R. v. Dunphy, 2013 NSPC 2

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Dunphy , 2013 NSPC 2 Date: 20130110 Docket: 2398106, 2398107, 2398108 Registry: Pictou Between: Her Majesty the Queen v. Nicole Louise Dunphy VERDICT Judge: The Honourable Judge Del W. Atwood Heard: 9 July, 13 September, 9 November 2012, in Pictou, Nova Scotia Charges: Sub- ss. 249(1) , 430(4) and para. 267 (

a) of the Criminal Code Counsel: William Gorman, for the Nova Scotia Public Prosecution Service Jennifer Cox, Nova Scotia Legal Aid Commission, for Nicole Louise Dunphy By the Court : Synopsis [ 1 ] Nicole Louise Dunphy and David Leslie Dunphy were married for nine years and had lived together for a year before that. Mr. Dunphy worked away a good part of the time, while Ms. Dunphy stayed at home in rural Pictou County with Mr. Dunphy ’ s son of an earlier relationship, Francis. Francis and Ms. Dunphy grew close over the years; unfortunately, Mr. and Ms. Dunphy grew apart. They separated in the summer of 2011.

Following the separation, Ms. Dunphy continued to have expansive access to Francis, and Mr. Dunphy was quite prepared to accommodate this. Nevertheless, there remained sufficient resentment and inflexibility following the breakup as to fix the ideal preconditions for the sorts of conflict that, unhappily, will see police, lawyers and courts becoming involved in people ’ s private lives. It was conflict, indeed, that erupted on 14 December 2011; as a result, Ms. Dunphy has been charged with assaulting Mr.

Dunphy with a weapon, damaging his truck, and dangerous driving. [ 2 ] The issue in this trial is whether the prosecution has proven all of the essential elements of each offense beyond a reasonable doubt. Having evaluated and weighed the inventory of admissible evidence before me, I find Ms. Dunphy not guilty of the offenses of dangerous driving and damage to property, but guilty of the offense of assault with a weapon. These are the reasons for the Court ’ s

verdict. Findings of fact [ 3 ] Mr. Dunphy agreed that Francis could spend the evening of 14 December with Ms. Dunphy and stay with her overnight. The evidence establishes that both Mr. and Ms. Dunphy approached the access handoff at the Sobey ’ s parking lot on the west side of New Glasgow with raised levels of irritation. Mr. Dunphy had had to be talked into letting Francis go with Ms. Dunphy. Ms. Dunphy, on the other hand, had wanted the exchange done in Pictou, closer to her home in the County, rather than in New Glasgow, as she did not like driving at night. Mr.

Dunphy arrived first, in his truck; a short time later, he observed Ms. Dunphy pulling into a parking spot in her sedan, about forty-feet distant. Francis left the truck to go with Ms. Dunphy. Mr. Dunphy approached Ms. Dunphy ’ s vehicle to explain that Francis would have to return home the next day in order to attend school. Mr. Dunphy described Ms. Dunphy as irate, uttering profanities, and gesturing with her middle finger. Ms. Dunphy testified that, as Mr. Dunphy approached her car, she felt intimidated. She described Mr. Dunphy as “ forcefully coming toward me with a look on his face ” .

She stated she put down her window and told Mr. Dunphy to “ just stay away ” . It seems, according to Ms. Dunphy, that Mr. Dunphy complied immediately. I accept Mr. Dunphy ’ s description of this scene. His portrayal of Ms. Dunphy ’ s behaviour is consistent with what I find to be a hallmark trait of Ms. Dunphy ’ s: a propensity to overreact to difficult situations and to adopt excessively emotional responses to interpersonal conflict. I do not believe that Mr. Dunphy approached Ms. Dunphy displaying any form of forcefulness or aggression. The improbability of this is exemplified in Mr. Dunphy ’ s response to Ms.

