IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  Kenneth Charles Calvert has been charged on Information 171220‑C‑2 with the allegation that on April 4, 2017, he, without lawful excuse was in a dwelling house situate at an address on Shakespeare Street in Victoria, British Columbia, (the “Residence”) with intent to commit an indictable offence therein.  That is an offence contrary to s. 349(1) of the Criminal Code.

[2]           The task of this court is to determine whether or not Crown has proven the allegation of the offence beyond a reasonable doubt.  Alternatively, to determine whether or not Crown has proven the lesser included offence of mischief by virtue of the same evidence that gives rise to the charge on Count 1.

[3]           The obligation is upon the Crown to prove all elements of each offence beyond a reasonable doubt.  If that occurs, then and only then can the court convict the accused person.  Where reasonable doubt exists on any element of the offence charged, the accused must be acquitted.  The burden of proof rests upon the prosecution throughout the trial and never shifts to the accused person.

[4]           Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice.  Reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence.  The Crown must prove more than probable guilt.  However, reasonable doubt does not involve proof to an absolute certainty, since that would be an impossibly high standard.  The standard of reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.  In short, if, based upon the evidence before the court, the finder of fact is sure the accused committed the offence, then the finder of fact should convict, since this demonstrates that the finder of fact is satisfied of the accused's guilt beyond a reasonable doubt.  (See R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, and see R. v. Starr, 2000 SCC 40 (CanLII), [2000] 2 S.C.R. 144)

[5]           In this case, Crown has called two civilian and two police witnesses.  The civilian witnesses are Charles Bodi and Cheryl Anne Matthews.  They are the persons who were the occupants of the residential premises on Shakespeare Street.  In addition, Crown called two police constables, namely Constable Janet Hardy and then Constable, now Acting Sergeant Michael Darling, both of Victoria Police Department.

[6]           Kenneth Charles Calvert (hereinafter referred to as the "Accused") did not testify as is his right to do.  No adverse inference is drawn from the fact that he did not testify in the proceedings against him.

[7]           In considering the evidence presented by the Crown, it is important that the court must assess the credibility and reliability of each of the witnesses.  In doing so, I must weigh all the evidence, and so weighing the evidence, I may reject or accept some of all of the witnesses' testimony after having taken into account a multitude of factors which include, but are not limited to, appearance or demeanour, ability to perceive, ability to recall, motivation, probability or plausibility, and internal or external consistency.

[8]           I must also direct myself that even honest witnesses may make mistakes in their evidence or have errors of recollection, or may present upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony.

[9]           It is an error in cases of contradictory evidence simply to weigh the evidence of one witness against the evidence of another.  (See R. v. Jackson, 2007 BCSC 636, see also R. v. Mann, [2010] A.J. No. 1094.)

[10]        The decision of R. v. Cuhna, 2015 BCPC 60 at paragraphs 5 and 6, provides a useful review of the factors to be considered when assessing the testimony of a witness from three perspectives, namely:

[11]        I wish to confirm that I have used that approach when assessing the evidence of each of the four witnesses who were called in this matter.

[12]        I can say that I find all of the witnesses to be both credible and reliable witnesses.  There are some contradictions or discrepancies in their evidence, but I do not find that any of those are sufficient such that I should disregard or not accept the overall evidence presented by each of them.

[13]        Mr. Bodi was in a relationship with the owner of the Residence, namely Cheryl Anne Matthews, at the time that the events giving rise to these charges occurred.  Mr. Bodi had a key in order to access the residential premises.  He did so awaiting the arrival of Ms. Matthews.  While inside the Residence, Mr. Bodi readied himself to use the hot tub located, as I understand it, at the rear portion of the Residence.  In doing so, he was not in a position to observe what was taking place in the Residence.  It appears, on the evidence before me, that when he entered into the Residence, he left the front door of the house unlocked, awaiting the pending arrival of Ms. Matthews.

[14]        He had arrived at the Residence in or around 8:30 on the evening of April 4, 2017.  He then heard the motor vehicle of Ms. Matthews arriving at the Residence.  It was shortly thereafter Ms. Matthews came into where Mr. Bodi was situated in the house and he received a report from her to the effect that there was an individual in the Residence who was not known to Ms. Matthews.  Mr. Bodi then went into the living room area and observed an individual sitting on the floor near the fireplace.  That individual was wearing what is commonly referred to as a “hoodie”.  He was seated on the floor, facing into the fireplace, with his knees grasped to around his chest.

