R. v. MacNeil, 2012 NSPC 47

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. MacNeil, 2012 NSPC 47 Date: 201204019 Docket: 2358627 Registry: Sydney, N.S. Between: Her Majesty the Queen v. Harold Terrence MacNeil __________________________________________________________________ DECISION __________________________________________________________________ Judge: The Honourable Judge Jean M. Whalen Heard: February 9, March 21, and March 26, 2012, in Sydney, Nova Scotia Oral decision: April 19, 2012 Written decision: June 14, 2012 Charge: Section 268(1) C.C.C.

Section 267(

a) C.C.C.

Section 87 C.C.C.

Section 87 C.C.C

Section 117.01(1) C.C.C. Counsel: Kathy Pentz, for the Crown Darlene MacRury, for the Defence

INDEX Page INTRODUCTION REVIEW OF EVIDENCE ............................................................................ 2 CREDIBILITY ASSESSMENT .................................................................... 13 ANALYSIS .................................................................................................. 17 By the Court : [ 1 ] INTRODUCTION [ 2 ] Kerri Lynn MacIntosh and Harold “ Jake ” MacNeil were known to each other. The complainant went to the accused ’ s house on numerous occasions to drink.

She testified they eventually became intimate. [ 3 ] On the date set out in the information (August 28/29, 2011) she testified the accused was talking to his mother and because of the way he was talking to her, she hung up the phone. [ 4 ] This caused him to become angry and he threw candlestick holders at her hitting her in the arms. He also cut her throat with a knife he got from the kitchen. [ 5 ] Ms.

MacIntosh did not go to the hospital for at least two days and she did not make a formal statement to the police until September 7, 2011. [ 6 ] Based on her initial complaint a search warrant was obtained and executed at the accused ’ s residence on September 6, 2011, and Mr. MacNeil was arrested. He was subsequently charged with the offences before the court. [ 7 ] REVIEW OF THE EVIDENCE [ 8 ] KERRI LYNN MACINOSH [ 9 ] The complainant met the accused through a friend and they had a few drinks together. They subsequently became intimate. Mr.

MacNeil denies being intimate with the complainant in his video statement. [ 10 ] On the date of the alleged offence, she said it began because she “ hung the phone up ” due to the way the accused was speaking to his mother. She couldn ’ t recall specifically what was said but “ it was bad enough I hung up the phone ” . (The accused said at page 13 of his video statement it is quite possible the complainant showed up afterward and he told her his mother was sick. But denies she hung

up the phone because “ she wouldn ’ t be allowed by a phone ” .) [ 11 ] Ms. MacIntosh testified both were drinking all day. She was not aware if the accused had done any drugs but she admitted she smoked a “ joint ” . There was no one else at the accused ’ s house when the alleged assault took place. [ 12 ] After she hung up the phone the accused began to throw candlesticks at her. They struck her in her arm and hit the wall (Exhibit #1 - photo 19).

She received a bruise on her arm. [This injury was not discussed as part of the medical report.] These candlesticks were burned in the fire pit in the morning by Tom Barrett before she went to the hospital. Tom Barrett denies burning any garbage. Then she testified, “ All I remember is the accused with a knife and he came at me. ” Ms. MacIntosh says he got the knife from the set on the counter. [ 13 ] Ms. MacIntosh then says the accused snuck up behind her. The accused ’ s hand was on her forehead, her head rested on the accused ’ s shoulder.

After her throat was cut, she realized the accused had a knife. [ 14 ] Ms. MacIntosh stated she stayed at the accused ’ s house drinking at the kitchen table until 12 the next day. The accused went to bed. There was no blood from her injury. She came too the next day on the couch beside the accused. [ 15 ] She fell asleep then came too the next morning at 8 or 9 a.m. She said she woke up naked on the couch. The accused was also naked seated at the kitchen table looking at her. [ 16 ] She testified there was no discussion about the night before.

The accused did apologize by saying, “ Kerri, I ’ m really sorry about your throat. ” There was no discussion about candlesticks. [ 17 ] She went to the Glace Bay General Hospital. She said Gerard Roberts took her. Aidie drove them, she went in herself, she received (13) stitches. [Medical report dated August 20 th .] [ 18 ] Ms. MacIntosh did not report this to the police because she loves Mr. MacNeil and she didn ’ t want the accused to go back to jail. She subsequently gave a statement to the police because her ex-husband was threatening her with loss of access to their children. [ 19 ] Ms.

