R. v. Burgess, 2015 NSPC 47

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Burgess 2015 NSPC 47 Date: July 31, 2015 Docket: 2412884 Registry: Halifax Between: Her Majesty the Queen v. Vanessa Burgess TRIAL DECISION Judge: The Honourable Judge Anne S. Derrick Heard: April 20, 21, 22, 23, 24, 27, 28, May 11, June 17, 18 and 26, 2015 Decision: July 31, 2015 Charges:

section 236 (

b) of the Criminal Code . Counsel: Susan MacKay and John T. Martin, for the Crown Joel Pink, Q.C. and Nasha Nijhawan, for Vanessa Burgess By the Court: Introduction – The Basic Facts [ 1 ] On the evening of July 20, 2011, David Burgess fell down a steep set of basement stairs in his home. Six days later he died. The cause of death was a blunt force injury to his head. ( Exhibit 14, Medical Examiner Certificate ) When Mr. Burgess went down the stairs only he and his daughter, Vanessa, were at home. On January 26, 2012, Vanessa was charged with manslaughter in Mr. Burgess’ death. [ 2 ] Vanessa testified at trial.

She described her father as drunk and obnoxious on July 20, 2011. According to her evidence, he mercilessly hounded her during the day until she decided she needed to leave the house and get away from him. In the course of doing so, and with her father being physically aggressive, Vanessa says she “pushed him off” her so she could leave the house and because she feared he was about to harm her. A very short time later she noticed her father had fallen down the basement stairs. [ 3 ] Vanessa testified that her father was not obviously injured by the fall and was still able to berate her.

She tried to get him back up the stairs but when this effort failed, she helped him lie down at the foot of the stairs. Soon afterwards her mother, Lynda Burgess, came home. Vanessa testified that when her mother went to the bottom of the basement stairs where her husband was lying, she reacted with fury and disgust at his condition – he had vomited and lost control of his bowels - and violently kicked him in the head. [ 4 ] Vanessa understood that in accordance with her mother’s wishes, she was to leave her father where he was lying and there he remained until the next day when Mrs.

Burgess returned from work in the late afternoon and called 911. Mr. Burgess was taken to the hospital around 4 p.m. on July 21. The Positions of the Parties [ 5 ] It is the Crown’s position that Vanessa Burgess, reacting to her father’s verbal harassment of her on July 20, pushed, shoved or threw Mr. Burgess down the steep basement stairs at the family home causing him to sustain an ultimately fatal head injury. The Crown says that Vanessa’s description of the events surrounding Mr. Burgess’ fall and her claim that her mother delivered a vicious kick to Mr.

Burgess’ head should be rejected and that any suggestion Vanessa’s actions were in self defence has no air of reality. [ 6 ] Vanessa says her physical contact with her father did not send him to the bottom of the basement stairs. It is her evidence that she made physical contact with him only in the form of a slight push, because she feared he was going to harm her, and that what led to Mr. Burgess’ death was Lynda Burgess kicking him in the head.

A Broad Canvas of the Evidence [7] In the immediate aftermath of Mr. Burgess’ fall, Vanessa spoke with and texted various people. She had a telephone conversationwith her brother, Jonathan Burgess, on the night of July 20. Starting on July 21, she had text exchanges and conversations with friends:James Frampton, Samantha Robson, and Tara MacDougall. She had also spoken with Mr.

Frampton during the day of July 20. [8] Another person Vanessa texted with was her cousin, Erin Crocker, who lived with her parents, Christine and David Crocker. [9] Vanessa gave two statements to the police – on the evening of July 22, 2011, after being arrested for aggravated assault, andthrough the afternoon and into the evening of January 25, 2012, after her arrest for murder. On July 22, Vanessa was primarilyquestioned by D/Cst. Craig Upshaw and on January 25, by Cst. Stewart, employing a “good cop” routine, and Sgt.

Carlisle, who acted asthe “bad cop.” Her statements were admitted into evidence by consent. [10] Police attended the home on July 29 to document the scene. A forensic investigator took photographs and a video and collectedpreliminary samples from marks and stains. None of the samples were analyzed and no trace evidence was produced from the scene. [11] Lynda Burgess was not called as a witness by the Crown.

No statements or utterances by her were introduced into evidence. [12] Vanessa testified in her own defence. [13] I will be reviewing in considerable detail what Vanessa said in her trial testimony, her text messaging and conversations, and herstatements to police. What Vanessa has said and when she said it and what she did not say is evidence that is highly relevant to theassessment of reasonable doubt. The Issues [14] The manslaughter charge against Vanessa rests on it being proven beyond a reasonable doubt that Mr.

