R v Smith, 2019 NSSC 129

Supreme Court of Nova Scotia Citation: R v Smith, 2019 NSSC 129 Date: 2019-04-24 Docket: 474456 Registry: Sydney Between: Her Majesty the Queen v. Hugh David Smith Library Heading Judge: The Honourable Justice Frank C. EdwardsHeard: April 8, 9, 10 & 17, 2019 in Sydney, Nova ScotiaSubject: Criminal Law Code s. 132 – perjury s. 380(1) – fraud – wilful blindness s. 334(a) – theft – color of rightFact: The Accused tow truck operator (Smith) towed Campbell’s Volkswagen Tiguan to a vacant unfencedlot near an apparently abandoned building. He was using the lot as a temporary compound.

WhenCampbell arrived to retrieve her vehicle, Smith demanded $100.00 cash. Campbell did not have thecash. An argument followed in which Smith threatened to increase the amount owed if he was notimmediately paid. By the next day, she would owe $200.00. Campbell left without paying. Later thatnight, Campbell’s husband went to the site and drove the vehicle home without telling Smith. Two months later, Smith towed Campbell’s vehicle from a downtown Sydney location. Smith thenproceeded directly to the Registry of Motor Vehicles where he had title to the vehicle transferred to histowing company.

To do so, Smith signed a Solemn Declaration stating that title to Campbell’s vehiclehad passed to him by operation of law. The day before the second tow Smith had created an invoicecharging Campbell $150.00 per day for the 63 days the vehicle had been missing since the first tow($10,867.50 incl. HST). Campbell had no knowledge of the charge or the invoice. The vehicle has never been recovered. Smith told police he had the vehicle crushed. Result:

(1) Not guilty of theft. First tow had been legal and Smith had not been paid. Court had reasonabledoubt about whether Smith had color of right to reclaim possession at time of second tow.

(2) Guilty of fraud. Smith had created a phony invoice to legitimize the transfer of title fromCampbell. His stated belief that he was justified is irrelevant. Legal measure is that of an honest anddecent person who would find Smith’s conduct at the Registry of Motor Vehicles dishonest andunscrupulous.

(3) Guilty of Perjury: Smith’s claim in the Solemn Declaration that the vehicle title had passed tohim by operation of law was false. Smith falsely stated that he had complied with the conditions of theWarehousemen’s Lien Act. Smith knew the information was false and intended to mislead. Process atRegistry somewhat informal but Smith signed statement: “I Make this Solemn Declarationconscientiously believing it to be true…” Cases Noticed R v Simpson 2015 SCC 40 , [2015] 2 SCR 827) R v Zlatic (SCC), [1993] 2 SCR 29 R v Jorgenson

(1995) Can LII 85 R v Thĕroux, (SCC), [1993] 2 SCR 5 THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THEDECISION, NOT THIS LIBRARY SHEET.

SUPREME COURT OF Nova Scotia Citation: R v Smith , 2019 NSSC 129 Date: 2019-04-24 Docket: 474456 Registry: Sydney Between: Her Majesty the Queen v Hugh David Smith Judge: The Honourable Justice Frank C. Edwards Heard: Written Decision: April 8, 9, 10 & 17, 2019, in Sydney, Nova Scotia April 24, 2019 Counsel: Peter J.

Dostal, for the Crown David Iannetti, for the Defence By the Court: Introduction and Overview: [ 1 ] The Accused, Hugh David Smith (Smith) is charged in an Indictment as follows: Count # 1 : On June 6, 2017, being specially permitted, authorized or required by law to make a statement under oath or solemn affirmation, did make a false statement by solemn declaration or orally before a commissioner of oaths for Nova Scotia, knowing that such a statement was false, to wit: that ownership of the property of Nicole Campbell had transferred to him by operation of the law and that he has complied with the conditions set out in the Warehouseman’s Lien Act, contrary to

Section 132 of the Criminal Code of Canada ; Count # 2: AND FURTHERMORE, on June 6, 2017, by deceit, falsehood or other fraudulent means defraud Nicole Campbell, of Sydney Nova Scotia, of a 2010 Volkswagen Tiguan, of a value exceeding five thousand dollars, contrary to Section 380(1) of the Criminal Code of Canada ; Count # 3: AND FURTHERMORE, on June 6, 2017, steal a 2010 Volkswagen Tiguan, the property of Nichole Campbell of Sydney, Nova Scotia, of a value exceeding five thousand dollars, contrary to

Section 334 (

a) of the Criminal Code of Canada . [ 2 ] I begin by setting out the facts. I then deal with the three counts in the Indictment in reverse order. The chronological sequence of what occurred begins with the alleged theft. I find Smith guilty of perjury and fraud but not guilty of theft. Facts: [ 3 ] Nicole Campbell (Campbell) is a lawyer presently employed as a Crown Attorney in Port Hawkesbury.

