R v Nason, 2023 ABCJ 172

In the Alberta Court of Justice Citation: R v Nason, 2023 ABCJ 172 Date: 20230717 Docket: 220555007P1 Registry: Calgary Between: His Majesty the King - and - Darcy James Nason Decision of the Honourable Justice S. Mah [ 1 ] The Accused is charged with assault by choking, suffocating, or strangling as follows: 1) Count 1: On or about the 4 th day of March, 2022, at or near Calgary, Alberta did, in committing an assault, choke, strangle or suffocate Hana Rhame, contrary to s 267(

c) of the Criminal Code of Canada ; 2) Count 5: On or about the 25 th day of December, 2021, at or near Calgary, Alberta did, in committing an assault, choke, strangle or suffocate Hana Rhame, contrary to s 267(

c) of the Criminal Code of Canada ; 3) Count 6: On or about the 25 th day of December, 2021, at or near Calgary, Alberta did, in committing an assault, choke, strangle or suffocate Hana Rhame, contrary to

section 267 (

c) of the Criminal Code of Canada ; 4) Count 7: On or about the 22 nd day of August 2021, at or near Calgary, Alberta did, in committing an assault, choke, strangle or suffocate Hana Rhame, contrary to

section 267 (

c) of the Criminal Code of Canada ; Reasonable Doubt and Credibility [ 2 ] The Complainant and Accused were in an intimate partner relationship between June 2019 and March 2022, but maintained separate residences and did not live together. The Complainant is a carpenter and sometimes worked on construction jobs with the Accused. The evidence before the Court consists solely of the testimony of the Complainant and the Accused. The testimony of the Complainant and Accused differ as to incidents that are alleged to have occurred on or about August 22, 2021, December 25, 2021 and March 4, 2022.

Accordingly, the issue before this Court is credibility of the witnesses in the determination of whether the Crown has proven the alleged offences or any one of them, beyond a reasonable doubt.

[3] The Accused has the right to be presumed innocent until proven guilty according to law. The presumption of innocence isfound in s 11(

d) of the Charter of Rights and Freedoms. It states that all accused have the right to be presumed innocent until provenguilty according to law. The Crown has the burden of proving beyond a reasonable doubt that the Accused committed the offences asalleged before this Court.

Reasonable Doubt [4] In paragraph 31 of R v Lifchus, (SCC), [1997], 3 SCR 320 the requirement that the Crown prove its case“beyond a reasonable doubt” entails that the evidence relied on by the prosecution must leave no reasonable inference and no reasonablepossibility, that the accused is innocent. [5] At paragraph 39 of the Lifchus decision, “A reasonable doubt is not an imaginary or frivolous doubt. It must not be basedupon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence ofevidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient.” [6] To determine whether or not the Crown has proved the accused’s guilt beyond a reasonable doubt, the test for credibility, is set out by the Supreme Court of Canada in the decision of R v W(D) (SCC), [1991] 1 SCR 742 [7] The test for credibility as set out in W(

D) are:

a) First if you believe the evidence of the accused, you must acquit;

b) Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit;

c) Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [8] The Alberta Court of Appeal affirmed the approach taken by W(

D) in R v Ryon, 2019 ABCA 36 (Ryon) which wassubsequently modified by R v Achuil, 2019 ABCA 299 by listing four steps to consider in cases of credibility in para 51 of Ryon: i. The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on theCrown so that the accused person is never required to prove his innocence or disprove any of the evidence led by the Crown. (Subject tothe caveat that this does not apply to defences, such as that found in s 16 of the Criminal Code, where the onus rests with the proponentof the defence). ii.

In that context, if the jury believes the accused’s evidence denying guilt (or any other exculpatory evidence to that effect), or ifthey are not confident they can accept the Crown’s version of events, they must acquit. (Subject to defences with additional elementssuch as an objective component discussed at para 31). iii. While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence,the jury is unable to decide whom to believe, they must acquit. iv. Even if the jury completely rejects the accused’s evidence (or where applicable, other exculpatory evidence), they may not simplyassume the Crown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whetherthat evidence persuades them beyond a reasonable doubt that the accused is guilty.

Mere rejection of the accused’s evidence (or whereapplicable, other exculpatory evidence) cannot be taken as proof of the accused’s guilt. [9] In considering the issue of credibility, I am entitled to apply common sense and human experience in determining whetherthe evidence is credible and deciding what use, if any, I will make of it in coming to any conclusion.

