R. v. Nelson Date:, 2017 BCPC 170

Citation: R. v. Nelson Date: 20170406 2017 BCPC 170 File No: 39800-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT OLIVER NELSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. FLEWELLING Counsel for the Crown: D. Fitzsimmons Counsel for the Defendant: D. Marion Place of Hearing: Campbell River , B.C. Dates of Hearing: December 9, 10 & 15, 2015; March 21 & 22, 2016 April 29, 2016 and November 25, 2016

Date of Judgment: April 6, 2017 Introduction [1] Mr. Nelson is charged with damaging and setting fire to a log loader and Madill 122 grapple yarder that were being used in alogging operation north of Campbell River, B.C., called the Red Baron. He is also charged with damaging a work site Ford ambulance. These events are alleged to have occurred on or about March 7, 2015. [2] Mr. Nelson’s former girlfriend, Ms. Tanya Turner, testified that she was with Mr. Nelson that night; that he told her he wasbeing paid to burn some equipment; that he drove her vehicle to the logging site; and that she saw Mr.

Nelson damage and set fire to theequipment. [3] Crown counsel introduced expert forensic evidence of footwear and tire tread impressions found at the scene. The footprintsare consistent with the type of footwear owned by Mr. Nelson and Ms. Turner. The tire tread marks found at the scene are consistentwith the tread patterns on the tires of Ms. Turner’s vehicle. [4] Two Canadian Classics cigarette butts, the same kind of cigarettes smoked by Mr. Nelson and Ms. Turner, were found at thescene. The results of DNA testing confirmed the presence of Ms. Turner’s and Mr. Nelson’s DNA on the cigarette butts. [5] Mr.

Nelson testified. He denied that he was responsible for these offences and provided an alibi, namely, that he was withAngela Nice at the time. Ms. Nice’s evidence is confirmatory of Mr. Nelson’s alibi. [6] Defence counsel argued strenuously that Ms. Turner was an accomplice and, for other reasons, untrustworthy. Accordingly, hesubmits that I should regard her evidence with great caution and require other objective evidence before accepting her evidence: R. v.Vetrovec, (SCC), [1982] 1 S.C.R. 811. [7] Crown must prove, beyond a reasonable doubt, that Mr. Nelson committed the offences with which he is charged.

Encapsulated within that analysis, I must assess the credibility of the witnesses and, in particular, the weight to be given to the evidenceof Ms. Turner. Defence Evidence Robert Nelson [8] Mr. Nelson was raised in the Campbell River area and is a member of the Cape Mudge First Nation Band. He admits to anextensive criminal record. [9] He met Tanya Turner while she was working as an exotic dancer in Campbell River. He sold her drugs and they began arelationship which he described as consisting of partying and using drugs.

At the time, he was supposed to be serving an intermittentsentence on the weekends but after meeting Ms. Turner, he failed to report and, therefore, described himself as “wanted” by the police. Their relationship, as best I can determine, started around February 3, 2015, and ended on March 10, 2015, the day he was arrested. [10] During their relationship, they stayed at numerous motels in Sayward, Courtenay and as Mr. Nelson put it, “every motel fromhere to Port Alberni” and that was, according to Mr. Nelson, in order to avoid being detected and arrested by the police. [11] Mr. Nelson and Ms.

Turner were using drugs and drinking and he testified that: … Like, I was so screwed up from the drugs and… And the drinking, and I didn't… Half the time, I didn't know if I was coming orgoing, you know. [12] Ultimately, he was located and arrested by the police at the Port Augusta Inn in Comox. About two days prior to that he hadbeen trying to break up with Ms. Turner because he had rekindled an earlier relationship with Angela Nice. [13] Mr. Nelson denied telling Ms. Turner that he was going to burn equipment and testified that he was not even with her that day.

He denied picking up gasoline on the way to the scene and denied that he burned the equipment at the Red Baron. [14] He testified in direct examination that in 2014, he worked for Christopher Fawkes providing fuel for the crew or to fill in ifsomeone didn’t show up for work.

He ran machines, set chokers and would fuel up vehicles. [15] He testified that before the equipment was burned, he had been to the Red Baron site two or three times while working for Mr.Fawkes for the purpose of picking up chain saws, fuelling machines, dropping off gas and jerry cans of gas and oil for the chainsaws. [16] He testified that on two previous occasions he had been with Ms. Turner at another worksite for Mr. Fawkes called the Tlatlos. I understand that this was nearby to the Red Baron site. When asked if he recalled Ms.

Turner being at the work sites and if she came upwith him in a white “crummy” - a four-wheel drive pickup truck - his answer was “yes.” [17] During his direct exam, he was asked if he ever took a car to those work sites (Red Baron and Tlatlos). His response was: I don’t recall but I think I did, I’m almost positive I did. I can’t say for sure to that site. [18] Reviewing the transcript of his evidence, the preceding question related to being at the job site where the equipment was burned- the Red Baron site.

[ 19 ] He then testified that he normally would drive a work truck owned by Mr. Fawkes but during times when he didn’t have this truck, and got called to do something, he would take Ms. Turner’s car. [ 20 ] In cross-examination his evidence was that he was at the Red Baron site three to four times; that when he went to that site in Ms. Turner’s car "everybody was down” and "they were all shutting down because the machine had broke down.” When asked why he went there given that they were shutting down, his reply was that he had to bring fuel for the saws because they were still logging.

By way of further explanation he testified that "they were still continuing to fall and buck and… load and land…” [ 21 ] In cross-examination, he agreed that Ms. Turner’s car was not suited for logging roads and that he had access to proper vehicles such as “crummies” (work trucks) and other trucks although he testified that on some occasions if “they had them” and he didn’t have a vehicle, he would take his own vehicle. When asked when he remembers being at the Red Baron with Ms.

Turner’s vehicle, his response was: “… maybe on Wednesday” and if the (fire) had happened on the 7 th (of March) and he went to jail on the 10 th (of March) it would had to have been just prior. [ 22 ] Mr. Nelson has an alibi for his whereabouts on the evening of March 7, 2015. His evidence was that on March 7, 2015, he had been arguing with Ms. Turner and had left her at the motel. The most specific he could be regarding that location was that it was across from McDonald's. He left and went over to Ms. Nice’s residence around 5:00 p.m. or 6:00 p.m.

