R. v. Good, 2011 NSPC 4

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Good, 2011 NSPC 4 Date: 2011 January 10 Docket: 2024286, 2024287 2024288, 2024289 Registry: Halifax Between: Her Majesty The Queen v. Corey Ryan Good Judge: The Honourable Judge Castor H. Williams Oral Decision: January 5, 2011, in Dartmouth, Nova Scotia Charge: C.C. 267(b); 264.1(1)(a); 87(1); 88(1) Counsel: Mr. R. Levesque, for the Crown Mr. T. MacGuigan, for the Defence By the Court : Introduction [ 1 ] The police have charged Corey Ryan Good with assaulting and causing bodily harm to Neale Upham.

In addition, he is accused of uttering a death threat to Neale Upham, unlawfully pointing a firearm and also possessing a weapon for a dangerous purpose or to commit an offence. He, however, has denied these allegations. In effect, he has countered that it was Neale Upham who assaulted him. Furthermore, he has submitted that as he was only lawfully defending himself against an unprovoked attack he should not be held liable for any injuries that Upham sustained during the brief fracas. Both sides, in my view, have presented inconsistent, and at times improbable and antagonistic versions of the event.

Thus, issues of credibility arise. As a result, the outcome of this case turns on my findings of fact and the credibility of the parties and of their witnesses.

Overview [ 2 ] Neale Upham lives with his common law spouse, Brigette Morin, in an apartment complex in the Halifax Regional Municipality. Across the hallway, as a casually known neighbour, lives Corey Good who owns an American Staffordshire terrier that is commonly mistaken to be a pit-bull. Todd Denton is the next door neighbour who lives on the same side of the hallway as Upham and is also his friend and co-worker.

Donald Bond is the building superintendent and he lives on the next floor above the others. [ 3 ] On the night of March 25, 2009 Good was entertaining some friends and acquaintances in his apartment. It was late. They, however, were playing loud music that disturbed his immediate neighbours. Bond, hearing the excessive noise went downstairs and told Good to desist. He complied. Nonetheless, about twenty-five minutes later the noise increased and again Bond went downstairs with the intention of speaking to Good.

However, when in the hallway and before he arrived at Good’s apartment, he met Upham who was upset and who complained that the commotion from Good’s apartment was disturbing him and in particular Morin who wanted to sleep. [ 4 ] Bond advised Upham not to go to Good’s apartment but that he, Bond, would return upstairs to his own apartment and call the police to deal with the matter. Even so, when Bond left the area, Upham went to Good’s apartment and knocked assertively on the door. When Good opened the door, expletive and menacing words were exchanged, and a fight ensued.

It is disputed who initially had a pellet gun that was used in the affray. But, it is not disputed that Good had it in his possession when the fight ended and that the police subsequently seized it from him. [ 5 ] Likewise, it is not questioned that someone from Good’s apartment, with a punch to his face, felled Upham to the floor in the hallway where he remained prone and semiconscious until Morin pulled his dazed and prone body into their own apartment. Additionally, it is not contested that during the fracas Upham sustained injuries to his head, face, elbow, knee and the back of his thigh.

However, what is challenged is who or what caused his injuries. Upham and others painted a picture that his injuries were caused by a combination of kicks and blows administered by Good and his friends and bites from Good’s dog that also attacked him. On the other hand, Good affirmed that he was responsible for all of the injuries that Upham suffered when he, Good, was lawfully defending himself against Upham’s unprovoked attack.

Synopses of the position of the Parties [ 6 ] On Good’s behalf, it has been submitted that he was defending himself from an unprovoked attack and he used no more force than what was necessary to repel and to prevent the continuation of that attack. As well, he has admitted that all of Upham’s injuries happened during the brief fracas and that they were caused solely by him and by no other third party or agent. Consequently, he seeks the protection of the Criminal Code , s.34(1) .