[ 4 ] On Monday, April 3, 2017, Campbell was working as an

article clerk with the Breton Law Group in Sydney. Campbell owned a 2010 Volkswagen Tiguan. That evening, Campbell worked late. She and her husband Jeremy had agreed to meet at Centre 200 to watch a hockey game. At approximately 7:00 pm, Campbell left work and proceeded to the parking lot of the Ascendo Fitness Centre. [ 5 ] The Ascendo parking lot was a short walk from Centre 200. It was regularly used by Centre 200 patrons attending hockey games. Unknown to Campbell, parking on hockey nights had become an issue for the owners of Ascendo Fitness.

Small signs stating “Customer parking only” were in place but largely ignored. (e.g. See Ex 1 Tab B pg. 10). Campbell did not notice the signs. Campbell was not an Ascendo customer. She parked her car and proceeded on foot to Centre 200. Campbell acknowledged during cross- examination that she was illegally parked though at that time she did not know it. [ 6 ] Shauna Sifnakis (Sifnakis) and her husband are the owners of Ascendo Fitness. Sifnakis testified that their business hours Monday to Friday are 5:00 am to 9:30 pm.

There was therefore a problem with hockey fans using their parking lot during hockey games that normally started at 7:00 pm. Sifnakis discussed the parking problem and possible solutions with some friends. Shortly afterwards the Accused, Hugh David Smith (Smith) contacted her to offer his services. [ 7 ] Sifnafis and Smith met and came to an oral agreement that he would monitor the Ascendo lot on hockey nights. Sifnakis wanted Smith to come to the lot before any scheduled game time. If Centre 200 patrons parked in the Ascendo lot, Smith was to advise them that, if they left their vehicle, it would be towed.

Smith would be remunerated by the by the owners of any vehicles towed. Smith would not receive any pay from Sifnakis as a lot attendant. [ 8 ] As an astute business person, Sifnakis was sensitive to both customer and public relations. She emphasized to Smith that she did not want the vehicles of any gym members towed. Most members were supplied with an Ascendo parking decal to display on their vehicles. By April 3, 2017, Sifnakis had run out the decals so there was no way to be sure which vehicles belonged to members and which did not.

For that reason, Sifnakis insisted that Smith warn vehicle owners in person before he could tow the vehicle. As far as Sifnakis was concerned, Smith could only tow a vehicle if he warned the owner and the owner ignored the warning. When she parked her Tiguan, Campbell had no contact with Smith or anyone working with him. [ 9 ] Paul Richard MacEwan (MacEwan) was working with Smith on April 3, 2017. MacEwan says that he showed up at the Ascendo lot between 6:00 and 6:30 pm. He was wearing “bright yellow work gear.” MacEwan says that he warned a few people not to park and they left anyway.

Smith towed their vehicles while MacEwan remained on site. [ 10 ] In addition, Smith towed vehicles that were already parked. In those cases, MacEwan says that Ascendo staff came outside and “pointed out vehicles that were not supposed to be there.” In all, MacEwan estimated that Smith towed 10-12 vehicles that evening. Despite the fact that Campbell arrived after MacEwan says he was there, it is clear that Campbell and MacEwan did not have contact. [ 11 ] There were text exchanges between Smith and Sifnafis on April 3, 2017.

At 3:31 pm Sifnakis texts: Well I need you to insure that nobody in here is towed and that the ppl going to the game are for warned. Smith: We will check everyone in gym to see what they own and warn people. Sifnakis: No my staff doesn’t have time for that you will only be able to tow the ones you actually see yourself. Smith: K [ 12 ] At 6:26 pm Sifnakis inquired whether Smith was at the gym. (See Ex 12 p. 12-19). Smith replied that he had been there for 20 minutes. Sifnakis: “Ok just to clarify I want to make sure that ppl are notified” Smith: “K.

Members parking an going over C200 too” Sifnakis: “Well I’ll address it in the gym but they can’t be towed.” Smith: “I know” At 7:21 pm; Sifnakis: “ Once again only the people you seen yourself leaving their car…..you need to understand that not everybody has a pass. I don’t want my members upset” Smith: “I know” [ 13 ] The hockey game ended between 9:00 pm and 10:00 pm. Campbell and husband Jeremy proceeded to the Ascendo location. Jeremy had parked his vehicle in another

section of the lot. Jeremy’s vehicle was still there but Campbell’s Tiguan was gone. After some telephone calls, Campbell learned that her vehicle had been towed to an address on Walker Street. [ 14 ] The Walker Street location is the site of what appears to be an old abandoned CNR building. MacEwan testified that the building is not abandoned but is used occasionally by the present owner for doing motor vehicle repairs. There was also evidence of video surveillance cameras mounted at various locations on the building.

