R. v. McBean, 2011 ONCJ 790

Citation: R. v. McBean , 2011 ONCJ 790 IN THE MATTER OF Brampton By Law 93-84, as amended,

Section 1 Between Her Majesty The Queen Prosecutor And Cheril McBean & Michael Palmer Defendant Ontario Court of Justice Brampton, Ontario Manno, G. Justice of the Peace Reasons for Judgment Charge: Brampton By-Law 93-84,

Section 1 Trial held: November 3 rd , 2010 , September 9 th , 2011 and September 12, 2011 Judgment rendered: December 21st, 2011

K. Wiedekowsky Prosecutor M.

Celap Counsel for the Defendant Cases Considered or Referred To: R v W (D) (SCC), [1994] 3 SCR 521[1994] SCJ No. 91 (QL) (SCC) Reginav Lifchus (SCC), [1997] 3 SCR 320 (SCC) R v KGB (SCC), [1993]79 CCC (3d) 257 SCC R vThom [2010] OJ No. 4607 OCJ Exhibits Accepted: Exhibit 1 - Certified Copy of the By-Law Exhibit 2 – Google map of the properties showing the houses on Sunny Glen Crescent, Brampton Exhibit 3 – Another perspective of the house Exhibit 4 – Photographs of the side boundary wooden fence Exhibit 5 – Photographs of the space between the two houses on Sunny Glen Crescent, Brampton Exhibit 6 – Order to Comply with Noise By-Law served on the Defendant’s property Statutes, Regulations and Rules Cited: Brampton By Law 93-84, as amended,

Section 1 and

Section 4 Provincial Offences Act of Ontario Reference Material Cited: Words and Phrases, cumulative supplement, June 2008, Volume 5, J-N, pg. Patrick Healy,“Credibility and the Presumption of Innocence.” (2007) 11 Can.Crim. L.R. 217. J. Swaigen, Regulatory Offencesin Canada: Liability & Defences Libman on Regulatory Offences in Canada, 2002 Website for the City of Brampton: http://www.brampton.ca/en/residents/By-Law-Enforcement/Pages/Noise.aspx Background:

(1) The Municipal Act (R.S.O. 1980, c.320, as amended) provides that by-laws may be passed by the councils of local municipalitiesfor prohibiting or regulating, within the municipality or within any defined area or areas thereof, the ringing of bells, the blowing ofhorns, shouting and unusual noises, or noises likely to disturb inhabitants.

Section one of the by-law 93-84, as amended provides for thefollowing: Except as permitted by

section 4, a person shall not, within the City of Brampton, make, create, cause, or cause or permit to be made,noises likely to disturb the inhabitants.

Section 4 goes on to provide for some exceptions to the By-Law.

Under

Section 4, the following sounds and noises are specifically permitted by this by-law, and the presence of these sounds and noises is not to be considered a contravention of this by-law: ( 1 ) the sounding or ringing of church bells and chimes, (2) the sound of any bell, horn, siren or other signal device from a vehicle when required or permitted by law, (3) in the areas which are designated for primarily agricultural uses by the Official Plan or by a zoning by-law (but not within any hamlets and villages which may be so designated), the sound of any animal or bird (225-84) , (4) the blowing of any steam or air whistle attached to or used in connection with any stationery boiler or other machine or mechanism, when giving notice to workers of the time to commence or cease work, or warning of danger, (5) the sound from any apparatus or mechanism used in a reasonable manner for the amplification of the human voice, music, or the sound from any other sound-producing or sound-reproducing instrument or apparatus, by a local organization where funds are being raised for charitable purposes, or in connection with any public election meeting, or for any public celebration or other gathering for which written permission has been obtained from the City, (6) the sound of any military or other band, or of any parade, for which written permission has been obtained from the City, (7) the sound of any newsboy, pedlar, hawker or tradesman plying his calling legitimately and moderately, (8) any sound arising from the operation of any railway or from any plant or work in connection with any such railway, (9) any sound from the operation of the Salvation Army as heretofore carried on, (10) any sound arising from road work and road improvements undertaken by or on behalf of the Ministry of Transportation (Ontario) or the Region of Peel (202-2006) .