Additionally, he pointed to issues of credibility concerning Upham and his witnesses and denied unequivocally their version of the event which he submitted was unreliable and untrustworthy. In short, he has submitted that he should be exonerated and found free of any legal liability. [ 7 ] The Crown, on the other hand, has submitted that it was Good’s version of events that were neither credible nor trustworthy. Likewise, it was the Crown’s view that Good had the tendency to bend his testimony to suit his purpose and, furthermore, his testimony, as it was, lacked any independent support.

However, on essential common points, Upham’s version of events was independently supported. Overall, the Crown’s theory was that, given the total evidence, Upham’s version of the event has an air of reality. Also, given the total circumstances, it could reasonably be inferred that Good viewed Upham as the person who had reported the noise making to the police and intended to intimidate and teach him a lesson.

Moreover, given his unneighbourly attitude and disposition as was disclosed by his own testimony, his assertions, made no sense contextually, were internally incoherent and disclosed obvious commonsensical errors. In short, his version of events lacked credibility and he should be found guilty as charged.

Findings of fact and Analysis [8] Here, in my opinion, the credibility of the parties is the paramount issue. On this point, I noted in R. v. McIsaac, [1999]N.S.J. No.137 at para. 6: The principle of the presumption of innocence always applies. In short, the Crown must prove beyond a reasonable doubt the existenceof all essential elements of [the offences]. Reasonable doubt may arise from the evidence, a conflict in the evidence or lack of evidence. Further, a criminal trial is not a credibility contest.

After I have considered all the evidence, reasonable doubt is also applied to the issueof credibility of the witnesses. In other words, it is not an either/or choice between the versions of facts. In addition, I am entitled tobelieve all the testimony of a witness, some of it, or none of it. After hearing all the evidence, I am entitled to reject a witness’ testimonyif I consider it inconsistent and unreasonable in all the circumstances of the case. Further, if I believe the accused, I must acquit. If I donot believe the accused but I am in doubt by his testimony, I must also acquit.

Even if I do not believe the testimony of the accused, Imust still ask myself on the evidence that I accept, whether I am convinced beyond a reasonable doubt of the existence of all the essentialelements of the offence. (See also: R. v. W.D. (SCC), [1991] 1 S.C.R. 742). [9] Additionally, I stated in R. v. C.R.B. [1999] N.S.J. No. 217 at para 11: Overall, it seems to me that a witness' testimony is considered true until there is some particular reason to doubt it. Doubts may arisefrom the inherent unreasonableness of the testimony itself. Doubts may also arise from the cross-examination of the witness.

Such cross-examination may show that a fact is incredulous because of commonsensical inaccuracies that reveal obvious errors. In addition,extraneous evidence, or lack of it, may point to errors or inaccuracies in a witness' testimony and if never corrected to rehabilitate thecredit of the witness that testimony would have little or no probative value. (See also, R v. W.D. (SCC), [1991] 1 S.C.R.742). [10] Finally, I restated the proposition in R. v. Killen, 2005 NSPC 4 , [2005] N.S.J.

No. 41, 2005 N.S.C.P. 4 at paras. 19and 20 as follows: 19. ...in accepting the testimony of any witness, because credit is presumed, the truthfulness of the witness is also presumed. However,that presumption can be displaced and, in my view, can easily be refuted by evidence that raises a reasonable doubt about the witness’struthfulness particularly if that witness is never rehabilitated by belief or supportive evidence as explained in R. v. Vetroves (SCC), [1982] 1 S.C.R. 811, and R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742.

If credit is displaced and is notrestored, the witness’s testimony becomes unreliable and untrustworthy and, in my view, it will have little or no probative value indeciding the facts in issue. See also, R. v. O.J.M., [1998] N.S.J. No. 362 at para. 35. 20. Second, there is always a common sense approach to the assessment of witnesses and the weighing of their testimonies with thetotal evidence as was underscored by O'Halloran J.A., in Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354(B.C.C.A.), at p. 357, and by Cory J., in W.(D.) at p. 747.