MacIntosh says Josey (the accused ’ s friend) brought Tom Barrett to the house. The accused became upset because they wouldn ’ t take Ms. MacIntosh to the hospital. “ Josey ” Marshall denies being asked to take Ms. MacIntosh to the hospital, or seeing her at that time. [ 20 ] Ms. MacIntosh says she cleaned up and threw the candlesticks in the garbage, which is normally burned. No forensic examination done on what was left. [ 21 ] Ms. MacIntosh was in the hospital for 15-20 minutes and Adie and Gerard came back for her. Adie and Gerard confirmed they returned because Ms.

MacIntosh forgot her purse and sweater. [ 22 ] Ms. MacIntosh says she saw the accused about a week after the incident to see how he was doing. She stayed for a while, Mr. MacNeil did not threaten her. She also called the accused on the telephone before charges were laid. [ 23 ] Ms. MacIntosh also testified she was in court because she was threatened by the police officer that she would go to jail. [The police officer denies any threats; he said he explained the process to her and failure to answer a subpoena.] [ 24 ] Ms. MacIntosh reported to the hospital, and to the police officer, that she fell on a barbeque.

She said this because she didn ’ t want the accused to go to jail.

[ 25 ] CROSS EXAMINATION [ 26 ] Ms. MacIntosh agrees the accused asked her to leave his house a few times. It was the accused who told her his mother had a heart attack. [ 27 ] Ms. MacIntosh is not sure of everything leading up to the candlesticks. She states “ Not sure, all I know is the candle holders started gettin ’ biffed at me. ” She thinks two hit her and one hit the wall. [ 28 ] Ms.

MacIntosh testified, “ She didn ’ t see Harold swipe the knife, and he came up behind me and did what he did. ” She didn ’ t see the knife coming up or coming towards her, “ ...until it hit my throat. ” She blacked out and her next recollection is sitting at the kitchen table drinking vodka at 2:00 - 3:00 in the morning. The accused was in bed. [ 29 ] The next morning the accused asked Ms. MacIntosh, “ What knife he used on me. ” She pointed over to the knife. She saw the knife at her throat, but did not look for it after. [ 30 ] Ms.

MacIntosh readily admits both parties had a lot to drink. [There may have been opiates used by the accused (see p.17 of the accused ’ s statement) Robert Davies, “ You had 10 Valium that night, or 10 percs? ” Harold MacNeil, “ How many did she have? ” ] [ 31 ] She is uncertain how she got to the couch, she thinks it was by the accused. She didn ’ t look at her throat until the next day. Ms. MacIntosh admits she had no sense of time. Ms. MacIntosh says she told the truth to the best of her ability. [ 32 ] Defence put the complainant ’ s statement to her (p.5).

She is certain of what happened, except the accused cutting her neck. Ms. MacIntosh says she was on good terms with her father and can offer no answer when asked why she didn ’ t leave the accused ’ s house and go to her father ’ s. (The accused said otherwise in his statement, particularly that Ms. MacIntosh ’ s father warned him to keep the complainant out of his house. That she is not welcome in his house.) [ 33 ] She acknowledged her testimony about the accused saying, “ don ’ t go to town ” , was not in her initial statement, but was said to her. [ 34 ] Ms. MacIntosh suggests Gerard and Aidie are lying.

That she did not flag them down on Argyle Street. She denies being suicidal stating, “ Mr. Frank would say anything. ” [ 35 ] Ms. MacIntosh says the medical report has the wrong date, but says she was in shock and doesn ’ t know where the 28 th came from. She agrees she reported to hospital personnel that she, “ Tripped and fell last night on broken glass from beer ” . [ 36 ] She agrees that a police officer suggested the accused, or Tom Barrett did it, but she denied saying that, and told police it was a barbeque. Ms. MacIntosh says both the police officer and Mr.

Frank threatened her if she didn ’ t testify. [ 37 ] Ms. MacIntosh went to see the accused the following week and agrees it was a friendly visit. She also called him on the telephone from Mike ’ s Lunch. He was making threats and she feared for her safety and that of her family. [ 38 ] Ms. MacIntosh blames “ shock ” for her different answers on the versions of events. She agrees police did not search her house or seize any clothing.

There was never any solid description of what the complainant was wearing, or not wearing, when “ assaulted ” - she couldn ’ t find her clothes and put on accused ’ s t-shirt to go to hospital.

