Summerland brothers successfully appeal mischief charge following feud with neighbouring mushroom farm

Photo: Castanet Staff

Brad Besler, left, and his brother Darren at Penticton court in summer 2021

The two men who were handed mischief charges from a longstanding feud over a neighbouring mushroom farm overturned their convictions at appeal on Friday.

Brad Besler lived at his mother's property next to What the Fungus mushroom farm in Summerland on Garnet Valley Road.

Brad and his brother, Darren Besler were upset with the farm putting up buildings within the property setbacks, which were granted an after-the-fact variance by the District of Summerland in June 2019.

The judge determined that throughout the summer of 2019 to the end of that year, the Beslers had set up cameras aimed at the What the Fungus property, drove their vehicles up and down while purposefully spinning out and spreading dirt across the property line, started a "maggot farm" right at the property line which let off "noxious odours," and blared loud music, among other incidents.

At the 12-day trial the Beslers represented themselves and were found guilty of mischief in Oct. 2021. The brothers originally faced criminal harassment charges. At the time, the provincial court Judge Michelle Daneliuk had urged the two to move on and let the issue go.

Daneliuk handed down nine months of probation to the brothers, which along with standard probation rules included a no-contact order for What The Fungus co-owner Thor Clausen and three others.

Brad was brought before the courts once again in November after being found guilty of breaching his conditional release order, caught on camera screaming at his neighbours. He was given a year of more restrictions.

At appeal, the Beslers succeeded in convincing the appeals justices that judge Daneliuk erred in convicting them for mischief on the grounds that it is a lesser included offence of criminal harassment.

BC Supreme Court Justice Steven Wilson overturned that decision Friday, ruling that property damage has to actually occur for a mischief conviction take place.

"Mischief cannot be an included offence because no property rights are necessarily affected. As a simple example, repeatedly communicating by telephone with the complainant that causes that person to fear for their safety could constitute criminal harassment, but would not be mischief, because the property element is missing," Wilson wrote in his decision.

"Because I conclude that a person could criminally harass another without committing mischief, it follows that mischief is not an included offence. I therefore conclude that the trial judge erred in finding that mischief is an included offence of criminal harassment," he ruled.

As a result, he tossed the convictions for both Brad and Darren Besler.