I am satisfied however that most reasonable observers would regard the structure as abandoned. [ 15 ] The building sits on a dirt lot which is not fenced. The lot is set off by itself a fair distance from occupied dwellings. It is not a

secure site. Smith was using the lot as a temporary compound for any vehicles he towed. [ 16 ] Campbell and her husband arrived at Walker Street at approximately 10:00 pm. They discovered Smith in his tow truck blocking the driveway. Campbell approached Smith who apparently recognized her. (Smith said something to the effect, “Oh, its you.”). Campbell did not immediately recognize Smith. She described his attitude as smug and arrogant. Smith demanded $100.00 cash before he would release Campbell’s vehicle. Campbell did not have the cash and asked Smith to go to his office so she could use her debit card.

Smith refused. There was some argument wherein Smith threatened to increase his fee unless Campbell paid that night. By the next day the fee would double. Campbell retrieved her work bag from her car. She and Jeremy then left for home without paying. Campbell was quite upset. [ 17 ] Campbell thought Smith looked familiar. Before she got home, Campbell realized that Smith was an individual with whom weeks earlier she had had a work related confrontation. Part of Campbell’s duties with the law firm was attending to its municipal prosecutions contract. Smith owed the municipality over $40,000.00 in fines.

Smith was disputing that amount and wanted Campbell to reduce it. Campbell could not do that without some supporting evidence from Smith. She extended his time for payment to give him an opportunity to produce the requested evidence. Smith was not satisfied with that and threatened to involve his lawyer. Smith was upset and was raising his voice. [ 18 ] When Campbell realized who Smith was, she says her plan changed. Until that time Campbell had apparently decided to leave the vehicle where it was overnight.

She already had some misgivings about the security of the area despite Smith’s assurance that there was video surveillance. [ 19 ] When they got home, Jeremy phoned Campbell’s brother Jonathan. Jonathan and Jeremy then proceeded to Walker Street to retrieve Campbell’s vehicle. Jeremy testified that he now had the $100.00 and would have paid Smith if he was still present. Smith had left the area by the time Jeremy and Jonathan arrived at around 11:00 pm. Jeremy then proceeded to drive Campbell’s vehicle home. [ 20 ] Sometime later Smith discovered the vehicle missing and phoned police to report the vehicle stolen.

Police apparently decided not to pursue a charge against Campbell. [ 21 ] Over two months later, on the morning of June 6, 2017, Campbell was headed for Court when she got a call from her office to pick up a file. The law firm shares a parking lot with the Toronto Dominion Bank in downtown Sydney. The spaces are all paid reserved parking and Campbell did not have her own space. But she was in a hurry so she parked illegally in the TD lot. She retrieved the file and proceeded on foot to the law courts.

Unfortunately, she later forgot to go back for her car. [ 22 ] Smith had obviously not forgotten what had happened in April. At approximately 4:30 pm on June 6, 2017, Smith went to the TD parking lot with his tow truck. Although the vehicle was illegally parked, Smith had no contract to tow vehicles from the TD lot. Smith apparently believed however that he did have the right to reclaim possession of the vehicle he had legally impounded in April. Accordingly, he towed Campbell’s vehicle away from the TD lot. Paul Miller was parked next to Campbell’s vehicle. Miller witnessed the towing event.

Miller was 95% sure that Smith was the driver of the tow truck. [ 23 ] Smith proceeded directly to the Registry of Motor Vehicles. (When police phoned Smith just after 7:00 pm, Campbell’s vehicle was already registered in the name of Smith’s towing company). At the Registry of Motor Vehicles Smith applied to have title to Campbell’s vehicle transferred to Smith’s towing company, H.J. Smitty’s Salvage and Recovery. [ 24 ] Smith presented an Invoice (Ex 6 Tab 3 p. 6) bearing his company’s logo for $9450.00 plus HST of $1417.50 for a total of $10,867.50.

It appears that Smith decided to charge Campbell $150.00 per day for every day the car had been out of his possession ($9450.00÷63 = $150.00). The invoice contains the make and model of the vehicle and its VI number; “Sold to HJ Smittys” “Amount of Warehouse Act.” Smith signed the invoice. In all cases involving Smith’s signature, I am satisfied that it was his signature.

In addition to the circumstantial evidence and his statements to police, Smith’s complaint to the Barrister’s Society (Ex 7 Tab 3 p. 4) has a useful comparison signature. [ 25 ] Smith also signed an Application for Ownership, Permits and Plates on behalf of his company for the Volkswagen Tiguan (Ex 6 Tab 3 p. 1).

