MARTIN AUBIN, Appellant, v. HER MAJESTY THE QUEEN,, 2022 NBKB 180

Martin Aubin v. Her Majesty the Queen , 2022 NBKB 180 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON MCA-5-2019 BETWEEN: MARTIN AUBIN, Appellant, -and- HER MAJESTY THE QUEEN, Respondent Before: Madam Chief Justice Tracey K. DeWare Dates of Hearing: April 5 and 6, 2022 Date of Decision: October 11, 2022 At: Moncton, New Brunswick Appearances: Martin Aubin , for himself, Per se Pierre Gionet , for Her Majesty the Queen

DECISION DeWare, C. J. INTRODUCTION [ 1 ] This is a

summary conviction appeal. On November 21, 2019, the Appellant was found guilty of a

summary conviction offense pursuant to section 430(1) (

c) of the Criminal Code of Canada . Section 430(1)(

c) of the Code states as follows: Mischief 430(1) Every one commits mischief who wilfully (

c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or [ 2 ] The Appellant raises 32 grounds of appeal in his third and final Notice of Appeal dated March 29, 2022, and filed March 30, 2022. FACTS [ 3 ] The incident giving rise to this charge occurred on November 4, 2017. On that date, the Appellant was burning paper in a structure in the backyard of his home on Bayview Court in Dieppe, New Brunswick. The Dieppe Municipal Fire Department received a call reporting smoke at the Appellant’s home from a neighbour.

The fire department attended at the scene to investigate and upon their arrival, the firemen noticed smoke coming from the Appellant’s property at 357 Bayview Court. [ 4 ] Firefighters Daniel Roy, Ghislain O’Brien, Danik Brun along with Captain Daniel Robichaud, were dispatched to the Appellant’s property. Upon their arrival, Daniel Roy, Ghislain O’Brien along with Captain Daniel Robichaud proceeded to the Appellant’s backyard to investigate the source of the smoke. The group noticed what appeared to be a homemade shed covered in a tarp with a chimney pipe sticking out of it which was the source of the smoke.

As Mr. Roy, Mr. O’Brien and Captain Robichaud approached the shed, the Appellant appeared and angrily insisted the firemen leave his property. According to the three firemen, the Appellant was in a state of rage, yelling at them with his arms raised. Captain Robichaud tried to explain to the Appellant why they were at his property, but the Appellant refused to entertain any discussions. [ 5 ] The firemen and the Appellant returned to the street in front of the Appellant’s home.

At this point, Fire Chief Conrad Landry, who had also been dispatched to the scene, arrived in a separate vehicle as the Appellant and the firemen made their way to the street at the front of the Appellant’s home. Chief Landry observed the Appellant yelling at the firemen and insisting they get off his property. [ 6 ] Shawn LeBlanc and Michael McBurnie reside at 366 Bayview Court in Dieppe. On November 4, 2017, Mr. LeBlanc and Mr. McBurnie, along with a guest, were at their home at approximately 5:00 p.m. when they noticed smoke coming from the backyard of the Appellant’s property. Mr.

McBurnie called 911 to report the presence of the smoke and then began to prepare supper. Approximately ten minutes later Mr. Leblanc noticed the fire department arriving at the Appellant’s home. Mr. LeBlanc further observed the firemen in the Appellant’s backyard speaking with him and then watched as the entire group moved to the street. [ 7 ] Once up on the street, the Appellant angrily headed to the home of Mr. LeBlanc and Mr. McBurnie. The Appellant maintains that he knocked on the door and then entered the home, never leaving the doorway.

Several witnesses who testified at trial explained that the Appellant walked into Mr. McBurnie’s home without ringing the doorbell or knocking. According to Mr. LeBlanc and Mr. McBurnie, the Appellant swung open the front door with such force that it struck the door of a closet located in their entryway. The Appellant entered the home yelling and approached Mr. McBurnie. Mr. McBurnie would have asked the Appellant on multiple occasions to leave his home. The Appellant continued to berate Mr.

McBurnie until finally leaving the home through the front door. [ 8 ] The Appellant left the LeBlanc-McBurnie home and crossed the street where a neighbour, Frank LeBlanc, was arriving home from work. The Appellant proceeded to yell at Mr. LeBlanc inquiring if Mr. Frank LeBlanc had called the fire department. [ 9 ] As a result of this incident on November 4, 2017, the Appellant was charged with a

summary conviction offence pursuant to section 430(1) (

c) of the Criminal Code . The charge stemmed from the Appellant’s unlawful entry into the McBurnie home and his interruption in the use and enjoyment of the home by Mr. McBurnie. [ 10 ] The Appellant’s trial in Provincial Court took place before Judge Éric Sonier. The trial commenced on October 23, 2018, and finally concluded on October 4, 2019, after 12 days of trial. There were several interruptions during the hearing of the trial. Judge Sonier found the Appellant guilty of the charge of mischief pursuant to section 430(1) (

c) of the Criminal Code and sentenced him to an 18- month conditional discharge. [ 11 ] In his modified Notice of Appeal, the Appellant requests various orders including a stay of proceedings, a declaration that his

rights have been violated, an acquittal, alternatively an absolute discharge, alternatively a new trial, alternatively a new sentencinghearing, and other remedies pursuant to the Canadian Charter of Rights and Freedoms. In support of these requests the Appellant setsout in his third Notice of Appeal 40 different errors in law committed by both the trial judge and several other Provincial Court judgeswho dealt with the Appellant’s file leading up to the trial itself. [12] The central theme to the Appellant’s grounds of appeal is that he was denied a just and fair trial.