Burgess’ head injuries werecaused by a fall down the stairs and that Vanessa caused him to fall by unlawfully assaulting him. Vanessa is entitled to be acquitted ifher evidence that Mrs. Burgess violently kicked Mr. Burgess in the head leaves a reasonable doubt about how Mr. Burgess sustained hishead injuries. Even if I find beyond a reasonable doubt that there was no kick to the head and Vanessa pushed her father, I still have to besatisfied beyond a reasonable doubt that Vanessa was not acting in self-defence.

The Presumption of Innocence and Proof Beyond a Reasonable Doubt [15] It is not the responsibility of Vanessa Burgess to demonstrate, establish, or prove her innocence or to explain away the allegationsmade against her. She is presumed to be innocent until proven guilty beyond a reasonable doubt. The Crown bears this onus throughoutthe trial and it never shifts. [16] If the Crown fails to satisfy its burden of proof, then Vanessa must be acquitted. [17] The onus resting upon the Crown to prove Vanessa’s guilt beyond a reasonable doubt is inextricably linked to the presumption ofinnocence. (R. v.

Lifchus, (SCC), [1997] S.C.J. No. 77, paragraph 27) A reasonable doubt is a doubt based on reasonand common sense which must be logically based upon the evidence or lack of evidence. Its application must be in relation to anessential element of the offence, not in respect of an unessential matter. A reasonable doubt is not a doubt based on sympathy orprejudice, or one that is imaginary or frivolous. Proof establishing the probability of guilt is not sufficient to establish guilt beyond areasonable doubt. It is not proof beyond a reasonable doubt when guilt is suspected.

Proof beyond a reasonable doubt falls much closer toabsolute certainty than to proof on a balance of probabilities. (R. v. Lifchus, paragraph 36; R. v. Starr, 2000 SCC 40 , [2000]S.C.J. No. 40, paragraph 242) However the Crown is not required to prove its case to an absolute certainty, which would represent an“impossibly high” standard of proof. (Lifchus, paragraph 39) The Crown’s Decision Not to Call Lynda Burgess as a Witness [18] Lynda Burgess was out when Mr. Burgess fell down the basement stairs. She arrived home not long after. She was not called as awitness.

The Defence has submitted this alone should leave a reasonable doubt about Vanessa’s guilt as Mrs. Burgess is “the only otherindividual with direct knowledge of what took place in the Burgess house on July 20, 2011 and July 21, 2011.” (Defence WrittenSubmissions, paragraph 242) [19] The Crown provided no explanation for its decision not to call Lynda Burgess as a witness. The law imposes no burden on theCrown to call any particular witness. “Decisions on how to present the case against an accused must be left to the Crown’s discretionabsent evidence that this discretion is being abused.” (R. v.

Cook, (SCC), [1997] S.C.J. No. 22, paragraph 55) [20] It is not being suggested in this case that the Crown had an “oblique motive” for not calling Mrs. Burgess. As the Defence haspointed out, the Crown retains the burden of proof beyond a reasonable doubt throughout and an inadequate narrative may leave essentialelements of an offence unproven. (Cook, paragraph 31) [21] Although there are situations where a trier of fact may draw an inference that the witness not called would have been unfavourableto the Crown’s case, it would be pure speculation in this case to do so. (R. v. Jolivet, 2000 SCC 29 , [2000] S.C.J.

No. 28,paragraphs 23, 24 and 30) In Jolivet, Binnie, J. noted: “Experienced trial lawyers will often decide against calling an available witnessbecause the point has been adequately covered by another witness, or an honest witness has a poor demeanor, or other factors unrelatedto the truth of the testimony.” (paragraph 28) [22] There is nothing to tell me why Lynda Burgess was not called to testify. It was the Crown’s submission that the evidence it did callestablished Vanessa’s guilt beyond a reasonable doubt.

As I have said, it is not being argued that the Crown has engaged in misconduct,keeping a witness off the stand who could have assisted the defence. And while the Defence has submitted in its written brief (Defence

Written Submissions, paragraph 246) that “it can be reasonably expected that [Lynda Burgess] could have confirmed [Vanessa’s] versionof events or created reasonable doubt”, I find there is no basis for inferring this. [23] I have assessed the issue of reasonable doubt in this case on the basis of the evidence that was called. There is nothing to be saidabout the absence of any evidence from Lynda Burgess other than whatever her evidence might have been, I don’t have it. That alonedoes not leave a reasonable doubt.