He testified that he remembered it clearly and that one of her friends named John was present as well as her sister and children. [ 23 ] He was clear in his evidence that Ms. Nice invited him for dinner that evening and she served sausages. He specifically recollects this because he doesn't like sausages and asked her if she would like to go out to eat. They went to a restaurant in Courtenay. He testified that they had drinks at the bar with Ms. Nice sitting on his right and another lady on his left side who was a nurse who had moved to Vancouver Island from Kelowna.

He recalls being at this establishment for about 1 1/2 hours. [ 24 ] Following that he and Ms. Nice returned to her place and then he asked her if she wanted to go for a ride. They then drove to Campbell River and drove around and had a few drinks. He remembers that it was about 1:00 a.m. when they returned to Ms. Nice’s home. He was able to recall clearly that they took the Old Island Highway because she lived by the Powell River ferry. As he stated in his evidence, they "came back around past Merville and then we came on to the old highway…” [ 25 ] On their way back to Ms.

Nice’s residence, he recalls leaving Campbell River and driving past the Shell station on the highway. His recollection is so clear because he and Ms. Nice were having sex in the car while they were driving down the highway. [ 26 ] As Mr. Nelson described it, he slowed down and was doing 80 km on the highway when a larger luxury car caught up with them. As this other vehicle approached, Mr. Nelson turned on the interior light. Mr. Nelson testified that the driver of the other vehicle slowed down to watch what was taking place inside Mr.

Nelson's vehicle. [ 27 ] His evidence is that he could not have been at the site burning equipment because he was with Ms. Nice the entire evening and did not leave her house until "the birds were chirping.” [ 28 ] He testified that Ms. Turner tried to call him that night but he shut his phone off because he didn’t want her to keep calling him. He testified that when he was outside, he turned his phone on when he wasn't beside Ms. Nice and called Tanya Turner. Angela Nice [ 29 ] Ms. Nice’s evidence was very similar to that given by Mr. Nelson.

She testified that on Saturday, March 7, 2015, she had dinner at her home with Mr. Nelson, her sister and her friend Shawn. She recalls Mr. Nelson arriving around 4:30 p.m. that day and that she made sausages for dinner. Mr.

Nelson complained and didn’t eat them so they went out for dinner to a restaurant in Courtenay. [ 30 ] After dinner, her evidence is that they “cruised” all night going “everywhere.” When asked if she recalled going into Campbell River, her answer was “yes.” She recalled that they left Campbell River “late in the morning.” Her evidence is that as they were speeding along the highway, she was drinking, and they had sex in the car while Mr. Nelson was driving. She points to these events as the reason she remembers the evening so clearly.

Crown Evidence Gerald Galligos [ 31 ] Gerald Galligos is employed as a faller and in March 2015 was employed for Chris Fawkes, owner of Blue Spruce Contracting. He had been working “up the Tlatlos” and near the area of a cut block called the Red Baron. He was shown photographs showing the burned grapple yarder and loader and testified that he recognized the location as being the Red Baron. He testified that where he was cutting down trees was around the bend which can be seen in the photographs behind the burned equipment. [ 32 ] Work ceased for the fallers when the grapple yarder broke down. Mr.

Galligos and his partner left their chain saws in the general area of the grapple yarder and the loader thinking they were going to go back to work there after the grapple yarder was repaired. Instead, they started to work in another block and then were scheduled to go home. [ 33 ] About two or three days after work had ceased, Mr. Galligos and his falling partner drove to the Red Baron to recover their saws. He remembers the day because it was a Sunday and the first day of daylight savings time. It was approximately 3:30 p.m. when they arrived at the site. As they approached, Mr.

Galligos saw smoke and when they arrived at the worksite the grapple yarder was on fire. He also noticed that the operator’s cage, which normally would be on the top of the grapple yarder, was on the ground. He and his partner extinguished the fire. [ 34 ] Mr. Galligos also saw that the log loader was running and his partner entered the cab and turned it off. There was no phone service there so they went back to Sayward and called Earl Graham, the owner of the grapple yarder. Mr. Galligos also gave a statement

to Cst. Hobbs of the Sayward RCMP detachment that day. [ 35 ] Mr. Galligos was wearing inexpensive running shoes that day he had purchased from Walmart although normally, if he were working in the area, he would wear cork work boots. Mr. Galligos testified that his partner was also wearing sneakers. He is a smoker and smoked Players brand of cigarettes. His partner was not a smoker. He knew the employees who operated the log loader and the grapple yarder and they were also smokers but he did not know what brands.

Steven Weiman [ 36 ] In March 2015, Steven Weiman was working for Earl Graham and had operated the 122 Madill grapple yarder at the Red Baron jobsite for about 2 weeks. A grapple yarder is used to drag, or yard, logs onto the landing where they can then be loaded onto a logging truck by the log loader. Occasionally, he would help set the load and block the weight up. [ 37 ] He also had worked previously for Mr. Graham at a nearby area called the Tlatlos site until about the end of February and then worked at the Red Baron site.

The grapple yarder had to be brought in in pieces by way of a low bed and it was assembled at the bottom of a hill approximately 1 km off the highway. The grapple yarder was then driven up the hill. [ 38 ] The grapple yarder had mechanical problems a few months previously and a new engine was placed into it. While he was operating it at the Red Baron, it developed more mechanical problems involving the gears, and he advised Mr. Graham that he could not operate it any longer until it was fixed.

Accordingly, he stopped working at the Red Baron. [ 39 ] When he left the Red Baron site, the log loader was behind the grapple yarder. When shown photographs of the scene depicting the damaged and burnt equipment, Steven Weiman testified that the log loader's location as depicted in the photograph was not where it had been left. He also observed that the cab of the yarder was on the ground and the equipment was blackened and burned. He described that it was not like that when he left the equipment. [ 40 ] He does not smoke and when he is working at the site, he wears Dakota boots with a rough tread.