[15]        Mr. Bodi indicated that he approached the individual somewhat cautiously.  He did not want to startle that individual.  He then started to engage the individual and asked him why he was in the residence.  The response he received from that individual was to the effect that he was "getting warm".  For the most part, the individual, later identified as the Accused, was non‑responsive to various questions being put to him by Mr. Bodi.

[16]        Mr. Bodi described the Accused as appearing "lost" and "just not there".  Mr. Bodi observed that there was a pair of white shoes neatly arranged by the door.  Accordingly, the Accused did not have shoes on at the time.  The family dog was situated near the Accused.  The dog and the Accused were not engaging with each other. He observed an unfamiliar ring in plain view in the living room.

[17]        The situation continued such that Ms. Matthews then arrived into the living room area.  She then proceeded to start to attempt to engage with the Accused while he remained seated on the floor in front of the fireplace.

[18]        Discussions took place between Ms. Matthews and the Accused.  At that point, Mr. Bodi used the opportunity to leave the living room area, where he proceeded outside and placed a 9‑1‑1 call to the police department with a report that there was an individual in their Residence who required some attention.

[19]        The police arrived approximately 10 minutes later.  Two officers in uniform were attending; one was later identified as Constable Janet Hardy and the other as then Constable (now Acting Sergeant) Michael Darling.

[20]        According to Mr. Bodi's evidence, the police engaged the Accused in discussions. Then Mr. Bodi observed that when he went to introduce the female police officer to the Accused, the Accused simply looked up and slowly, seemed to roll his head down, looking somewhat disapprovingly at the police officer.  At that point, the female police officer, Hardy, began to engage the Accused, at which point Mr. Bodi overheard the discussions between the Accused and Constable Hardy which, for the most part, were mumbles in response to questions posed to the Accused about his name.

[21]        Mr. Bodi said he overheard the Accused telling Constable Hardy that he, the Accused, was "just trying to get warm" and also made a reference to “visiting a friend”.

[22]        Mr. Bodi observed that the police officers then were attempting to get the Accused to leave the Residence in compliance with their request; the response from the Accused was to the effect that, "I am good", "I am fine", "I am going to stay".  At that point, Mr. Bodi overheard the police officers tell the Accused that he was not going to be remaining in the Residence and he was not invited to be there, and essentially he should start to depart.

[23]        Mr. Bodi observed that the response on a continuing basis from the Accused was to the effect that he was telling the police that they should leave.

[24]        Mr. Bodi testified that at no point during his encounter with the Accused did he feel threatened.  Mr. Bodi testified that he, Bodi, is six foot one tall and weighs 225 pounds. Therefore, he is considerably taller and statutorily larger than the Accused person whom he put at a height of somewhere in the range of about five foot six inches tall.

[25]        Mr. Bodi also testified that, through his volunteer work, he has dealt with individuals whom he believes suffer from various mental health challenges.  He drew on this experience and said that his assessment was he was dealing with such an individual. Accordingly, before the police arrived he was using techniques in order to maintain a level of calm in the room while he was personally dealing with the Accused.

[26]        Mr. Bodi did testify that when he had entered into the Residence, he had left his wallet and some other personal effects in plain view.  None of those items had been disturbed.  There was no appearance that anything had been disrupted in the Residence, and there is no indication that anything had been taken by the Accused while he was in the residence. Mr. Bodi also confirmed that there had been no damage to the residence, and specifically no damage as a result of the Accused's entry into the residence.

[27]        In the cross-examination, Mr. Bodi did confirm his characterization of the individual with whom he was dealing, namely the Accused, as being "isolated" and "disconnected".  He indicated that although he was not sure, it appeared that the Accused seemed to have a lot on his mind at that point.  However, the Accused was not expressing himself in order for Mr. Bodi to make that complete assessment.

[28]        Mr. Bodi also confirmed that during his encounter with the Accused, the Accused was never aggressive nor was he threatening.