Dunphy ’ s emphatic direction to stay away: he turned around immediately and returned to his truck. Hardly the reaction of someone bent on intimidation. [ 4 ] Having said all this, Ms. Dunphy ’ s reaction does underscore one key and revealing piece of information regarding her motivation and intent: she wished to maintain as much distance between her and her former husband as possible. [ 5 ] After seeing Francis off, Mr. Dunphy exited the parking lot along Lavinia Street and stopped at the intersection with Bell Street. As described by Sgt.

DiPersio, one of the officers who was called to the scene later on, this is a particularly cumbersome streetscape. Not a perfectly perpendicular four-way intersection, Lavinia approaches Bell Street from the south as a two-way roadway, takes a sharp westward bend, and then continues past Bell as a one-way-only route for southbound traffic. Furthermore, Bell slopes pronouncedly downward toward the East River. [ 6 ] Mr. Dunphy stopped at the posted “ STOP ” sign, intending to turn left onto Bell, and then to continue up to Abercrombie Road. He saw Ms. Dunphy behind him in his rearview mirror.

I believe the evidence of Francis Dunphy that Ms. Dunphy stopped for pedestrians in the crosswalk which intersects Lavinia leading from Sobey ’ s to the plaza shops. Given the busy conditions at that time of year, and given the time of day – approaching six o ’ clock in the evening, midweek, with people looking to get shopping done right after work – I find it very probable that there were many pedestrians in the parking lot heading into the stores or returning to their vehicles. This accords completely with Sgt. DiPersio ’ s evidence. [ 7 ] Once the crosswalk was clear, Ms.

Dunphy advanced and, inattentive due to her level of agitation, and not fully aware situationally due to the darkness, accidentally bumped into the back of Mr. Dunphy ’ s truck. [ 8 ] Unfortunately, Mr. Dunphy did not see it that way. He believed that the contact, minor as it might have been, was a deliberate provocation. Why else would he have resolved immediately to call 911? [ 9 ] Back in her sedan, Ms. Dunphy saw Mr. Dunphy getting out of his truck, already on his cell ‘ phone. She surmised correctly from past experience that her ex-husband was calling the police.

Panicked by the unpleasantness of the confrontation sure to follow, and still not wanting to have anything to do with Mr. Dunphy – much as in the parking lot a few moments before – she exercised very bad

judgment and decided to flee – bad judgment, as flight would only postpone the inevitable need to give an account. I do not believe that Ms. Dunphy was in any sort of danger. Mr. Dunphy was calling the police, and so not plotting anything that might have jeopardised Ms. Dunphy ’ s safety. [ 10 ] Motivated into action by panic and unfounded fear, Ms. Dunphy backed up, preparing her exit. Regrettably, in negotiating her way away from the intersection, she misjudged her distance from Mr.

Dunphy ’ s truck and collided with the rear end of it; this caused some slight damage to the left side of the very sturdy rear bumper of the truck, but resulted in much more extensive damage to the front and, passenger side, of the sedan. There is no evidence before me of the velocity of Ms. Dunphy ’ s vehicle immediately prior to the point of impact. I am not an accident reconstructionist, and it is not for the court, sua sponte , to perform calculations and experiments. [1] However, I do observe that Ms. Dunphy would have had only a very short distance to have accelerated her vehicle prior to impact.

In any event, I find is a fact that both collisions were accidental. I assign little weight to the fact that, shortly after the mishap, Francis Dunphy described the smash-up as “ intentional ” . This is not evidence; rather, it is a conclusion, and on an ultimate issue that is for the court to decide. [ 11 ] At this point, Ms. Dunphy ’ s panic was compounded by the collision, and, rather than doing what she ought to have done by stopping and waiting for police, she drove off, seeking refuge at her mother ’ s seniors ’ apartment a short distance away at the Autumn Crest Home.

There is no evidence before the court describing her manner of driving in getting there. [ 12 ] Mr. Dunphy surmised correctly Ms. Dunphy ’ s destination, and arrived at the parking lot at Autumn Crest just after his ex-wife had pulled in. Mr. Dunphy ’ s concern, quite properly, was the safety and welfare of his son. Francis was the passenger in a vehicle that had just been involved in a serious motor vehicle accident. The operator of that vehicle, and the person responsible for that accident, was Ms. Dunphy. But of course, Mr.

