R. v. Hamm, 2018 NSPC 17

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Hamm , 2018 NSPC 17 Date: 2018-06-15 Docket: 8079645 8079646 8079647 Registry: Bridgewater Between: Her Majesty the Queen v. Victor Fred Hamm Judge: The Honourable Judge Paul Scovil, JPC Heard: May 4, 2018 at Bridgewater, Nova Scotia Decision June 15, 2018 Charge: Sections 266 (b), 264.1(1)(a) 87(2) of the Criminal Code of Canada Counsel: Alonzo Wright, Crown Attorney Nicholaus Fitch, Defence Attorney By the Court: [ 1 ] Hunters have been harvesting game from the woods and fields of Nova Scotia since humans first walked these lands.

It is not surprising that over the course of time hunters and those who dwell on the land would have incidents where friction between the two arise. Before this Court is just such a case. It is how the accused, Victor Hamm, chose to deal with jurisdiction between himself and a hunter that has resulted in his being charged with assault, uttering threats and pointing a double barrel shot gun at the complainant. For the reasons below, I find Mr. Hamm guilty of all charges. Facts: [ 2 ] Peter Fancy, on October 7, 2017, took his hunting dog to fields near his home to hunt rabbits. Mr.

Fancy referred to the property as lands, “owned by the Americans”. He had hunted the area for years. Mr. Fancy felt he had permission to use the land and apparently had no issues in the past regarding being on the property. In any event, there was no evidence that the area was posted with no hunting signs. [ 3 ] Mr. Fancy’s dog got on a scent and flushed a rabbit out. Mr. Fancy fired once and missed, then fired a second shot. Once again, the rabbit escaped being Mr. Fancy’s supper. [ 4 ] The dog found the scent of another rabbit which resulted in Mr. Fancy firing several more shots. [ 5 ] At this point, Mr.

Hamm stepped out of the bush. According to Mr. Fancy, he was startled as Mr. Hamm surprised him and further that Mr. Hamm was armed with a shotgun. Mr. Fancy jumped to the conclusion that Mr. Hamm “was hunting off my dog”. Hunting off someone else’s dog is the practise of waiting until another hunter’s dog flushes out a rabbit and then taking advantage of it by shooting the game yourself. This caused Mr. Fancy to become very irate and he was swearing at the accused. [ 6 ] As an aside, anger over someone else shooting the game you were trailing is not some new phenomena.

The first lesson taught in our class in Property Law at then Dalhousie Law School in the late 1970’s was the case of Pierson v. Post from Massachusetts

in 1802. In that case litigation ensued when one hunter shot and harvested a fox being chased by another hunter who was with hounds. Iam not sure of the legal citation for the case but I was surprised to find it has its own Wikipedia page. [7] Going back to the case at hand, Mr. Fancy testified the accused was swearing at him, telling him to get off his property andnot to be hunting on it. Mr. Hamm was holding a shotgun. The two argued back and forth in a heated exchange. Mr. Fancy stated thatMr. Hamm advanced towards him and struck him in the forearm.

Hamm then struck him on the side of the face, knocking him to theground. Mr. Hamm then took up a shooting stance with the shotgun pointed at Mr. Fancy. Mr. Fancy reported he saw Mr. Hamm cockthe hammer of the gun and pull the trigger. Mr. Fancy heard an audible click, which he took to be the gun’s hammer going down andstriking without firing. [8] Mr. Fancy was extremely frightened. He pulled out his cell phone and dialed 911 to report the incident. The audio recordingof the 911 call was played back. It disclosed a highly excited and frightened Mr. Fancy. [9] This fright was exhibited in the 911 recording. Mr.

Fancy can be heard saying, “a guy pulled a shotgun on me”. Also, “theguy assaulted me” and further, that the individual had continued to point a double barrel shotgun at him as he walked out the road. Mr.Fancy also advised that this person threatened to shoot his dog and blow his head off. Mr. Fancy also reported, “he pulled the hammeron me”. [10] Mr. Fancy then walked out of the area to where he had parked his truck. Mr. Hamm followed him a short distance with theshotgun aimed at him. [11] Mr.

Fancy admitted that he had a criminal record which consisted of a prior assault, assault with a weapon and a breach ofprobation from about eight years ago. [12] In cross-examination, Mr. Fancy denied that his facial injury was the result of being struck by the barrel of Mr. Hamm’sshotgun due to Hamm slipping. He also vehemently denied that he would ever lay his gun down in the snow. [13] As for his testimony, Mr. Hamm stated he was in his home working on a vehicle when he noticed a dog by the woodpile. Hethen heard a single lone shot.

