N.S. Court of Appeal refuses to impose jail time for nail gun incident

Nova Scotia's highest court has refused to impose jail time on a man who shot a coworker in the back with a nail gun.

Shawn Wade Hynes was convicted of criminal negligence and assault with a weapon for an incident on a construction site in Abercrombie, N.S. on Sept. 19, 2018.

Hynes, 46, hit Nhlanhla Diamini, puncturing his lung. Diamini spent four days in hospital and was off work for a month.

The Crown had asked for a jail term of 12 to 15 months. But Judge Del Atwood instead sentenced Hynes to 18 months of house arrest.

The Crown appealed. On Friday, the Nova Scotia Court of Appeal released its decision, rejecting the Crown's bid to overturn the conditional sentence.

The high court acknowledged the case has been subject to extra scrutiny.

"The incident appears to be seen as a situation of a young Black man intentionally shot in the back with a nail gun by a racially-biased white co-worker," the three-member appeal panel wrote in their decision.

"The problem is that portrayal is not accurate," the court went on. "The evidence at trial demonstrated the victim enjoyed a positive relationship with his co-workers with absolutely no racial overtones. The Crown did not adduce a scintilla of evidence of racial bullying or racism, nor did it ask any questions in cross-examination of the respondent at trial to in any way suggest biased behaviour, let alone anti-Black racism."

The Court of Appeal said in his verdict, Atwood rejected the idea that Hynes had deliberately aimed at Diamini. But in his sentencing decision, Atwood did acknowledge that this case raised issues of racism.

"There is a strong need for the denunciation of workplace violence, motivated by implicit bias. Violence of this nature in the workplace operates to perpetuate structures of inequality and access to employment for communities that have experienced generations of formal and informal discrimination," Atwood said.

The Court of Appeal said that while the judge made mistakes in his decision, none of them is the sort of error that would overturn the conditional sentence he imposed.

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Blair Rhodes has been a journalist for more than 40 years, the last 31 with CBC. His primary focus is on stories of crime and public safety. He can be reached at [email protected]