Every person who contravenes any provision of this by-law is guilty of an offence and upon conviction is liable to a fine as provided for in the Provincial Offences Act (253-98) . ( 2 ) Mr Michael Palmer and Cheril McBean (the Defendant) live together with their children in a single family dwelling at 4 Sunny Glen Crescent in the City of Brampton.

Their neighbour, Ms Sabrana Nicolls-Smith (chief Prosecutorial Witness), a young mother who lives in a single family dwelling at 6 Sunny Glen Crescent (next door) contends that she has had to endure loud music coming from the Defendant’s home for a number of months for which she was encouraged by the municipality to keep an on-going log of the dates and times when she felt the loud noise was disturbing her. Though Ms.

Nicholls-Smith claims to have suffered from the noise/loud music on many other dates, she only recorded noise/loud music emanating from the Defendant’s home on June 5 th and 6 th , July 3 and 24 th , September 11 th , 12 th , and 13th, all in 2009. The reporting of these dates to the Prosecution led the laying of two separate, Part three Informations; one for Cheril McBean and the other for Michael Palmer alleging seven counts each for offending the applicable By-Law on those dates listed above. The Evidence:

( 3 ) The first witness called to the stand was the Complainant, Ms. Sabrana Nicolls-Smith who resides at 6 Sunny Glen Crescent in Brampton. Her home is a single detached brick style dwelling located next door to the Defendant’s home located at 4 Sunny Glen Crescent. She described having lived there for approximately 2.5 years. ( 4 ) The Complainant indicated that ever since moving into her home, she noted loud music emanating from the Defendant’s house.

She said that she lives with her husband and three small children at the house and because of the loud music, she was suffering from loss of sleep, and felt tired all of the time. She further indicated that her husband worked full-time and she only part-time as an actress and model when work was available. As a result of on-going noise, she felt that she had become cranky towards her children, ‘yelling at them’. The Complainant noted that her behaviour was changing from the stress. At the advice of the Municipality she began to log some of the dates where she felt the loud music was excessive.

She also described that despite some noted exceptions, she never experienced loud music or had any noise complaints with or against other neighbours and that the noise problem was confined to her neighbours at number 4 Sunny Glen Crescent. ( 5 ) She stated that on June 5 th , 2009 the music began at approximately 6:15 p.m and ended at 10:30 p.m.

She described the sound as having a ‘boom, boom, boom’ beat with what she believed to be loud bass sound and loud music. ( 6 ) On June 6 th , 2009 the Complainant stated that the music began at around 9:00 p.m. and once again heard mostly a bass-like quality to the music. ( 7 ) On July 24 th , 2009 Ms. Nicolls-Smith noted that the music began at 8:00 p.m. and ended at 1:00 a.m. and described it as loud music with a loud bass. ( 8 ) On September 11, 2009 the music began at 7:00 p.m. and continued to 12:30 a.m. with the same consistent bass like sound and loud music.

The Complainant believed she called the police on this occasion but could not recall for certain nor could she attest to their arrival or presence on that evening. ( 9 ) September 12, 2009 the Complainant noted loud music and bass sounds beginning at around 10:00 a.m and the music did not end until 3:30 a.m. She described this particular evening as being the most memorable as she was not able to sleep that night given the loud noises from next door.

She described the noise or music as being “extremely loud music and bass.” She described the music style as being Rhythm and Blues style of music where the bass was a prominent part of the music score. ( 10 ) Ms.

Nicolls-Smith reported never going outside of her home on any of those occasions above to corroborate her belief as to where the noise emanated from but she stated that she was sure that it originated from the Defendant’s house. ( 11 ) The Complainant says that on three separate occasions, she had approached the Defendant’s home and knocked on their front door to complain about the music being excessively loud. She told the Defendant that the music was making ‘ her house shake’ .

She said that the Defendant replied that ‘ your house must be made of cardboard and you should move.’ ( 12 ) On the third occasion, Ms Nicolls-Smith said that Ms. McBean, the Defendant, said that she had moved the ‘boom box’ to the other side of the house. However, the music noise continued despite this adjustment. ( 13 ) On cross-examination the Complainant described the two affected houses as being single family, brick dwellings with about 10 feet of space between the homes and separated by a 6 foot wooden fence that sat along the common boundary of the two homes.

