In R. v. Monteith, the New Brunswick Court of Queen’s Bench considered, at length, the tradition of Halloween, amongst other matters.

In that case, Mr. Monteith was charged with mischief on Halloween. The charges were dismissed at trial. However, the Crown appealed.

Mr. Monteith lived in Nackawic, which was described as a small, rural community: the police department had 3 or 4 members, and the nearest town large enough to have a traffic light was 50 km. away.

On Halloween night, Mr. Monteith was caught by the police breaking a cedar fence rail. Another broken fence rail was located at the scene. The total cost of the damage was $6.

Mr. Monteith was arrested, held in jail overnight, photographed and fingerprinted (even though he was known to the police officer). 

At trial, the main issue was the propriety of the photographing and fingerprinting, and the interplay between indictable and summary conviction offences. 

On appeal, the court considered, at great length and for no apparent reason relevant to the outcome of the case, the tradition of Halloween. This discussion arose from the “reasonable inference” that the purpose of breaking the fence rails was to fuel a Halloween bonfire.

The court discussed the apparent dichotomy of viewpoints. On one hand, the police and many other citizens see $6 worth of Halloween damage as intentional and criminal behaviour that must be stopped before criminals use Halloween to vandalize and terrorize the community. On the other hand, Mr. Monteith and many others believe that the police should “lighten up” about a little Halloween property damage and should recognize that a few laughs around a bonfire are a good thing. 

The appeal court noted that both views were legitimate, and that Halloween has been a source of conflict between the authorities and members of the public for over a thousand years. 

The case is a great primer of Halloween traditions and attempts to suppress them. A few bite-sized points include:

• The Charter of Rights and Freedoms may provide a legal excuse for Halloween activities that might otherwise be criminal. The basis for this statement is that the Charter  supports the ideal of “the preservation and enhancement of the multicultural heritage of Canadians”.

• The Criminal Code outlaws “extortion”, which could criminalize the traditional threat of “trick or treat”. The court noted that this would apply to kids over 12, and also the parents of younger children, who might be considered “accessories”.

• Halloween customs can be traced to Druidism in pre-Christian Ireland and Scotland. The Celtic year ended on October 31 with the celebration of Samhain, marking the end of summer and a festival of the dead.

• Bonfires were historically light on hilltops to guide the spirits of the dead to the homes of their kinsmen or to ward off witches.

• By the end of the middle-ages, pranks and mischief became associated with Halloween. “Wandering groups of celebrants blocked doors of houses with carts, carried away gates and plows, tapped on windows, threw vegetables at doors and covered chimneys with turf so that smoke could not escape. In some places, boys and girls dressed in clothing of the opposite sex and, wearing masks, visited neighbours to play tricks.”

• Things seemed to escalate in the 19^th century and, in particular, in the US. “In rural areas fences were built across roads, wagons placed on top of barns, gates removed, outbuildings overturned and farm animals hidden.”

After recounting some of the history of Halloween mischief, the appeal court was of two minds: “I can see reasons why Halloween should be suppressed and manipulated into oblivion, and equally, I can see reasons why it should be celebrated as a source of humour and fun in a very serious and rational age.” However, the court did not pick a side, leaving the question to another day. “Some day the Supreme Court of Canada may decide.”

In the end, the Crown’s appeal was dismissed and the court held that this was one of those rare and exceptional cases where the Crown should pay Mr. Monteith’s costs. 

Happy Halloween!

Paul Trudelle