Dunphy was upset and agitated: he was worried, rightfully, about his son, and he had every good reason to want him back. He commanded Francis verbally to leave Ms. Dunphy; when Francis refused, Mr. Dunphy became verbally emphatic, and that was certainly audible in the 911 recording played by defense counsel during cross-examination of Mr. Dunphy. He used without a doubt the words and the tone of voice described by Mrs. Muriel Polley; I am certain Mrs.

Polley was alarmed by what she heard and saw; however, she was unaware completely of what had taken place at the West Side Sobey ’ s just a few minutes before. [ 13 ] When Francis refused his father ’ s verbal cues, Mr. Dunphy exercised reasonable physical force: he took hold of Francis and, in Francis ’ s words, “ he put his hand on my shoulder and took hold of the collar of my coat ” . I do not accept Ms. Dunphy ’ s evidence that “ David almost made him airborne ” or that Mr. Dunphy was shaking his son “ like a rag doll ” .

Not even Francis, himself, no great friend of his father ’ s, described such a heightened level of aggression. [ 14 ] Rather, what happened here was that this young man ’ s father took reasonable steps to extract his son from a volatile situation and a volatile person. [ 15 ] How did Ms. Dunphy react? Instead of backing off, she allowed her emotions to take charge and, self-assured as she remains today that she knows better what is good for Francis, she stepped in and tried to stop Mr. Dunphy from caring for his son. When Mr. Dunphy persisted in trying to pull Francis away, Ms.

Dunphy ’ s earlier flight response morphed into fight: she used her car keys and attacked Mr. Dunphy, causing an open lacerating injury to his left forearm, just above the wrist. At some point in time, shortly before or after this, Francis struck his father a blow , and David Dunphy let go. Then, the police arrived. Ms. Dunphy was arrested, charged, and released on a form 11.1 undertaking. Presumption of innocence

[ 16 ] Ms. Dunphy is presumed innocent of the charges arrayed against her. That presumption is guaranteed constitutionally in paragraph 11(

d) of the Charter and statutorily in paragraph 6(1) (

a) of the Criminal Code . This burden of proof never shifts until such time as, having heard all of the evidence and submissions of counsel, the court should find itself able to conclude that all of the elements of each offense have been proven beyond a reasonable doubt. [2] [ 17 ] A criminal trial is not a truth-telling contest. It is not an exercise in preferring the evidence of one witness over the evidence of another. [3] Furthermore, although proof beyond a reasonable doubt does not require absolute certainty, it is very, very close to that absolute level. [4] [ 18 ] Ms.

Dunphy called evidence; therefore, I apply the principles set out in R. v. W. (D.) . If I believe the defence evidence, I must acquit; even if I were not to believe it, but it leave me in a state of reasonable doubt, I must acquit. If I were not to know whom to believe, I would be in a state of reasonable doubt, and would be obligated to acquit.

Finally, even if I were not to believe the evidence called by defence, and even if it were not to leave me in a state of reasonable doubt, I must still ask myself, with respect to each offence, whether, based on the evidence I do accept, I find the Crown to have proven each element of the offence beyond a reasonable doubt, and, should the answer be “ no ” , I must acquit. [5] Dangerous driving [ 19 ] Paragraph 249(1)(

a) of the Code criminalizes dangerous driving in these terms: 249.

(1) Every one commits an offence who operates (

a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place; . . . . [ 20 ] The law regarding dangerous driving has been stated accurately by the prosecution and defence in their briefs, which were very well argued and of great assistance to the Court. In R. v.

Roy , Cromwell J., in rendering the judgment of a unanimous 7-member panel, had the following to say in his opinion regarding the actus reus – i.e. , the externally manifested physical aspects – of a s. 249 offence: 33 Beatty held that the actus reus for dangerous driving is as set out in s. 249(1)(

a) of the Code , that is, driving "in a manner that was dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place" (para. 43). 34 In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances.