At the end of that process, tobelieve, in whole or in part, the testimony of a witness, disbelieve, in whole or in part the testimony of a witness and to weigh theindividual value of the testimony, whether the witness seems to have a good memory of the relevant events, whether the evidenceprovided by a witness seems reasonable and consistent and whether there is any reason why a witness would not be telling the truth. When assessing the evidence of the accused, it is impermissible to assume the accused will lie to escape conviction, as to do so wouldundermine the presumption of innocence.

R v Laboucan, [2010] 1 SCR 379. [10] The testimony of a witness must be weighed carefully and considered in light of many factors, including internal consistencyor inconsistency, the consistency or inconsistency of the testimony when measured against the evidence over which there is no realdispute. In other words, how the testimony of the witness fits with the facts that have been clearly established on the evidence. Determining credibility is an issue of fact.

Law and Analysis [ 11 ] Applying R v W(D) , first, if I believe the evidence of the Accused, I must acquit. [ 12 ] The Accused denied assaulting or choking the Complainant on or about August 22, 2021. He never saw the Complainant until later that day when the Complainant was already detained in a police vehicle for breaking the windshield of his truck. [ 13 ] The Accused denied assaulting or choking the Complainant on or about December 25, 2021.

He was more sober than the Complainant on December 24, and 25 2021 because he was attending a family dinner on the 25 th and was careful about the amount of narcotic drugs he consumed. He described the evening of December 24, 2021, interrupted by the Complainant’s desire to meet up with a person named “Sam” as “Sam” owed the Complainant money. He described leaving the Complainant’s residence with the Complainant on a cold night to pick up “Sam.” The Complainant and the Accused drove around with Sam and then dropped Sam off somewhere never to see Sam again.

The Accused’s testimony was that sometime around December 31, 2021, the Complainant tried to cut herself and they had an altercation, so he took away a knife from the Complainant. [ 14 ] The Accused further denied assaulting or choking the Complainant on or about March 4, 2022. He had a specific recollection that on March 3, 2022, he was resting at home because of a work injury to his ankle on March 2, 2022. He said after some messaging to the Complainant he heard a loud bang at his apartment door. The Complainant was loud and causing a disturbance. He let her into his apartment. They talked at his table.

She was taking crack and working herself up. He said it was time for him to take action to get her out, so he grabbed her drugs, phone and other items and told her to go. He says the Complainant complied, she walked to the door and tripped. He put out his arm to stop her fall, but she told him to let her go and she then fell face down into the hallway. He shut his door. He later grabbed his shoes and keys to look for her.

He drove around looking for her eventually finding her to return her rachet. [ 15 ] The Accused said the Complainant would often get angry at him and he dealt with her anger by staying calm and trying to understand the cause of her anger. He said he maintained his own separate residence as a place he could go to when he needed to. [ 16 ] I do not believe the evidence of the Accused. With respect to the Accused’s version of the incidents I found the Accused’s evidence to be self-serving.

He was in a volatile relationship and yet on these four specific occasions his version of events would require me to believe he acted in a controlled manner throughout, even when the Complainant was being loud, threatening, kicking the door of his apartment, entering the complex of his building without his consent, and smashing the window of his truck. He also admitted in cross-examination that he did not respond in the most appropriate manner on some occasions, and he would get upset sometimes.

He was further evasive on questions about what he meant by losing his temper and losing control but denied ever being physical with her. [ 17 ] Second, if I do not believe the testimony of the Accused, but I am left in reasonable doubt by it, I must acquit.

In keeping with the second stage of W(D) , I must move to consider the Accused’s evidence in the context of the other evidence before the Court to determine whether I am nonetheless left with reasonable doubt as to the Accused’s guilt. [ 18 ] On August 22, 2021, there was a plan for the Accused and the Complainant to work together at a construction site early in the morning. The Complainant said the Accused left her residence after an argument very early that morning. The Complainant went to the construction site to retrieve her tools, but the site was locked.

She said the Accused threatened to move her tools from the construction site which meant the loss of her tools and source of livelihood. She went to the Accused’s residence because he had the key to the construction site. After many calls and texts, the Accused told her they could not start working until 10:00 am pursuant to a bylaw requirement. The Complainant did not believe the Accused, so she went to his residence. The Accused lived in a complex which required a buzzer access to the apartments. The Accused did not answer her calls or texts, nor did he respond to the buzzer.

The Complainant threw pebbles at his window. Eventually someone came out of the complex, the Complainant went up to the Accused’s apartment and kicked his door rather than knocking. He opened the door, grabbed her by the throat and pulled her into his apartment. They wrestled on the floor, the Complainant says the Accused smashed her head, arm and shoulder. The Complainant got up and says the Accused threw her out. She went back to her vehicle, took pictures of the injuries, and drove home.