[ 39 ] CONSTABLE ROBERT DAVIES [ 40 ] The police officer testified he attended the accused ’ s house on September 6, 2011 to arrest him for complaints made by Ms. MacIntosh. They also executed a general search warrant to look for firearms. The officer took a statement from the accused on September 7, 2011. [ 41 ] Constable Davies says this matter first came to his attention on August 29 th by way of a complaint made by Ms. MacIntosh ’ s ex-boyfriend. On August 30 th he went to the complainant ’ s apartment on Argyle Street. He observed a “ patch over her throat ” . Ms.

MacIntosh was quiet, coherent, but under the influence of something. She had glossy eyes. Ms. MacIntosh initially denied the allegation and said she fell on a beer bottle. Then in another conversation [no date given by police] she said it wasn ’ t from a broken beer bottle, that she fell against a barbeque. [ 42 ] Almost a week later on September 5, 2011 at 8 p.m., Ms. MacIntosh called the police officer on his Blackberry. She indicated she wanted to talk to the officer because the accused was threatening her family (i.e. children and father). On September 7, 2011 she came to the office.

Constable Davies described her demeanor, “ Appeared the same as in August ” . Ms. MacIntosh told him the accused cut her throat with a knife. She did not attribute her injuries to Tom Barrett. [Ms. MacIntosh told him Tom Barrett showed up the next morning and said, go to the hospital]. Mr. Barrett was not questioned by the police nor asked to provide a statement. As a result of Ms. MacIntosh saying there were firearms and shotgun shells in the house, the police officer obtained a search warrant and the Emergency Response Team went to the accused ’ s home and executed the warrant on September 6, 2011.

The police officer subsequently seized ammunition (22 shells, and shotgun shells - on the stairs and in the back yard) [See Exhibit #1, 3, 6, 8]. No weapons were found in the accused ’ s house or on his property. [ 43 ] The Constable did not examine the back yard or the barrel; he only took photos. He obtained the “ Order of Prohibition ” (Exhibit 9) from the Provincial Court office on March 7, 2012. The court examined the document; it is under a valid court seal. [ 44 ] CROSS EXAMINATION [ 45 ] The police officer testified he put the question to Ms.

MacIntosh the same way “ it was put to him ” when he went to her apartment on August 30th. That these were the people (Tom Barrett and Jake MacNeil) who did the (assault). [ 46 ] He stated Ms. MacIntosh talked low because she had “ company ” . They were in her porchway. He was there for about 15 minutes. He took no written statement. He took a formal statement on September 7, 2011. [ 47 ] The police officer also testified that Mr. Frank told him Ms. MacIntosh was suicidal. There was no date given for this conversation. Constable Davies does not recall checking Ms. MacIntosh ’ s apartment for a knife or blood.

He accepted her statement. He did not attempt to get a statement from Ms. Marshall. [ 48 ] Constable Davies used the date of August 26/27 when questioning people because he was “ operating ” on the date Ms. MacIntosh gave him. The police officer received the medical report of Ms. MacIntosh ’ s hospital visit but he did not see that the date on the report (20 th ) was different from Ms. MacIntosh ’ s complaint of August 28/29. [ 49 ] Constable Davies did not move the barrel (Exhibit #1, photo 1 - 11). He did not remove anything. The officer testified he had at least (20) conversations with Ms.

MacIntosh but he did not threaten her with jail. He did explain to her how the process worked, i.e. “ If you don ’ t show, the court can issue an arrest warrant. ” [ 50 ] CONSTABLE KELLY

[ 51 ] The police officer testified he attended the accused ’ s home on September 7, 2011. He took photos of the barrel (Exhibit #1 - 8) and what were identified (to him) as candlesticks. These photos were taken after other officers had attended the scene with a search warrant for the accused ’ s home. [ 52 ] Constable Kelly stated, “ there was nothing of significance ” found in the residence (Exhibit #1, 29-36). The knives (#31) were in that position when he attended the scene. There was no forensic examination conducted on the knives or the candlesticks.

The knives were not matched/compared to (one another) or the block (on the counter). They were simply seized. [ 53 ] ADAM FRANK [ 54 ] Mr. Frank testified he doesn ’ t know the accused. He has never met him, but he heard he was with his ex-girlfriend, Ms. MacIntosh. He and Ms. MacIntosh have been separated for two years. They have two children who live with him. [ 55 ] Mr. Frank said he saw the complainant ’ s neck a “ couple of days after ” , when she came to his house. She initially said she tripped over a barbeque, but then she told him Harold cut her throat. She said he was trying to make her cry.