In short, even if a witness is not disbelieved but remains discredited,reasonably, I could still refuse not to rely upon his or her testimony especially if, in my view, ‘it is not in harmony with thepreponderance of the probabilities which a practical and informed person would readily recognize as reasonable’ in the set ofcircumstances disclosed by the total evidence and material to the facts in issue. [11] As this case turns on a consideration of the issues of credibility and reliability I applied the principles stated in R.v. W.(D.), (SCC), [1991] 1 S.C.R. 742.

Accordingly, I examined and tested each version of the event for “its consistency andharmony with the probabilities which a practical and informed person would readily recognize as reasonable in the set of circumstancesdisclosed by the total evidence.” As a result, I accept, find and do not doubt that Good and his associates were making excessive noisesin his apartment that unreasonably disturbed his immediate neighbours. Also, I accept and find that Bond did speak to him about thedisturbance and eventually called the police.

Likewise, I accept and find that, against Bond’s advise, Upham went to Good’s apartment. [12] There are two points of view as to what happened next. Upham maintained throughout his testimony that when the dooropened, Good and two other males confronted him. He avouched that Good had a hand gun that he pointed at his face and said, “Ratdies. We don’t pull a gun unless we intend to use it.” Upham further declared that as he grabbed the gun’s barrel one of the male

persons, who was standing behind Good, punched him in the face and he fell dazed to the floor. The group then commenced to kick and punch him in the face. He also heard Good’s dog barking. Likewise, he did see the dog. It got to him and he felt it biting into his head and he felt the sensation of pain as the dog bit him. He believed that he lost consciousness but was aware that Morin pulled him into their apartment. [ 13 ] From Good’s perspective the noise in his apartment was indeed loud but he turned down the music at 2200 hours as the law required him to do.

Nonetheless, he and his guests were about to leave the apartment when he heard three loud bangs on the door. Upon opening the door he saw that it was Upham who held, in his left hand, a hand gun that he put to the left side of Good’s head and said, “Shut to fuck up.” Good’s reaction to what he thought was a real gun was to punch Upham in the face. The blow felled Upham to the floor.

Additionally, Good affirmed that to disable Upham and to take away the gun, when he was on the floor, he struck him in the face a few more times. [ 14 ] Upham sustained several injuries as depicted in Exhibit 1, Photographs numbered 1-8 inclusive that was taken by the police at 0010 hours on 26 March 2009 in his apartment. He confirmed that photograph 1 shows a slight discoloration to his left eye that was a result of the punch he received. Photograph 2 shows a cut that he believes is a dog bite that is shown close up as a puncture wound in photograph 3.

He further confirms that photograph 4 shows the left side of his head that he avers was the result of either one of a punch or dog bite or both. Concerning Photograph 5 which shows an injury to the right side of his head, he describes this as a major cut that was inflicted by either the dog biting him or Good and his associates kicking him or both. Additionally, Photograph 6, shows an area behind his right ear that was discoloured as result of kicks and punches.

Photographs 7 and 8 depicted carpet burns on his right knee and left elbow respectively that resulted when he was attempting to get away. [ 15 ] Good declared unequivocally that he was the only person who had physical contact with Upham. However, the testimonies of Morin and Denton contradicted this assertion. Furthermore, he insisted that his dog never bit Upham. Additionally, he swears that he could have caused the wound depicted in Photograph 2. Additionally, those showed in Photographs 4 and 5 were caused by a ring that he wore that scraped Upham’s head.

He denied that he kicked either Upham or said, “Rats die.” Furthermore, he took the handgun from the hands of an unconscious Upham and placed it in his kitchen cupboard.

However, he did not and never thought of calling the police because he felt that Upham had learnt a lesson from the beating that he, Upham, had received. [ 16 ] On my assessment of the witnesses as they testified and on weighing carefully the versions of the event for their creditworthiness and reliability, I conclude and find, as it is in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in the set of circumstances disclosed by the total evidence, that it was Good who possessed the weapon at all times.

