Rainbow

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Tuesday, January 25, 2011

Neighbour launches private prosecution against neighbour over fence line

One neighbour (the Prosecutor, Neighbour 1) and another neighbour and her mother (collectively referred to as the Defendant, Neighbour 2), have lived side by side for over 25 years.  For much of that period, the families lived in harmony as neighbours.  In 2003 or 2004 for a variety of reasons, the friendship ended with the two neighbours feuding constantly, becoming bitter enemies.  Both sides turned to the police, to other neighbours, and the Courts to help resolve their disputes.  Despite mediation attempts by the police services and the Courts, the two remain locked in an adversarial relationship and affirm nothing more than to be left in peace and free from any communication with each other.  Neither party wished to move from their residence.  Despite the Court’s invitation to resolve matters in an amicable fashion, neither wished to deal with their matter outside of a trial.  The acrimony continued and eventually manifested itself as a dispute over respective property rights and disagreements about shared property line activities.

Ultimately, Neighbour 1 launched a Private Prosecution as an unrepresented prosecutor operating under the advice given to her from the Municipality under the jurisdiction of the By-Law 172-2006. Her position was that she had proven beyond a reasonable doubt that Neighbour 2 offended By-Law 172-2006 (related to fencing) and she asked the Court to render a conviction on behalf of the Municipality in order to compel the Defendant to pay for their 50% share of the total cost of a fence Neighbour 1 had installed on what she says is the property boundary along with any penalties that the Court sees fit to impose.  She had installed the fence and then demanded payment from her neighbours, failing which she would launch a "court action". 

Procedurally the carriage of Private Prosecutions under the Provincial Offences Act is similar to the Criminal Courts where an individual may swear an Information charging another entity with an Offence. Following an ex parte hearing on the matter, a Justice being satisfied that some evidence is received on all essential elements may refer the matter to a set date court at which point the Provincial Crown will decide whether or not to take carriage of the charge. In some instances where the Crown deems no merit in proceeding with a prosecution, the Crown sometimes will take carriage and then act under its jurisdiction to ask the Court to stay the charge or to withdraw the charge. When the Crown makes the determination not to be involved, then the Informant has the option of continuing with the Prosecution or it may abandon it. Normally, the Crown will make such an assessment on the merits of the case and on the evidence taken in order to decide whether or not they wish to be involved. Each case is assessed on its own merits.

Even though unrepresented, it appears from the comments made by Neighbour 1 along the way, that she had been receiving advice on how to conduct her case from the Municipality.  Additionally, she was given the requisite By-Law and a copy of the recommended procedures to follow as well as sample letters to send out to the other party.  The Court wondered if this assistance could be perceived by some private residents as sometimes crossing the line between procedural assistance and legal advice.

In the end, the Court found that Neighbour 1 had not proven beyond a reasonable doubt that the Defendant had violated the by-law and entered an acquittal.
 Read the decision at: Private Prosecution.