The focus of this inquiry must be on the risks created by the accused's manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty , "The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving " (emphasis added). A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident.

In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value ( Beatty , at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions. 35 To summarize, the focus of the analysis in relation to the actus reus of the offence is the manner of operation of the motor vehicle. The trier of fact must not simply leap from the consequences of the driving to a conclusion about dangerousness.

There must be a meaningful inquiry into the manner of driving.

[ 21 ] As I concluded earlier in my judgment, Ms. Dunphy ’ s two collisions with Mr. Dunphy ’ s truck were accidental; further, the second impact occurred as Ms. Dunphy was attempting to go around the truck after Mr. Dunphy had alighted from it; the points of impact confirm this in my mind. What happened here is that Ms. Dunphy misjudged momentarily her distance from the truck. Other than that singular, point-in-time lapse, there is no evidence before the Court that Ms.

Dunphy drove erratically, at an unsafe rate of speed, posed a risk to other vehicles or pedestrians along her route, or used her vehicle as a weapon; nor is there any evidence that Ms. Dunphy ’ s ability to drive was impaired by alcohol or drugs. This is in contradistinction to the facts before my colleague Gorman P.J.C. in R. v. Burton , an egregious case of dangerous driving. [6] The prosecution in that case presented the court with abundant evidence of erratic driving, and the court found that the accused had tried to run down her former partner.

I am cautious not to allow findings of fact in other cases to be used impermissibly as extrinsic evidence in this case; however, I do accept the legal analysis of Gorman P.C.J. as entirely correct. Focussing as I must on Ms. Dunphy ’ s manner of operating her vehicle, not on the result, I am left in a state of substantial doubt regarding proof of the actus reus of the para. 249(1)(

a) offence. Therefore, I find Ms. Dunphy NOT GUILTY of dangerous driving, case number 2398106. [ 22 ] The argument presented by the prosecution regarding consciousness-of-guilt inferences which might be drawn from Ms. Dunphy ’ s decision to flee the scene would have had merit, had I found the actus reus to have been made out. However, as is clear from R. v.

Arcangioli , post-offence conduct that invites inferences regarding consciousness of guilt will assist the prosecution in establishing mens rea only; it will not create a proof of the actus reus when the evidence of the physical component of a crime is deficient. [7] Damage to property [ 23 ] The collision caused damage to Mr. Dunphy ’ s truck. The damage to the sedan was extensive; there was evidence before the Court that Mr. Dunphy remained its owner, although he allowed Ms. Dunphy to continue using it. Here, the key is that the collision was accidental. While Ms. Dunphy ’ s driving certainly caused damage, Ms.

Dunphy did not intend to cause any any of it, nor was her driving reckless to the extent that recklessness might operate as a substitute for intent. That this was an accident leaves me in a state of reasonable and substantial doubt about mens rea, recognizing as I do that the two concepts are linked very closely. [8] Accordingly, I find Ms. Dunphy NOT GUILTY of the sub- s. 430(4) count, case number 2398108. [ 24 ] Assault is defined in the Code in these terms: 265.

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. Application

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. [ 25 ] “ Weapon ” is defined in

section 2 of the Code as: any thing used, designed to be used or intended for use (

a) in causing death or injury to any person, or (

b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm;

[ 26 ] In reviewing the evidence relevant to the charge that Ms. Dunphy assaulted Mr. Dunphy with a weapon, there is no doubt at all in my mind that Ms. Dunphy assaulted Mr. Dunphy within the context of para. 265(1)(a), and as interpreted judicially in R. v. George . [9] Ms. Duffy gouged at Mr. Dunphy with her keys to try to wrest Francis free. This was an application of force to Mr. Dunphy ’ s body, and Ms. Dunphy intended to do it. [ 27 ] A key can be utilized as a weapon if, in committing an intentional assault, an assailant uses it to inflict harm.