There were 4 windows facing the Defendant’s property, two on the ground floor in the living room and dining room and two smaller windows that are basement style windows. The Complainants bedroom was located on the side nearest the Defendant’s home. In contrast, the Defendant’s home was described as having one large window and a small basement style window facing the Complainant’s home. The Complainant said, despite central air-conditioning being present, the windows were open during the summer months. ( 14 ) Ms.

Nicolls-Smith informed the Court that she did not socialize with either McBean or Palmer though admitting that in

the past, her husband had attended at the Defendant’s property to enjoy a beer. She said that she had developed a negative impression of Ms. McBean and found her to be somewhat unfriendly. The Complainant also admitted to being stressed over having to take care of three young children and admitted to being exhausted at around 9:30 p.m. or 10:00 p.m. most evenings where she retired to bed.

She remained steadfast that despite this daily routine, she had no problems ever sleeping or getting to sleep but the music that was being played kept her awake. ( 15 ) The Complainant also admitted that Reggae music was being played and that type of music tended to have alot of bass in the score which created vibration and shaking in her home. On most of the dates that she logged the noises, the Complainant saw two vehicles in the driveway but could not be sure if the Defendants were home at the time. Counsel wished to establish that the By-Law wording included the word ‘permit’.

Counsel felt that the wording implied that there was a mens rea component to the Offence. Counsel argued that if neither Defendant was home then how could they have known that the music was being played in a loud or excessive fashion? There were three dates in the Complainants recollection where she noted Mr. Palmer to be home because she remembered specifically asking him to turn the music down. On those occasions Mr. Palmer told her to ‘ go call the Police .’ She said the verbal exchange went something like this: “Turn the music off or I’ll go call police” Complainant “Go call the Police” Defendant Mr.

Palmer’s response. ( 16 ) The Complainant said that she did not call the Police until September 13 th , 2009 when she attended the police station to report the matter. The police told her to keep records of the noise events and bring them to the attention of the Municipality to deal with. This recommendation was consistent with the advice she received from the Municipality approximately a year earlier when she called them and they too advised her to keep records or a log. The Municipal officials assisted by sending her a package in the mail that included log sheets for recording dates and times.

Until the Complainant received these log sheets, she kept or wrote notes on a calendar and then transposed them to the log sheets given to her. She admitted recording entries for some of the offending dates but not all of them. During all of the noise incidents, the Police never attended the Complainants home to follow-up. ( 17 ) On the trial continuation date of September 9 th , 2011, the following evidence was given to the Court.

Counsel established that in 2008, the Complainant was playing loud music in her yard whilst the Defendants held a celebration and awards ceremony in their backyard for deserving youth in the community. During the speeches and disposition of awards, the Defendants heard loud music coming from the Complainants yard next door. They found the music so disruptive that in order to properly hear the speeches, they asked the Complainant or her husband to turn the music down for a short time until the speeches were completed.

The Complainant admitted to playing music but added that she was never guilty of playing loud music at 2:00 a.m or 3:00 a.m in the morning. She remained resolute on the stand during Counsel’s skilled cross-examination. ( 18 ) The Prosecution closed its case at this juncture and the first Defence witness Michael Palmer (Defendant) testified under oath. Mr. Palmer says that he has lived on that street since December 2006 and had never received any noise complaints nor did he make any himself. He recalled the incident described in paragraph (17) above and said it occurred in August of 2008.

He described himself as a family man who worked full-time during the week but on Friday after work, he would routinely go out with his male friends to unwind. He said that many of the dates recorded were falling on a Friday and he could not have been home creating noise or playing music on those dates. ( 19 ) Mr. Palmer further recalled that on September 12, 2009 he hosted a party in honour of his wife’s birthday. He invited a number of guests including the neighbours, some of who attended the celebration that evening.