He also beat her with a candlestick. [ 56 ] Ms. MacIntosh told Mr. Frank the accused threatened the kids so he called Constable MacKinnon to report the incident, and he said Ms. MacIntosh agreed. He has had no discussion with Ms. MacIntosh since then. He denies he told Ms. MacIntosh what to say. He has full custody of the children, Ms. MacIntosh has access. [ 57 ] CROSS EXAMINATION [ 58 ] Mr. Frank can ’ t recall the date he saw Ms. MacIntosh, he thinks it was sometime in August. He did not accept the barbeque explanation and “ pried until she told me the truth. ” Mr. Frank said Ms.

MacIntosh said she got to the hospital by Gerard Roberts, but he can ’ t recall where she said he took her from. Then Mr. Frank recalled Ms. MacIntosh saying, “ Gerard Roberts picked her up from Jakes house. ” Mr. Frank ’ s statement was put to him (at page 5) “ ...said Gerard picked her up at her home. ” He didn ’ t adopt it and says, “ then she told me at Jakes. ” [ 59 ] Mr. Frank agrees he described Ms. MacIntosh as “ suicidal ” . He admits she tried to kill herself the day prior to coming to his house. He told police “ Hydromorphone ” . He said Ms. MacIntosh ’ s arms were purple that day. [ 60 ] Mr.

Frank testified Ms. MacIntosh has used a knife on him a “ dozen ” times, and he has had to take a knife away from her. He agreed he told Ms. MacIntosh she ’ d never see the kids again if she didn ’ t tell the police, “ after he threatened the kids, yeah. ” Mr. Frank stated all the information about the accused has come from Ms. MacIntosh and what she told him. [ 61 ] GERARD ROBERTS [ 62 ] Mr. Roberts testified he knows the accused “ a bit, from town ” . He also knows Ms. MacIntosh because their families lived in the same neighborhood. [ 63 ] Mr. Roberts stated he took Ms.

Macintosh to the hospital last year in August or September. He was with Mr. MacIntyre. They picked her up near her apartment; she came out on the street and waived them down. They were returning from the walking track. Ms. MacIntosh asked for a drive to the hospital, stating she had fell on a barbeque and cut herself.

[ 64 ] Mr. Roberts saw a white bandage on her neck. She was smoking. She appeared to be “ under the weather, not normal, spaced out. ” He could smell a little liquor. It was between two and three in the afternoon. [ 65 ] They gave her $10.00 for a taxi to get back, but they had to return to the hospital because she left her purse in the car. She was gone so they took it to her place. He never drove her to the hospital before. Mr. Roberts did not talk to the accused that day or the day before. He did not receive any telephone calls from the accused about Ms. MacIntosh. [ 66 ] ALFRED MCINTYRE [ 67 ] Mr.

McIntyre testified he knows the accused from jobs, and he has driven the accused to the liquor store. He has also delivered pizza to the accused ’ s house. Mr. McIntyre has met the complainant, Ms. MacIntosh, at “ Jakes ” ; he says he “ probably saw her three times at the accused ’ s house. ” [ 68 ] Mr. McIntyre also stated he has driven Ms. MacIntosh to the liquor store as well, but not the two together. Mr. McIntyre says when he saw the complainant at the accused ’ s house, both seemed to “ get along pretty good. ” [ 69 ] Mr. McIntyre drove Ms. MacIntosh to the hospital in his car.

Gerard Roberts was in the passenger seat. He stated they were returning from the “ Dam ” , and saw the complainant coming across her front lawn. Ms. MacIntosh waived them down and asked him to do a favor, take her to the hospital. He testified Ms. MacIntosh was holding her neck. There was a “ homemade ” bandage on her neck. She told them she “ fell into a barbeque in her backyard and hurt her neck. ” Mr.

McIntyre thought she may have done it herself, “ perhaps because she got the blame for her husband being busted. ” [ 70 ] When they got to the hospital, she left her purse and sweater in the car, so they returned to the hospital, then he took her home. [ 71 ] On cross examination, Mr. McIntyre testified the complainant seemed to be under the influence. “ He could smell a little liquor, and she was mumbling to herself. ” [ 72 ] Mr. McIntyre did not get any calls from the accused about Ms. MacIntosh. [ 73 ] THOMAS BARRETT [ 74 ] Mr. Barrett testified he has known the accused for 10 years.