The application reads in part: “…I/We hereby certify that I am/we are the owner of the vehicle within the meaning of the Motor Vehicle Act…I/We further certify that I am/we are eligible to have a vehicle titled in my/our name.” [ 26 ] Because Smith was claiming that the transfer of ownership from Campbell to his company was by “operation of law”, Smith had to make a “Declaration Pursuant to Section 23(6) of the Motor Vehicle Act” (Ex 6 Tab 3 p. 2). In that Declaration, Smith, on behalf of his company, stated: “I(We) H.J. Smitty’s Salvage & Recovery 148 Broadway Sydney Solemnly declare that: 1.

Nicole Campbell…(handwritten) was the owner of a Motor Vehicle described as follows: (Particulars of 2010 VW Tiguan) 2. That title to the said Motor Vehicle has transferred to me(us) by appropriate operation of law, namely, WareHousemens Act (handwritten) and that I have complied with the conditions set out in the above mentioned act. I MAKE THIS SOLEMN DECLARATION conscientiously believing it to be true , and knowing that it is of the same force and effect as if made by virtue of the “Canadian Evidence Act.” (Bold emphasis added)

[ 27 ] Smith filled out and signed the foregoing prior to appearing before Cheryl Ryan, a clerk employed by Access Nova Scotia, who is also a “Commissioner of the Supreme Court of Nova Scotia”. Ryan had Smith sign the Declaration in her presence. That is why Smith’s signature appears twice on the signature line. Smith was thus able to successfully transfer title of Campbell’s vehicle to Smith’s towing company. [ 28 ] Meanwhile Campbell had had a busy day in court. It was not until 5:20 pm, when she was on her way to night court, that she noticed that her car was gone.

Campbell phoned Jeremy and asked him to check with the towing companies. Jeremy did so without success. [ 29 ] At 7:09 pm Campbell called the police to report her car stolen. Cst. Jeff Hennessey took the call. Hennessey called the vehicle information into dispatch which advised that the vehicle was registered in the name of Smith’s towing company. Hennessey knew Smith and gave him a telephone call. Hennessey testified: “…I asked him if he took any towing vehicles from the TD Bank and he said yes, he did.

He said that it was his vehicle and he said that under the Liens Act he was able to register the vehicle into his name . He said he had the right to do that…” … “At this time here, I wasn’t too familiar with the Liens Act, so I said okay, I’ll have to look into it and I can get back to you. Still wasn’t sure what was going on or what was there. Mr. Smith also identified that he towed that vehicle back on April 3 rd of 2017 from Ascendo Fitness.

He said that he…” …. “He said that when he did tow that he took it to his compound which was an older CN Rail vehicle, or building, down the north end of Sydney, Walker Lane I believe the name of the street is. He said that he towed the vehicle there back in April and that the female still owed the tow bill from that where she didn’t pay him. So, he advised that under the Liens Act that the…once the value I guess of the hold exceeds the value of the vehicle… this is what Mr. Smith advised to me…he’s able to then take the vehicle, take possession of the vehicle and put it in his name.

At this point here I advised that he didn’t have possession of the vehicle if she had it still at that time. He said that with police on that matter back in April. So, I said, okay, I’ll have to look at that time. So, I did go back and I did review the Liens Act and once I started through that…um, at this point it was getting later in the night so I called Hughie back again and asked if he had the vehicle and he told me that the vehicle was then on its way to Halifax to get keys made for it. And at this point here, speaking with Mr. Smith, it was just all questions at this point.

I didn’t know if there was an offence that took place at this time or not.” (Emphasis added) [ 30 ] Campbell testified that she made an insurance claim on June 7, 2017. In July the insurance company paid her $15,000.00 for the loss of her vehicle. Campbell also testified about the contents in the vehicle when it disappeared. One item was a custom made Eddie Bauer jacket with a Breton Law logo on it. [ 31 ] In August 2017, Campbell, as a result of a tip from a friend, went on Facebook, to the Buy and Sell page of one Crystal MacNeil. There was a picture of her missing jacket for sale. (Ex 5 p 2).

Campbell says that site also contained a romantic photo of Ms. MacNeil and Smith. [ 32 ] Police continued to investigate. By June 21, 2017, police had decided to arrest Smith for theft, fraud, and perjury. Cst. Jonathan Kelly so advised Smith by telephone. Consequently, Smith voluntarily went to the police building at 3:14 pm June 22, 2017. [ 33 ] At 3:53 pm Cst. Kelly formally arrested Smith for theft, fraud, and perjury, advised him of his right to contact a lawyer, and his right not to say anything. Kelly emphasized that he did not wish to speak to Smith about the alleged offences.