He corroborated the Complainant’s testimony that on Fathers’ Day of 2009 he had invited the Complainant’s husband over to have a beer. He claimed there was never any confrontation and was ‘stunned’ to find a noise complaint (Order to Comply) attached to his front door. The Defendant has four children between the ages of 13 years old and 2 years old and said that none of his children played loud music in the home and testified that there was no equipment in the home or their respective bedrooms capable of playing or amplifying music. ( 20 ) Mr.

Palmer testified that the date of his wife’s birthday party, the party itself was situated close to the other side of the house nearest to # 2 Sunny Glen Crescent, his other neighbour’s house. Furthermore, he re-iterated that the children did not possess any equipment that could play or amplify music or sound and on his wife’s birthday. Mr Palmer testified that on that day, he had to borrow speaker boxes and small equipment from his neighbour. He said that they only had a television set in the basement that was not equipped with any special amplification or surround-sound modifications.

He testified that even though music was being played that day, he denied that the music was excessively loud right up until the time the party ended at 2:00 a.m. In the morning he found police at his door. He said they told him they were conducting a spot check based on a noise complaint. After attending the scene Mr. Palmer

said that the Police felt there wasn’t a reportable concern. The Police left the premises shortly thereafter. ( 21 ) The next Defence witness, the other co-Defendant Cheril McBean recalled being approached by the Complainant at her front door asking her to turn the ‘booming’ sound down. She denied that the booming sound came from her property. Again, as with Mr. Palmer and with the Complainant, Ms. McBean speculated that the loud music incident from August 2008 might have strained their relationship as neighbours.

Though she had received the complaint from her neighbour, Ms McBean testified that the first she knew of any noise issue was when she was served with the Order to Comply (Exhibit 6). She confirmed that the family had a 50-inch television set in the basement but NO stereo equipment in the home. She testified that the television set volume was not excessively turned up and she did not abide by the children creating loud noises. On her birthday, she said about 30 guests were in the home but she remembered the neighbour at # 2 Sunny Glen commented upon his arrival that he could hear no music playing.

She confirmed that the party ended at around 2:30 a.m. and was in the process of cleaning up when she was told of the police arrival. She staunchly denied ever playing any loud music in 2009. ( 22 ) The next Defence witness to testify was Cornel Salmon , the owner/occupant of #2 Sunny Glen Crescent in Brampton. Mr. Salmon’s residence is next to the Defendant’s home but on the other side of the home. He lived at that address with his wife Violet Tyne and son Blaire who was 20 years old at the time. He testified he never had any issue with the Defendant and had never heard them playing loud music. Mr.

Salmon said that he always got invited to parties and events at the Defendant’s home. He recalled arriving at the Defendant’s house during the McBean birthday party in 2009 and asked if there was any music playing. He said that he could not hear the music playing when he first arrived at the party. ( 23 ) Upon further examination Mr. Salmon admitted that the stereo equipment used that day belonged to Mr. Palmer. He brought over a speaker box to help amplify the music being played out of the Defendant’s own stereo.

He described the Defendant’s stereo as having 2 double 15 inch speakers which stood about 1 foot high. Mr. Salmon brought one double 15inch speaker that day that stood 4.5 feet tall by about 2 feet wide to gain more amplification. He believed Mr Palmer’s stereo to have 150 watts per channel but his own stereo was rated at 300 watts per channel. He described himself as an audiophile who loved his music. Mr. Salmon admitted that he played his music loudly on weekends. His system included Cerwin Vega speakers which are considered of good quality in the audiophile world.

Under cross-examination he believed that the Defendant also had a CD player as well in 2009. Mr. Salmon worked most days from 8:30 a.m. to 5:00 p.m. and then on Monday to Thursday attended the gym after work. On weekends he was mostly at home. ( 24 ) The next witness to give evidence was Angela Leslie . Ms. Leslie resided at 123 Van Scott Drive in Brampton which she described as being across the street and about a minute away from the Defendant’s property. She was a guest at the McBean Birthday Party which she thought was in 2009 or 2010.