[29]        As I indicated above, Ms. Matthews is the owner of the Residence.  She arrived home and when she entered into the residence, she was somewhat taken aback by the fact that she observed a person sitting by the fireplace. She had initially assumed that the individual by the fireplace was Charles Bodi.  However, when the individual turned and looked at her, after she called to him, she realized that the individual, in fact, was not Mr. Bodi, but someone unknown to her.

[30]        A verbal exchange took place between the two of them, at which point Ms. Matthews indicated to the Accused, "You're not Charles", to which the Accused replied, "Yes, I am Charles", and to which Ms. Matthews then responded, "Not the Charles I was looking for."

[31]        At that point, there was a continuing exchange between Ms. Matthews and the Accused.  Ms. Matthews posed the question to the Accused, "What are you doing here?"  To which she received a reply from the Accused to the effect that he thought it was cousin's place and he just wanted to get warm.

[32]        Ms. Matthews testified that she did not want to be confrontational with the Accused.  She asked him whether or not he wanted water, to which he indicated no, and then at that point she went to find Mr. Bodi to discuss the person sitting in their house.

[33]        She found Mr. Bodi and explained to him that there was a strange man sitting by the fireplace with the family dog nearby.  At that point she indicated that her voice was somewhat raised, as she was panicked by the unexpected presence of the individual in the house.  She said that she was starting to feel pretty anxious about the situation and it was her hope that when she went to find Mr. Bodi, that the individual would take the opportunity and leave the Residence.

[34]        She also observed a pair of white shoes, placed close to the door of the Residence.

[35]        She described the Accused as not being rude, but she also described the Accused as not being responsive.

[36]        She was aware that Mr. Bodi, having spoken with the Accused, had then departed in order to make a telephone call to the police.  Ms. Matthews used the opportunity to continue to talk to the Accused and engage him in discussion.

[37]        She then testified about the interaction of the police when they arrived.  It bore similarity to the evidence provided by Mr. Bodi about the police encounter in the Residence during that evening.  She did confirm that the police asked the Accused to leave with them.  She indicated that the police told the Accused that they were not going to be arresting him, but they wanted to remove him to take him out of the Residence and take him wherever he wanted.  She also testified that the police indicated to Mr. Bodi that they were going to have to arrest him if he was not willing to leave with them.

[38]        Ms. Matthews confirmed that she had arrived at the Residence around 9:00 p.m.

[39]        She also saw the ring that had been observed by Mr. Bodi.  She said that the police took that ring with them.  She did not see any other unfamiliar items in the house, nor did she observe anything that had been taken or disturbed during the time that the Accused may have been in the residence.

[40]        She indicated that during the entire time that the Accused was in her presence, that he appeared very withdrawn, very unresponsive, not engaging in response to questions, and only offering one‑word or limited‑word responses, all while he sat holding himself tight in front of the fireplace.  She also indicated that at no point was the Accused aggressive or threatening towards her.  She did not observe any damage to the Residence caused by the presence of the Accused.

[41]        From the perspective of a long‑term effect on her arising out of this incident, she says that she has become very nervous when entering into the Residence and fearful of going into the house without having her lights on; she says that she is generally a lot more wary in her house and around the yard, and has had feelings of being jumpy as a result of this unexpected encounter.

[42]        She also confirmed that she was slightly fearful that the Accused might jump up, and hence her approach was to try to keep the Accused and the general tone with the Accused as one characterized as being calm.

[43]        Constable Hardy is a long‑time police officer.  She responded to the 9‑1‑1 call dispatch, arriving at the Residence at around 9:06 p.m.  She said that she was in full uniform when she entered into the house.  She was the first of the police officers to arrive on the scene.  She knelt down to speak to the Accused.  She introduced herself as a Victoria Police Department officer.  She asked the Accused his name and, in response, he provided the name of Dylan Kalvin and provided a 1986 date of birth.

[44]        As a result of her discussions with the Accused, he indicated to her that he was cold and warming himself.  She said that she told the Accused that this was not his house and that the homeowners were worried about him and did not want him to remain in the house.  In response to that, he contended that this was his house and that he intended on staying.  She described this as a "circular" discussion.