She acknowledged her pictures of her injuries were not clear. [ 19 ] The Complainant testified that in August of 2021 she was a regular user of cocaine and crack and on that day she used cocaine and crack throughout the day and probably the night before. She had been consuming that amount of drugs for at least a year. She was a regular user of cocaine and crack together, sometimes methamphetamines, with prescribed medications.

She described herself as a very high-functioning addict. [ 20 ] The Complainant also testified that after being choked by the Accused on August 22, 2021, she later returned to the Accused’s residence to damage his truck. She returned to the location with the intention to do damage and to fight. She was later arrested by police for damage to his truck. [ 21 ] On December 24, 2021, the Complainant described herself as intoxicated, upset and depressed. She testified to consuming her usual amount of crack and possibly meth that day. They had a fight in her bedroom, the Accused left her bedroom and went downstairs.

She was feeling suicidal, so she found a knife and cut her wrist. She acknowledged the Accused took the knife away from her and he went downstairs. She also later testified in direct examination she cut her forearm, but the cut was not serious. She went downstairs because she wanted to get her knife back and they physically started to push each other. She said she was intoxicated and not thinking clearly. The Accused grabbed her throat, she struggled to breathe, blacked out and her bladder let go. They eventually stopped fighting and she went upstairs to change her pants.

She returned downstairs and the fight continued. He choked her again. She described the incident ending with her getting up from the floor and returning to her bedroom. Thereafter she drove him home. [ 22 ] On March 4, 2022, the Complainant went to the Accused’s residence with the intention of retrieving a few of her things as their relationship was ending. She was feeling frustrated and angry. She banged on his apartment door. The Accused let her in, and they talked at the table. She stated she was not getting the answers/responses she wanted, and he was not returning her items.

He then lunged at her and grabbed her neck. She blacked out and woke up in the hallway of the building outside his door. She went to her vehicle and took pictures of injuries to her throat. She described using her standard amount of drugs being crack, maybe some meth, but she was not

really sure. [ 23 ] Defence counsel argues the Complainant’s testimony was not without issues in respect of credibility and/or reliability. Defence referenced the many times the Complainant answered questions on the basis that she did not remember or was inconsistent with her prior police statement and inconsistent with her direct examination. [ 24 ] On cross-examination, the Complainant confirmed she was interviewed by Calgary Police on March 9, 2022.

She acknowledged that her memory was better when she conducted the police interview than at the time of trial. [ 25 ] The Complainant acknowledged she had a drug addiction between August of 2021 to March of 2022. Her choice of drugs was crack cocaine. The Complainant was also prescribed medication which disagreed with her and caused severe nerve damage and significant pain in her lower body. She experienced significant pain in 2019, 2020, 2021 and 2022. In November of 2021 she voluntarily stopped taking her prescribed medication. She reported to police the prescribed medication was making her crazy and suicidal.

She testified at page 41 of Day 1: the prescribed medication resulted in “ internally in my head things do not make sense .” She started self- medicating and used crack cocaine daily with increasing strength. [ 26 ] With respect to the August 22, 2021, incident, the Complainant said during her arrest for damaging the Accused’s truck, she told police she was previously choked out by the Accused. She claimed the police did not see markings on her neck because they did not look and she did not show her injuries to the police because she was handcuffed in the police vehicle.

She also did not show them the photographs of her injuries she had taken earlier that morning because she forgot. She admitted in cross-examination she may not have used the words “choked out” to the police. She said the police investigating on August 22, 2021, were not interested in her report. She was not aware of any later follow-up with the police officers who arrested her on August 22, 2021, when she went to police in March of 2022. [ 27 ] She admitted she was furious on August 22, 2021, because the Accused threatened her tools, and he was not answering her calls.

She acknowledged she told the police she was losing her mind and she had a tough time turning off her emotions and anger. She also told police she bruised easily all the time and that was normal. I find the Complainant provided testimony that raises issues about her credibility and reliability with respect to the August 22, 2021 incident. Her evidence did not seem reasonable that she did not use the word “choked” to police and the police did not see her injuries to her neck because the police did not look.

In addition, the Complainant testified she immediately took pictures of her injuries, but she forgot to provide them to the police. This also did not seem reasonable. [ 28 ] With respect to the December 24, 2021, incident, I found the Complainant inconsistent on where she cut herself. In direct examination she testified she cut her wrist and later also testified she cut her forearm. In cross examination, she acknowledged telling police she said no one was cut and she never told the police she cut her arm.

She acknowledged she was mad at the Accused for taking her knife away, so she followed him downstairs and pushed him which is when the Accused went to choke her for the second time that day. She did not take any photos of her injuries on this occasion, and she acknowledged there were no visible injuries. She acknowledged in cross-examination that she told the police she suffered many concussions in the past due to a variety of reasons such as sports and work unrelated to the Accused.