He then heard two or three more shots. [14] Upon hearing the shots, he retrieved his shotgun and four shells. He stated he took the gun and shells only because he wasconcerned that he may be attacked by coyotes. He said the coyotes had been a problem. [15] Mr. Hamm followed the sound of the shots. He found the tracks of a person and a dog and followed them. It was then that hecame upon Mr. Fancy. He asked Mr. Fancy who he was and Fancy replied, “it’s none of your fucking business”. At that both menapproached each other. [16] Mr. Fancy told Mr. Hamm that he did not want anyone hunting off his dog. Mr.

Hamm then told Mr. Fancy to get off hisproperty. According to Mr. Hamm, Mr. Fancy then “got up in my face”. Mr. Fancy then laid his gun down in the snow. [17] Mr. Hamm testified that he somehow lost his balance, slid in the snow and as a result, accidently struck Mr. Fancy in the facewith his gun barrel. Mr. Fancy brought out his cell phone and called 911. In response, Mr. Hamm brought out his cell phone to videoMr. Fancy. Mr. Hamm had mistakenly directed his cell phone camera at himself and only succeeded at first in taking a selfie. He was,thereafter, able to switch the phone to forward video and video Mr.

Fancy walking away from him. Mr. Hamm then call 911 to reportMr. Fancy. [18] In cross-examination, Mr. Hamm admitted that none of the confrontation took place on his property. When asked if he wasangry during the exchange, Mr. Hamm replied, “you could say maybe I was upset”. Later in cross-examination, he denied being upsetbut only was curious as to who was on his land. He also denied any heated discussions during the incidents. Law: [19] The most fundamental rule that a trial judge must remember in a case such as this is that the burden of proving the guilt of theaccused lies upon the prosecution.

Before an accused can be convicted of any offence, the trier of fact must be satisfied beyond areasonable doubt of the existence of all the essential elements of the offence. See R. v. Vallancourt, (SCC), [1987] 2S.C.R. 636. [20] The principle of reasonable doubt as outlined above applies equally to issues of credibility, as well as those of fact. See R. v.Ay, (BC CA), [1994] B.C.J. No. 2024 (B.C.C.A.). [21] The question of what is reasonable doubt as a standard of proof was discussed by the Supreme Court of Canada in R. v.Lifchus, (SCC), [1997] 3 S.C.R. 320.

There, the Supreme Court set out that reasonable doubt is not like subjectivestandards of care that we employ in important everyday situations. It is not proof to an absolute certainty. It is not proof beyond anydoubt nor is it an imaginary or frivolous doubt. It is based on reason and common sense, and not on sympathy or prejudice. The Courtwas clear about proof beyond a reasonable doubt and that it falls much closer to absolute certainty than to proof on a balance ofprobabilities. See R. v. Starr, 2000 SCC 40 , [2000] S.C.J.

No. 40. [22] In this matter, given that an accused has testified, I must also apply the principles of R. v. W.D., (SCC), [1991]1 S.C.R. 742. If having heard all the evidence, I believe the accused, then I must acquit him. If I do not know whether to believe theaccused but his testimony raises a reasonable doubt, I must acquit. If any of the evidence by the accused raises a reasonable doubt on anyof the elements of the offence, I must acquit.

Even if I reject the evidence of the accused, before I can convict, I must ensure myself that,on each and every element of the offence, there is proof beyond a reasonable doubt. If the Crown has not proven any element beyond a

reasonable doubt, then I must acquit. [23] The concepts embodied in W.D., were expanded upon by the Nova Scotia Court of Appeal in R. v. Brown, (NS CA), [1994] N.S.J. No. 269. In Brown, Justice Mathews states as follows: 17 These observations in our opinion are equally applicable to cases where a judge sits alone. As Chipman, J.A remarked in R. v.Gushue 1992 NSCA 9 , 117 N.S.R. (2d) 152 at 154: ...There is a danger here that the court asked itself the wrong question: that is which story was correct, rather than whetherthe Crown had proved its case beyond a reasonable doubt. See R. v.

Cooke (1988), (NS CA), 83 N.S.R.(2d) 274; 210 A.P.R. 274 (C.A.); R. v. Nadeau, (SCC), [1984] 2 S.C.R. 570; 56 N.R. 130 (S.C.C.); R. v. K.(F.) (1990), (ON CA), 73 O.R. (2d) 480 (C.A.); R. v. J.G.N. (1992), (MB CA), 78Man. R. (2d) 303; 16 W.A.C. 303; 73 C.C.C. (3d) 381 (C.A); R. v. K.(V.) (1991), (BC CA), 68 C.C.C.(3d) 18 (B.C.C.A) 18 The British Columbia Court of Appeal in R. v. K.(V.) considered issues similar to the instant case. Understandably not all of theissues were the same.

