. Clyke then had staff at the federal institution where he was incarcerated fax a letter to the Court indicating he no longer wished to pursue his appeal. The Crown submitted that given the appellant’s discontinuance of the appeal, the Court had no further jurisdiction to hear it. The Court directed Mr. Clyke attend the scheduled appeal hearing, and further appointed his former counsel as amicus curiae.
[7] The hearing commenced on June 22, 2022 with Mr. Clyke being present and expressing he would continue with the appeal. As is the usual procedure, Mr. Clyke’s motion to introduce fresh evidence in relation to the allegation of ineffectiveness of counsel was heard first. Two expert witnesses who had provided affidavits in support of the Mr. Clyke’s motion were cross-examined by the Crown.
[8] The next witness was Mr. Clyke himself. During cross-examination by the Crown, Mr. Clyke became upset, and indicated he no longer wished to continue with the appeal. He repeated his desire to discontinue the appeal, notwithstanding the presiding justices offering him the opportunity to obtain legal advice, and explaining the consequences of the Court accepting his abandonment. Mr. Clyke persisted, and the Court dismissed the appeal and issued an order accordingly on June 29, 2022.
[9] On August 9, 2022, Mr. Clyke placed a call to his former counsel, asking that his appeal be re-activated. A motion was subsequently made, and after a number of scheduling delays due to Mr. Clyke’s deteriorated mental health, the motion was heard on June 12, 2024.
Issues
[10] Based on the materials before me, including the submissions of counsel, I would identify the issues to be resolved on the motion as follows:
1. Does this Court have jurisdiction to set aside the previous order dismissing the appeal?
2. If the Court has jurisdiction, should we exercise our discretion to set aside the previous order and re-open the appeal?
Analysis
Does this Court have jurisdiction to set aside the previous order dismissing the appeal?
[11] The Crown submits there is no jurisdiction to set aside the earlier order of this Court and relies on the doctrine of functus officio….
[12] The Crown says in the present case there is both an order dismissing the appeal, and it was disposed of “on the merits”. Counsel for Mr. Clyke submits the existence of an order is not fatal to the re-opening of an appeal, where, as here, the appeal was not resolved on the merits, but rather, based on an appellant requesting a discontinuance.
[13] I am satisfied this Court has jurisdiction to set aside a prior order dismissing an appeal where the appeal was not heard on its merits. In that regard, I rely upon R. v. Forrayi, [1997] N.S.J. No. 179, R. v. H. (E.) (1997), 33 O.R. (3d) 202 (C.A.), R. v. M.S., 2021 BCCA 378, and R. v. Scott, 2023 ONCA 820. The crucial questions here is: was Mr. Clyke’s appeal heard on its merits?
[14] In Scott, supra, the Ontario Court of Appeal, in discussing the restricted ability to re-open an appeal said:
[33] Under any formulation, jurisdiction to reopen after a formal order has been issued is precluded where there has been a hearing at which merit based arguments were made and a decision that is based on the panel’s appreciation and assessment of the merits of the appeal, as opposed to a basis independent of the merits. For example, an appeal that was heard on the merits but was then dismissed because the appellant abandoned it would not fall into the Rhingo formulation or any of the later formulations of when jurisdiction is precluded.
[Emphasis added]
[15] I am satisfied the order of dismissal previously issued in this matter was not based on the merits of the appeal. The evidence presented on the motion demonstrates the hearing of the appeal was cut short by Mr. Clyke’s insistence on discontinuing it. The motion for fresh evidence had not concluded, nor had the hearing of argument on the merits commenced. The order clearly noted it was made due to “the appellant advising the Court that he wished to abandon his appeal”.
[16] There were no merit based arguments made, nor was the panel’s determination to dismiss the appeal based on any consideration of the grounds of appeal. I am satisfied this Court is not functus officio and has jurisdiction to consider the motion.
If the Court has jurisdiction, should we exercise our discretion to set aside the previous order and re-open the appeal?
[17] Mr. Clyke submits that in considering whether to re-open the appeal, this Court should be guided by whether it is in “the interests of justice” to do so. He relies on Civil Procedure Rule 91.23(6) which provides:
(6) A notice of abandonment has the same effect as an order dismissing an appeal, unless a judge who is satisfied that it is in the interest of justice to do so permits the appellant to withdraw the abandonment.
[18] Mr. Clyke submits there are a number of considerations which weigh in favour of permitting the appeal to be heard on the merits. These include the seriousness of the charge and resulting sentence, that there is arguable merit to the appeal, and that his discontinuance of the appeal was, on a balance of probabilities, influenced by his status as a self-represented litigant and his mental health issues.
[21] I am satisfied it is in the interests of justice to re-open the appeal to allow it to be heard on the merits. In doing so, I note:
• Unlike in Smithen-Davis, the appeal here was not heard on its merits. As such, I decline to accept the Crown’s invitation to apply the standard of a “clear and compelling case”, rather, the consideration here is whether Mr. Clyke has demonstrated his appeal raises arguable grounds;
• Mr. Clyke’s appeal raises arguable grounds of appeal. In particular, based on the material before the Court on the motion, there is arguable merit to the assertion Mr. Clyke did not receive effective representation from his trial counsel;
• The charge before the Court is extremely serious. Mr. Clyke is serving a life sentence with parole ineligibility set at 12 years;
• Although there was no expert evidence adduced on the motion, this Court had the opportunity to listen to Mr. Clyke provide evidence regarding why he abandoned his appeal. It is more likely than not his decision to do so was influenced by a delusional belief the conviction was going to be set aside as a result of civil litigation being undertaken;
• Mr. Clyke made the decision to abandon the appeal when he was emotionally upset and without the benefit of legal counsel; and
• Following the dismissal of the appeal, Mr. Clyke, less than two months later contacted his former appeal counsel to have the appeal revived.
[22] As the Crown correctly asserts, there are other factors which are engaged in a consideration of the “interests of justice”, including finality and a consideration of the victims of crime. In some contexts, those factors may out weigh others, and result in a Court declining to re-open an appeal. However, this is not such a case.
Disposition
[23] The motion to re-open the appeal is granted. The appeal shall proceed based upon the allegations contained in the Second Amended Notice of Appeal, filed March 31, 2022.
[24] The Crown is asked to arrange for the matter to return to telephone chambers for scheduling purposes.