Kelly explained that another investigator, Cst. Blair MacKinnon, would be in later to do that. Despite the foregoing, Smith initiated the following conversation: A: I’m curious to figure out what’s gonna on because ah I reported that car stolen out of my compound April 3 rd . Q: Yeah, yeah and ah like I said I saw that in the file and he’s, he’s gonna talk to you about that when he arrives. A: Dave (Iannetti) said she should have been charged, I went through all the legal counsel before I even touched that car and she laughed about it, I’m a lawyer and you can’t do fuck all. Q: Ok.

A: I seized the car and crushed it. Nobody wanted to do their job here to go after the car and I know for a fact you can be charged for stealing your own stuff out of the compound, I was charged. Q: Ok. A: So they can’t tell me that they can’t be charged, I was charged I think it was in 1999 for taking my car out of the compound. Q: Ok. A: And the bill was $10,400.00 dollars there was no fraud no nothin on it that’s what the bill, I had a legal right to repossess the car. Q: Yeah. A : I even got counsel on it before I did it.

Later: A: And you’s guys just charged a fellow for taking his car out of Kevin’s compound. Q: We did? A: Yeah. Q: Yeah ok I never heard about that one. A: Yeah he reported it stolen and they found it and charged him so I don’t know what the difference between his compound and my compound is. Q: Um hum. A: Because of who I am? Q: I can’t tell you. A: It’s exactly what it was it was reported three times. Q: Ok. A: Gil Boone and out front there ah Reggie Hutchinson’s…

Q: He may he may be out front he’s a Staff Sgt. Though. A: Yeah. Q. Ok. A: Shift or daytime Staff Sgt. or something. Q: He might have been its different I think it depends on the day depending on what everybody is up to that day. A: No I did it all legally, the illegal part was her taking it then police department not doing nothin about it, officers exacts words that’s your own problem, win some you lose some. Q: And like I said he’ll, he’ll talk to you about all that when he comes in. I want to make sure you talk to Dave (Iannetti) as well before, you know I mean you know you don’t have to say anything anyway.

A: No I got nothin to hide. (Emphasis Added) [ 34 ] Just a note on Smith’s claim that he “…went through all legal counsel before I even touched that car…I even got counsel on it before I did it.” I am very confident that no lawyer advised Smith that he had the right to transfer the vehicle title to Smith’s towing company. Smith was obviously scrambling to convince Cst.

Kelly that he had done nothing wrong. [ 35 ] On June 22, 2017, police charged Smith with one count each of theft, fraud, and perjury as set out in the Indictment. [ 36 ] On August 18, 2017, Smith made a formal complaint to the Nova Scotia Barrister’s Society regarding Campbell.

On page 3 of the complaint form (Ex 7 Tab 3), Smith indicated that the area of law involved was Criminal Law “Theft”. [ 37 ] On page 4 Smith stated that Campbell and her husband had removed her vehicle from Smith’s “secure compound”. “She owed $100.00 Tow Fee $10,000.00 in lieu of vehicle being taken w/o my consent.” [ 38 ] Also on page 4, Smith described what he hoped to accomplish by submitting the complaint: “Want the lawyer (Nicole Campbell) disciplined.

Wish to retain the vehicle as payment of my fee.” (He does not mention that he had already done that). [ 39 ] On September 27, 2017 the Barrister’s Society dismissed Smith’s complaint. The decision reads in part: A determination of whether Ms. Campbell owes you any fees is outside of our jurisdiction and is a matter for a court to determine. The disagreement between you relates to circumstances which did not involve the provision of legal services by Ms. Campbell. (Ex 7 Tab 5 p. 2) [ 40 ] Campbell also testified that she was investigated by her insurance company because of a complaint by Smith.

The complaint was ultimately considered unfounded. Decision: [ 41 ] Charge of Theft : Count 3: AND FURTHERMORE, on June 6, 2017, steal a 2010 Volkswagen Tiguan, the property of Nichole Campbell of Sydney, Nova Scotia, a value exceeding five thousand dollars, contrary to

Section 334 (

a) of the Criminal Code of Canada . [ 42 ] The Crown’s position is that the theft occurred when Smith removed Campbell’s Tiguan from the TD parking lot on June 6, 2017. The evidence establishes beyond any doubt that Smith did the act at the alleged time and place. I am satisfied that the Crown has proven beyond a reasonable doubt that Smith took the 2010 Volkswagen Tiguan belonging to Nicole Campbell and that its value exceeded $5000.00 (The insurance payout was $15,000.00). I am satisfied that jurisdiction has been proven. (All three counts in the Indictment pertain to events that occurred in Sydney, Cape Breton, Nova Scotia).