I say so because, in my opinion, his story concerning Upham’s possession and use of the gun does not have an air of reality. I was not persuaded and doubted his testimony that without him saying anything to Upham that Upham shoved a hand gun into his face saying, “Shut to fuck up.” In my opinion, on the preponderance of the probabilities and in the set of circumstances as described, a practical and informed person would readily recognize that it would be reasonable that Upham’s words, if at all uttered, and his alleged action, would have been in response to something that Good either said or did.

In short, on this point, I did not believe Good. [ 17 ] True, I accept and find that Upham was upset when he knocked loudly on the apartment’s door. Further, I accept and find, as it is reasonable in the circumstances that he uttered profane words to tell the occupants to tone down the noise. I do not accept that he went over just to reason with them as he suggested in his testimony.

Emotions were high and, on the evidence that I accept, the noise was excessive and annoying for a lengthy period of time and Good felt he could make as much noise as he wanted to until 2300 hours or unless the police told him otherwise. [ 18 ] Moreover, because the police had indeed told him earlier in the evening to tone down the noise, it is reasonable to conclude, as it is in harmony with the preponderance of the probabilities that existed, that Good must have felt that one of his neighbours had complained about the noise.

So, when an irate and upset Upham knocked vigorously on his apartment door, I find, on the same analytical principles, that he must have concluded that Upham was the complainant. Given his attitude, as disclosed by his testimony, about his right to make uncontrolled and unreasonable noises until and unless legally compelled to do otherwise, I conclude and find, again on the same analytical principles, that he reacted antipathetically to Upham’s presence. His intent, in my opinion and as disclosed by the evidence that I accept, was to intimidate and to teach the supposed informant a lesson.

Thus, in the set of circumstances, as it is in harmony with the preponderance of the probabilities that a practical and informed person would readily recognize as reasonable, I believe, conclude and find that in a expression of intimidation and coercion he did point the weapon to Upham’s head and uttered the words, “Rat dies. We don’t pull a gun unless we intend to use it.”

[ 19 ] Essential to this finding, I do not believe and do not find that when Good opened the door, that Upham, without Good saying anything to him, pointed and pressed the weapon with his left hand into the left side of Good’s forehead. I say that because in cross- examination when challenged on the point that this would be a commonsensical inaccuracy as a man facing him with a gun in his left hand would logically point and press it to the right side of his head, Good, in a gesticulating motion and realizing the obvious error, changed his testimony to indicate that the gun was held in Upham’s right hand.

I was not convinced that he was telling the truth after he was so adamant in his assertions during his direct examination. As I observed him as he testified, I formed the impression that he equivocated and was at times defensive and combative and his testimony became untrustworthy and unreliable and his credit was neither restored nor rehabilitated either by belief or supportive evidence as explained in Vetrovec , supra . , and W.(D.), supra .

In short, on this point I disbelieved him. [ 20 ] Adding to my disbelief of his testimony was the fact that if, as he said, he feared for his life and that the gun left an imprint on his left forehead that lasted for at least twelve hours, why did he not call or report what would have been a very traumatic incident to the police the very night when it happened? He only showed the alleged imprint to the police the next day when they questioned him at 1100 hours.

The police, however, did arrive at the building the very night at 0010 hours and took pictures of Upham’s injuries and, in addition, statements from potential witnesses. Yet, Good was seen hurriedly leaving the building with his dog soon after the incident.

This conduct, which I accept and find did occur, strikes me as the action of an individual who was more interested in removing himself as expeditiously as possible from the locale with his dog, knowing full well that the police would soon arrive on the scene, rather than one who had suffered and experienced a life threatening trauma that warranted an unsolicited report to the police as soon as practicable. [ 21 ] Furthermore, I find that he struggled to explain how, he, standing at six feet four inches and without bending deeply or kneeling could strike with his fist a man laying prone on the floor and cut him on the back of the head both on the left and right sides.