After a useful analysis of the proper procedure to be followed in such cases, Wood, J.A speaking for the courtcommented at p. 35: I have already alluded to the danger, in a case where the evidence consists primarily of the allegations of a complainant and the denial ofthe accused, that the trier of fact will see the issue as one of deciding whom to believe. Earlier in the judgment I noted the gender-relatedstereotypical thinking that led to assumptions about the credibility of complainants in sexual cases which we have at long last discardedas totally inappropriate.

It is important to ensure that they are not replaced by an equally pernicious set of assumptions about thebelievability of complainants which would have the effect of shifting the burden of proof to those accused of such crimes. [24] In R. v. Mah, 2002 NSCA 99 , 2002 N.S.C.A. 99, Justice Cromwell of the Nova Scotia Court of Appeal (as he thenwas), spoke about W.D. in the following manner: 41 The W.D. principle is not a "magic incantation" which trial judges must mouth to avoid appellate intervention. Rather, W.D.describes how the assessment of credibility relates to the issue of reasonable doubt.

What the judge must not do is simply choosebetween alternative versions and, having done so, convict if the complainant's version is preferred. W.D. reminds us that the judge at acriminal trial is not attempting to resolve the broad factual question of what happened. The judge's function is the more limited one ofdeciding whether the essential elements of the charge have been proved beyond reasonable doubt: see R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745; [2000] S.C.J. No. 57 (Q.L.) at 756.

As Binnie, J. put it in Sheppard, the ultimate issue is not whether thejudge believes the accused or the complainant or part or all of what they each had to say. The issue at the end of the day in a criminaltrial is not credibility but reasonable doubt. [25] The test for determining credibility has been set out in the case of Farnya and Chorney, (BC CA), [1951]B.C.J. 152.

Justice O’Holleran, speaking for the British Columbia Court of Appeal stated: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanor of the particular witness carried conviction of truth. The test must reasonably subject a story to an examination of itsconsistency with the probabilities that surround the currently existing conditions.

In short, the real test of truth of the story of a witness,in such a case, must be its harmony with the preponderance of the probabilities which a practical and informed person would readilyrecognize as reasonable in that place and in those conditions.” (also see R. v. Logan

(1999) N.S.J. No. 473 N.S.S.C.) [26] The first question then is, do I accept Mr. Hamm’s evidence? Do I find him credible? In short, I do not. [27] I found his evidence that he carried his gun and ammunition to protect against coyotes to be contrived and without merit. Thepictures introduced of coyotes were not taken close in time. There was no evidence of any other indicia of coyotes in the area at thattime. The inference to me, having considered all the evidence, was clear that Mr. Hamm armed himself to confront whoever he found onhis property. The evidence was that Mr.

Hamm did not stop his pursuit of the hunter when Hamm came to the edge of his property butcontinued to track Mr. Fancy on other lands to put run to him. [28] Mr. Hamm’s account of suddenly slipping in snow and accidently hitting Mr. Fancy in the face is inconsistent with theconsistency of probabilities that surrounded the existing conditions. [29] Mr. Hamm’s testimony was at times evasive and inconsistent. Where it conflicts with Mr. Fancy’s testimony, I reject it. Mr.Hamm’s evidence raises no reasonable doubt on any of the essential elements of the offences. [30] The evidence of Mr.

Fancy I found to be compelling. The 911 call embodied the element of fear that Fancy had with havinghad someone pointing a shotgun at him at close range threating to shoot. I find the click that Mr. Fancy heard and thought was ahammer of the weapon being cocked, was in fact the safety of Mr. Hamm’s shotgun being either engaged or disengaged. [31] Given that the barrel of Mr. Hamm’s weapon was pointed directly at him it is not surprising that Mr. Fancy was not able tomake a completely detailed observation of the mechanics of Mr. Hamm’s shotgun. Mr. Fancy’s attention was no doubt fixated at the endof Mr.

Hamm’s gun barrel as he awaited a blast. [32] The pictures of Mr. Fancy’s facial injuries are consistent with his testimony and corroborate it.

[ 33 ] I find, as a fact, that Mr. Hamm threatened to shoot Mr. Fancy causing his death, that he assaulted Mr. Fancy with his fist one or more times and that Hamm pointed his weapon at Fancy, without any lawful excuse. Mr. Fancy was not on Mr. Hamm’s lands, the lands were not posted and there was no reason to take the unlawful action that Mr. Hamm did. His actions endangered Mr. Fancy and himself and it is extremely lucky that he did not precipitate death and serious injury in the field that day. [ 34 ] I have taken into account the record of Mr.

Fancy as well as a number of ongoing complaints that are with the police. While these certainly could have an adverse impact on Mr. Fancy’s credibility, in this matter with these facts, I find his background does not detract from his credibility given the corroborative nature of his injuries and the marked impact of the recording of his 911 call showing a clearly shaken individual reporting virtuously contemporaneously as to what was occurring. Conclusion: [ 35 ] Given all of the above, I convict Mr. Hamm of all three charges. Paul Scovil, JPC