[43] Theft is defined in

section 322 of the Criminal Code. The germane portion of s. 322(1)(

a) reads: Every one commits theft who fraudulently and without color of right takes…anything…with intent to deprive, temporarily or absolutely,the owner of it. (Emphasis added) Section 322(3) reads: A taking or conversion of anything may be fraudulent notwithstanding that it is effected without secrecy or attempt at concealment. [44] The evidence of intent is clear and overwhelming. Smith obviously intended to deprive Campbell of her vehicle. The live issueon the theft charge is whether on June 6, 2017, Smith took Campbell’s vehicle without color of right.

A person acts with color of rightwhen he has the legal right to take something or honestly believes that he has the legal right to take something. (e.g. See R v Simpson2015 SCC 40 , [2015] 2 SCR 827) [45] To assess whether Smith was acting with color of right on June 6, 2017, it is necessary to evaluate what occurred on April 3,2017. The Crown’s position is that Smith had no authority to tow Campbell’s vehicle from the Ascendo parking lot.

Crown Counselpoints to the evidence of Siknakis and her instruction that Smith was not to tow a vehicle without first warning the owner. [46] With respect, the Crown’s view of Sifnakis’ evidence is too narrow. In her testimony Sifnakis said she did not wish to upsetgym members or the public generally. Her texts to Smith however likely communicated to him that her overriding concern was that gymmembers not be towed. [47] Smith could have honestly taken the view that it was okay to tow any vehicle so long as he was sure it did not belong to a gymmember.

Despite Sifnakis’ claim that gym staff did not have time to identify non-member vehicles, it appears that on April 3 they foundtime to do exactly that. Recall MacEwan’s evidence: “Staff came out and pointed out vehicles that were not supposed to be there.” MacEwan’s evidence is uncontradicted. [48] I am satisfied that Smith legally towed Campbell’s vehicle on April 3, 2017. Campbell’s vehicle was illegally parked and shewas not a gym member.

Accordingly, Smith was lawfully entitled to keep the vehicle until Campbell paid the towing fee. [49] I want to emphasize that I have no criticism of Campbell’s decision to have Jeremy remove her vehicle from the Walker Streetlocation. While Smith was in legal possession of the vehicle, he was also obliged to keep it in a secure compound. Walker Street wasnot secure. There was no fence and it was in a relatively isolated location. The security cameras on a seemingly abandoned buildingwould provide little comfort to a vehicle owner. There is no evidence the cameras were in operation on April 3, 2017.

Most reasonablepersons would not have confidence in the security of Smith’s temporary “compound”. [50] I have considered whether Campbell should have contacted Smith the next day to arrange for payment. It would have beenpointless. Smith should have sent Campbell an invoice. He did not. For Smith, this was no longer about money. It was about gettingeven. [51] Back to June 6, 2017. Smith had taken no measures to have Campbell pay the April 3 towing fee. Although it is somewhatdubious, Smith might honestly have concluded that he was entitled to reclaim legal possession of Campbell’s vehicle. That is what hedid.

I have a reasonable doubt that Smith was acting without color of right when he towed the Tiguan from the TD parking lot on June 6,2017. I find him not guilty on the charge of theft. On June 6, 2017, Smith should have proceeded to place the vehicle in a secure compound. He could then have claimed the April 3towing fee and probably a towing fee for June 6.

In view of what he proceeded to do, he now has no such claim. [52] Charge of Fraud: Count 2: AND FURTHERMORE, on June 6, 2017, by deceit, falsehood or other fraudulent means defraud Nicole Campbell, of Sydney NovaScotia, of a 2010 Volkswagen Tiguan, of a value exceeding five thousand dollars, contrary to Section 380(1) of the Criminal Code ofCanada; [53] The factual details in the charge have been proven beyond a reasonable doubt. (2010 Volkswagen Tiguan, exceeding $5000.00in value, belonging to Nicole Campbell). As noted earlier, jurisdiction has been proven.

The issue is whether Smith used fraudulentmeans to defraud Campbell of the vehicle or simply, did Smith intend to defraud Campbell of her vehicle? [54] The Crown’s position is that the fraud was complete when Smith had title to Campbell’s vehicle transferred to his towingcompany. [55] The foundation of the fraud charge is the false invoice (Ex 6 Tab 3 p. 6) Smith created to prove that he was owed the value ofthe vehicle. As noted earlier, Smith appears to have calculated that Campbell owed him $150.00 per day for the period between April 3,2107 and June 6, 2017.

The invoice shows $9450.00 plus HST of $1417.50 for a total of $10,867.52. It contains the notation “Amountof Warehouse Act.” [56] As I noted in the voir dire, Smith felt completely justified in doing what he did. Unfortunately for Smith, that is not the legalyardstick. The Crown will have proven Smith’s intent to defraud even if Smith personally believed that his conduct was not dishonest ordid not know that reasonable people would see his conduct as dishonest.