He visits his house regularly, almost everyday. Mr. Barrett knows the complainant, he “ probably met her a couple of months before this, May or June. ” [ 75 ] Mr. Barrett stated she was hanging around “ Jakes ” house. He also saw her once or twice outside the accused ’ s house when he passed by. [ 76 ] He went on to say the complainant was a problem, and [at times] not welcome, and the accused would try and get rid of her. However, she would return and the accused would have to lock the doors. Ms.

MacIntosh admits she was asked to leave on several occasions by the accused, but she says not once they became intimate. [ 77 ] Mr. Barrett testified he saw the injury to the complainant ’ s neck “ a few times. ” He does not know the date of the first time he saw it. He “ confronted her on it ” because people were saying barbeque, fence, a beer bottle. He asked her what happened to her neck and she said she couldn ’ t remember. (This was before the accused was charged, because Tom Barrett said he saw the complainant before charges were laid on the accused. He saw these stitches on more than one occasion.

He doesn ’ t say where.) Mr. Barrett has no personal knowledge of what happened to Ms. MacIntosh. He was never asked to take Ms. MacIntosh to the hospital. (Ms. MacIntosh testified the accused wanted Tom Barrett to take her to the hospital.)

[ 78 ] Mr. Barrett could not identify items in [Exhibit 1 - 13]. He denies putting anything in the pit to be burned. He does not recall the accused asking him to burn anything. [ 79 ] CROSS EXAMINATION [ 80 ] Mr. Barrett admits he is good friends with the accused. He didn ’ t call police on Ms. MacIntosh because “ he wouldn ’ t want to cause problems for Ms. MacIntosh. ” He agreed he wouldn ’ t want to be labelled a rat and testify against the accused who is his “ buddy ” . [ 81 ] Mr. Barrett denies talking about Ms. MacIntosh ’ s testimony to any of the witnesses. He does not recall Ms.

Marshall talking about what Ms. MacIntosh said. He acknowledges only asking Ms. MacRury “ how it looks ” , other than that he testified he never talked to anyone. [ 82 ] He agrees if the accused asked him to burn garbage he would. (Ms. MacIntosh testified she cleaned up, threw the candlesticks in garbage. Tom Barrett took the garbage out to the barrel and burned it.) [ 83 ] JODY MARSHALL [ 84 ] Ms. Marshall testified she is best friends with the accused, she has known him for 22 years. She visits him one to two times a week to say, hi, and have coffee. She knows Ms.

MacIntosh having met her once when she came with a friend who was visiting. He left, she stayed, and she eventually asked her to leave as she had to go out. Ms. Marshall never saw her again, nor has she seen her at the accused ’ s house. (Ms. MacIntosh testified Jody and Tom Barrett were at the accused ’ s house and when the accused asked, they returned to take her to the hospital.) She states she was never at the accused ’ s house with Tom Barrett.

She knows nothing about the injuries, and did not take the complainant to the hospital. (Tom Barrett was not asked if he was even at the accused ’ s house when Jody Marshall was there, or if he came to the accused ’ s house with her.) [ 85 ] CROSS EXAMINATION [ 86 ] She admits to being good friends with Tom Barrett, and has acted as surety for both. [ 87 ] She wasn ’ t at the accused ’ s house much last summer. She did not know the accused had a relationship with Ms. MacIntosh. (Accused denies any relationship with Kerri MacIntosh in video statement.) [ 88 ] Ms.

Marshall denies saying anything about what was said in court. She stated the ex-boyfriend was saying “ stuff ” , “ like how crazy Kerri MacIntosh was. ” [ 89 ] Ms. Marshall has visited the accused while in custody, but stated she didn ’ t talk to the accused about this [case] because she hasn ’ t been out to visit him. [ 90 ] CONSTABLE BILL TURNER [ 91 ] Officer Turner was called as a rebuttal witness. He testified that Ms. Marshall was outside the courtroom talking on her cell phone (to persons unknown).

He over heard her say, “ she didn ’ t want to proceed, police talked her into it. ” Three people were in the area, K. Marshall, A. McIntyre, and another male.

[92] HAROLD MACNEIL [93] The accused did not testify, but the statement he gave to the police on September 7, 2011 was entered as an exhibit without theneed of a voir dire. [94] In his statement the accused denies owning any weapons, or possessing any ammunition, suggesting he was set up. And eventhough it was possible the complainant was at his home on the date in question, he absolutely denies assaulting her with a knife orcandlesticks, or threatening her. [95] He stated Ms. MacIntosh would come to his house to drink, but because she was troublesome, he would put her out. He statedthe last time he saw Ms.