To assess the question of reasonable doubt I must look at all the evidence, and not concentrate anarrow focus on one potential witness who did not testify. Manslaughter [24] Under s. 222 of the Criminal Code a person commits homicide when, directly or indirectly, by any means, s/he causes the death ofa human being. Homicide may be culpable or not culpable. It is only culpable or "blameworthy" homicide which is an offence. In thiscase, the applicable Criminal Code provision is section 222(5)(

a) which provides that a person commits culpable homicide when s/hecauses the death of a human being by means of an unlawful act. [25] Manslaughter is not expressly defined in the Criminal Code. It is a residual category that covers an almost infinite array ofcircumstances, ranging from near accidental killing to near murder. [26] For Vanessa to be convicted, the Crown must prove each of the essential elements for manslaughter beyond a reasonable doubt: (1)that Vanessa caused Mr. Burgess’ death; and (2) that Vanessa caused Mr. Burgess’ death unlawfully.

The mens rea for manslaughter is“objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act.” (R. v.Creighton, (SCC), [1993] S.C.J. No. 91, paragraph 78) A push at the top of a set of steep stairs would constitute adangerous act and it would be objectively foreseeable that such a push risked serious bodily harm. [27] The Crown submits that the requisite blameworthiness in this case is grounded in the commission by Vanessa of an unlawful act,an assault on Mr. Burgess. For

an act on Vanessa’s part to have caused Mr. Burgess’ death, it must have been at least a contributingcause, one that is beyond something that is trifling or minor in nature. There must not be anything that someone else does later – e.g. akick to the head – that resulted in Vanessa’s act no longer being a contributing cause of death. [28] It is not relevant that Mr. Burgess was not taken to hospital until approximately 20 hours after he went down the basement stairs.Mr. Burgess died from his head injuries.

The issue is whether the Crown has proven beyond a reasonable doubt that it was Vanessa whocaused them and that she was not acting in self-defence when she did so. Self-Defence – General Introduction [29] If the Crown proves beyond a reasonable doubt that it was

an act by Vanessa that caused her father’s fatal head injuries, it will stillbe necessary to examine whether the Crown has proven beyond a reasonable doubt that Vanessa’ act was unlawful. An intentionalapplication of force against Mr. Burgess without his consent – in other words, an assault - would constitute an unlawful act if it was notin self-defence. [30] Vanessa denies responsibility for Mr. Burgess’ fatal head injuries and says the small push she gave him was defensive: she wastrying to prevent her father from harming her as she was leaving the house.

This brings self-defence into the frame, requiring the Crownto prove beyond a reasonable doubt that the defence does not apply. [31] In a case of unlawful act manslaughter, self-defence renders what would otherwise have been an unlawful act, for example, anassault, not unlawful. The accused in such circumstances is not guilty of manslaughter as there has been no unlawful act. [32] In response to a question I raised during final submissions by counsel, Crown and Defence are in agreement that the applicableself-defence provisions in this case are those that were in effect on July 20, 2011.

There is appellate-level consensus from BritishColumbia and Ontario that the new self-defence provisions contained in the Citizen’s Arrest and Self-Defence Act which came into forceon March 11, 2013, are not to be applied retrospectively. (R. v. Evans, 2015 BCCA 46 , [2015] B.C.J. No. 189; R. v. Bengy,2015 ONCA 397 , [2015] O.J. No. 2958) Having reviewed Ms. Nijhawan’s helpful written submission of June 30, 2015 on thisissue, I am satisfied the law is now clear and it is sections 34(1) and 37 as they were in July 2011 that I am to consider.

The Law of Self-Defence [33] Under section 34(1) of the Criminal Code Vanessa would have been justified in repelling an unprovoked assault if the force sheused, even if lethal, was not intended to cause death or grievous bodily harm and was no more than was necessary to enable her to defendherself. (R. v. Paice, 2005 SCC 22 , [2005] S.C.J. No. 21, paragraph 20) [34] A defence under

section 34 can only be utilized if all the statutory elements have been met. (R. v. Hebert, (SCC),[1996] S.C.J. No. 65, at paragraph 23) The Crown only has to establish beyond a reasonable doubt that one of the elements is not presentto defeat a defence of self-defence. (Hebert, paragraph 25) Each of the elements has a subjective (Vanessa’s perception) and an objective(the reasonableness of Vanessa’s belief) aspect. The question to be asked in relation to applying section 34(1) is whether Vanessareasonably believed in the circumstances that she was being unlawfully assaulted. (R. v. Petel, (SCC), [1994] S.C.J.No. 1, paragraph 21) [35] Self-defence is also available under

