R. v. Carette

R. v. Carette Court Supreme Court Date 2003-08-15 Citation 2003 NSSC 202 Docket SBW 194898 Judge/Registrar/Adjudicator Coughlan, C. Richard (Honourable Justice) Document Type Decision Relations Library Sheet - R. v. Carette - 2003 NSSC 202 - 2003-08-15 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. Carette, 2003 NSSC 202 Date: 20030815 Docket: SBW. 194898 Registry: Bridgewater Between: Her Majesty the Queen Appellant v. Louis Joseph Francois Carette Respondent Judge: The Honourable Justice C. Richard Coughlan Heard: August 15, 2003, in Bridgewater, Nova Scotia Decision: August 15, 2003 (Orally) Counsel: David R. Hirtle, for the Appellant Louis Joseph Francois Carette, personally Coughlan, J.: (Orally) [1] This is an appeal of the acquittal of Louis Joseph Francois Carette that he: ... did unlawfully fail to comply with an Order of the Building Inspector Michael Bevis dated the 15th day of August, A.D., 2001, to wit, an Order to Stop Work contrary to Section 19(1)(b) of the Building Code Act, R.S.N.S., 1989 c. 46 as amended. [2] The Notice of Appeal sets out the grounds of appeal as follows: 1. THAT the Learned Trial Judge erred in law in her interpretation and application of the defence of "due diligence"; 2. THAT the Learned Trial Judge erred in law in her interpretation and application of Section 12(6)(b) of the Building Code Act, R.S.N.S., 1989 c. 46 as amended; 3. THAT the Learned Trial Judge erred in law in concluding that an offence of failing to abide by a Stop Work Order of the Building Inspector, is a strict liability offence and not an absolute liability offence; 4. THAT the Learned Trial Judge erred in fact and in law in her considerations of the evidence and in particular concluding that Mr. Carette did work on the building either personally or by his agent which conformed to the provisions of Section 12(6)(b) of the Building Code Act, R.S.N.S., 1989 c. 46 as amended; 5. THAT the Learned Trial Judge erred in fact and in law in coming to conclusions not reasonably supported by the evidence and, in particular, that the work done on the Respondent's property subsequent to the Stop Work Order being posted on August 15, 2001, was work done to secure the building and in particular, the laying down of boards on the roof and subsequent replacement of those boards by affixing other boards to the roof of the building with nails prior to November 5, 2002; 6. THAT the Learned Trial Judge erred in fact and in law in failing to consider and/or failing to give proper weight to the photographic evidence tendered by the Crown and in particular photographs taken on the 15th of August, 2001, photographs taken of the 28th day of August, 2002 and photographs taken on the 5th day of November, 2002; 7. THAT the Learned Trial Judge erred in fact and in law in giving consideration and weight to the oral evidence of the Respondent and in particular in light of the photographic evidence tendered by the Crown; 8. And such other grounds as may become apparent from the record. [3] The role of a summary conviction Appeal Court was set out by Cromwell, J.A. in giving the Court of Appeal’s decision in R. v. Nickerson, [1999] N.S.J. No. 210 at para. 6: The scope of review of the trial court’s findings of fact by the Summary Conviction Appeal Court is the same as on appeal against conviction to the Court of Appeal in indictable offences: see sections 822(1) and 686(1)(a)(i) and R. v. Gillis (1981), 60 C.C.C. (2d) 169 (N.S.S.C.A.D.) per Jones, J.A. at p. 176. Absent an error of law or a miscarriage of justice, the test to be applied by the Summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot be supported by the evidence. As stated by the Supreme Court of Canada in R. v. Burns, [1994] 1 S.C.R. 656 at 657, the appeal court is entitled to review the evidence at trial, re-examine and reweigh it, but only for the purpose of determining whether it is reasonably capable of supporting the trial judge’s conclusions. If it is, the Summary Conviction Appeal Court is not entitled to substitute its view of the evidence for that of the trial judge. In short, a summary conviction appeal on the record is an appeal; it is neither a simple review to determine whether there was some evidence to support the trial judge’s conclusions nor a new trial on the transcript. [4] The learned trial judge found that work was done after the Stop Work Order was properly posted on the property. There was evidence to support such a finding. The appellant contends that such a finding ends the matter as the offence is an offence of absolute liability. I disagree. In determining the categories of offences, Dickson, J., as he then was, stated in R. v. Sault Ste. Marie (1978), 21 N.R. 295 (S.C.C.) at para. 45: I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two: 1) Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence. 2) Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey’s case. 3) Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he is free of fault. Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as “wilfully”, “with intent”, “knowingly”, or “intentionally” are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category. [5] There is nothing in the Building Code Act, R.S.N.S. 1989 c. 46 which makes it clear the legislature intended guilt would follow proof merely of the proscribed act. The offence which is the subject of the appeal is a strict liability offence which leaves it open to the accused to avoid liability by proving he took all reasonable care. In her decision, the learned trial judge stated at p. 76 of the transcript: ... The defendant admits that the Municipality posted a Stop Work Order on the building on August 15th, 2001 and that the following work was done after the order was posted. On August 15, 2001, his carpenter without his knowledge continued to work for a few hours until he was able to contact the defendant who told him to stop work immediately. During that time, the carpenter laid but did not nail on a number of roof boards. In October and November, 2002, the partially finished building was broken into and vandalized. Uninstalled windows were broken, the un-nailed roof boards were taken and the boards covering the door and window openings, or at least some of them, were removed or broken. The defendant arranged for his carpenter to install and nail down new boards to replace the missing roof boards and secure the building. The Crown did not establish that any other or more work than that admitted by the defendant was done at the site between August 15th, 2001, and November 5th, 2002. On this charge then, I find that the defendant has established a defence of due diligence. I find that he did take all reasonable steps to avoid the commission of the offence in that he instructed his carpenter to cease work as soon as he knew the order had been posted. I am also satisfied that the only other work shown to be done following the posting of the order was done to secure the building and that such work is permitted under the Building Code Act, s. 12(6)(b). ... [6] There was evidence to support the judge's findings. Mr. Carette testified he instructed his carpenter to cease work as soon as he learned of the order. If such evidence was accepted, as it was by the trial judge, it would be a defence to even an absolute liability offence, as Mr. Carette would not have notice of the Stop Work Order as required by s. 12(1) of the Building Code Act. [7] Section 12(6)(b) of the Building Code Act provides: (6) Where an order to cease construction or demolition is made pursuant to subsection (4), no person shall perform any act in respect of the construction or demolition of the building in respect of which the order is made other than . . . . (b) such work as is necessary to make the site of the construction or demolition safe. [8] Mr. Carette testified at p. 52, lines 1 to 9: O.K. O.K. We met with Mr. Jones anyway and we tried to refinance the building but without tenants we couldn't get a mortgage so now Terry was also calling me to say that the Lapland building was being broke into. It was being abused. There was broken glass from the windows that we had bought and laid on the side to, they weren't installed, they were just windows that we had bought and were intending to put in. Ah, there was, the door had been stolen. Liquor bottles were everywhere. Candles that had been used. I called Mr. Bevis to let him know that Terry had tacked up some four by four Canexel sheets that he had, that were still there on the site over the openings to secure the building. ... [9] And at p. 52, lines 20 to p. 53, line 9: Terry no longer lives nearby. He used to live near, near Lapland. He doesn't live there nearby anymore but he still called me around October again to tell me again the place had been broken---or well, the boards had been stolen off of the openings, the four by four Canexel’s were stolen off the building and the, the roof boards had been taken off that he had laid but not nailed. All of those had been taken off. I asked him if I could get some money to him could he secure the building once more and he said he would but only in his spare time. And so the pictures that you see, Exhibit No. 8, of the, of the wood, wood in front there was wood that we were, he was, we were using to board, to board the place up, to secure the property again Your Honour. It is not to, we're not trying to, to complete the building. We need to secure the property. [10] The learned trial judge accepted Mr. Carette's evidence and found the work was such as contemplated by s. 12(6)(b) and such a finding was open to her. I find that none of the grounds of appeal have succeeded and the appeal is accordingly dismissed. ______________________________ Coughlan, J.