He never wears his running shoes to work. [ 41 ] He testified that a grapple yarder can sometimes catch fire due to a spark igniting built-up oil and fine sawdust but that in February and March this was not something to be concerned about. [ 42 ] He identified the defendant, Robert Oliver Nelson, and testified that he knew him when Mr. Nelson came to work while they were operating in the Tlatlos jobsite and possibly on another occasion at the Shell station at Willis Road and the Island Highway (Campbell River) to get fuel. He testified that he observed Mr. Nelson setting chokers.

His recollection was that he only saw Mr. Nelson at the Tlatlos site and never at the Red Baron site. He testified that Mr. Nelson introduced himself as Oliver but that Steven Weiman could call him "Bird." Robert Weiman [ 43 ] Robert Weiman is a log loader man and in March 2015, he was employed by Chris Fawkes of Blue Spruce Contracting. At that time, he was the operator of the Madill 3800 - B log loader at the Red Baron worksite. The log loader is owned by Earl Graham.

In early March 2015, work stopped at the Red Baron because the gears in the grapple yarder were not working properly and it had to be shut down in order to prevent further damage to it. [ 44 ] As a consequence, Robert Weiman was not able to load logs and left the Red Baron site. His recollection was that his last day of work at the Red Baron was on a Tuesday. He recalls returning to the Red Baron site about four or five days later to retrieve tools and other personal equipment. When he returned, everything was still as it had been left the day the work ceased.

He testified that on the day the work stopped at the site, he moved his log loader about 200 to 250 feet behind the grapple yarder and on the same side of the logging road in order to allow a self-loader access to the grapple yarder and logs. [ 45 ] The loader used diesel fuel and he tried to ensure that the 500 litre tank in the loader was always full. The fuel was brought up to the jobsite for his loader in either his own pickup or Earl Graham's pickup. He described Mr.

Graham's truck as a white, one- ton Ford Crew Cab. [ 46 ] He testified that a key is needed to start his loader and his standard procedure was to leave the keys on the roof of the equipment. He thought he may have left them in the ignition given that there is generally no public access but, in any event, he would not have taken the keys with him. [ 47 ] Robert Weiman smokes Players Smooth Kings cigarettes and did smoke at the jobsite. When he was at the site and working, he wore work boots; never runners or sneakers. [ 48 ] When asked if he knew the defendant, Mr.

Nelson, he testified that he was only ever introduced to someone by the name of Oliver, never a last name. Before he was working at the Red Baron worksite, he met this individual at a different jobsite called the Tlatlos - never at the Red Baron. He was unable to say that the “Oliver” he had previously met at the Tlatlos was the defendant, Mr. Nelson, who is accused of these offences. [ 49 ] In cross-examination, Robert Weiman was questioned about a statement he made to Cst. Hobbs on March 17, 2015. In that statement, he told Cst.

Hobbs that he recalled an individual named “Oliver” who brought their fuel for a while and some parts. Robert Weiman advised that "Oliver" would buy the fuel when Mr. Fawkes wouldn't answer his phone "which was pretty much all of the time.” [ 50 ] He also told Cst. Hobbs that "Oliver" would buy the fuel sometimes from the native Shell station located at Willis Road in Campbell River. In cross-examination, he testified that on one occasion "Oliver" showed up at the Tlatlos site to work for a few hours as a hook tender.

He agreed that he was upset because, contrary to work safe practices, the man wasn’t wearing boots, only running shoes,

and no visibility vest or hardhat. [ 51 ] He also told Cst. Hobbs that another man and some First Nations people also bought gasoline from Port McNeil and brought it to the site in five gallon jugs. This arrangement took place at the other worksite, not the Red Baron, but the South Tlatlos job. Subsequently, Robert Weiman agreed to work at the Red Baron site only on the condition that he could control the fuel delivery by utilizing Mr. Graham’s pick-up truck and gas card. Joseph Earl Graham [ 52 ] Mr.

Graham has worked in the logging industry for many years and is the owner of the Madill grapple yarder and log loader that were burned and damaged at the Red Baron site in March 2015. He had a contract with Chris Fawkes of Blue Spruce Contracting. Mr. Fawkes had purchased the timber sale and Mr. Graham was contracted by him to yard and load logs. At that time, that was the only logging operation he had going. [ 53 ] Mr. Graham, after being alerted to the situation, went to the Red Baron site on a Sunday and saw that the equipment was still smouldering.

He testified that prior to that Sunday, the crew had been operating on the Wednesday but due to the grapple yarder breaking down as a result of the gears being out of line, no work had taken place on the preceding Thursday and Friday. [ 54 ] He testified that he had not decided whether he was going to remove the machine or to fix it at the site.

Prior to the equipment being damaged, the grapple yarder was worth $500,000 - $600,000 and the loader was worth $25,000 - $30,000. [ 55 ] He testified that as a result of the damage, he would suffer a loss of approximately $500,000 on the grapple yarder and a $10,000 loss on the log loader. He did not expect to recoup that amount from his insurance. [ 56 ] The grapple yarder had been expensive for Mr. Graham. About three or four months prior to the fire, he spent $30,000 putting in a brand new motor.

To repair the grapple yarder after it broke down again due to the gears, the cost to repair that would have been around $40,000 and $50,000. [ 57 ] He testified that he did not set the equipment on fire nor did he arrange to have someone else set the equipment on fire for him. In cross-examination he was asked if he knew the defendant, Mr. Nelson to which he responded "not really, no. No." Tanya Turner [ 58 ] Ms. Turner is the key witness for the Crown. She testified that in March 2015, she had been living on Vancouver Island for about a month.

She worked in Campbell River as an exotic dancer and met the defendant, Mr. Nelson, who she called “Bird,” while she was working. She was candid in her testimony that she met Mr. Nelson initially because she purchased cocaine from him. Both she and Mr. Nelson, in fact, used cocaine together and an intimate relationship developed between them. [ 59 ] Her evidence is that in early March, although she did not remember the exact day, Mr.