He contended that he must have done so with a ring that he was wearing. But, he had some difficulty describing the ring and declared that he had lost it. On his own testimony I find that he did punch Upham. However, on my assessment of his testimony and weighing it with the total evidence, in my opinion, it revealed several commonsensical inaccuracies that made it unreliable and untrustworthy. As a result, on the above analysis, I do not believe him when he said that he neither kicked Upham nor saw his dog bite him.

Therefore, again on this point, I find that his credit was displaced and it was not restored either by belief or supportive evidence. [ 22 ] Nonetheless, the Crown presented no medical evidence to show and to support what would have been the constituent causative agent for the depicted wounds. I noted that Good was unapologetic in saying that he alone caused the wounds. However, I formed the impression that he was evasive, ambivalent and equivocal on his dog’s involvement.

Even so, it is reasonable to conclude and find, as it is in harmony with the testimony of Upham and inconsistent with that of Good, and, as it is also in harmony with the preponderance of the probabilities that a practical and informed person would readily recognize as reasonable in the circumstances, that either the dog bit Upham as he has testified and supported by Morin, and that the kicks to his head, or a combination of both, were the causative agencies of his wounds as depicted in photographs 2,3, 4 and 5.

I so find. [ 23 ] Likewise, I find it incredulous that after wrestling from his assailant, what he thought to be a real gun that was pressed forcibly against his forehead, that Good would then calmly place the seized weapon, even if it were a pellet gun, in a kitchen cupboard without any thought whatsoever of reporting the incident to the police. Instead, after securing the weapon, he hurriedly left the building. It is also telling that his stated reason for not calling the police was that Upham had learnt a lesson from the beating that he received.

Thus, I find that Good does not express any reasonable fears for his own safety and for one who had experienced a very traumatic event. Rather, I find that he only expressed the triumphant satisfaction that he had taught Upham a lesson by beating him up. This, in my view, lends credence to Upham’s testimony and to the material fact that it was Good, at all times, who was in possession of and used a weapon - the pellet gun.

I so find. [ 24 ] Additionally, in my opinion, Good’s defence of self-defence in the face of an unprovoked aggression, on the facts as I have found, rings hollow and is unsupported by belief or supportive evidence. His guests who were present and who presumptively would have observed everything and reasonably could have supported his assertions were never called to testify. Thus, on the above findings and on the evidence that I accept, his defence of self defence has raised, at least in my mind, a reasonable doubt as to its truthfulness, reliableness and trustworthiness.

In the end, I find that it had no probative value in deciding the facts in issue. Consequently, I do not accept and do not find that he acted in self defence. On the contrary, and on the total evidence, I find that he was indeed the aggressor and, without provocation, did unlawfully assault Upham. Consequently, on this point I do not believe him. [ 25 ] Did Good, however, in his admitted assault on Upham cause him bodily harm? In explaining his injuries and their effects upon him Upham testified that two days later he received a tetanus shot but no other medical treatments. Further, he had to wear a toque to

cover his head. He, however, does not state how long it took for his injuries to heal or whether they had in any way caused him physicaldiscomfort that lasted for any appreciable period of time. In terms of physical effects, if any, he declared that none existed at the presenttime but does not say if any did exist, or at all. He says, however, that now he is afraid of dogs. [26] Even so, the Crown tendered photographs as Exhibit 1 that showed injuries to the specified parts of his body.

However, I thinkthat in resolving the contested issue of “bodily harm” it was necessary and critical for the Crown to make the connecting linkages of factand law, that is, between Good’s conduct, as found, and the harm alleged beyond a reasonable doubt and, consequently, proof ofcausation.

Although there is proof of an assault, I think that the photographs by themselves do not prove the fact in issue - causation of“bodily harm.” [27] All the same, if the pictures were presented to prove that fact in issue, discerning whether, in law, and beyond a reasonabledoubt, what was depicted constituted “bodily harm” as legally defined in the Criminal Code, s.2, was indeed difficult. As I said in R.v. Mc Isaac, [1999] N.S.J. No. 137 at paras 9-12: 9.