“In considering whether the acts of the accused can properly be stigmatized as dishonest, the standard to be applied is that of areasonable person. It connotes an underhanded design which has the effect…of depriving others of what is theirs.

The dishonesty lies inthe wrongful use of something in which another person has an interest, in such a manner that this other’s interest is extinguished…Theuse is wrongful in this sense if it constitutes conduct which reasonable decent persons would consider dishonest andunscrupulous: R v Zlatic (SCC), [1993] 2 SCR 29. (See also R v Theroux, (SCC), [1993] 2 SCR 5at para. 24) (Emphasis added) [57] The invoice is dated June 5, 2017, the day before Smith towed Campbell’s car.

Campbell had no knowledge of the invoice ornotice that Smith was charging her $150.00 per day for every day the car was missing. [58] Smith ignored or was wilfully blind to the provisions of the Warehousemen’s Lien Act (WLA). Wilful blindness is a term usedin law to describe a situation in which a person seeks to avoid liability for a wrongful act by intentionally keeping himself unaware oflaw that would render him liable. In this case, Smith made self-serving assumptions about the WLA without bothering to check. [59] Smith says he consulted his lawyer before repossessing the vehicle.

He obviously chose not to ask his lawyer for direction onwhat he was entitled to do with the vehicle after he repossessed it. Specifically, he did not ask about the conditions set out in the WLA. I am satisfied that Smith deliberately refrained from making the necessary inquiry about the Act (to his lawyer or otherwise). Smithknew exactly what he wanted to do. He wanted to avoid being fixed with knowledge that he knew or strongly suspected would interferewith his plan. [60] In R v Jorgenson

(1995) Can LII 85, the Supreme Court of Canada stated at paragraph 103: 103. A finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew orstrongly suspected that looking would fix him with knowledge? Retailers who suspect that the materials are obscene but refrain frommaking the necessary inquiry in order to avoid being contaminated by knowledge may be found to have been wilfully blind. Thedetermination must be made in light of all the circumstances. [61] In light of all the circumstances in this case, I have no doubt that Smith shut his eyes.

Like the retailers in Jorgenson, Smithrefrained from making the necessary inquiry in order to avoid being contaminated by knowledge. [62] The WLA required Smith to give Campbell notice that he intended to sell her vehicle unless she paid the money owed. IfCampbell did not pay after receiving notice, then Smith would have the option to sell the vehicle by public auction with publicadvertisement of the sale (Act s. 5). The Act does not in any way give Smith the authority to do what he did.

Smith’s ignorance of thelaw is no excuse. (Criminal Code s. 19). [63] After presenting the phony invoice at the Registry of Motor Vehicles, Smith used it to legitimize his claim that the vehicle titletransferred to him (his company) by appropriate operation of law, namely, via the WLA. Smith thereby successfully had title toCampbell’s vehicle transferred to his company. I have no doubt that reasonable decent persons would consider Smith’s conductdishonest and unscrupulous. I am satisfied beyond a reasonable doubt that the Crown has proven that Smith committed the fraud alleged in Count # 2 of theIndictment.

I have carefully considered what Smith told the police in the context of all the evidence. For the reasons stated above,nothing he claims raises a reasonable doubt in my mind.

I find him guilty as charged in Count # 2. [64] Charge of Perjury: Count # 1: On June 6, 2017, being specially permitted, authorized or required by law to make a statement under oath or solemn affirmation, didmake a false statement by solemn declaration or orally before a commissioner of oaths for Nova Scotia, knowing that such a statementwas false, to wit: that ownership of the property of Nicole Campbell had transferred to him by operation of the law and that he hascomplied with the conditions set out in the Warehouseman’s Lien Act, contrary to

Section 132 of the Criminal Code of Canada; [65] Perjury is defined in Section 131(1) of the Criminal Code: 131.

(1) Subject to subsection (3), every one commits perjury who, with intent to mislead, makes before a person who isauthorized by law to permit it to be made before him a false statement under oath or solemn affirmation, by affidavit, solemn declarationor deposition or orally, knowing that the statement is false. [66]

Section 132 provides: 132. Every one who commits perjury is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteenyears.

[ 67 ]

Section 133 provides: 133. No person shall be convicted of an offence under

section 132 on the evidence of only one witness unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused. [ 68 ] As noted earlier, in order to transfer title to Campbell’s vehicle, Smith signed a Solemn Declaration before a Commissioner of the Supreme Court of Nova Scotia. (Ex 6 Tab 3 p. 2).