Nelson drove her 2012 Chevy Cruze vehicle from Courtenay to a location past Sayward which she described as "in the Bush" for the purpose of burning some machines. [ 60 ] According to Ms. Turner, Mr. Nelson told her of his intentions the day before they went out. Specifically, her evidence is that Mr. Nelson told her that one of his friends, “Chris,” was not able to afford to fix them and wanted him to vandalize his machines so he could claim insurance monies. Chris was supposed to pay Mr. Nelson money to vandalize the machines. Mr. Nelson told Ms.

Turner that he would get her a place of her own with the money that he obtained from Chris. Her evidence is that Mr. Nelson told her that they were going out to burn the machines for someone. She didn't know what kind of machines they were and only knew generally what was going to happen. [ 61 ] They were living together in a motel in Courtenay. She testified that on their way north, Mr. Nelson stopped at a house in Campbell River, picked up gasoline or diesel fuel in jerry cans and put them in the trunk of her vehicle. It was night time.

There was no evidence about what time it was when they left Courtenay. [ 62 ] She described driving north of Campbell River on a highway to a point at which they turned off onto an unpaved road. She described it as "driving up the mountain with the biggest rocks" and that her car was “bottoming out.” [ 63 ] When shown the photographic exhibits of the scene, she recognized them as the location they went to and the machines that were damaged and burned. [ 64 ] Her evidence is that when they arrived, the equipment (grapple yarder and log loader) were neatly parked.

They parked down the hill from the equipment and uphill from an ambulance which had been parked on the side of the road. Her evidence is that Mr. Nelson walked up to the machines and started them. She described that he retrieved the fuel and at Mr. Nelson’s request, she gave him her lighter and watched him walk back up the hill while she remained by her vehicle. [ 65 ] According to her, she saw Mr. Nelson start and move the loader, which she described as the machine with the claw, and began moving it around and smashing things.

She also described the other machine (the grapple yarder) as the one with the tower and that Mr. Nelson grabbed it with the loader and pulled it down. She couldn't see exactly what was going on because the lights from the machines were bright and shining towards her. She described seeing “that big tower thing was knocking (sic) over and he smashed some stuff and then he put some gas on it and lit it…”.

During this time, her evidence is that she remained near where her car was parked. [ 66 ] She described seeing a small amount of flame and then they left in her car. [ 67 ] She also testified that, using a rock, Mr. Nelson smashed a window in the ambulance parked on the logging road. [ 68 ] She described feeling mad and terrified and wanting to get out of there. She was mad because she was involved in a crime, had

never been involved in anything like that previously and described it as scary. When asked why she participated, she testified that Mr. Nelson had asked her to come with him; that Mr.

Nelson was her boyfriend; and that she was “kind of along for the ride I guess, made a bad choice.” [ 69 ] She described the return trip as much faster going down because they “were going down so fast to get out of there that we were kind of like all over the road.” She described her car “bottoming out” and she was frightened. [ 70 ] After they got back to the highway, she went back to Courtenay. [ 71 ] Following the report of this incident, the RCMP executed a search warrant at Ms. Turner's residence. In addition to seizing her car, a pair of men's beige Supra size ten and one-half running shoes were seized.

Those shoes were found in a box described as a grey/navy-white shoe and size ten and one half. A pair of size ten and one half Supra grey/navy-white shoes were seized from Mr. Nelson’s prisoner effects. Photographs of both pairs of footwear were in evidence and Ms. Turner identified them both as belonging to Mr. Nelson.

She could not remember what kind of shoe he was wearing when they were at the site where the equipment was damaged and burned. [ 72 ] She also testified that a pair of her shoes - size seven and one half DC running shoes - were seized by the police, and she agreed that the photographs in evidence were of her shoes. She testified that she knew they were hers because the police took them off her feet when she was detained. [ 73 ] Her evidence is that at the time this occurred, both she and Mr. Nelson smoked Canadian Classics cigarettes.

She identified photographs 47, 48 and 49 of Exhibit 1 as photographs of the interior of her vehicle, the one that was driven by Mr. Nelson to the Red Baron. She agreed that those photographs accurately showed, among other things, a package of Canadian Classics cigarettes in the side pocket of the door and that they belonged to her. [ 74 ] She gave a number of statements to the police. She agreed that Cst. Neveau told her that she was just a witness. She also agreed that she had called legal aid but had been told that since she was not charged, she did not qualify for legal advice.

She agreed that she was told that footprints were found at the scene that might be hers and Mr. Nelson's. She agreed that she was told that she could be a suspect. [ 75 ] Ms. Turner was subjected to a long and thorough cross-examination. She agreed that a number of statements and aspects of her statements to the police were not true.

For example, during one statement, she told the police that when they showed up she was "blown away" but agreed that she knew he was doing drugs and according to her evidence, drove up the mountain and burned down equipment. [ 76 ] It was put to her on a number of other occasions that what she told the police was not true. Another example was that when she was asked to tell the police about the events on Saturday, in her statement she stated that she didn't know “what that was all about…” She agreed in cross-examination that she did know what it was all about and her earlier statement was a lie.

Her response was that she was afraid to tell and was afraid to be a "rat." [ 77 ] She was also shown a portion of her statement in which she said "I have nothing to hide." It was put to her that in fact she did have a lot to hide and that she was not telling the truth. Ms. Turner responded by saying that she was trying to tell the truth but that she did not disclose to the police, at that time, the full details of what had happened because she was afraid. She agreed that she was hiding something. [ 78 ] At another point in her statement she was asked by the police if Mr.

Nelson said anything about where they were going or when they were going. She admitted in cross-examination that her answer that they just went "cruising" and that she didn't know where it was (that they were going) was not true. She agreed that she was trying to hide something from the police and she was afraid. [ 79 ] Another passage from her statement was put to her in cross-examination in which she stated "I don't even know why we went is the thing" and "I am kind of glad I don't know that much, you know" and later in her statement she said: … we… just went up there and I don't know why he did it.

I mean there is obviously a reason for it, but that's… I have no idea why. [ 80 ] She agreed that she, again, was not telling the truth to the police and that she was afraid. [ 81 ] There were other instances in which the cross-examination of Ms. Turner focused on aspects of her statements to the police which were not completely accurate or truthful but which were, in my view, not material. [ 82 ] Much of the cross-examination centred on the assertion that Ms. Turner was co-operating with the police and, in exchange, would be treated as a witness rather than as a suspect. Ms.