section 37 of the Criminal Code provided the degree of force used by an accused is no morethan was necessary to prevent the assault or repetition of it. An accused, defending herself against an attack, reasonably apprehended, isnot expected "to weigh to a nicety, the exact measure of necessary defensive action." (R. v. Baxter, (ON CA), [1975]O.J. No. 1053, paragraph 45 (C.A.)); R. v. Chase, [1997] N.S.J. No. 141, paragraph 45 (S.C.)) [36] In assessing whether excessive force has been used or not the focus is not on the consequences of the force used in self-defence buton “the degree or amount of force employed.” (R. v. Grandin, 2001 BCCA 340 , [2001] B.C.J. No. 973 (C.A.), paragraph 43)

[37] The Crown can defeat a claim of self-defence under section 34(1) by proving beyond a reasonable doubt that any one of thefollowing essential elements were not present:

(1) Vanessa was not unlawfully assaulted by her father; (2) she provoked the assault; (3)she intended to cause death or grievous bodily harm; or (4) she used more force than was necessary to defend herself. [38] The Crown has argued that there is no air of reality to Vanessa’s claim to self-defence. However I am satisfied, on a considerationof all the evidence and assuming, for the purpose of this analysis, the evidence relied on by Vanessa to be true, there is a real issue to bedecided. (R. v. Cinous, 2002 SCC 29 , [2002] S.C.J.

No. 28, paragraph 53) This determination is not aimed at deciding thesubstantive merits of the defence, that is whether it is “likely, unlikely, somewhat likely, or very likely to succeed…” (Cinous, paragraph54) The air of reality test is concerned only with whether Vanessa’s claim of self-defence should be "put into play." (Cinous, paragraph52; R. v. Chan, 2005 NSCA 61 , [2005] N.S.J.

No. 134, paragraph 20 (C.A.)) Vanessa’s evidence cannot be ignored in gaugingthe appropriateness of considering whether her claim of self-defence should be assessed substantively. [39] Vanessa’s credibility is central to the issues of what caused Mr. Burgess’ head injuries and any consideration of self-defence. Laterin these reasons I will discuss the principles that apply in assessing the credibility of an accused’s evidence. The Forensic Investigation at 43 Melody Drive [40] On July 29, Cpl.

McKenna, a forensic identification member of the R.C.M.P., went to the house to take photographs (Exhibits 4, 5and 6) and measurements (Exhibit 8), make a video (Exhibit 15), and look for trace evidence. Although certain areas of staining – at thefoot of the basement stairs, and marks – in the stairwell, produced “presumptive for blood” hemastix results, none of the swabbing doneby Cpl. McKenna was sent for analysis. And, as Cpl. McKenna explained, a “presumptive for blood” hemastix result is non-specific forhuman blood and can be indicative of the presence of animal blood. [41] Cpl.

McKenna conducted his documentation of the scene nine days after Mr. Burgess went down the basement stairs. The primaryinvestigator on the file, Cst. Jason Morrisey, (now Cpl. Morrisey) made the determination that there was no evidentiary value in anythingCpl. McKenna found at the scene. There was no way of establishing that any trace evidence was connected to events surrounding Mr.Burgess’ fall nine days earlier. Cpl. Morrisey testified that had coffee stains been identified in the stairwell, investigators could notassume they were from July 20.

The Basement Stairs [42] There are 12 steps to the basement floor from the small landing right outside the kitchen at the Burgess home. (Exhibit 8, Cpl.McKenna’s Plan Drawing) Vanessa’s brother, Jonathan Burgess described the staircase (Exhibit 6, photographs 43, 44, 45 and 46) assteep, carpeted stairs with no padding underneath. At the bottom of the stairs the carpet was over concrete with “the standard carpetmembrane” between the concrete and the carpet. [43] Cpl. McKenna’s photographs and video confirm the steepness of the basement stairs.

In his testimony he described the landingarea at the top of the basement stairs as “a small area.” On the opposite side of this small landing are three steps that lead down into thesunroom. Cpl. McKenna measured the area from the top of the three sunroom steps to the top of the basement stairs as less than a meterwide. [44] Although the Burgess home had a front door, the family came and went through the door off the sunroom. David Burgess’ Physical Stature and Vanessa’s Size [45] According to Jonathan Burgess, David Burgess was “a weak, meek-looking old man”.