A key can be a particularly effective weapon, as it tapers to a point and has serrated edges. I am satisfied beyond a reasonable doubt that Ms. Dunphy intentionally used her key as a weapon in committing an intentional assault on Mr. Dunphy; I am reinforced in this conclusion by the evidence of Francis Dunphy, who described in his testimony Ms. Dunphy ’ s “ stabbing motion ” with her key in carrying out the assault. This inflicted the open, lacerated injury to Mr. Dunphy ’ s arm, which I described earlier, and I am satisfied beyond a reasonable doubt that Ms.

Dunphy intended to inflict such an injury; what else could she have intended in using her key in such a manner? Defence of others [ 28 ] I find that the prosecution has proven all of the essential elements of the para. 267(

a) offence. However, this finding does not lead inevitably to a finding of guilt, as the prosecution must negative beyond a reasonable doubt those non-defence-onus defences that possess an air of reality. [10] In this case, Ms. Dunphy has raised the defence-of-others provisions in

section 37 of the Code . That

section states: 37.

(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it. Extent of justification

(2) Nothing in this

section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent. [ 29 ] I find that there is some air of reality to the defence that has been raised by Ms. Dunphy. This is because it is clear that Mr. Dunphy applied force to his son. Additionally, in a very real sense, every member of the public is responsible for protecting children in need; this is underscored in the

preamble and s. 23 of the Children and Family Services Act of Nova Scotia . [11] [ 30 ] However, in proceeding to the second stage of the Cinous test and analysing whether the evidence of defence-of-others might leave the Court in a state of reasonable doubt, I find that the evidence led by the prosecution has negatived that defence beyond a reasonable doubt. [ 31 ] I will state at once that I infer from the level of contact Ms. Dunphy was permitted to have with Francis before 14 December 2011 that, ordinarily, she was a responsible care giver who looked after this young person appropriately.

That was not the case on 14 December 2011: far from needing the protection of Ms. Dunphy, on that day, Francis needed protection from her. Ms. Dunphy ’ s actions, although not criminal, had exposed Francis to an elevated level of risk of harm, and Mr. Dunphy was right to seek to remove his son from her presence. Mr. Dunphy ’ s grabbing hold was no more an assault than someone pulling an errant child away from traffic or open ice. The voir dire held to determine the admissibility of Ms. Dunphy ’ s statement to Sgt.

DiPersio did not inform the Court of anything that could not have been inferred reasonably from the other evidence: Ms. Dunphy lost it. [ 32 ] Having found beyond a reasonable doubt all of the elements of assault with a weapon to have been proven, and with the s. 37 defence having been negatived beyond a reasonable doubt, I find Ms. Dunphy GUILTY of the para. 267(

a) count, case number 2398107. ___________________________________ J.P.C. [1] R. v. MacDonald , [1988] N.S.J. No. 123 (C.A.) .

[2]See R. v. Avetysan 2000 SCC 56 at para. 10; R. v. Bouvier (1984), 11 C.C.C. (3d) 251 at 264 (O.C.A.), aff’d. (SCC),22 C.C.C. (3d) 576 (S.C.C.). [3]See R. v. H. (C.W.), (BC CA), [1991] B.C.J. No. 2753 (C.A.). [4]See R. v. Lifchus, (SCC), [1991] 3 S.C.R. 320 at para. 13; R. v. Starr 2000 SCC 40 at paras. 231, 242. [5] (SCC), [1991] 1 S.C.R. 742 at para. 28. [6][2012] N.J. No. 81. [7] (SCC), [1994] 1 S.C.R. 129 at paras. 39-45. [8] See R. v. Ettinger (1986), (NS CA), 71 N.S.R. (2d) 361 at 368 (A.D.); R. v. Roe 2009 BCCA 193 at paras. 20-22. [9] (SCC), [1960] S.C.J. No. 53, in which Fauteux J. reviewed para. 230(

a) of the Code, the predecessor to the numberingin the current revision. [10]R. v. Cinous 2002 SCC 29 at paras. 39, 47-91. [11]S.N.S. 1990, c. 5.