The Nova Scotia Court of Appeal has upheld an 18-month conditional sentence for a man who shot a co-worker with a nail gun, despite efforts by the Crown to put him behind bars.
The case generated a lot of media attention in the province because, at first blush, it appeared to be a “situation of a young Black man intentionally shot in the back with a nail gun by a racially-biased white co-worker,” the appeal court said.
But that portrayal was simply not supported by facts, it said.
What happened
Nhlanhla Dlamini, who is black, was hired by PQ Properties as an apprentice on Aug. 27, 2018.
Dlamini emigrated from South Africa to Canada with his family in 2013 when he was 17. He graduated from high school in 2016 and attended Nova Scotia Community College (NSCC) to study carpentry.
When he met the crew, rather than struggle with his name, he invited them to call him NH – something he often did. Keith Jordan was his foreman, and Dlamini described him as a really funny guy.
He gave Dlamini cigarettes, coffee and took him to lunch. After one week on the job, he gave him a new nickname – “Squiggy.” Jordan gave all apprentices nicknames.
The name was not racially motivated, and came from a old television sitcom called Laverne & Shirley that aired in the late 1970s and early 1980s. He called him that because he looked tiny next to another co-worker and it reminded him of characters on the show called “Lenny and Squiggy.” That TV duo had a big difference in height.
There was no evidence that Dlamini was offended by the nickname.
The victim’s version
On Sept. 19, 2018, Jordan assigned him to set up staging ahead of a team that were installing 2×6 boards. Nail guns were being used on the site that operated with 90 pounds of pressure.
Among the workers on the site that day was Shawn Hynes.
Dlamini said he made a teasing remark to Hynes that “you ain’t done with that” as he moved to set up more staging. He said Hynes replied with “you ain’t going any faster.”
As Dlamini turned, he said he saw Hynes pointing the nail gun at him. He turned again to take cover, but heard the nail gun discharge and was struck in the back.
Dlamini testified that Hynes ran to him and said he didn’t think the nail would hit him.
“He came running down and jumped next to me, and he goes, ‘I didn’t think I’d get ya man, I’m sorry.’ And he pulls the nail out. He’s like, ‘I thought it would have ricocheted on the wall, like, in the … before the door opening or something, like, to scare ya,'” Dlamini said.
The injuries were severe. There was a puncture wound on his back, and he suffered pneumothorax – meaning the lung had been punctured which allowed air to escape into the potential space between the outer lining of the lung and the inside of the chest wall.
A different version
A co-worker, Dan Clarke, testified he saw no conversation between Hynes and Dlamini.
Instead, he said that as Hynes used the gun a 2×6 board splintered and the nail ricocheted into the house. He had no idea where it had gone. They finished with that piece, and when he got down from the staging he saw Dlamini laying on the ground outside the patio door.
At first, he thought he had twisted his foot. But when they got closer, it became clear the nail had struck and injured him.
Hynes denied any bantering with NH during the work in question on the top plate or stating that he thought the nail wouldn’t hit him or would ricochet off the wall.
The trial
The trial judge accepted Dlamini’s version of events and rejected Hynes’ assertion that he had not pointed the nail gun at him.
But that judge also refused to find that Hynes fired intentionally – however, he ruled that the intentional pointing of the nail gun was sufficient to constitute the offence of assault with a weapon.
“I’m convinced that Mr. Hynes wanted to scare N.H. by pointing the nail gun at him. Seeking to scare someone by pointing a potentially dangerous power tool is a real threat,” the judge said. “A reasonable person, aware of the risk of injury, of pointing a tool of this nature, would immediately perceive this as a threat of bodily harm.”
The sentence
The trial judge found that conditional imprisonment, as opposed to probation, was required because of the existence of aggravating factors of anti-black racism.
“I find that imprisonment is required in this case. (Dlamini) is black. The history of anti-black discrimination in Nova Scotia is a historic fact which is continuing. Discrimination and intimidation of racialized and marginalized persons will occur in many locations including workplaces, and it happened to (Dlamini),” he said.
“(Dlamini) came to Canada from a developing country. Immigrants and refugees arriving in Canada may experience many forms of social and structural prejudice. They face housing and income insecurity. They encounter barriers to employment. When they find work, it is often in risky, underpaying occupations where they are not accorded respect, dignity, and support. And again, this was (Dlamini’s) experience with Mr. Hynes.”
Conditional sentence orders are seen as a sentence of imprisonment, but “if the offender complies with the conditions set out in the order, they may serve it in a place other than a penal institution,” the Court of Appeal explained.
No racism in play: Court of Appeal
The Court of Appeal rejected the Crown’s attempt to actually imprison Hynes.
It said there was “absolutely no evidence” at trial that Dlamini suffered any form of discrimination or intimidation in the workplace due to his racial background.
“Although new Canadians may experience social and structural prejudice or barriers to employment, save risky underpaid occupations without respect, dignity and support, that potential social context factor had no role to play in this case,” the Court of Appeal said.
The Crown itself, in prosecuting the case against Hynes, said there were not any aggravating factors in the case.
“During the sentence proceedings, the Crown reiterated it could not establish the offences were motivated by bias or prejudice based on race, national or ethnic origin, or any similar factor,” the appeal court said.
The appeal court did not downplay any of the actions in the case, calling what Hynes did “egregious.”
“They constituted an assault and showed a wanton and reckless disregard for the life or safety of the victim. (Dlamini) suffered serious injuries. (Hynes) obviously had a duty to take reasonable precautions to protect the health and safety of (Dlamini) and other persons at or near the workplace. (Hynes’) actions clearly breached that duty, but they did not constitute an abuse of authority or trust in relation to the victim.”
The trial court’s initial sentencing of Hynes – 18 months’ condition sentence, including house arrest followed by a year of probation and 120 hours of community service – was upheld.
For more information see R. v. Hynes, 2022 NSCA 51 (CanLII)
