Cite as: R. v. Diab, 1992 NSCO 12 , CANADA
PROVINCE OF NOVA SCOTIA
COUNTY OF HALIFAX I NTH E C 0 U N T Y OF DISTRICT NUMBER ONE BETWEEN: HER MAJESTY THE QUEEN, - and -LENA DIAB and MAROUN DIAB, Ms. Nadine Smillie, solicitor for the Appellant. Lena Diab, representing herself. 1992, March 4, Anderson, J.C.C.:- appeared before a Provincial Court of May, 1991 on charges that being the owners of at 6380-82 Young Street, unlawfully suffer or permit the occupancy of the aforesaid obtaining an occupancy contrary to section 8 of City of Halifax Ordinance Number 131, Ordinance; AND FURTHER being the owner of a building situate at 6380-82 Young Street, Halifax, did unlawfully suffer use of the said building as apartment building contrary 35(3) of City of Halifax Land Use Peninsula Area, in violation of 122(1)9d) of the Planning Act. The trial commenced on March 14th, 1991, continued on March 18th, 1991 and concluded C.B. 74904 C 0 U R T Appellant Respondent The respondents Judge on the 29th day a building situated Halifax, did building prior to permit therefor the Building Code or permit the a four-unit to section Bylaw, section on May 29th,· 1991, at
- 2 which time the trial judge on the 1st count and dismissed of Halifax filed a notice of of dismissal of count No.2 on the grounds 1. That the decision Trial Judge cannot be evidence; 2. That the Learned in law in that she as to what in law and 3. Such other grounds appear upon a perusal of the transcript of the evidence taken at trial. The respondents cross-appealed against of conviction made by the trial the grounds 1. That the Learned misdirected herself evidence persented, and 2. Such other grounds on perusal of the transcript of evidence taken at trial. I have read the transcript of the trial and evidence adduced therein, I have written submissions of counsel cross-appeal and have considered authorities cited therein. The function and duty been clearly stated many times Mr. Justice Macdonald, Nova Travelers Indemnity Company of entered a finding of guilt the 2nd count. The City appeal against the order of the Learned supported by the Trial Judge erred misdirected herself constitutes "use"; as there may the order judge on count No.1 on Trial Judge in considering the that may appear the read and considered the on the appeal and the arguments and of an appeal court has by our Court of Appeal. Scotia Court of Appeal in Canada v. Kehoe (1985),
, - 3 66 N.S.R. (2d) 434, commented of the trial and appellate court at p.437: This and other appellate cqurts said time after time that the credibility of witnesses is a wi thin the province of He has the distinct appeal court judges, of seeing and hearing the witnesses; of observing their demeanor and conduct, hearing speech and subtlety generally is presented intangibles that so often must be weighed in determining whether or not is truthful. These that are not capable the written record of such factors that cogent reasons appellate not justified in reversing of credibility made Particularly is that the case was heard trial judge. After reviewing some Justice Ritchie, in Stein Estate et al. v. The Ship -Kathy K- et al. (1975), 6 N.R. 359, at 366, pronounced: These authorities are not to be taken as meaning that the made at trial are immutable, that they are not to be reversed unless it can be established that trial judge made some overriding error which assessment of the Court of Appeal is seized with the duty of re-examining the to be satisfied tht occurred, it is not, of its function to assessment of the balance of probability for the findings of the judge who presided at the trial. upon the respective duties have matter peculiarly the trial judge. advantage, denied their nuances of of expression and with those a witness are the matters of reflection in and it is because save strong and tribunals are a finding by a trial jUdge. so where, as here, by an experienced of the relevant law, Mr. findings of fact but rather the learned palpable and affected his facts. While the evidence in order no such error in my view, a part substitute its
- 4 Mr. Justice Jones in Arthur M. Quinn, S.C.C. 01858, October 17, 1988, stated In Yebes v. The Queen, 417, McIntyre, J. judgment of the Supreme stated at p.430: The function of the Court of under s. 613 (1) (a) Code, goes beyond that there is evidence a conviction. The court must determine on the whole of the the verdict is one instructed jury, could reasonably have rendered. the Court of Appeal substi tute its view jury, in order to the court must some extent reweigh the effect of the process will be the case is based or direct evidence. The trial judge considered, of the occupancy permit, and permi t had been issued and that the offence was and found that she didn't have that and determine whether or way wrongfully withholding an occupancy permit. she made a finding of guilt disturb that finding. Wi th regard to the second count, said ... I have had the benefit of the City's brief on that matter which Her Majesty the Queen v. 36 C.C.C. (3d) in delivering the Court of Canada Appeal, of the Criminal merely finding to support evidence whether that a properly acting judcially, While must not merely for that of the apply the test re-examine and to and consider evidence. This the same whether on circumstantial firstly, the matter she found that no occupancy complete, any power to go beyond not the City was in any Therefore and there is no reason to the trial judge I would like
- 5 to refer to. Certainly question that 1 find the premise at 6380-82 in Halifax were not uni t apartment bui lding, used as a two unit apartment, unit duplex. She went on to say ... 1 think the best evidence of intention is the purpose to is presently put and since it is presently used as a duplex, intention was to use at the date in question. include arranged to to be used and intended 1 think that is a be based on the facts facts of this case, some work that had to the building capable 1 refer again to dwelling unit which "capable of being used". find that the premises, a reasonable doubt premises were arranged designed to be used, used or capable of seperate and independent establishments because there was still outstanding had to be done to make them into that. Having considered the judge heard and understanding court judge in relation to that of the trial satisfied on her findings of of fact can be found from palpable error and the trial a reasonable doubt, therefore an acquittal should lie. there is no as a fact that Young Street, used as a four that they were or a two which the building 1 find that the it as a duplex "Used" shall be used, designed to be used. decision that must of each case and there were still be done to make of being used and the def inition of uses the words, So 1 would 1 would have as to whether the to be used, intended to be being occupied as housekeeping of the fact that work that evidence that the trial the duties of the appeal judge" 1 am fact; and those findings the evidence. There was no judge was entitled to have
- 6 I would therefore dismiss cross-appeal and confirm the matter and acquittal on the second count. There will be no costs in this matter. the appeal and the conviction of the occupancy <~ A Judge of the County Court of District Number One
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