Edward Thomas Cole Appellant And: His Majesty the King Respondent, 2023 NLSC 75

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Cole , 2023 NLSC 75 Date : May 12, 2023 Docket : 202101G4123 Between: Edward Thomas Cole Appellant And: His Majesty the King Respondent Before: Justice Vikas Khaladkar On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File # 0516A00439 dated the 30th day of May, 2019. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: April 25, 2023

Summary: The appeal is dismissed.

Appearances: Edward Thomas Cole Appearing on his own behalf Christopher P.J. Burt Appearing on behalf of the Respondent Authorities Cited: STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Khaladkar J. : facts and analysis [ 1 ] Mr. Cole was convicted of two counts of uttering threats contrary to

section 264.1(1) (

a) of the Criminal Code , R.S.C. 1985, c. C-46 and one count of mischief contrary to section 430(3) of the Criminal Code . [ 2 ] Mr. Cole was involved in two altercations with his neighbours. In the course of these altercations the trial judge found that Mr. Cole threatened to kill them. In addition, the trial judge found that Mr. Cole smashed in the rear window and headlights of a vehicle owned by one of his neighbours, while the neighbour was in the vehicle. [ 3 ] The actions of Mr. Cole are not overly disputed, although Mr. Cole says that he does not recall what words he used when addressing his neighbours.

Mr. Cole argued that he was harassed by the municipality, of whom one of his neighbours is a council member, that he was provoked, that he suffers from a mental disorder, namely post-traumatic stress disorder (“PTSD”), which is triggered by the harassment and provocation that he has suffered, and his medical condition affords him a defence. [ 4 ] Mr.

Cole argued that the evidence in the transcript gives rise to a “defence of reasonable doubt” sufficient to sustain his appeal and, lastly, he argued that there has been an unreasonable delay in the handling of his case – sufficient to enable me to grant his appeal. [ 5 ] Throughout the proceedings, including the trial and the appeal, Mr. Cole was self-represented. Although Mr.

Cole is an intelligent man and has no difficulty in addressing the Court, he is nevertheless not particularly knowledgeable about the law. [ 6 ] I have decided that there are insufficient grounds to grant the appeal because there is neither error in the trial judge’s consideration of the evidence nor in the trial judge’s assessments of credibility and findings. The following are my reasons for arriving at that conclusion. [ 7 ] Mr. Cole argued that he was continuously harassed and provoked by the municipal corporation of which he is a resident.

He feels strongly that the actions of the municipality against him should provide a full defence to his actions. He argued that any reasonable person would feel the same way as he has done, and would take the same course of action given the circumstances. [ 8 ] As I explained to Mr. Cole during the course of the appeal hearing, harassment and provocation do not afford a defence to the charges laid against him. This is so even when the person harassed and provoked has a mental disability brought on by a condition such as PTSD. [ 9 ] Had Mr.

Cole led medical evidence, through a qualified psychiatrist or psychologist, to the effect that his medical condition prevented him from appreciating the nature and consequences of the actions for which he was charged, then that may well have afforded him a defence. However, Mr. Cole did not do so. And, in my opinion, the trial judge was not obliged, or authorized, to accept Mr. Cole’s own opinion of the extent and nature of his condition as proof of the lack of mens rea justifying an acquittal. [ 10 ] I have read the entire transcript of the trial proceedings in this matter.

I can find no fault in the manner in which the trial judge assessed the credibility of the parties and the manner in which he made findings of fact. There is ample evidence, reasonably available, on which the trial judge could find that the charges of uttering threats and mischief could be based. Absent an overriding and palpable error in the making of those findings, I have no jurisdiction to set aside the trial judge’s findings of fact and substitute my own. [ 11 ] The trial judge was entitled to prefer the evidence of one witness over another. In this case the trial judge found that the

evidence of the complainants was logical whereas the evidence of Mr. Cole was illogical. The trial judge saw the witnesses. He heard their testimony. He was entitled to choose one version of events over another. And, unless he has made an error in so doing that is so egregious and obvious that it must be set aside, I am powerless to overturn it. [ 12 ] Based upon my reading of the transcript and the trial judge’s decision, I do not find any misapprehension of the evidence sufficient to warrant appellate intervention. [ 13 ] Mr.

Cole argued that the trial judge had pre-judged his case because he refused to hear any evidence related to the events leading up to the altercation resulting in the charges against Mr. Cole. In particular, he referred me to an exchange between the trial judge and one of the complainants in which the witness was testifying about threatening emails he and other council members had received from Mr. Cole. At page 12 of the transcript, the trial judge said: Q. Right. Okay. We don’t need to get into anything that happened before, but in the lead up that day, did you say or do anything to Mr.

Cole? [ 14 ] The trial judge was correct in limiting the witness’ testimony to the day on which the incident transpired. While Mr. Cole has a long and troubled history in relation to his dealing with the municipality, quite frankly that does not justify his actions in threatening to kill the complainants or to damaging their property. A reasonable person in the shoes of Mr. Cole would not engage in those behaviours. [ 15 ] Mr. Cole urged me to find that harassment and provocation should be available as defences in cases such as his. I am bound to decline that offer.

Only Parliament has the right to amend the Criminal Code in the manner suggested by Mr. Cole. [ 16 ] I advised Mr. Cole at the appeal hearing that reasonable doubt is a standard to which the Crown must prove the accused’s guilt. It is not something that the appellate judge goes hunting for in the transcript of the evidence, and it is not a defence as suggested by Mr. Cole. Therefore, I decline Mr. Cole’s invitation to review the transcript to look for reasonable doubt.

It is an invitation, in essence, to overturn the findings of fact and credibility made by the trial judge and to engage in a trial de novo by transcript. The law does not allow me to engage in such an exercise. [ 17 ] Mr. Cole argued that there had been an unreasonable delay in this matter. The trial took place within two years of the laying of the Information, well within the 30-month time limit imposed by the Supreme Court of Canada. There is no merit to that argument. [ 18 ] Mr.

Cole should be aware that had he successfully brought forward a defence consisting of diminished mental capacity, while he may not have been convicted of the crimes with which he was charged, he would have become subject to an Order requiring the Review Board to oversee his activities for, potentially, the rest of his life. [ 19 ] Under the circumstances, the trial judge took into account the fact that Mr. Cole was a first time offender and ordered a conditional discharge. Mr.

Cole has complied with the terms of the conditional discharge and, therefore, is now deemed to be a person who was never convicted of a crime. He should be satisfied with that outcome because it is much preferable to being the subject of an open ended Order to be placed under the jurisdiction of the Review Board. conclusion [ 20 ] In the result, the appeal is dismissed. _____________________________ Vikas Khaladkar Justice