In this respect the Appellantrefers to various concerns including his ability to summon witnesses, the witnesses called by the Crown, the manner in which the Courtdealt with documentary evidence and other evidentiary requests, his inability to cross-examine at the sentencing hearing given hisconcerns with the Victim Impact Statements and various delays which occurred during the trial process. The Appellant is also veryannoyed with the fact that initially in March 2018 three Informations were laid but two were withdrawn and the Crown proceeded ononly the one charge under section 430(1)(

c) of the Criminal Code. The Appellant expressed his extreme displeasure that a warrant wasissued when he failed to appear in May 2020 for his sentencing hearing. However, this is a

summary conviction appeal and this Court isconstrained to the consideration of whether Judge Sonier’s findings of fact were unreasonable or were not supported by the evidence. TheAppellant raises very little in regards to the actual evidence considered by Judge Sonier but has rather focused his written and oralarguments on process. The Appellant did not direct the Court to any findings of fact of the trial judge which were not supported by theevidence. The trial judge’s decision [13] Judge Sonier rendered his decision orally on November 21, 2019.

Judge Sonier pointed out that the 12-day trial commenced onOctober 23, 2018, and concluded on October 4, 2019, as a result of multiple adjournments, some of which were required as a result ofhealth challenges experienced by the Appellant. During the course of the trial the prosecution presented the evidence of nine witnessesincluding firemen Daniel Roy, Danik Brun, Daniel Robichaud and Chief Landry. Further, Shawn LeBlanc, Michael McBurnie and FrankLeBlanc testified as to their interactions and observations of the Appellant on November 4, 2017.

The Appellant also testified in his owndefense. [14] Following a careful and detailed review of the evidence from all of the fact witnesses presented by the prosecution and afterconsidering the evidence of the Appellant, Judge Sonier arrived at the following findings of fact: • the Appellant was in a state of rage on November 4, 2017 and was yelling aggressively with everyone with whom he interactedduring the events giving rise to this charge; • the Appellant did not knock on the door or ring the doorbell of Mr.

McBurnie’s home on November 4, 2017, but forcefully openedthe door and entered the home uninvited; • The Appellant was yelling at Mr. McBurnie while inside the home and did not leave until Mr. McBurnie had asked him to onmore than one occasion; and • the Appellant’s presence in the McBurnie home on November 4, 2017, was unpleasant, uninvited and disrupted Mr. McBurnieand Mr. LeBlanc’s activities including making supper and entertaining a guest. [15] Judge Sonier appropriately undertook an analysis as required pursuant to the R v.

W.(D.) in considering the credibility of theAppellant as well as the other witnesses. The New Brunswick Court of Appeal succinctly laid out the analysis a trial judge must followin such an exercise in Mitchell v. R., 2020 NBCA 34 where they explained the framework at paragraph 3 as follows: [3] The verdict under appeal was the culmination of a trial at which only the complainant testified for the prosecution. Her testimonywas pitted against those of Mr. Mitchell and his wife. Cases of this type are to be assessed through a framework proposed in R. v. W.(D.), (CSC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 (QL).

That framework has three steps: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [p. 758] [16] As explained by Judge Sonier, following his application of the W.(D.) analysis, he was unable to accept the Appellant’s evidencein the face of the credible evidence provided by the independent witnesses including Danik Brun, Daniel Roy, Captain Daniel Robichaudand Fire Chief Landry.

Further, Judge Sonier determined the evidence of Shawn LeBlanc and Michael McBurnie was consistent with theevidence of the independent witnesses whereas the evidence of the Appellant was not. [17] Judge Sonier determined that the prosecution had established the essential elements of the offense and found the Appellantguilty. Judge Sonier was satisfied on the evidence presented that the Appellant had interfered in Mr. McBurnie’s use and enjoyment ofhis property at 366 Bayview Court as a result of the Appellant’s unwelcome, aggressive and disturbing entrance into the home. LAW AND ANALYSIS [18] This is a

summary conviction appeal. This Court may only interfere in the decision of the trial judge if it is found that there hasbeen an error of law or a denial of justice. Following my review of these materials I cannot conclude that either criteria is met in thecontext of this case despite the extensive Notice of Appeal filed by the Appellant nor the verbose arguments during his oral submissionswhich lasted a day and a half. [19] In Pinard v. R., 2020 NBQB 166 , Justice Ferguson provides a comprehensive overview of the standard of review on asummary conviction appeal stating at paragraphs 25 and 26 as follows:

[25] This court is bound by the same rules as the Court of Appeal is in indictable matters regarding its powers of review. R. v. G.J.G., 2002 NBCA 99 (N.B.C.A.) at para. 15 quoting R. v. Yebes (SCC), [1987] 2 S.C.R. 168 (S.C.C.) at p. 186. See,also, the comments of Richard J.A., as he then was, on the effect of s. 839(1) of the Code in R. v. Legere, 2009 NBCA 31 (N.B.C.A.). [26] In R. v. Brown, 2009 NBCA 27 (N.B.C.A.) Richard J.A., as he then was, set out the law applicable to an appeal to the Court ofQueen’s Bench of New Brunswick from Provincial Court at para. 15: On appeal to this Court, Mr. Brown first argues the

Summary Conviction Appeal Court judge erred in law with respect to the standard ofreview that governs an appeal to that court. Mr. Brown points to the decision in R. v. Fowler (M.O.) (2006), 304 N.B.R. (2d) 106, [2006]N.B.J. No. 370 (QL), 2006 NBCA 90, where we adopted the reasoning of Cromwell J.A. (as he then was) in R. v. Nickerson (W.S.)(1999), 1999 NSCA 168 , 178 N.S.R. (2d) 189 (C.A.), [1999] N.S.J. No. 210 (QL) and held that “[a]bsent an error of lawor a miscarriage of justice, the test to be applied by the

Summary Conviction Appeal Court is whether the findings of the trialjudge are unreasonable or cannot be supported by the evidence” (para. 18). Mr. Brown argues the

Summary Conviction AppealCourt judge effectively substituted her own view of the evidence for that of the trial judge. See, also, R. v. Farrell, (2009), 2009 NSCA 3 , 241 C.C.C. (3d) 59 (N.S.C.A.). [emphasis mine] [20] It is necessary in this matter to step back and consider the nature of the charge as well as the evidence furnished by the Crown.Judge Sonier was dealing with a

summary conviction charge of mischief. The trial took an inordinate amount of time in order toaccommodate the arguments and requests of the Appellant. While the Appellant takes umbrage with the manner that Judge Sonier ranthis trial and suggests that the Appellant was deprived of his ability to make full answer and defence to these charges, the voluminoustranscripts indicate very much the contrary. Judge Sonier demonstrated a level of patience and accommodation for the Appellant whichcan only be described as commendable.

The fact that 12 days were required in order to have this matter heard speaks to the tremendousefforts put forth by all parties to fully allow the Appellant his day in court. In my view, there is absolutely nothing in the transcripts ofthe matter’s proceeding in Provincial Court which would raise any viable issues of equity or natural justice.

Quite to the contrary thisAppellant has been granted the time and attention of the Court at a rate completely disproportionate given the nature of the charge andresulting consequences. [21] The Appellant suggests throughout his Notice of Appeal, and during his oral submissions, that there were several irregularities inthe handling of his matter in Provincial Court all of which now warrant granting the relief he seeks. I have identified no irregularities inthe handling of this matter by the judges of the Provincial Court which would legitimately raise a question as to the fairness of the trialprocess.

Like many individuals before the Court, this Appellant faced certain challenges as the matter moved forward given thecomplications created by the COVID-19 pandemic, inclement weather and his own health problems. In each situation the Appellant wasdealt with fairly and as expeditiously as possible. [22] In the present matter I simply cannot identify an error of law committed by the trial judge which would allow for the interventionof this Court.

While the Appellant takes issue with several of the rulings of Judge Sonier, throughout the course of the proceedings, thereis no question that the Appellant was fully heard by Judge Sonier who did his best to answer all motions, applications, and objectionsraised by the Appellant throughout the proceedings. The findings of Judge Sonier in this matter are reasonable and supported by theevidence tendered at trial. This is not a case that turned on expert evidence, documentary proof or circumstantial evidence.

Judge Sonierwas considering a charge of mischief and relied upon the direct evidence of the individuals present during the pertinent events to supporthis findings that the crime had been committed by the Appellant beyond a reasonable doubt. This Court has no ability to interfere in suchcircumstances. [23] This Court will not entertain an analysis of each of the grounds raised by the Appellant in his third Notice of Appeal.

TheAppellant was convicted of mischief following Judge Sonier’s assessment of the evidence of eyewitnesses to the events in question.Judge Sonier was satisfied, on the basis of his assessment, of the evidence of these witnesses, many of whom were completelyindependent, that the Crown had established the essential elements of the offense of mischief beyond a reasonable doubt. There isnothing raised in the Notice of Appeal which causes me to question Judge Sonier’s process nor his decision. [24] The Appellant’s appeal is dismissed.

DATED at Moncton, New Brunswick, this 11th day of October 2022. _____________________________________ Tracey K. DeWare Chief Justice of the Court of King’s Bench of New Brunswick