She testified she did not tell anyone about the December 2021 incident which is inconsistent with her police statement wherein she told the police she saw a therapist at the Alex and told the therapist she was choked out during the holidays. [ 29 ] She also acknowledged that she told the police she was not sober on December 24, 2021, which is inconsistent with her evidence in direct examination, at page 22 of the transcripts of Day 1, where she testified, she was using her usual amount of consumption of narcotic drugs.

She further acknowledged in cross-examination she has complex post-traumatic stress disorder and is prone to injuries and blackouts. I have concerns the Complainant does not have a good memory of the relevant events in December of 2021. [ 30 ] With respect to the March 4, 2022 incident, on cross examination she denied throwing pebbles to get into the Accused’s residence. This is inconsistent with the police statement wherein she said she threw some pebbles at his window and used the same tactic to get into the building as she did on August 22, 2021.

The Complainant also acknowledged her memory was bad. [ 31 ] She also acknowledged in cross-examination she was using more cocaine on March 4, 2022, which was inconsistent with her direct testimony. In direct examination, the Complainant described her use of narcotic drugs as a standard amount and she went to work that day. [ 32 ] The Complainant’s admissions were inconsistent with her testimony in direct evidence for the March 4, 2022, incident. [ 33 ] In addition, the Complainant did not recall threatening the Accused via text or voice messages but remembers kicking at his door.

She did acknowledge sending an email dated January 7, 2022, which was marked as an exhibit, wherein she threatened the Accused if he did not return her things. She also acknowledged a voice message she left on the Accused’s phone on March 3, 2022, wherein she is uttering threats to the Accused. The voice message was played in Court a few times and the Complainant is angry and agitated. In the voice message, she tells the Accused she is tired of his accusations, not that she is tired of the Accused assaulting her.

Her explanation for her failure to recall these threats, was that physical altercations are easier to remember than a bunch of words. [ 34 ] The Complainant went to the hospital after the March 2022 incident to be examined and also spoke to a counsellor. The Complainant acknowledged signing a release of her medical records.

She also testified she would be surprised if the medical records did not indicate any abrasions or injuries to her neck. [ 35 ] Defence counsel in closing submissions pointed to the absence of any other evidence for the March 4, 2022, incident such as medical records, counsellor or therapist records. Further, the absence of police investigations or reports with respect to the choking from August of 2021, therapist reports from December of 2021 and the absence of any evidence the police in March 2022 went back to the police officers investigating the incident from August 22, 2021.

Counsel for defence suggests that such choking incidents reported to the police, doctors and counsellors raises a question about the credibility and accuracy of her testimony. In addition, the Complainant’s use of narcotics daily with increasing dosages raises questions about her reliability.

[ 36 ] Crown points to the photographs taken by the Complainant as evidence of the August 2021 and March 2022 incidents. With respect to the photos taken in August 2021 by the Complainant, on direct evidence the Complainant said she took the photographs immediately after the alleged choking, but before she went back to the Accused’s residence to smash the windshield of his truck. On direct and cross-examination, she acknowledged the photos were not clear. With respect to the photos from March of 2022, the photo shows some redness, but the Complainant also acknowledged she bruises easily.

These photos must be weighed against the inconsistent testimony given by the Complainant. [ 37 ] I am unsure about the credibility and reliability of the Complainant’s testimony given the inconsistencies in the Complainant’s testimony.

These inconsistencies in the Complainant’s testimony raise concerns about the accuracy of her testimony and she made admissions with respect to the August 22, 2021, December 2021 and March 2022 incidents during cross-examination that were inconsistent with her direct examination and police statements. [ 38 ] I am unable to conclude, despite these inconsistencies, that the Complainant is lying about what happened, but neither am I able to say that I can accept her testimony as being entirely accurate.

When I consider the testimony of the Accused, in the context of the testimony of the Complainant, I am left with a reasonable doubt that the allegations made by the Crown with respect to these charges are proven. [ 39 ] The evidence in this case leaves me with a reasonable doubt. This is not the same as deciding in a positive way that the events alleged by the Complainant never happened.

The underlying principle demanded by the concept of proof beyond a reasonable doubt is if the fact finder is left unsure whether the evidence is true, there is reasonable doubt and I must acquit. [ 40 ] I find the Accused not guilty with respect to all four counts. . Dated at the City of Calgary, Alberta this 17 th day of July, 2023. S. Mah A Justice of the Alberta Court of Justice Appearances: A. Russell for the Crown A. Iovinelli for the Accused