She said there was loud music coming from the Defendant’s basement but that she believed it wasn’t really that loud. She said that she left the party at around midnight. She does not know the folks at #6 Sunny Glen Crescent. ( 25 ) On the continuation date of September 12, 2011 the Court next heard from Michael James . Mr. James played soccer with the Defendant Mr. Palmer for over 15 years. In 2009, Mr. James was a guest at Ms. McBean’s birthday celebration. He recalled that the kids were watching TV in the basement and remembered hearing music in the basement. He noted that the music was not loud.

He also recalled guests conversing in the backyard of the property where the BBQ was located. Mr. James testified that he lent the Defendant a CD player that day to play music which as capable of playing 2 CD’s in a continuous manner. He described himself as the unofficial music coordinator for the party and he brought over a speaker box and amplifier as well. He said that the speaker was part of a home theatre system. He confirmed that the other speaker box was borrowed from the Defendant’s neighbour at #6 Sunny Glen. ( 26 ) Mr. William Davis was the next Defence witness called to give evidence. Mr.

Davis testified that he knew one of the Defendants, Mr. Palmer from playing soccer together and he confirmed that he had attended various gatherings at the Defendant’s home including the 2009 Birthday celebration. He recalled that late that evening, the police did arrive at around 11:00 to 11:30 p.m. and that the party ended at 2:00 a.m. or 2:30 a.m. ( 27 ) Ms Celap in her closing statements asked the Court to consider that the homes have brick construction with small windows and a wood fence separating the two properties. She did not believe that sound could transmit as loudly as described.

She asked the Court to consider that no other neighbours had ever complained about the noise or heard loud music. The Complainant’s house shaking had no logical explanation. She further asked the Court to consider the evidence of the Defendants good character. The Defendant was part of a stable family, with good values and small children. She also asked the Court to consider that the Complainant herself was guilty of playing loud music in 2008 yet no complaint was ever lodged by her clients. Mr. James, the party ‘Disc Jockey’, did not create any booming sound which was corroborated by Mr. Salmon. Ms.

Celap postulated that the Complainant was seeking retribution for the complaint the Defendant made against her music noise in 2008 and for the supposed acrimony she harboured for her client. She reminded the Court that June 5 th , July 3 rd , July 24 th and September 4 th were all Fridays, a day of the week that Mr. Palmer would not normally be home and out with his friends.

( 28 ) The Prosecutor in his closing comments and submissions highlighted the fact that there was a party on September 12, 2009 and the speakers were brought in for that particular event. He reminded the Court that the Complainant was un-wavering in her testimony and was quite credible on the stand. He contended that the Defendant should not be believed as he lied on the stand with respect to owning a stereo/amplifier, a fact that was clearly refuted by the Defendant’s own witness, Mr. Salmon. (see paragraph 23 above). The Order to Comply was issued on September 18, 2009 and it was posted on the Defendant’s door.

Mr. Wiedekowsky, the Prosecutor for the city of Brampton asked the Court for a conviction against both Defendants on all counts. Issues: ( 29 ) Has the Prosecution proven the charge beyond a reasonable doubt? Use of notes to refresh prior memory and the use of photocopies in contrast to original notes Credibility of the Defendant, the Complainant and the witnesses Analysis: ( 30 ) Both Counsel and Prosecutor agreed that this particular charge is considered a strict liability offence where the defence of due-diligence is available to the Defendant should the actus reus be proven beyond a reasonable doubt.

A due diligence defence is measured on a balance of probabilities ( 31 ) Conventional wisdom once expounded that ‘ fences make good neighbours’ . It was a witticism that reflected the reality that though there are times when we enjoy our neighbours, there are times when we do not. In disputes that arise amongst neighbours, in many instances there is no defined right or wrong. It tends to be about compromise and courtesy or the lack thereof. For these situations, Municipalities establish rules and codes of conduct aimed at having neighbouring parties co-exist in harmony and mutual respect.

One may ask how these actions end up in Court. When one party feels that the rules have not been followed, they turn to the Courts for assistance. For noise by-law matters, the Police no longer enforce these types of violations as they once did. By-Law enforcement is the responsibility of the Municipality and in order to build cases where residents feel that an offence has been committed, the Municipality engages those complainants and assists them by providing them with information on how to go about commencing such prosecutions.