Generally speaking, it seems to me, that one basis for the admissibility of a photograph, as here, is that it can only be used by way ofillustration to support, corroborate and to explain the evidence of a witness. Properly used, a photograph can provide potent evidence tosupport or to debunk a particular theory. Therefore, I think to be of any probative value or to have effective evidentiary impact, it iscrucial to the trial process that what is depicted in the photograph is properly interpreted by a qualified or capable witness.

In tenderingthe photograph, without more, the theory of the Crown would be that it illustrates only its theory, through its witnesses, that the accusedmust have inflicted the injuries that the complainant sustained, not that the photograph speaks for itself and therefore is probativeevidence of what it depicts. 10. The Criminal Code defines ‘bodily harm’ [as] . . . any hurt or injury to a person that interferes with the health or comfort of theperson and that is more than merely transient or trifling in nature. 11.

In my view, there was no proper expert testimony or any scientific quantifiable evidence or clinical assessment to support thevalidity of the assertion of bodily harm, as defined. The evidence on that point was suggestive, speculative, subjective, and of personalconceptualization. Such evidence, I think, does not add to the common understanding of the Court. The Crown has established no nexusbetween the striking and the injuries and whether the injuries did interfere with the health or comfort of the complainant.

Neither has itbeen shown beyond a reasonable doubt that the injuries, as described, fall within the definition of not being transient and trifling. Thus, itseems to me that bodily harm depends on the nature of the injury. By way of example only, an individual can suffer an injury that canheal without any interference with the individual's general enjoyment of life. In that case there is not an injury said to be bodily harmwithin the meaning of the Criminal Code.

Medical data, in my opinion, is needed to establish the prognosis and diagnosis of the injuryand, in addition, a nexus between the injury and its duration as advanced by the Crown. Here, the evidence purporting to demonstratebodily harm has no expert medical support and it is therefore of no probative value. 12. It seems to me that the Crown should not underestimate the significance of connecting the injury to its probable cause nor should itsuccumb to the logical fallacy that because an injury is affirmed by a victim, they prove the cause logically.

Although such evidence maybe relevant to a material issue in the case, it may not necessarily be admissible as proof of the fact in issue, as such an approach wouldtend logically to eliminate any other probable causes. [28] These comments are apposite in this case. No matter how, here, I find that the evidence was very sparse on whether theinjuries Upham sustained interfered with his health and comfort and whether they were either transient or trifling. He has imputed bodilyharm arising from the blows to his face and wounds to his head and leg after his contact with Good and his dog.

However, the Crownoffered no medical evidence to indicate either the diagnoses or prognosis of his injuries although he did seek and received medicalintervention. [29] I also note that causation is a question of fact that is decided beyond a reasonable doubt. But, whether there is any evidencethat decides the issue of causation is a question of law. See: R. v. Smithers, (SCC), [1978] 1 S.C.R. 506. Here, in myview, the Crown has not established, in law, a casual relationship between the conduct of the accused, as I have found, and the injuriesas alleged.

[30] Therefore, on the evidence presented, I find that although it appears to be probable, the direct factual cause of the allegedinjuries was unclear and not proved beyond a reasonable doubt. In short, the Crown has not, in law, on the evidence before me,established “bodily harm.” However, I conclude and find, beyond a reasonable doubt, that there is cogent, reliable and trustworthyevidence that Good did unlawfully assault Upham. I will therefore find him guilty and convict him of the offence of simple assault. [31] I have found that Good pointed the weapon at Upham’s face and said contemporaneously, “Rat dies.

We don’t pull a gununless we intend to use it.” Further, I have found that Good felt he could make as much noise as he wanted to unless legally curtailed. Significantly, he felt that someone had complained about the noise. Thus, it is reasonable to conclude and find that he wanted to make apoint that there would be consequences to anyone who dared to interfere with his inconsiderate and unsociable activities. After all,Upham had knocked on his door and was complaining about the noise. Upham was thus self- identified as an informer.

