Judge Harold Porter’s patience with a property feud that has been ongoing between two neighbours in Terrenceville for several years is seemingly wearing pretty thin.
Porter heard the latest case involving the two men, Patrick Thomas Hickey and James Lavhey, at provincial court in Grand bank on April 29 and gave his decision on May 15.
On this occasion, Hickey, 72, was charged with assault with a weapon by using a shovel to sling mud and rocks at Lavhey.
In his written decision, Porter noted the “most important” evidence in the case came from Lavhey and a video recording of the events.
Porter explained the video disc recording, tendered into evidence by an RCMP officer and date stamped ‘3:44 p.m. November 15, 2018’, shows Lavhey driving a tractor with a loader bucket on the front up a road at the back of his own property, which adjoins Hickey’s.
As Lavhey dumps the load, Porter notes, a man walks towards the tractor with a shovel and swings it, causing the contents of the shovel to hit the machine.
According to Porter, the man in the video tosses mud and gravel at the tractor three more times, on one occasion striking the man driving the machine in the chest with the contents of the shovel.
The officer who submitted the video testified that the original complaint had been received by police on the same date as indicated on the video and he had made the follow-up call on Nov. 16.
During the hearing, Lavhey, 59, testified and confirmed he was the operator of the tractor and that Hickey was the other man with the shovel.
Lavhey indicated Hickey had used the shovel throw mud at him, striking him in the face and chest, as well as marking the tractor. He then went home and called police, who came and took his statement the following day, according to his testimony.
Porter noted Hickey, who represented himself during the trial, was given clear explanation of how the court system works.
“Notwithstanding this, the accused asserted from the dock that the man in the video, identified by the complainant as the accused, was not him,” Porter wrote.
“The accused asserted an alibi from the dock. However, he called no evidence to support such an alibi. When asked if he wished to give evidence, the accused replied that he would ‘take my chances,’ and not testify.”
In establishing the reliability of Lavhey identifying the man with the shovel as Hickey, Porter noted, the two men are well known to one another, the incident occurred during the day and it was not a matter of a fleeting glance.
As for the charge, the judge noted, “the least touching of another person without their consent constitutes an assault.
“Striking someone with a shovel is an assault with a weapon. Throwing a rock at someone is assault with a weapon. Logically, using a shovel to sling mud, gravel or rocks at someone is also assault with a weapon.”
Porter noted Hickey’s actions were not accidental as he tossed mud at Lavhey four times.
“This was a deliberate use of force, using a weapon. The only logical verdict is to find the accused guilty of assault with a weapon,” Porter wrote.
Before delving into the details of the present case before him, however, Porter briefly noted the history of the dispute between Hickey and Lavhey, citing four other times he had dealt with a matter related to the pair’s disagreement over the demarcation of their adjacent properties.
“The mudslinging in Terrenceville continues, literally,” Porter started his written decision.
Porter noted Hickey and Lavhey have continually failed to follow the legal process for resolving title disputes in an application for a quieting of title.
“I have repeatedly told the parties that this court is without jurisdiction to resolve issues of land title, to no avail,” Porter stated.
“Instead, James Lavhey continues to develop land which the accused claims is his, and the accused continues to resort to use of force in an effort to thwart what he sees as an encroachment on his property.”
Hickey will be sentenced at a later date.