The Municipality will field calls from the general public, mail them log sheets and instructions and/or refer them to the City of Brampton’s public website . That website provides information to members of the community on how to move through the process of lodging complaints against those they believe allow or create loud noise.

The public website specifically states: “ By-Law 93-84 “To Prohibit and Regulate Noise” states that: “… a person shall not, within the City of Brampton, make, create, cause, or cause or permit to be made, noises likely to disturb the inhabitants.” Brampton City Council passed the bylaw to curb persistent and recurring noise that lasts longer than ten days, usually from a machine or other mechanical equipment. The bylaw specifically prohibits noises such as: A dog barking daily and excessively Someone playing a loud stereo or musical equipment regularly.

Someone operating construction equipment daily before 7 a.m. and after 11 p.m. Call Peel Regional Police to complain about noise from fighting, screaming, shouting, swearing, singing, or someone using insulting or obscene language or other disorderly conduct. These activities may be criminal offences. City bylaw officers will refer complaints about loud parties to the police. When you ask the Enforcement and By-Law Services Division to investigate a noise bylaw complaint, we must establish the particulars of the complaint before we proceed with legal action.

In every case, you, the complainant, must be involved in the process. If you wish to file a noise complaint, please download the noise complaint record form .

You must complete the noise complaint record for 10 to 14 days. You must also continue another noise complaint record until the noise has ended or until you have to appear in court. You must keep track of the dates, time, description, duration, intensity of the disturbing noise and describe how it interfered with your activities. If more than one person in the household is keeping track, each person must complete and sign a separate sheet. Please contact other neighbours, or anyone else, who can support your complaint.

Ask the neighbours also to complete a complaint record and let them know that they may have to go to court as witnesses When you have completed the complaint record, please return it to: Enforcement and By-Law Services Attn: Municipal Law Enforcement 485 Chrysler Drive Brampton, Ontario L6S 6G3 Fax: 905-458-3903 When we have received your complaint record, a municipal law enforcement officer will contact you to review the information and discuss various ways to resolve your concerns.

The options include having the officer contact the person responsible for causing a disturbance, either by phone, in person or in writing to discuss the problem and seek an amicable solution. Typically, this approach is successful and resolves most complaints quickly. If this approach is unsuccessful, we will consider laying charges. However, please be aware that all witnesses will have to go to court to testify. Please make sure that your notes are detailed and accurate.

If we have to proceed to enforcement, an officer will make reasonable efforts to visit your property to hear the noise complaint first- hand, so that we can corroborate your evidence. Please note that we have to establish the identity of the person responsible for making the noise in court. Any information you may have to identify this individual is critical to successfully prosecuting him or her. You will be notified of the dates and times when your matter will go before the courts. You must attend or the court will dismiss the case.

We keep your name, address and phone number confidential when we receive your complaint. However, when the matter proceeds to court, your name and the name of any witnesses becomes part of the public record. The maximum fine for failing to comply with the noise bylaw is $5,000” (http://www.brampton.ca/en/residents/By-Law-Enforcement/Pages/Noise.aspx) Use of Photocopy Notes at Trial ( 32 ) Upon the commencement of this Trial, the Prosecutor asked the Complainant a number of questions regarding the notes that she took for the dates in 2009.

These notes were essentially equivalent to the notes that one might expect from an Officer who testifies during a Highway Traffic Offence matter. The accepted process in qualifying the use of such notes is to ask if such notes were made by the Witness, were there any additions/deletions to those notes, were they in her own handwriting, did she have an independent recollection of the events contained in the notes and were these notes to be used simply to refresh one’ memory as to dates, names and places and other salient details that tend to get lost in one’s mind with the passage of time.

In this matter, the notes that were being referred to were not the original notes taken by the Witness and represented a photocopy of the notes she made. Additionally, the original notes were not certified, or made available to the Defence, the Prosecution or the Court. The Defence Counsel submission was that as a result of not being able to compare these original notes to the photocopies being used in Court, the Witness should not be allowed to refer to such notes at all. ( 33 ) The Prosecution took a different approach. They argued that given case law (R v.