Turner agreed that she was told by the police that she was a witness, not a suspect, but was never shaken in cross-examination regarding her evidence that there was no arrangement or deal made with the police in exchange for her providing evidence. [ 83 ] It was also put to her in cross-examination that the night before Mr. Nelson's arrest, she had concluded that he had a girlfriend. She agreed that she was angry with him and felt betrayed. She disagreed that she wanted to get back at him.

She agreed that they were fighting the day he was arrested at the motel and one of the reasons was that she thought he was seeing someone else. [ 84 ] She denied that she had ever been at a worksite with Mr. Nelson in her car or any other vehicle other than the day they went up the mountain when the equipment was burned. [ 85 ] In cross-examination Ms. Turner denied the assertion that she was not with Mr. Nelson at the scene and only found out about it later. Cst. Hobbs

[ 86 ] On March 8, 2015, at 8:00 p.m., Cst. Hobbs met with Mr. Earl Graham who had reported that his logging equipment had been damaged and burned while on a work site called the Red Baron. The equipment was a 122 Grapple yarder and a log loader. The loader had been used to topple over part of the grapple yarder and both had been burned. In addition, the windows of an on-site ambulance had been smashed. [ 87 ] Cst. Hobbs went to the area north of Sayward, to the Eve River rest area and logging road to the top of the Red Baron Mountain.

He parked below the ambulance and walked the remainder of the way up to the site. He could smell burnt oil and diesel and could see that the yarder had a torn chassis and was still on fire. [ 88 ] The next day he returned with Sgt. Massey. [ 89 ] As part of a Production Order, Cst. Hobbs obtained records of cell phone transmissions relating to a cell phone number associated to Mr. Nelson. Those records were not admitted as evidence at this trial. In cross-examination, Cst. Hobbs agreed that on March 7, 2015, at 23:43:33 hours, a phone call was made from the number associated to Mr.

Nelson to a number associated with Ms. Turner. That phone call was 36 seconds in duration. He further confirmed that at 23:50:15 hours, a 48 second call was made from the number associated with Mr. Nelson to a number associated with Ms. Turner. [ 90 ] The records obtained by Cst. Hobbs indicated that both telephone calls emanated from a cell tower located at 600 Dogwood Street, Campbell River. Cst.

Hobbs gave evidence that when a cell phone call is made, it will ping off the closest tower which likely was 600 Dogwood St. [ 91 ] Those records also indicated that during the evening of March 7, 2015, there were not many phone calls. In contrast, between midnight on March 6, 2015, to March 10, 2015, approximately forty-seven phone numbers could be identified, none associated to any known number connected to Earl Graham. [ 92 ] Based on that, plus the other evidence that was gathered, the RCMP came to the conclusion that the fire and damage likely occurred sometime during the evening on March 7, 2015.

The Forensic Evidence Sgt. Massey [ 93 ] Sgt. Massey has been a Forensic Identification Specialist with the RCMP since 1998. She is currently the supervisor at the Campbell River Forensic Identification Section. Sgt. Massey was qualified to give expert opinion evidence with regard to the comparison of footwear impressions and identification and tire impressions and identification. [ 94 ] She testified that when conducting a comparison, she can reach four different conclusions. 1. She could decide that the results were inconclusive and there was just not sufficient evidence. 2.

She could conclude that the particular footwear could not have made the particular impression (exclusion). 3. Alternatively, she could conclude that the impression was similar to or could have been made by the particular footwear which would include a population of potential sources of other shoes of similar outsole design. 4.

Lastly, she could conclude that the footwear impression was made by a particular shoe as a result of the sole design characteristics as well as accidental features such as particular cuts, gouges, etc. that are seen in both the crime scene impression as well as the actual shoe. [ 95 ] She was contacted by Cst. Hobbs in relation to this matter. She travelled with Cst. Hobbs to the scene the next day on March 9, 2015. The delay was to allow the equipment to cool off. [ 96 ] Upon arriving at the scene, Sgt. Massey photographed the scene generally and, in particular, the damaged loader and grapple yarder.

Her evidence, and the photographs, clearly show that the operator cage of the grapple yarder had been knocked off and was lying on the ground beside it. The Madill loader was stopped at an angle blocking the logging road and also situated beside the grapple yarder. The cage and metal that would have formed the cab of the grapple yarder were near to and underneath the arm of the loader. The arm of the loader which was nearest the grapple yarder was black from smoke and fire damage.

The grapple yarder appeared to be more extensively damaged by fire in particular, the tower and the main body and tracks of the piece of equipment. [ 97 ] She located and photographed a number of footwear impressions as well as tire impressions. She also located, photographed and seized two Canadian Classics cigarette butts. [ 98 ] Sgt. Massey observed tire impressions in the vicinity of the damaged equipment. She described the tread as having a central tread element rib that ran down the centre of the tire impression and then V-shaped tread elements running out to the sides of the tire from the central element.

Commencing in a methodical manner starting from slightly downhill of the scene and progressing beyond the scene, she identified the first tire impression located on the left side of the logging road and some distance before the equipment. [ 99 ] On the right side of the logging road and across but slightly forward of that tire impression, Sgt. Massey located and photographed a footwear impression. She identified the particular tread pattern as being consistent with a shoe made by or manufactured by DC Shoe Company or DC Shoe USA Company.

She testified that it is a fairly common type of footwear impression that she sees and she recognized the elements immediately. That was the only location at which she observed this particular footwear impression. [ 100 ] Sgt. Massey worked her way up on the right side of the logging road towards the burned equipment and beyond. As she did so, she observed footwear impressions in the mud on the right side of the logging road. She also was able to take footwear impressions from inside the cab of the log loader. In total, she obtained twelve footwear impressions.

