The Thumper: Mischievous Nuisance

Global News recently reported a case involving an unneighbourly nuisance arising from the use of a device called a “thumper”.

https://globalnews.ca/news/11651803/thumper-bc-rcmp-describe-devices-in-unneighbourly-noise-case/

As many Canadian residential neighbourhoods turn to high density housing to address Canada’s housing crisis, folks are living are today living in much closer proximity to each other. With that closeness is an increase in tension between neighbours.

While this Calgary criminal lawyer has handled many cases involving neighbour disputes, the “thumper” case may be a first of its kind.

According to the Global News Report:

When two RCMP officers responded to a call about screams coming from a Burnaby, B.C., condo in late October last year, they forcibly entered the unit believing someone might be in trouble.

Instead, they discovered “unusual” devices set up in three different rooms.

Each consisted of metal poles extended from the floor to the ceiling, topped with an “electronic apparatus similar to a speaker,” intended for what police believed was the “sole purpose” of transmitting noise into the unit above.

Court records show that the day after police returned to seize the noisemakers on Nov. 3, the man allegedly using them was charged with mischief and is due back in court on Feb. 24.

The devices found by police are described as “thumpers” in the B.C. court document to support the warrant to search and seize.

Mischievous Nuisance

Though the technological ingenuity of utilizing a thumper to interfere with a neighbour is nothing short of diabolical, for anybody considering perusing Amazon for the purpose of purchasing a “thumper” to annoy a neighbour is not advised. 

Firstly, this is just unneighbourly.

Beyond being a bad neighbour, however, willfully interfering with the use and enjoyment of a neighbour’s property (or any property) is potentially a Criminal Code offence. Specifically, s. 430(1)(c) of the Criminal Code of Canada stipulates:

“Everyone commits mischief who willfully obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property”.

With this in mind, setting up a device for the express purpose of interfering with a neighbour’s lawful use and enjoyment of property could result in a criminal charge prosecuted by summary conviction or even indictment.

For the purpose of thinking about nuisance, the Criminal Code recognizes two different kinds of nuisance offences: mischief and common nuisance.

As aforementioned, the essential elements for proving the criminal offence of “mischief” requires proof that the accused “willfully” engaged in the mischievous behaviour.  Applied to the thumper case, the circumstantial evidence (or inference evidence) arises from police discovering a pole elevated to the ceiling with a thumper device installed. This is very likely strong evidence to support the conclusion that the occupant(s) of the home intended to cause significant disruption to the upstairs tenant by using noise and vibration to interfere with the adjacent home.

Defending the Thumper Case

The thumper article serves as a good example to illustrate some legal principles relating to how such a case might be defended.

While the case may appear open and shut, Criminal defence lawyers must often sink deep into their imagination to construct a defence capable of raising reasonable doubt.

Of course, “identification” might be a good defence; after all, depending on the number of occupants in the thumper home, the prosecution may face hurdles with respect to identifying the accused. For example, perhaps the home is occupied by more than one person? Perhaps there was nobody home at the time police entered the apartment and discovered the device? Perhaps the thumpers were set up in locations within the home such that certain home occupants may not have been aware of their existence? 

It might even be that the accused has an alternate explanation for use of a “thumper”?

According to the Global News report, Vancouver lawyer Alex Chang commented that there “…is no reason for having a device like that”.

This Calgary defence is not entirely convinced.

As a starting point, I doubt that Amazon is specifically selling merchandise designed for the sole purpose of annoying a neighbour. That something may be used for unintended purposes is not necessarily the manufacturers fault. For example, a hockey stick is designed for use in the sport of hockey. That a stick can be used as club was not intended by the manufacturer. 

I am aware that thumper devices do have legitimate use for specific applications. For example, “thumper” devices are sometimes used by homeowners to deter rodents, moles, voles and pocket squirrels from tunnelling under lawns or gardens.  By way of a bit of sci-fi trivia. thumpers are used by the people of Arrakis in Dune to attract the Shai-Hulud (the giant worms). I digress.

Contemplating the intended use for a thumper, it struck me that a homeowner might use such a device to ward off rodents (such as mice or rats) from denning in the spaces within a residential structure. Though it is certainly not illegal for “thumpers” to be used to interfere with the enjoyment of spaces for certain animals, however, using a thumper for the manufacture’s unintended use – such as to annoy a neighbour – is both probably illegal and definitely unneighbourly.  

For the purpose of working through a criminal law problem, the question is, how does the Crown address a claim of innocence (if made by the accused), that the use of the thumper was not intended to interfere with a neighbour?

The Prosecutor might call evidence to support a longstanding neighbour dispute.  This could support “motive” for use of the thumper. For example, as reported by Global:

The complainant upstairs, who couldn’t be reached for comment, told police of “rhythmic thumping and banging,” as well as audio clips of dogs barking, apparently on a recorded loop. He said the noise was so bad that his partner left and went to stay with family.

If the accused was to argue a legitimate in-home use for the thumper, the Crown might also introduce evidence that there had been no rodent infestation to warrant the use of the thumper in first place.

More likely, the Crown would argue that the accused was reckless or willfully blind in using the thumper; after all, it was plainly obvious that the neighbour would be interfered with.

My point is simply to highlight in opposition to Mr. Chang, that there may be explainable uses for a thumper within a residential structure.  However, since the downstairs tenant seemed to engage in a plethora of other activity purportedly designed to interfere with the upstairs tenant's use of the property, such as playing audio clips of dogs barking, it appears that the defence may have serious challenges.

Serious challenges, however, does not necessarily translate into an insurmountable case.

Conclusion

Mischief is a fairly broad Criminal Code offence that contemplates everthing from damage to property to interference with property.

I earlier mentioned that the Criminal Code actually contemplates two different types of nuisance offences.

Pursuant to s. 180 of the Criminal Code there is also an offence of “common nuisance”.  What is interesting about this offence is that to prove the offence of “common” nuisance requires proof of elements that are anything but “common”. For example, unlike "mischief nuisance" (which is arguably quite common), “common nuisance” requires that the Crown prove that the nuisance endangered the lives, safety or health of the public or caused “physical injury”.

The ”thumper” case appears to be one of mischief nuisance, not “common nuisance”.  

One thing for sure, nuisance by thumper is certainly uncommon.

David Chow

Calgary criminal lawyer

The best criminal defence lawyers will analyze the Prosecution's case from all angles, which sometimes includes creatively contemplating defences. If you are looking to retain a criminal defence lawyer, there is wisdom in evaluating your choice of counsel's knowledge of the law, imagination and field vision. "Field vision" is important because the best criminal lawyers understand where to focus the defence. Many defence lawyers will not lose the forest through the trees by arguing every issue. The best criminal defence lawyers think strategically and understand that defending a case is not only about the law, it is about the people involved in the case.