Appeal Watch: Ashmore Denied Leave, Leave Granted in Nuisance Case

Jeffrey Allan Ashmore’s final attempt to have his first degree murder conviction overturned on Charter grounds failed on Thursday when he was denied leave to the Supreme Court of Canada. Ashmore was convicted at trial and appealed to the British Columbia Court of Appeal on the basis that his section 9 and section 10(b) rights were violated in the course of the police investigation. The Court of Appeal upheld the conviction (see 2011 BCCA 18).


Ashmore was arrested by police in May 2006 in connection with the murder of Jeffrey Sabine. At the time, he was informed of and exercised his right to counsel. Following this consultation, he was shown a video of a confession he made in the course of a Mr. Big operation (an investigative technique in which an undercover police officer poses as the head of a ficticious criminal organization in order to obtain confessions). This revelation led Ashmore to again confess and participate in a series of reenactments that essentially sealed his conviction.

At the Court of Appeal, Ashmore argued that his initial consultation with counsel was deficient, particularly in light of the subsequent evidence he was presented with, and that his detention in police lockup and during the reenactments was an arbitrary detention in violation of section 9 of the Charter. These claims were of dubious merit, and the Court ruled that his initial consultation was sufficient (see R v Sinclair, [2010] 2 SCR 310) and his detention was lawful because his choice to participate in reenactments was voluntary.

Interestingly, Ashmore raised little objection to the Mr. Big tactic, beyond arguing the fact that the evidence was prejudicial in that it gave the jury a biased view of his character. This may be due to the fact that Canadian courts routinely uphold confessions obtained through the tactic, the only basis of exclusion being where the judge deems the “prejudicial effect outweighs its probative value.”

The Mr. Big technique is exclusive to Canada and Australia and particularly popular in British Columbia, where it originated in the early 1990s. However, it is not without controversy. Critics cite the possibility of eliciting false confessions as reason for questioning it, while supporters argue that much of the criticism is misinformed.

Despite the controversy it generates (the technique is illegal in the US and UK), it has been subjected to little judicial scrutiny in Canada. With critics and supporters so divided on the issue, a legislative response may be imminent if the judiciary chooses not to react one way or the other.

Clarifying the Common Law Test for Nuisance

The test for establishing a common law claim in nuisance is relatively straightforward, requiring an interference with an individual’s property that is both substantial and unreasonable. However, difficulty can arise in the application of this test when it comes to balancing the competing interests of property owners. This balancing act is more complicated when the interests of one property owner are of benefit to the public. In these circumstances, the question arises as to how much weight should be given to the social utility of a public project that interferes with the private property of another.

The Supreme Court of Canada will address this question in an appeal that was recently granted for Antrim Truck Centre Ltd. v Ontario Transportation, 2011 ONCA 419. This case arose from a dispute between the applicants, the owners of the truck stop, and the Ministry of Transportation (MOT) after it completed the construction of a new highway, which Antrim claimed “severely impeded” access to the truck stop. After experiencing a significant decline in business and re-locating the truck stop, Antrim filed an application with the Ontario Municipal Board (OMB) for business damages and the costs of relocation.

Under section 21 of Ontario’s Expropriations Act, RSO 1990, c E.26, landowners are entitled to compensation from an expropriating authority for “loss or damage caused by injurious affection.” To proceed with a claim for injurious affection, Atrim was required to prove that but for the statutory powers of the Province, it would have an actionable claim under common law. The OMB found that Atrim satisfied this requirement by establishing “a serious impairment in nuisance” and granted personal and business damages, though the costs for relocation were dismissed.

The MOT appealed the decision to the Ontario Divisional Court, which agreed with the board’s decision that the highway’s interference with Atrim’s property was “substantial” (2010 ONSC 304). To determine whether the interference was “unreasonable,” the court relied on the four factors set out in Tock v St. John’s Metropolitan Area Board, [1989] 2 SCR 1181, and 340909 Ontario Ltd. v Huron Steel Products (Windsor) Ltd., (1990), 73 OR (2d) 641 (SC), aff’d (1992), 10 OR (3d) 95 (CA):

  1. the severity of the interference;
  2. the character of the neighbourhood;
  3. the utility of the defendant’s conduct; and
  4. the plaintiff’s sensitivity.

Claiming that the Divisional Court erred in upholding the OMB’s decision, the MOT appealed again to the Ontario Court of Appeal. In that decision, Epstein JA considered whether a successful claim in nuisance requires a balancing of the competing interests of the landowners. After reviewing the relevant jurisprudence, Epstein JA concluded that “the important principles of tolerance and accommodation necessary to sustain harmony among neighbours in an increasingly dense and complex society require a balancing of the interests of both parties to determine whether it is appropriate for the court to intervene to preserve the right of either to use their property as they wish.”

Applying this reasoning to the facts, Epstein JA concluded that by relying almost exclusively on the issue of substantial interference, without giving much consideration to reasonableness, the divisional court had failed to balance the parties’ competing interests. While the board had considered the reasonableness of both parties’ uses, Epstein JA also concluded that it failed to give sufficient weight to the utility of the new highway, which was built to save lives. By weighing the interference with Atrim’s property against the reasonableness of the new highway, Epstein JA concluded that Atrim had failed to establish a claim in nuisance, and thus allowed the MOT’s appeal to proceed.

Epstein JA’s decision is significant because it suggests that an interference with private property should not give rise to an actionable claim in nuisance when there is a public interest at stake, even when the interference is found to be substantial. While a balancing of interests should play a role in determining the validity of a nuisance claim, the weight that courts give to interferences with social utility warrants a further clarification that the eventual SCC decision will ultimately provide.

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