[ 101 ] She observed and recovered a Canadian Classics cigarette butt on the right side of the logging road and a short distance before the burned cage. [ 102 ] She also located a tire impression with the same pattern which, in part, ran underneath the cage of the grapple yarder that was laying on the ground. [ 103 ] She also located a similar tire impression on the left side of the logging road that was slightly beyond the equipment and thus slightly uphill from it.

A short distance beyond this tire impression she located and recovered a second Canadian Classics cigarette butt. [ 104 ] All three tire impressions had similar characteristics of tread design and Sgt. Massey was of the opinion that they originated from the same vehicle. [ 105 ] On March 13, 2015, upon learning that the defendant, Mr. Nelson was in custody, pursuant to a search warrant she seized a pair of size ten and one half Supra shoes from Mr. Nelson's prisoner effects. She also received a pair of size seven DC shoes from Cst. Neveau who had been assisting in the investigation.

They had been seized from Tanya Turner. [ 106 ] On the same day, a pair of size ten and one half beige Supra shoes were also turned over to her following the execution of a search warrant. Those shoes were inside a shoebox. A photograph of the shoebox indicates a description of a shoe which is grey/navy and white in colour. The shoes seized from Mr. Nelson's prisoner effects are grey and navy with white along the edge of the soles. The soles of the Supra shoes seized from Mr. Nelson's prisoner's effects are red on the bottom compared to beige soles on the bottom of the Supra shoes found in the shoebox.

Other than that, at least based on the photographs in evidence, the sole pattern appears to be the same for both pairs of shoes. [ 107 ] Out of the twelve footwear impressions, Sgt. Massey excluded one footwear impression which was uphill or beyond the site of the damaged equipment. She testified that it was a different outsole design and was likely a boot type of footwear. A second footwear impression did not contain enough detail to allow her to compare it to actual footwear. [ 108 ] She was able to reach an opinion with regard to the remainder of the foot impressions.

In her opinion, the first footwear impression located downhill of the equipment and to the right of the first tire tread impression could have been made by a size seven DC shoe that was seized from Tanya Turner. [ 109 ] Sgt. Massey performed a physical evidence comparison report in relation to the footprint impression on the cardboard that was found under one of the pedals in the cab of the log loader. The protocol is that the evidence and the report are reviewed by a peer investigator.

If the peer disagrees with the conclusions reached by the primary investigator, it will be reviewed by a supervisor and potentially a board of three examiners. [ 110 ] That was not necessary in this case. [ 111 ] Based on the results of her analysis and observations, Sgt.

Massey formed the opinion that the footwear impressions located on the right side of the logging road (Location Markers C, D, E, F and G); on the floor inside the cab of the log loader; on the metal frame beside the glass windshield as well as on a piece of cardboard underneath a foot pedal, could have been made by either of the two pairs of size ten and one half Supra shoes. [ 112 ] On March 13, 2015, she executed a search warrant to obtain photographic evidence, physical evidence and tire impressions from a white Chevy Cruze bearing BC license plate 209TMH registered to Tanya Turner. [ 113 ] Contained on an inside pocket on the passenger side of the vehicle, she located a package of Canadian Classics cigarettes which match the brand of the two cigarette butts found at the scene of the fire. [ 114 ] Sgt.

Massey testified that Ms. Turner's vehicle had Goodyear Assurance mud and snow tires on all four tires. She took a photograph and then a test impression of the right rear tire to compare to the three tire impressions she observed at the logging road scene. Her opinion is that they were of similar tread design and size to the Goodyear Assurance mud and snow tires on Ms. Turner's Chevy Cruze or with other tires of similar tire tread design. [ 115 ] In cross-examination, Sgt. Massey agreed that she could not determine how long any of the impressions have been in the mud.

In relation to the Chevy Cruze, she did not know the amount of ground clearance it had but did note a "bit of damage in the undercarriage of the front of it." She also admitted that because she was not able to take a full width impression of the tire marks, she was not able to determine if they were the same width as the tire that was on Ms.

Turner's Chevy Cruze but neither could she definitively exclude them. [ 116 ] She agreed that there could be thousands of tires with this particular tread design. [ 117 ] Cross-examined about the footwear impressions, she testified that she was able to form an opinion with regard to size because she had an impression (for example, impression F4) detailed enough to include both the sole and the heel and she was, therefore, able to form an opinion with regard to similar size as well as outsole design.

That particular footwear impression was obtained on the right side of the logging road closer to the damaged equipment. [ 118 ] She also agreed in cross-examination that there may have been other manufacturers making a similar outsole design as was seen in the Supra footwear. She agreed that the foot impression on the piece of cardboard under the pedal in the loader was only partial and as a result she could not determine the size from that small a portion. Similarly, she could not say when that footwear impression was made.

She agreed that that specific impression could have been made before the damage was done to the equipment; that it could have been placed there after the damage was caused to the equipment or that it occurred at the time the equipment was being damaged. [ 119 ] She also agreed that with respect to both the footwear and tire impressions there may have been accidental characteristics that

were not visible in the crime scene impressions. [120] She also agreed that the tire design she found at the scene could have been made by Goodyear Assurance or anothermanufacturer. Admissions [121] Counsel has admitted the results of DNA profiling from DNA extracted from the two cigarette butts recovered at the scene. [122] It is agreed that the DNA profile on the first cigarette butt matches that of Tanya Turner. [123] It is also agreed that the DNA profile on the second cigarette butt matches that of the accused Robert Nelson as well as TanyaTurner. Is Ms.

Turner a “VetrovEc” Witness? [124] One of the most important issues was in relation to the evidence of Ms. Turner and whether or not she should be treated as a“Vetrovec” witness. Defence counsel strongly submits that Ms. Turner is not a reliable witness. She had motivation to lie about Mr.Nelson's

part in the offence. She was angry at him for being unfaithful to her. She was, in various portions of her statements to thepolice, untruthful. She is, it is argued, an accomplice by virtue of her evidence that they went to the scene in her car and she passed alighter to Mr. Nelson before he started the fire. Finally, it is argued that she is also an “unsavoury” witness based on her lifestyle, and Ishould view her evidence with extreme caution. [125] Counsel for Mr. Nelson argues that I should not accept her evidence.

