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DEFENCES - Colour of right - Defence of property

Friday, April 12, 2019 @ 8:42 AM  

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Trial of the accused for mischief. The accused worked for a company that entered into contracts with private property owners and placed boots on vehicles unlawfully parked on their property. The complainant was working at a nearby construction site and parked in a lot with a sign that read visitor parking only. The complainant testified there were no other signs present but when he came back to his vehicle, there was a sign stating trespassing motorists had to pay $300 to have boots removed from their vehicle, and there was a boot on his car, which had been placed by the accused’s employees. The complainant called the number on the sign and the accused arrived. The complainant also called the police and the accused was arrested. The accused testified his general practice was to post signs in a private parking lot for one week before he began applying boots. The accused testified he had been away but was told by employees that everything was in place. The accused argued nothing in the city bylaws prohibited booting and he checked to ensure the complainant was not a registered guest before he applied the boot. The accused was previously charged several times for booting vehicles, but the charges were always withdrawn.

HELD: Accused acquitted. It was accepted that the accused had a contract with the property owner and that he believed signs were in place in accordance with his practice. It was also accepted that the signs about booting were not up when the complainant parked his vehicle that morning, as confirmed by the site foreman who saw the accused’s employees placing them around noon. The complainant was parked improperly in the lot so was a trespasser. The parking lot was private and the Traffic Safety Act (TSA) delegated powers to the municipality to regulate parking on private property. The TSA authorized the removal of vehicles by parking officers but did not specifically contemplate immobilization. The TSA specifically gave removal powers to the police only, pursuant to s. 77. Even before the accused’s company placed signs, there were signs in the lot stating it was visitor parking only, so the complainant was in violation of the municipal bylaw, as he was not a registered guest. There was no provision in the bylaw for towing or immobilization of vehicles, and enforcement was to be done through bylaw officers, who wrote tickets. The volunteer private agency parking enforcement program permitted ticketing but not immobilization or towing. Under the TSA or municipal law, neither police officers nor bylaw enforcement officers could place boots on vehicles. There was no damage that would justify the application of distress damage feasant. There was no economic loss or even inconvenience to anyone caused by the complainant’s parking. The accused or property owner may have been justified in having the complainant’s vehicle towed to an accessible place and claiming reasonable fees, but immobilizing the vehicle and demanding $300, particularly when a city parking infraction was $50, was a remedy for trespass outside reasonable self-help limits. The accused’s conduct was illegal. The accused intentionally caused a prohibited act that interfered with the complainant’s use, enjoying and operation of his vehicle. The accused had an honest but mistaken belief in the legality of booting. While not proscribed by statute, nothing in the TSA or bylaw expressly forbade it. While the accused was charged before, the charges were always withdrawn, and an RCMP officer told him that booting was a civil matter. The colour of right defence applied, but the accused was on notice that this defence could not apply again.

R. v. Cantwell, [2019] A.J. No. 254, Alberta Provincial Court, F.K. MacDonald Prov. Ct. J., February 27, 2019. Digest No. TLD-April82019011