[45]        At that point, her colleague, Constable Darling, arrived and they were able to consult with each other.  She left the Residence with Constable Darling remaining in attendance and watching over the Accused.  She attended at her police cruiser in order to make inquiries with the various databases available to her.  She was unable to locate an individual by the name of Dylan Kalvin with the date of birth that had been provided.  She thought it somewhat unusual that the person she was observing would have been born in 1986.  She felt that the individual was older than that, and therefore she was therefore somewhat suspicious that the individual she was dealing with was not the person who had provided her with the name of Dylan Kalvin.

[46]        She returned into the Residence and, between herself and Constable Darling, they were able to start to pull or raise up the Accused into a standing position.  At that point, they handcuffed him and started to escort him out of the Residence and, in doing so, were guiding him down the stairs with one on each side of him.  She indicated that the plan was to take the Accused to the local hospital.

[47]        The search incidental to arrest and their detention of the Accused occurred just beside the police vehicle.  It was at that point that, in the right pocket of the Accused's jeans that she found a hospital identification bracelet with the name of Kenneth Charles Calvert, with a date of birth specifying 1976.  That permitted further inquiries to be made with the police data systems.  Based on that information, the decision was made to drive the Accused in Constable Hardy's police vehicle to the Royal Jubilee Hospital.

[48]        At the hospital, both Constable Darling and Constable Hardy remained in attendance while the Accused was triaged and assessed, initially by a medical nurse and then turned over to a psychiatric nurse.  Subsequently, the Accused was assessed by the emergency room physician.

[49]        During the course of the various assessments, both police officers remained in close proximity.  Although they were not in the same room as the Accused, they were able to notice that the Accused was engaging in more fulsome answers to the questions being posed by the various medical persons who were assessing him.

[50]        At approximately 11:15 in the evening, the police officers were informed by the emergency room physician that the intention was to discharge the Accused from the hospital.  The staff at the hospital were able to find a pair of shoes for the Accused, who had, up to the time while dealing with the police, had been without shoes; had actually been escorted from the Residence to the police vehicle without wearing shoes.

[51]        The police officers again engaged the Accused in conversation about where he was going to go and whether or not they could give him a ride.  The Accused told them that it was his intention to go to his friend's, Mike, who he indicated resided down on Bay Street.  Constable Darling indicated that Bay Street was not far from the Residence’s Shakespeare address and certainly not far from the Royal Jubilee Hospital.

[52]        Accordingly, notwithstanding the fact that there was some skepticism on the part of the police officers, they were of the belief that the Accused would not be of any further concern to them, and that they released him to go on his way.

[53]        In cross-examination, Constable Hardy indicated that the reason for going to the hospital was in order to have an assessment completed on the Accused under the Mental Health Act as a first step to determining what they were dealing with in terms of the behaviour of the Accused.

[54]        In her reports, Constable Hardy apparently described the Accused as having "catatonic‑like behaviour".  She indicated that this was evidenced to her by the Accused staring straight ahead and remaining mute.  She did confirm that she does not have a psychology background and hence this was not a clinical assessment, but rather a way of describing what she was observing.

[55]        Throughout the entire matters, the Accused remained cooperative, although there was an early indication when they were removing the Accused from the residence, that he was starting to tense himself up and they were anticipating that there could be some difficulties in terms of his compliance; but throughout, notwithstanding the fact that he was not communicative, he was generally cooperative.

[56]        Constable Darling relayed a number of facts similar to and consistent with those of Constable Hardy.  Constable Darling has extensive experience as a negotiator in dealing with high stress situations and dealing with people with emotional and mental issues.  He also has training and experience on the emergency response team.

[57]        He said that throughout his engagement with the Accused, that every attempt was made in order to keep the Accused calm.  He said that because of the lack of response from the Accused, that there was some uncertainty with what the police officers were dealing.

[58]        Constable Darling was present throughout the period of time that the Accused was being assessed at the hospital and was able to make similar observations to those made by Constable Hardy about the engagement of the Accused while in the hospital and while he was being assessed.  Constable Darling also indicated that, as a result of information that had come to his attention through inquiries on the police data base, that precautions were taken to ensure that handcuffs were placed upon the Accused in order to avoid any problems that could arise, such as an attempt by the Accused to bolt from the scene.

[59]        Constable Darling also provided information in his evidence that was consistent with the two civilian witnesses, as well as Constable Hardy, to the effect that at no point did he detect the smell of alcohol or the smell of marihuana or any other intoxicants in or around the person of the Accused.  As a result of the searches that were conducted, there was no discovery of any drug paraphernalia.