Therefore, in myopinion, viewed objectively and in the context and circumstances in which the words were spoken, I find that they would have conveyed to a reasonable person a threat to cause death. They were meant to intimidate and to cause fear and intended to be takenseriously. They were not spoken in jest. Furthermore, I find that the words were spoken to someone whom he, Good, believed hadreported his noise making to the authorities and it is reasonable to conclude that they were intended to suppress any such futurecomplaints.

See: R. v Clemente, (SCC), [1994] 2 S.C.R. 758. [32] As a result, I conclude and find that the Crown has proved beyond a reasonable doubt that Good did knowingly utter a death threat to Upham. I will find him guilty of this offence. [33] The Crown offered no evidence on the charge of pointing a firearm and, jointly with defence counsel, moved that this chargebe dismissed for want of prosecution. That count is hereby dismissed for want of prosecution. [34] I have found that Good had possession of the pellet gun at all times material.

The issue, however, is, did he possess it fo apurpose dangerous to the public peace or for the purpose of committing an offence? Firstly, I do not doubt that the pellet gun, tenderedas Exhibit 2, is a “weapon” as defined in the Criminal Code, s.2. It was, as I have found, used to threaten or to intimidate Upham.However, the Crown tendered no evidence that Good had formulated an intention or purpose immediately before he took possession ofthe pellet gun and that he had the same intention or purpose when he continued to possess it.

Nonetheless, the proof of his intention orpurpose can be demonstrated through the circumstances of his actual use of the weapon. R. v. Proverbs (1983), (ONCA), 9 C.C.C. (3d) 249, 2 O.A.C. 98 (C.A.). [35] Here, Good gave no explanation of why he had the weapon, other than he wrestled it away from Upham, which I havedismissed as untrustworthy and untruthful. In addition, there was no evidence that he needed to have the weapon for any lawfulpurpose, as for example for self-defence.

In any event, I think that the fact that he had the weapon in his hand when he opened hisapartment door and confronted Upham does not alone establish that he had it for a purpose dangerous to the public peace or to commit anoffence. But, I think that when he pushed the weapon into Upham’s face and uttered the threatening words, as I have found, it revealedhis prior intent that harmonized with his present action, as a continuum, that, in my opinion, gave a clear manifestation of the purpose forhis possession of the weapon in the first place. See: R.v.

Cassidy, (SCC), [1989] 2 S.C.R.345. [36] Put another way, I think that the formation of his unlawful purpose can be inferred from the manner and the circumstancesunder which he used the pellet gun combined with the spontaneous words that he uttered.

Likewise, the prior unlawful purpose for hispossession can be inferred from the fact that when he opened the door the first thing he did was to push the weapon into Upham’s faceand uttered well-timed and circumstance related relevant, preconceived and pre-perceived words of a threatening nature. [37] For these reasons, I find that the pointing of the weapon into Upham’s face, in the set of circumstances as I have found andanalyzed, was, demonstrably and beyond a reasonable doubt, the use of a weapon in a manner dangerous to the public peace or for thepurpose to commit an offence.

With that, I find that the Crown has proved beyond a reasonable doubt that Good did unlawfully have inhis possession a pellet gun for a purpose dangerous to the public peace or for the purpose of committing an offence. I will find him guiltyof this offence. Conclusion

[ 38 ] Therefore, on the total evidence before me and on the above analysis, I find that the Crown has proved beyond a reasonable doubt that the accused Corey Ryan Good did, and I find him guilty and convict him of: 1. Unlawfully assaulting Neale Upham; 2. Unlawfully uttering a threat to Neale Upham to cause death to Neale Upham; 3. Unlawfully have in his possession a pellet gun for a purpose dangerous to the public peace or for the purpose of committing an offence. Convictions entered accordingly.