The printed heading on the Declaration reads: “Declaration Pursuant to Section 23(6) of the Motor Vehicle Act.” The relevant portion of s. 23(6) reads: “In the event of the transfer by the operation of law of the title…to a vehicle by reason of (a lien), the registration thereof shall expire and the vehicle shall not be operated upon the highways until and unless the persons entitled thereto shall apply for and obtain registration thereof, …” [ 69 ] The effect of the

section was to require Smith to make application to have title to Campbell’s vehicle transferred to Smith’s company. To do so, Smith was required to Solemnly Declare why he (or his company) was entitled to the title transfer by operation of law. Accordingly, he signed, on behalf of his company, in front of the Commissioner, the Solemn Declaration which (to repeat) stated in part: “I (We) Solemnly declare that: 2.

That title to the said Motor Vehicle has transferred to me (us) by appropriate operation of law, namely, Warehousemen’s Act (handwritten) and that I have complied with the conditions set out in the above-mentioned act. I MAKE THIS SOLEMN DECLARATION conscientiously believing it to be true… [ 70 ] In the discussion of the fraud charge above, I have already noted that Smith’s claim was based on the phony receipt he had created to show that he was owed $10,867.50. His stated belief that his claim was justified makes it no less dishonest.

Reasonable decent persons would consider his conduct dishonest and unscrupulous. [ 71 ] Smith knew that he had never presented the June 5, 2017 invoice to Campbell. He knew that Campbell had no idea that Smith was charging her a daily rate since April 3, 2017. As discussed above, Smith ignored, or was wilfully blind, to the requirements of the Warehousemen’s Lien Act .

Yet he had no hesitation in solemnly declaring that he had complied with the conditions set out in that Act. [ 72 ] I am satisfied that when Smith signed the Declaration he knew that his claim that the vehicle title had passed to him by operation of law was false. I am satisfied that Smith’s intent was to mislead the registry staff and the Commissioner, Ms. Ryan, in order to have the vehicle title transferred. [ 73 ] The factual circumstances which I have detailed above provide ample corroboration for the falsity of Smith’s claim in the Solemn Declaration.

The evidence is clear that he took possession of Campbell’s vehicle on June 6, 2017. On that same date, the evidence is incontrovertible that Smith presented at the Registry of Motor Vehicles and applied for and received title transfer in his company’s name of Campbell’s vehicle. [ 74 ] Smith himself admitted to police what he had done. Cst. Hennessey: “…he said that under the Liens Act he was able to register the vehicle in his name .” “He said that he towed the vehicle there back in April and that the female still owed the tow bill from that where she didn’t pay him.

So, he advised under the Liens Act that once the value I guess of the hold exceeds the value of the vehicle…this is what Mr. Smith advised me… he’s able to then take possession of the vehicle and put in his name … (Emphasis added). [ 75 ] As noted earlier, I have no doubt but that Smith placed his signature on the Declaration twice.

In addition to the striking comparison between Smith’s signature on the Bar Society complaint and his signatures at the Motor Vehicle Registry, the contextual or circumstantial evidence makes the authenticity of Smith’s signature the only reasonable inference I can make. [ 76 ] Defence Counsel argued that the Commissioner was too casual, that she did no more than witness Smith’s signature. I would like to have seen some evidence of formality to accent the solemnity of the occasion.

At the same time I am satisfied that it would not have mattered to Smith if the Chief Justice in full regalia had been at the Registry that day; Smith would have signed the Declaration. [ 77 ] From the creation of the phony invoice, to the towing of the vehicle, to going directly to the Registry, Smith’s intensity speaks for itself. Smith was on a mission and he would not be dissuaded by formalities. Smith had been wronged. The police had ignored him. It was payback time. As he told Cst. Kelly: “I seized the car and crushed it.” [ 78 ] There was nothing Ms.

Ryan, the Commissioner, could have said which was not already printed in the Solemn Declaration. Unlike the jurat of an affidavit, the Declaration itself contains the binding terminology. Smith signed the document which said in bold “I

MAKE THIS SOLEMN DECLARATION conscientiously believing it to true…” For the reasons discussed earlier, Smith knew otherwise. Smith was prepared to do whatever it took to get his revenge. I am satisfied that the evidence is clear that, at the time he signed the Declaration, Smith knew that he had assumed a moral obligation to tell the truth. Truth simply was not his priority that day. [ 79 ] On Count # 1, the perjury offence contrary to

Section 132 of the Criminal Code , I have carefully considered what Smith told the police in the context of all the evidence. Nothing he says raises a reasonable doubt as to his guilt. I am satisfied beyond a reasonable doubt that the Crown has proven its case. On Count # 1, I find to Accused Smith guilty as charged. [ 80 ] The matter is adjourned for sentence. Edwards, J.