Furthermore, in keeping with that approach, I shouldreview all the evidence to determine if there is objective evidence supporting her version of events. [126] I have reviewed the case law provided by counsel and I derive from those authorities the following general principles: • There may be situations in which the trial judge may warn and direct a jury to look for some confirmatory evidence of a witness’testimony before relying upon the evidence of a witness who plays a central role in the case against an accused. • That situation may include a witness who may be suspect or potentially untrustworthy by reason of being an accomplice orcomplainant or of disreputable character such as having a record for perjury (R. v.

Vetrovec, supra). • There is no special or rigid category for “accomplices” or for this category of witness. • The nature of the evidence that would tend to be confirmatory would be independent and does not necessarily have to implicate theaccused (R. v.

Khela, 2009 SCC 4 , [2009] 1 S.C.R. 104). • The evidence should, when viewed in the context of the case as a whole, provide some comfort to a jury that the witness can betrusted in her assertion that the accused is the person who committed the offence (Khela, supra, para. 42). [127] An example in which a special warning was given to a jury involved a witness who was directly involved in trafficking andsmuggling heroin into the United States and Canada and carried six pounds of heroin on his person (Vetrovec).

Another exampleinvolves witnesses who had lengthy criminal records and who were also members of a prison-based gang (Khela). Lastly is an exampleof a witness who testified against an accused in exchange for having a murder charge against him dropped and who had a perceived self-interest in giving the incriminating evidence (R. v. Willier, [2013] BCCA 214). [128] However, a witness who had lied under oath in a previous trial about a matter unrelated to the charges in the current proceedingdid not require a special warning (R. v.

T.L., [2003] NSCA 44). [129] I accept that where a single witness plays such a central role in incriminating an accused, that witness’ evidence should alwaysbe carefully scrutinized in the context of all the evidence. In the present case, Ms. Turner does not have a criminal record. The fact thatshe worked as an exotic dancer at the material time, used drugs and began an intimate relationship very quickly with Mr.

Nelson does notfall into a category of someone who has led a "remarkably disreputable" life. [130] I have considered whether or not the untruthful statements given to the RCMP would be sufficient to require that a Vetrovecwarning be required. In my view, they are not. I make that decision based, in part, on my assessment that she was untruthful in partbecause she was trying to protect Mr. Nelson, at least initially, and also, in part, because she was afraid.

Furthermore, the untruthfulstatements were not so egregious, either viewed individually or taken as a whole, to warrant such an approach. [131] Accordingly, I do not find that Ms. Turner is what is commonly referred to as a “Vetrovec” witness. Analysis [132] Notwithstanding this finding, Ms. Turner's evidence is of central importance in my determination of Mr. Nelson's guilt orinnocence, and I am mindful that credibility is a central issue that I must consider. [133] Her version of events is completely inconsistent with Mr. Nelson's version of the events on March 7, 2015.

I am mindful that Imay not simply choose the evidence of one witness over another and that it is not a credibility contest between the defence evidence orthe Crown's evidence. [134] In approaching my determination, I remind myself of the test set out in R. v. W.(D.), (SCC), [1991] 1 S.C.R.742. If I believe the evidence of Mr. Nelson then I must acquit. Even if I do not believe Mr. Nelson’s evidence, but his evidence leavesme with a reasonable doubt or if I do not know whom to believe, then I have a reasonable doubt and must acquit. Finally, even if I am

not left with a reasonable doubt by the evidence of Mr. Nelson, I must still ask myself whether, on the whole of the evidence, I am satisfied beyond a reasonable doubt that Mr. Nelson is guilty. [ 135 ] For a number of reasons, I do not accept Mr. Nelson’s evidence that he had taken Ms. Turner in her car or in another work vehicle to the Red Baron work site prior to the equipment being damaged and burned. The evidence of Steven Weiman is that he observed Mr. Nelson only at the Tlatlos site, not the Red Baron. Furthermore, he did not give any evidence that he had seen Ms.

Turner at the Tlatlos or the Red Baron work site. I expect that had Mr. Nelson taken Ms. Turner to either of those work sites, it would have been unusual enough that her presence would have been remembered by the witnesses. [ 136 ] Robert Weiman’s evidence that an individual by the name of “Oliver” who brought fuel, worked at the Tlatlos site not the Red Baron. Robert Weiman was not able to say that Mr. Nelson was the individual named “Oliver” but I note that it is consistent with Steven Weiman’s evidence that Mr. Nelson introduced himself as Oliver.

The work that “Oliver” was doing is consistent with the duties that Mr. Nelson testified to, namely, bringing fuel. [ 137 ] Mr. Nelson at first testified that he wasn’t certain that he had brought Ms. Turner’s car to the Red Baron but changed this evidence following additional questioning in direct examination. He was vague in much of his evidence about precisely when he says he was at the Red Baron or the Tlatlos work sites with Ms. Turner and could only offer, in direct examination, that he was at the Tlatlos site with Ms. Turner twice. [ 138 ] Mr. Nelson testified that when he was at the Red Baron with Ms.

Turner and her car, it would have been just before March 7, 2015, the day it is thought the equipment was burned. He testified in cross-examination that when he was there with Ms. Turner, the equipment was down. However, he said he was there to bring fuel. When challenged on cross-examination about why he would bring fuel to the site when the equipment was down, he offered the explanation that the fallers were still working and he was bringing fuel for chain saws. He also testified that they were still loading at the Red Baron site. [ 139 ] However, Mr.

Galligos testified that when the grapple yarder stopped working, they stopped falling and he and his partner left their chainsaws in the area. I accept Mr. Galligos’ evidence on this point as he is a disinterested witness and was forthright in his evidence. Furthermore, Mr. Robert Weiman, who operated the log loader, testified that when the grapple yarder was shut down, he stopped loading. I also accept his evidence on that point. [ 140 ] There were other inconsistencies in Mr. Nelson’s evidence.