MacIntosh was three weeks prior, and she may have come back a week later as she was always coming around,but he put her out. [96] He brings up her past and her associations and denies they were intimate. He is adamant any information she got about hismother came from him and not from overhearing any telephone conversation. He is adamant he did not assault the complainant, KerriMacIntosh. [97] ISSUES 1. Can the court amend Counts 1 to 4 to conform with the evidence as to the date of alleged offences? 2. If so, did the crown prove the accused committed the offences beyond a reasonable doubt? 3.

Count 5 - Is the Weapons Prohibition Order a proper document before the court, as a document under seal or a “certified truecopy”? If so, has this charge been proven beyond a reasonable doubt? [98] CREDIBILITY ASSESSMENT [99] The credibility assessment is really a two part process of determining whether the witness has credibility, and later after the competing evidence is assessed, deciding believability.

Doing so avoids conflict with the SCC decision in Morin, (2008) 53 C.R. (6th)219, that says a trier must not weigh each individual piece of evidence (for example the evidence of a complainant or accused in a sexcase) to the reasonable doubt standard. This also allows the trier to consider the complainant’s evidence for credibility, and then moveonto do the same with the accused’s before testing both for believability. The assessment of credibility has been documented manytimes. Recently, in R. v. Khelawon (ON CA), [2005] O.J.

No. 723 (OCA) Rosenberg J.A. reiterated the need forcircumspection at para. 104: “In Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) At 357 in a classic statement describing the task ofthe tier of fact, O’Halloran J.A. said this: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of weather thepersonal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.” [100] The Supreme Court returned to the subject in R. v. J.H.S. 2008 SCC 30 (SCC) Where Binnie J. for the Court said at para. 8 and9:

“A series of decisions over at least the past 20 years has affirmed and reaffirmed the proposition that where credibility is a central issuein a jury trial, the judge must explain the relationship between the assessment of credibility and the Crown’s ultimate burden to prove theguilt of the accused to the criminal standard. A general instruction on reasonable doubt without adverting to its relationship to thecredibility (or lack of credibility) of the witnesses leaves open too great a possibility of confusion or misunderstanding.” [101] In R v.

Leighton, the Court of Appeal dealt with the possible preoccupation of the trial judge with finding a reason for thecomplainant to lie before rejecting her evidence. In R. v. Johnson 2006 NBQB 348 Rideout J. set out the relevant passages fromLeighton at para. 18: “The issues of the standard and burden of proof seem to have somehow shifted in the mind of the trial judge while he was trying toascertain the reason why she might lie. Since he could not discover an answer in her testimony, he seems to have challenged theappellant’s failure to discover it as fatal.

This shifting of onus, or misdirection of it, is an error in law. The trial judge here was diverted from his task by his pursuit of trying to determine “why the victim would lie”. He adopted a differentstandard with respect to the burden of proof as evidenced by his statement that “...it was never brought out in cross-examination oranything close, as to why the victim would make the story up.” This different standard, in the circumstances of this case, had the effectof shifting the onus onto the accused.

The requirement that the Crown prove the guilt of an accused beyond a reasonable doubt isfundamental in our system of criminal law. Any shift of the onus is a wrong decision on a question of law. Apropos of this, judges instruct juries, where the issue of credibility is crucial, that they are not to select one version of the evidence overthe other, R. v. Nadeau, (SCC), [1984] 2 S.C.R. 570, or to determine which version of the evidence is true, R. v. Riley(1978), (ON CA), 42 C.C.C. (2d) 437 (Ont. C.A.), R. v. K.(F.) (ON CA), 1990, 73 O.R. (2d) 480(Ont. C.A.).” [102] In R. v.

D. (S.) (2007), 2007 ONCA 243 , 218 C.C.C. (3d) 323 (OCA) Rosenberg J.A. made the general observationthat it is impermissible for the trier of fact to assume that an accused will lie to secure his acquittal. Both innocent and guilty accusedhave an interest in not being convicted. A trial judge is in no position to detect the difference based on each one’s interest in theoutcome. [103] In R. v. Boucher 2005 SCC 72 , [2005] S.C.J. No. 73 (SCC) Deschamps J. for the majority said this about W.D. atpara. 29: “With respect, the case at bar was not one to which W.(D.) Applied.