[60]         Constable Darling indicated that there was a general air of cooperation, and he described that cooperation in much the same fashion as Constable Hardy did, noting the early tensing at the time that the Accused was being removed from the Residence.

[61]        Constable Darling was the last police officer to have any involvement with the Accused and he indicated that it was in a very unusual set of circumstances.  Having concluded that there was not a risk to the public nor a risk to the Accused, Constable Darling and Constable Hardy were prepared to have the Accused released without any documentation.  Constable Darling indicated that as a result of the discussions and their interaction with Ms. Matthews and with Mr. Bodi, the police officers understood that those individuals were not seeking to press any charges, but simply wanted the Accused removed from the Residence.

[62]        However, as Constable Darling was seated in his police van, the Accused climbed into the front seat of the police van on the passenger side.  Constable Darling said in the course of his extensive experience as a police officer, that he had never had this occur where an individual climbed into a police vehicle completely uninvited.

[63]        Constable Darling then came to a different conclusion about whether or not it was advisable to allow the Accused to be simply left at large within the community.  He indicated his concern was that if an individual was willing to climb into a police car uninvited, he could only imagine what could possibly occur with such a person behaving in that fashion with a member of the general public.  Accordingly, at that point he suggested that he would provide the Accused with a ride.  The Accused was placed into the rear of the police van, driven a short distance, at which point Constable Darling pulled the vehicle over, explained to the Accused that he was going to charge him and arrest him for being in a dwelling house with intent to commit an indictable offence, Chartered and warned him, and then took him to the police station for booking.

[64]        One other piece of evidence came up from both the two police witnesses, as well as the civilian witnesses, was to the effect that on the evening in question, that it was a cold and rainy night and that the Accused did not appear to have appropriate clothes on, such as a jacket, and of course he was left without footwear when he was taken from the Residence by the police.

[65]        Section 349 of the Criminal Code reads as follows:

[66]        I note that Crown has proceeded summarily in this matter.

[67]        Another relevant provision of the Criminal Code is in s. 430, under the heading "Mischief", s. 430 reads as follows:

[68]        Counsel for both Crown and defence agree that the offence under s. 349 of the Criminal Code, is an offence requiring specific intent.  Counsel also agree that the offence under s. 430, that being mischief, is an offence requiring a general intent.

[69]        Crown and defence counsel agree that the charge of mischief under s. 430 of the Criminal Code is a lesser included offence of s. 349 of the Criminal Code, being unlawfully in a dwelling house.  The authority for that is the decision of R. v. E.(S.),(1993) 1993 CanLII 3410 (NWT CA), 80 C.C.C. (3d) 502, a decision of the Northwest Territories Court of Appeal.

[70]        The decision of R. v. Schmidtke, (1985) 1985 CanLII 3621 (ON CA), 19 C.C.C. (3d) 390, from the Ontario Court of Appeal, indicates that the offence of mischief may be properly established by general intent (see paragraph 11).

[71]        Crown indicates that the issue that the court must determine here is whether or not, with respect to the offence under s. 349, that the evidence does establish the requisite specific intent.  The Crown argues, based upon the existing evidence before the court, that that specific intent can be made out and also that reliance can be placed upon the presumption set out in subsection (2) of s. 349 of the Criminal Code.

[72]        The Crown says that the indictable offence to which Crown is relying upon, as required by s. 349(1), is the offence of mischief under s. 430(1)(d), namely obstructing, interrupting or interfering with a person in the lawful use or enjoyment of property.

[73]        On the whole of the evidence, Crown says that there is sufficient evidence in order to confirm that there was a specific intent on the part of the Accused to unlawfully enter into the dwelling house, but in the event that if the court finds that evidence is not sufficient, that the reliance can then be placed on the general intent provisions contained within s. 430 of the Criminal Code to convict the Accused of that offence.

[74]        With respect to the provisions of s. 430(1)(d), Crown says that the use of the residence by its owner, Ms. Matthews, and by her invitee, Mr. Bodi, was obstructed, interrupted, or interfered as required by subsection (d).  In particular, emphasis is placed upon the fact that Ms. Matthews felt panicked by the uninvited arrival of the Accused in her Residence.  Crown says that the evidence of the behaviour of the Accused while in the Residence, while conceding that a considerable portion of it was quite unusual, still is sufficient evidence to prove the Accused’s wilfulness, that is the general intent required in order for the Accused to be convicted.