In direct examination he testified that he had been at the Red Baron two or three times yet in cross-examination, it was three or four times. I expect that had he been at the Red Baron that many times, he would have been seen by Steven Weiman or Robert Weiman. [ 141 ] Mr. Nelson’s alibi is that he had Ms. Turner’s car and was with Ms. Nice the entire evening of March 7, 2015. Ms. Nice also testified that he was with her the entire evening. They both have a very clear recollection of the events that evening including details such as what time he arrived for dinner, what Ms. Nice had made for dinner and in Mr.

Nelson’s case, details of a conversation he had with a woman sitting beside him at a restaurant in Courtenay. He was even able to recall where this woman was from. Ms. Nice was able to recall what Mr. Nelson ordered for a meal at the restaurant. [ 142 ] I contrast this very clear recollection with Mr. Nelson’s vague recollection when asked how long he had been working for Mr. Fawkes in a supervisory capacity which involved paying the workers with cash or giving them cheques. He was not sure about the time frame when he was at the Red Baron site when working for Mr. Fawkes.

He could not recall with any certainty when he was at the Red Baron site with Ms. Turner’s car or when she got a tattoo that said “Bird.” He could not recall when he went to Merritt with Ms. Turner. [ 143 ] I also contrast that with the evidence of both Mr. Nelson and Ms. Nice when asked about what they did after the dinner at the restaurant. They were only able to say that they drove to Campbell River and drove around or “cruised” all night. [ 144 ] Neither Mr. Nelson’s evidence nor Ms. Nice’s evidence leaves me with a reasonable doubt. [ 145 ] I have also considered Cst.

Hobbs’ evidence that he obtained records indicating that two brief calls were made, apparently, from a number associated with Mr. Nelson to a number that was associated with Ms. Turner just before midnight on March 7, 2015. [ 146 ] Counsel for Mr. Nelson argues that this is evidence that is consistent with Mr. Nelson’s alibi in that it is highly unlikely that he would have called Ms. Turner if they were together that evening. On the other hand, Crown counsel argues that the evidence should be accorded very little weight and that Cst.

Hobbs is not an expert in interpreting cell phone transmission records. [ 147 ] What is important about Cst. Hobbs’ evidence is that he understood that the calls emanated from a cell phone tower on Dogwood Street in Campbell River. His evidence was that when cell phone calls are made they will "ping" to or from the closest cell phone tower. [ 148 ] I accord little weight to this evidence. There is no evidence that the cell phone number apparently associated to Robert Nelson was a cell phone that he had in his possession on the evening in question. I also note Mr. Nelson’s evidence that Ms.

Turner had tried to call him that night while he was with Ms. Nice. It seems to me if that were the case, there should have been some evidence of an incoming call from Ms. Turner’s cell phone number to Mr. Nelson’s cell phone. There was no such evidence and in fact the evidence from Cst. Hobbs was that Mr. Nelson’s cell phone was very quiet that evening. [ 149 ] Furthermore, if I accepted Cst. Hobbs’ evidence that a cell phone call emanated from a tower on Dogwood Street in Campbell River, it could have been made anywhere in the surrounding area.

I am of the view that this evidence requires someone with expertise in telecommunications and specifically cell phones and cell phone towers. For all these reasons, this evidence carries very little weight although I do consider it, but within the context of all the other evidence. [ 150 ] I have very carefully considered the evidence of Ms. Turner particularly in light of her admission that she was angry with Mr. Nelson. I also acknowledge that there were a number of portions of her statements to the police in which she was not truthful but, as

stated earlier, that is ameliorated by the fact that, at least initially, she was attempting to protect Mr. Nelson and did not want to disclose all the details of what she alleges had occurred on March 7, 2015, at the Red Baron. [ 151 ] It is well known and accepted that assessing a witness’ credibility by virtue of demeanour alone is fallible and inherently unreliable. That being said, Ms. Turner gave her evidence in a straightforward, forthright manner even when subjected to a long and thorough cross-examination.

In my view, her evidence about what happened during the evening of March 7, 2015, was not shaken in cross-examination. [ 152 ] There is also considerable circumstantial evidence that supports and is consistent with Ms. Turner's version of events. [ 153 ] The tire impressions found at the scene are consistent with the tire pattern on Ms. Turner's car, and the footprint impressions are consistent with the footwear she wears and which she says was wearing that night.

Those footprints were found in a location near to the first tire tread impression but not directly in and around the damaged equipment which is consistent with Ms Turner’s evidence that she remained near the car while Mr. Nelson damaged the equipment. [ 154 ] Additional footwear tread impressions obtained from the scene are consistent with the tread patterns on the footwear seized from Mr. Nelson while he was in custody following his arrest. [ 155 ] Lastly, the two Canadian Classics cigarette butts found at the scene contained DNA from Mr. Nelson and Ms. Turner. [ 156 ] When coupled with Ms.

Turner's evidence, this evidence adds up to an overwhelming case for the Crown. [ 157 ] The partial footwear impression that was found under the pedal in the loader and inside the cab, and which matched the footwear impressions found leading up to the equipment, was compelling circumstantial evidence. They were also consistent with the tread pattern on Mr. Nelson’s footwear which had been seized from his prisoner effects. None of the other witnesses who testified and who worked at the Red Baron wore running shoes at the worksite with the exception of Mr. Galligos.

He wore running shoes, but he arrived at the scene after the equipment had already been damaged and burned. [ 158 ] Those witnesses were also asked if they smoked. Of those who did smoke, none smoked Canadian Classics. [ 159 ] I have considered the evidence in cross-examination of the forensic expert, Sgt. Massey, that she could not determine how long the impressions had been at the scene nor could she specifically state that Ms. Turner's tire or Mr. Nelson’s footwear made the impressions. [ 160 ] Mr.

Nelson attempted to provide another explanation for the presence of the tire and footwear impressions as well as the cigarette butts by giving evidence that he and Ms. Turner had been at the Red Baron site on other occasions and prior to the time the equipment was burned. For reasons indicated earlier, I do not accept Mr. Nelson’s evidence on that point. [ 161 ] After considering the evidence of all the witnesses including the circumstantial evidence obtained from the scene by Sgt. Massey, I find that the Crown has proven the offences beyond a reasonable doubt. [ 162 ] Accordingly, I find Mr.

Nelson guilty on all counts.