To neutralize the presumption, the judge needed only to have areasonable doubt about the accuracy of the breathalyzer result. The approach set out in W.(D.) is not a sacrosanct formula that serves asa straitjacket for trial courts. Trial judges deliver oral judgments every day and often limit their reasons to the essential points. It wouldbe wrong to require them to explain in detail the process they followed to reach a verdict. They need only give reasons that the partiescan understand and that permit appellate review: R v. Sheppard, 2002 SCC 26.” [104] See also, R v. C.L.Y. 2006 MBCA 124 , [2006] M.J.

No. 398 (MCA) reaffirming the order in which the credibilityassessment of witnesses should take place. In multi-count informations, absent a finding of similar fact evidence as between the counts,the trier must separate not only the evidence of the Crown and weigh each count individually, but must also weigh the evidence from theaccused in the same fashion making credibility assessments of his/her testimony on each count separately. A blanket credibilityassessment on all counts is analytically inappropriate. R. v.

P.E.C. (2004), 2004 BCCA 465 , 189 C.C.C. (3d) 178 (BCCA) perOppal J.A. [105] As well, in assessing the credibility of witnesses the trier must guard against placing too much emphasis on the demeanor of thewitness in arriving at a conclusion with respect to credibility. R v. R.G.L. (ON CA), [2004] O.J. No. 1944 (O.C.A.)And also R. v. F. (S.) (2007), 2007 PESCAD 17 , 223 C.C.C. (3d) 1 (PEISCAD) and also R. v. T.E. 2007 ONCA 891, [2007] O.J. No. 4952 (OCA).

[ 106 ] Mr. MacNeil did not testify, but his statement was admitted into evidence by consent of both parties. [ 107 ] Mr. MacNeil ’ s statement to police falls into two categories. The first category is denial, “ it is difficult to elaborate on a denial. There is nothing inherently untruthful or contradictory in his denial. His statement on its own suggests nothing inherently believable or unbelievable. Mr. MacNeil ’ s evidence must be contrasted with the evidence of Ms.

MacIntosh and all the other civilian witnesses (Adam Frank, Gerard Roberts, Alfred McIntyre, Tom Barrett, and Jody Marshall) to be given its context. It is impossible to give full consideration to the denial without considering it, and testing it in light of the details of the allegation. ” [ 108 ] The second category of the evidence is intended to undermine the credibility of the complainant;

a) she ’ s lying;

b) she ’ s an alcoholic and a troublemaker. [ 109 ] I find all of the civilian witnesses struggled with the passage of time, including the complainant. Kerri MacIntosh admitted she didn ’ t want to testify and send the accused to jail but because of her ex-husband and police, she attended. She did not embellish her evidence, and readily admitted she didn ’ t remember everything, or different things at different times. [ 110 ] Mr. Frank was quite forthcoming when he said he didn ’ t want to have anything to do with this, but when Ms.

MacIntosh said the accused threatened the children, he readily admitted he called the police. [ 111 ] Gerard Roberts and Albert MacIntyre were straight forward in their testimony. Where they could recall they said so. Neither individual had any axe to grind with the accused or the complainant, one way or the other. [ 112 ] Tom Barrett and Jody Marshall were good friends with the accused. Both deny being involved in this alleged offence in anyway.

I don ’ t think either embellished their evidence, and not much turns on the Crown ’ s rebuttal witness testifying Jody Marshall was on a cell phone outside the courtroom telling someone , “ she didn ’ t want to proceed police talked her into it. ” Neither counsel referred to it in their summations.

Some of their evidence supports the accused, some supports the complainant, Kerri MacIntosh. [ 113 ] ANALYSIS [ 114 ] From the evidence the court heard, I make the following findings to construct a time line: 1) The accused statement of September 7, 2011 (at page 10) puts the complainant in his house three weeks prior.

Kerri MacIntosh testified no one was there and the accused, in his statement, says the police can ’ t have source information because no one was at his house; he lives alone. 2) This would put the date of the alleged offence on or about August 17, 2011. 3) It happened over a two day period, then Kerri MacIntosh went to the hospital. This action corresponds with the hospital record dated August 20, 2011. 4) Both the accused, and Kerri MacIntosh say she saw the accused about a week later and then spoke on the telephone.

