R. v. Grey, 2012 NSSC 203

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Grey, 2012 NSSC 203 Date: 20120523 Docket: Hfx No. 353391 Registry: Halifax Between: David Kenneth Grey Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Glen G.

McDougall Heard: May 9, 2012, in Halifax, Nova Scotia Counsel: David Kenneth Grey, appellant, on his own behalf Susan MacKay, on behalf of the respondent By the Court : [ 1 ] The appellant, David Kenneth Grey (sometimes spelled “ Gray ” ), was originally charged with the following offences: on or about the 22 nd day of November, 2008 at or near Halifax, Nova Scotia, did unlawfully have in his possession a weapon, to wit., a knife, for a purpose dangerous to the public peace, contrary to Section 88(1) of the Criminal Code .

AND FURTHER that he at the same time and place aforesaid, did in committing an assault on Jeffrey Dargavel use or threaten to use a weapon, or imitation thereof, to wit., a knife, contrary to

Section 267 (

a) of the Criminal Code . AND FURTHER that he at the same time and place aforesaid, while bound by a Probation Order issued on the 14 th day of April, 2008 did willfully fail without reasonable excuse to comply with such order, to wit., “NOT TO OWN POSSESS OR CARRY A WEAPON AMMUNITION OR EXPLOSIVE SUBSTANCE”, contrary to

Section 733.1(1) (

a) of the Criminal Code . AND FURTHER that he at the same time and place aforesaid, while bound by a Probation Order issued on the 14 th day of April, 2008

did willfully fail without reasonable excuse to comply with such order, to wit., “KEEP THE PEACE AND BE OF GOOD BEHAVIOUR.”, contrary to

Section 733.1(1) (

a) of the Criminal Code . [ 2 ] The Crown proceeded summarily and a trial was held in the Nova Scotia Provincial Court commencing on April 8, 2010. The Honourable Judge Barbara J. Beach presided. A number of court appearances took place before a final decision could be made on May 6, 2011. The learned Trial Judge convicted Mr. Grey on counts one, three and four. He was acquitted on count two. He now appeals the three convictions.

Background [ 3 ] On the morning of 22 November 2008, in the aftermath of a rather significant snowfall, the applicant promptly cleared his driveway and the sidewalk in front of his residence of snow. His next-door neighbour, Shelly Melling (also sometimes known as “ Kelly Ryder ” ) was outside clearing her driveway when one of her neighbours and two other male friends of his came over to offer assistance. While carrying out this task, Mr. Grey approached Ms. Melling and the three males and confronted them. He was apparently upset that snow was being thrown on the sidewalk that he had previously cleared.

Some rather harsh and profane language was directed towards the four shovellers by the appellant. The male closest to Mr. Grey, one Jeffrey Dargavel, received the bulk of the invective hurled in the general direction of the group. [ 4 ] Although somewhat taken aback by the verbal barrage, Mr. Dargavel and the others did not respond but instead chose to ignore the appellant. The appellant left only to return a few minutes later, This time he pulled an object from his coat pocket. Mr. Dargavel and the other three individuals identified it as being a knife.

The appellant, who testified in his own defence, claimed the object was a small paint scraper which he had been using to scrape ice and snow from his window sills and mailbox. [ 5 ] According to the evidence of Mr. Dargavel and the other three people who witnessed the event, Mr. Grey held the knife in a threatening manner and again directed harsh and profanity-laced words at the group, but specifically towards Mr. Dargavel who happened to be closest to him. Mr.

Dargavel testified, which the other three corroborated, that he dropped the shovel he was using and then used his cell phone to call ‘ 911' all the while keeping his eyes focussed on Mr. Grey to guard against a possible attack. [ 6 ] Mr. Grey was standing within a few feet of Mr. Dargavel and could have easily heard what he was saying on the cell phone. Mr. Grey then left and disappeared around the side of his house. A couple of Halifax Regional Police officers responded to the call. One of them arrested Mr. Grey while another made a very cursory search of the yard behind the house but did not discover the knife.