K.G.B. most notably) the original notes are not an essential element in a Trial. This was also the premise in R. v. Thom in the Ontario Court of Justice on appeal. Notes are simply a tool or aid used to refresh one’s memory and it is actually the viva-voce evidence or testimony that is the important evidence in the Trial. ( 34 ) The Court provided a brief recess to the Defence to ensure that the photocopy of their notes, were the same notes that were being referred to by the Witness on the stand and the same as those found in the Disclosure package.

Upon the return to Court, all agreed that the copies indeed matched and Counsel had had these notes prior to the Trial to prepare their defence. Ms. Celap contended that the copies were not enough and that the originals should have been made available. Ms. Celap also accepted the fact that Officers could use copies during their trials but that they should be treated differently by the Courts and considered to be held to a higher standard in that they are officers of the Court compared with a civilian witness. The Court was asked to rule on the use of such notes.

( 35 ) The Court believes that the use of photocopied notes as a tool to give evidence is acceptable as long as there is an independent recollection of such events. At trial, the trier of fact should assess the demeanour of the witness and the extent to which they refer to such notes. In the event that the Witness reads those notes verbatim, then one wonders if there is any independent recollection left and the use of such notes or the weighting of that evidence becomes a live issue at trial. There is no requirement in the regulatory courts to suppose that those notes should be a certified copy.

The originals were given directly to the Municipality by the Defendant and then a copy sent to the Prosecutor who then distributed the copies to the various parties. As long as those copies are substantively identical, the Court believes that both sides have been well served. The Witness was referring to those photocopied notes herself and at no time comparing her evidence with the original notes not available. Additionally, the Court does not accept the proposition that Officers should be accorded any special status in our Courts.

They are witnesses that are put under oath to tell the truth and accordingly must abide by the same standard as any other witness giving evidence. Given the consideration of these arguments, the Court ruled that the notes could be used by the Witness to refresh her memory over the objection of Ms. Celap. Credibility of the Witnesses ( 36 ) Credibility is an important aspect of any trial. The system revolves around the idea that witnesses must and do tell the truth when they are put to their oath.

The Justice must always listen to both sides, hear all of the arguments, weigh the evidence, assess the quality of that evidence and come to a conclusion or decision that folk expect to be fair and just. One of the factors to be assessed is credibility. During this trial, all of the witnesses communicated their positions well and remained resolute or unwavering under skilled cross-examination. They all appeared to have a good independent recollection of events. This was true for the Defendants Mr. Palmer and Ms.

McBean up to the point that their neighbour, friend and Defence witness took the stand and provided testimony that was contrary to the evidence both Defendants gave on a very important point. In Paragraph (23) above Mr Salmon told the Court that the stereo that he would attach his speaker to belonged to the Defendant. However, in paragraphs (19) and (21) above, the Defendant claimed that they owned no stereo or amplification equipment that could amplify sound beyond a television set they owned and kept in their basement. Indeed, Mr.

Salmon, who is a self-professed audiophile, told the Court that the Defendant’s stereo was measured at 150 watts per channel, considered by some to be a significant amount of power. That type of power and system would be capable of producing a ‘booming’ sound, depending on the type of music being played and assuming the system’s volume was turned up enough. The Court found Mr. Salmon to be very honest and forthright. The Court also recognized that his admission was contrary to his friend’s interest. The inconsistencies in this evidence caused the Court to question the credibility of the Defendant’s testimony.

Simply put, the Court did not entirely believe the Defendant’s testimony once Mr. Salmon’s evidence came to light. Under other circumstances, and all else being equal, the Court would weigh the Defendant’s evidence very low making the Prosecution’s case all the more certain. There are however, other factors to consider. Evidence beyond a reasonable doubt? ( 37 ) Despite the less than credible testimony given by the Defendant, the burden of proving the charges still rests solely with the Prosecution and that burden never shifts.

There were seven dates in which the Prosecution contends that the Defendant (each Defendant) made or permitted there to be excessive noise. These dates were June 5 th , 2009, June 6 th , 2009, July 3 rd , 2009, July 24, 2009, September 11, 2009, September 12, 2009 and finally September 13, 2009. ( 38 ) Let’s discuss the evidence for these dates except for September 12, 2009 where Ms. McBean’s birthday celebration took place. On all other dates listed above, the Complainant recorded loud music being played but on all those occasions did not go outside of her home to corroborate the origin of that sound. Mr.