Kerri MacIntosh also saw her ex-boyfriend, Adam Frank, a few days after the “ alleged incident ” . He called police (because he was told the accused was threatening his kids). 5) Constable Davies first got the complaint on August 29 th (from Kerri MacIntosh ’ s ex-boyfriend). The officer saw Kerri MacIntosh on August 30. He spoke with the accused ’ s mother, and confirmed a telephone call with the accused this week, August 29 or 30 (which

he eludes to when questioning the accused on September 7). 6) Page 13 the accused ’ s statement he says, its possible Kerri MacIntosh came by after he hung up on his mother. 7) September 5, Kerri MacIntosh calls and wants to talk to police because the accused is threatening her family. 8) September 6, Search Warrant executed, the accused was arrested. 9) September 7, Kerri MacIntosh gives statement, the accused gives a statement. [ 115 ] Based on the evidence I heard, I find: 1) Constable Kelly - attended at the accused ’ s home on September 7, 2011, three weeks after the alleged incident.

He took photos (Exhibit #1), barrel and knife were already in position. They were seized. Metal circular stands were also seized. There was no analysis on knives, metal circles (i.e. finger prints/matching). On September 6 he took photos of complainant. Kerri MacIntosh said there was no blood, (thus no photos of blood spatter). 2) Constable Davies - testified upon execution of the search warrant - no firearms were found, bullets (22 and shotgun shells) were seized. The officer received a medial report (but he didn ’ t notice date of August 20, 2011). There is no evidence it referred to bruises on her arms.

He did not examine back yard / barrel, just took photos. There was no forensic analysis of shells in the back yard (fingerprints) / or in house but they are in / on accused ’ s property, no blood, no DNA, no clothing seized and examined, no statement taken from Tom Barrett.

There are no telephone records, 1) to confirm a call to Gerard Roberts from accused to get complainant to hospital, or 2) date of call to / from his mother, no witnesses such as complainant ’ s father, Ray MacIntosh, called to testify about any conversation he may, or may not have had, about his daughter, Kerri MacIntosh, with the accused (particularly the warning the accused said he got from him). Although I note it is crown ’ s burden of proof. 3) No medical report was entered as an exhibit.

There is no expert evidence to link the injury in Kerri MacIntosh ’ s neck with a weapon consistent with such injury (such as a knife seized from the accused ’ s home). 4) With the passage of time, approximately three weeks, evidence was destroyed (candlesticks burnt) according to Kerri MacIntosh, the next day they were burned by Tom Barrett; he denies, but nonetheless they were clearly burned in the barrel in the accused ’ s backyard. [ 116 ] Sometimes a narrative by the complainant is enough to prove the Crown ’ s case.

I think Kerri MacIntosh was doing her best to tell the truth, and remember what happened, but she admits to being in shock, under the influence of alcohol and marijuana, or in a black out. She readily admitted her reasons for a different explanation of her injuries; 1) didn ’ t want the accused to go to jail; and 2) her ex- boyfriend was pressing her regarding her children. It is not unusual for women in these types of situations to deny, recant, or both.

Thus her reluctance / fear resulted in precious time passing before the investigation began, and as a result, and what has happened here is; 1) memories are sketchy; 2) evidence is destroyed, or not gathered; 3) a witness ’ credibility is challenged; 4) there are inconsistencies in testimony. [ 117 ] It is quite obvious Ms. MacIntosh received injuries to her neck and arms, but when it happened, and more importantly who did it, the court cannot say with certainty. [ 118 ] Count 5 - The scene of the alleged crime is the accused ’ s house, by his admission he lives alone and rarely leaves.

[ 119 ] Other than the accused stating in his videotaped statement that someone planted the bullets, there is no evidence to suggest that someone planted the 22/shells in the accused ’ s house, or on his property. There was no issue raised regarding continuity. The Weapons Prohibition Order has been examined by the court, and it is under seal, a proper document of the court. One that the accused was aware of as mentioned in his statement at (p. 4/5) of the transcript.

Ammunition was found in three places: 1) ashtray in the accused ’ s living room 2) Stairwell (underneath) - clearly in plain sight 3) accused ’ s backyard, “ no one is out there burning stuff except him, he sits around, has a few drinks, plays guitar with his neighbours. ” [ 120 ] Based on all of the evidence, I accept the Crown ’ s amendment to count 5 of September 6, 2011 to conform with the evidence, it doesn ’ t put the accused in any greater jeopardy. I find the accused guilty. [ 121 ] Count 1, 2, 3, and 4, I am not convinced beyond a reasonable doubt.

The accused ’ s actions are very suspicious, but I cannot convict on suspicion, therefore I find the defendant not guilty. ________________________________ The Honourable Judge Jean M. Whalen