The search was not very extensive because of the amount of snow in the vicinity. Mr. Grey was taken to the police station and charged with the four offences previously set out. Grounds of Appeal [ 7 ] The Appellant ’ s grounds of appeal were set out in the Notice of Appeal.

They read: I myself was a self represented individual at Provincial Court # 1 5250 Spring Garden Road Halifax at two trial dates April 8, 2010 and March 1, 2011 and I definitely proved myself not guilty to unjustified charges to Judge Barbara Beach and Crown Attorney Susan MacKay, also proven not guilty to Crown charges unjustified by testimony of Cst. Paul Trainor HRM Police on the witness stand. Conviction on May 6/2011 For Unjustified Charges. By Judge Barbara Beach. [ 8 ] In addition to the foregoing, Mr.

Grey also argued, during the oral phase of his submissions that the Learned Trial Judge had erred in refusing to allow him to enter certain exhibits at trial. The particular exhibits in question consisted of a Chronicle Herald newspaper

article and a page from a Canadian Tire catalogue showing, among other things, a paint scraper. [ 9 ] Counsel for the respondent offered assistance to the Court by offering the following

interpretation of the appellant ’ s grounds of appeal:

....the appellant’s representations on his own behalf would appear to amount to a submission that the trial judge made palpable andoverriding errors with respect to findings of fact, or that she erred in law in holding that the appellant was guilty of three of the fouroffences under the Criminal Code for which he was tried before her. [10] When asked by the Court during the hearing of the appeal to point out where he thought the Learned Trial Judge erred in law,or where she made findings of fact unsupported by the evidence, the appellant indicated that he did not think she had erred in law but hadrather failed to exercise common sense in failing to accept his evidence over that of the Crown witnesses.

In essence, the appellant wasasking the

Summary Conviction Appeal Court (the “SCAC”) to re-assess the evidence based on its own determinations of credibility andto make findings of fact more favourable to his case. Further, the appellant suggested that the SCAC should ignore the admissibilityrulings made by the Learned Trial Judge and allow the previously inadmissible evidence to be admitted. Standard of Review [11] The standard of review on appeal where it is suggested that an error of law has been committed is one of correctness. [R. v.O’Brien, [2007] N.S.J.

No. 9 (N.S.C.A., para 12] [12] The standard of review with respect to an error of fact is “palpable and overriding error.” [R. v. O’Brien, supra, para 12; R. v.Van der Peet, (SCC), [1996] 2 S.C.R. 507 (S.C.C.), para 81] [13] In regards to a trial judge’s assessment of credibility, an appeal court would seldom interfere with such a determination unless itcan be clearly shown from a reading of the transcript of the proceedings that there was a clear indication of bias on the part of the trier offact. In this case there is absolutely nothing that would suggest any such thing.

On the contrary, the Learned Trial Judge exercised notonly sound legal judgment but also considerable patience and tolerance in allowing the accused to present his defence. She also providedassistance and limited advice to the self-represented accused to ensure that he was given ample opportunity to make full answer anddefence. There was nothing more that could have been done to ensure a fair trial.

Results [14] In reviewing the transcript of the proceedings in the Provincial Court and upon review of the other materials filed on appeal,and after hearing the arguments presented, I see no reason to interfere with the verdicts reached after trial. The Learned Trial Judge’sassessments of credibility are unassailable. Her findings of fact are well supported by the evidence. Her application of the law and herreasons for deciding as she did are clear, concise and correct.

This, too, applies to her decision not to allow the accused to tenderirrelevant and hence inadmissible evidence. [15] In the final analysis, the verdicts demonstrate a proper application of the law to facts that are supported by not only credibleevidence but evidence that was corroborated by several eye witnesses. The appeal is dismissed. The matter can now proceed tosentencing in the Provincial Court. McDougall, J.