Palmer testifies that as a routine, he and his male friends go out on Friday evenings and that he is never home. Though there is no evidence to suggest whether or not he returned home to play music with his friends on those particular evenings, we accept that he might not have been home. Mr. Salmon, the neighbour to the other side of the Defendant’s residence admitted that he loves his music and that on weekends he is home and enjoys playing his music loud on a system he describes as having double the power output of the Defendant’s system. He testified that his system was rated at 300 watts per channel.

Could the sound have travelled from that residence to the Complainant’s residence during some of those dates? Also true is that no other neighbours came forward to complain about noise or loud music on those evenings. However, it was clear from all of the witnesses that music was being played on September 12, 2009 during the McBean birthday celebration. Everyone agreed that this music originated from the Defendant’s residence. The Order to Comply from the Municipality

( 39 ) Was there any ambiguity in the Order to Comply (OTC) that was delivered to the Defendants? The Prosecutor has indicated to the Court in the past, that in By-Law matters it is often about compliance and not about penalization. For instance in building code violations when corrections are made, the Municipality can use their discretion, work with the Defendants towards obtaining compliance and then deal with the penalties in one of three ways.

The Prosecution may ask for the penalties as per the By- Law, or they will ask for a reduced fine based on compliance or, in some cases, they will withdraw the matter all together once compliance is met. This is within their discretion. The OTC delivered on September 18, 2009 conveyed two messages to the Defendant. The first message was that “ legal action was pending ” in accordance with the applicable By-Law. The second message stated that “ the following order must be complied with immediately.” Legal action pending carries the meaning that legal action has commenced but not yet completed.

Since there are no charges indicating that the Defendant failed to comply with the OTC, the Court assumes that there was reasonable compliance after the notice was served on of September 18, 2009. The Court does not believe there was ambiguity in the OTC delivered. The Municipality did not provide the Defendant an opportunity to correct the noise complaints for the charge dates; they were historical in nature by the time the notice was delivered. However, the Defendant had ample ‘informal’notice that their neighbour was complaining.

They had also been visited by the police and even invited the Complainant to call the Police on at least one occasion. The Defendant could not then argue that the formal complaint would have been a surprise to them. Decision of the Court ( 40 ) The Court is compelled to consider the analysis of R. vs. W. D. when considering all of the evidence. Despite the issue of credibility that was raised above, the establishment of the charge beyond any reasonable doubt rests solely with the Prosecutor.

In this case, despite the fact that we do not believe the evidence of the Defendant on all of the charge dates except for September 12, 2009, based on the evidence that this Court does accept, the Court is left with some reasonable doubt.

As such, the Court is left with no alternative but to dismiss the charges for June 5 th , June 6 th , July 3 rd , July 24, September 11, and September 13 th all in 2009 against both Defendants. ( 41 ) However, given all of the witness testimony and the arguments above, this Court finds beyond any reasonable doubt that the Defendants were guilty of creating or permitting excessive noise on September 12, 2009. ( 42 ) The Court is mindful that this was a birthday celebration perhaps considered by some to be a potential mitigating factor for sentencing purposes.

The Court is also aware that the Complainant potentially suffered on multiple dates from the loud music and had notified the Defendants on some of those occasions. This could conceivably be an aggravating factor. These considerations will be kept in mind as the Court hears any and all of the sentencing submissions from both the Prosecution and the Defence. ( 43 ) Beyond saying that the stereo (the Defendant denied having), was moved to the other side of the home’s basement, there was no other evidence given to this Court that would amount to a due diligence defence.

Simply put, the Defendants position was to deny the allegations and invite the Complainant to either move or to call the police (see paragraph 15 above). The Court does not accept the premise that the Defendants took any significant mitigating actions to ensure noise was being controlled on any of the dates the Complainant recorded or in particular for September 12, 2009. ( 44 ) The Court will now consider submissions as to penalties that arise from the conviction.

G. Manno, Justice of the Peace Written Reasons released and filed with the Court December 21st, 2011