[75]        Accordingly, Crown says that there is, first of all, no reasonable doubt with respect to the specific intent required by the provisions of s. 349(1) of the Criminal Code, or alternatively that there is sufficient evidence to eliminate any reasonable doubt about the general intent required for the mischief charge conviction under s. 430.

[76]        Accordingly, I am being asked by Crown to enter a conviction on the offence under s. 349(1) or, in the alternative, under the lesser included offence contained under s. 430(1)(d).

[77]        The defence submits that, on the whole of the evidence, the Crown has failed to establish and to prove the specific intent as required under s. 349(1) of the Criminal Code, and similarly that Crown has not proven the general intent required in order to enter a conviction under s. 430(1)(d) of the Criminal Code.  The defence places emphasis on the fact that no damage was occasioned to the premises by way of the entrance of the Accused into the Residence, and there was clear opportunity for the Accused to commit a theft of items that had been left in plain view by Mr. Bodi.  None of that occurred.

[78]        There was an engagement by both Mr. Bodi and Ms. Matthews with the Accused person.  They were offering him water and food sustenance during the period of time that they were awaiting the arrival of the police.  It is suggested by defence that their response to what the evidence indicates was a mistaken entry into the Residence by the Accused resulted in a miscommunication, and that when the police officers arrived, that the evidence suggests that the Accused had developed a perspective that he was entitled to remain inside the Residence.

[79]        Accordingly, defence says that Crown has not sufficiently established and there is not sufficient evidence to either establish the specific intent required by s. 349(1) or the general intent required under s. 430(1)(d).

[80]        Three authorities have been placed before the court.  Crown refers the court to the decision of R. v. Bellerive, 2014 ABPC 194, a decision of the Provincial Court of Alberta.  Defence has referred the court to two decisions, the first being R. v. Johnnie and Namox (1975), 1975 CanLII 1286 (BC CA), 23 C.C.C. (2d) 68, a decision of the British Columbia Court of Appeal, and also the decision of Her Majesty The Queen v. Proudlock, 1978 CanLII 15 (SCC), [1979] 1 S.C.R. 525.

[81]        The authority of R. v. Bellerive is of some assistance in this matter.  Bellerive provides a useful review of the requirements of specific intent under s. 349 of the Criminal Code, that is being unlawfully in a dwelling house.  It also references authorities and reviews authorities in connection with the determination that an offence of mischief is a general intent offence.

[82]        Based on the whole of the evidence before me, I am left with a reasonable doubt that the Accused was in the Residence located on Shakespeare Street with the intent to commit an indictable offence.  I base that on the following facts:

[83]        Hence, I am satisfied that there is a reasonable doubt, based on all of the evidence, that there was a specific intent on the part of the Accused to enter the dwelling house with the intent of committing an indictable offence.

[84]        However, I must then consider whether or not there is sufficient evidence before me in order to conclude that a conviction can be entered in connection with the mischief charge, pursuant to s. 430(1)(d).

[85]        In that regard, I have come to the conclusion that the general intent requirement of that section has been proven beyond a reasonable doubt.  In reaching that conclusion I rely specifically upon the actions of the Accused once the police officers had arrived.  There appeared to be a sufficient comprehension on the part of the Accused as a result of the exchange of information between the police officer and the Accused that he was no longer welcome to be in the Residence, and further that the occupiers of that residence wished to get him to depart from the Residence.

[86]        In my view, notwithstanding the lack of engagement with Ms. Matthews and Mr. Bodi, there was a clear and understood message being imparted by the police that the Accused should remove himself from the Residence as requested by the police.  His actions in resisting and in failing to comply with those directions, and the manner in which he was passively aggressively refusing to depart pursuant to that request, in my view, meets the requirements of demonstrating beyond a reasonable doubt that the Accused did have a wilful and general intent to be interfering or obstructing or interrupting the lawful use and enjoyment of the Shakespeare Street Residence by its two occupants.

[87]        Accordingly, I do find the Accused guilty on the lesser included offence under s. 430(1)(d) of the Criminal Code.

[88]        That completes my reasons for judgment.