He described his father as, “Basically skinand bone.” [46] Both Vanessa and her aunt, Mr. Burgess’ sister, Christine Crocker, described Mr. Burgess as having experienced significantweight loss due to Crohn’s disease. The autopsy established that Mr. Burgess was 5 feet 8 inches tall and weighed 154 pounds (Exhibit12, Report of the Post Mortem Examination), confirming his slight stature. [47] Vanessa testified that in July 2011 she was the same height as her father, which she indicated was 5 feet 9 inches. She weighedbetween 200 and 215 pounds, making her significantly heavier.

On cross-examination she was very resistant to the Crown’s suggestionthat Mr. Burgess was “lighter” than she was although it is clear that was the case. The Burgess Family Dynamics [48] About 15 to 16 months prior to July 2011, Vanessa had moved back to the family home at 43 Melody Drive to live with herparents. She used the opportunity to get her high school diploma. The atmosphere in the house was fraught. The adult child – Vanessawas 28 – living under her parents’ roof was not a happy situation. Vanessa testified there were a lot of arguments.

According to Vanessa,her parents “needed to know and control everything.” (January 25 police statement, 16:02:16) It is apparent from the evidence that sheregarded her parents’ interest in how she was going to fund her plans for further education as intrusive. Vanessa’s Relationship with Her Father [49] As a child, Vanessa had a positive relationship with her father. She was “Daddy’s princess.” (January 25 police statement,15:20:50) Bullied as a child she described her father as “the only one that would listen at the end of the day…” (January 25 policestatement, 15:19:19) Disclosing this memory to Cst.

Stewart in January 2012 made Vanessa emotional. She described her father as the“referee” when she was having conflict with her mother.” (January 25 statement to police, 16:43:14) Jonathan Burgess confirmed thatVanessa and their mother had “fought a lot growing up.” [50] It was Vanessa’s evidence that her relationship with her father changed when he started drinking again. According to Vanessa, byJuly 20, 2011 her father was bitter about her successful recovery from alcoholism. She described him to Cst. Stewart in her January 25

police statement as: “a lonely drunk addict at that time.” ( January 25 statement to police, 16:00:07 ) [ 51 ] In her July 22, 2011 statement to police, Vanessa said the atmosphere at home had been “very, very toxic.” ( July 22 statement to police, 9:25 p.m. ) She said her father’s tactics included trying to get a reaction out of her by belittling her in various ways. ( July 22 statement to police, 10:18 ) He used pejorative terms to label her: “bitch, stupid, a whore, useless…” ( July 22 statement to police, 9:58 ) According to Vanessa, ignoring him made him even more “vicious.”( July 22 statement to police, 9:26 ) [ 52 ] Vanessa testified to the same effect, saying her father indulged in name calling, and disparaged her.

She described him favouring the word “whore” which hurt her a lot. She was also told she was a “loser” and would not amount to anything. Vanessa’s Relationship with her Mother [ 53 ] Vanessa described her relationship with her mother as “very toxic.” She testified it was not good in 2011 and spoke of her mother in critical terms. She portrayed her to Cst.

Stewart as an unaffectionate and distant parent. ( January 25 statement to police, 16:54:09 ) It was her evidence that she did not have “a supportive relationship” with her mother. [ 54 ] Another source of information about Vanessa’s experience of living with her parents came from a friend, James Frampton, who testified about meeting up with Vanessa earlier in the day on July 20. [ 55 ] It was Mr. Frampton’s evidence that Vanessa was frustrated about her living situation with her parents. She seemed more upset about her mother.

He thought by the time they had finished their discussion she seemed better, having got some things off her chest. [ 56 ] Mr. Frampton does not remember “the specific details” of what Vanessa said to him but recalls generally that she was chafing under her parents’ rules and attitudes about her choices. It was his evidence that the general themes of Vanessa’s frustration were “living under your parents’ rules, they don’t always agree with your choices, want you to make something of yourself…” [ 57 ] Vanessa testified that on July 20 she had talked to Mr.

Frampton about how she couldn’t wait to move out of her parents’ home. [ 58 ] Notwithstanding Vanessa’s descriptions in her testimony and police statements, and what emerged from Mr. Frampton’s testimony, when she was cross-examined about the experience of living with her parents in 2010 and 2011, she was reluctant to acknowledge the tensions in the home.

Instead Vanessa said she was, …happy living at my parents’ home that summer – I was able to go to Search and Rescue, I had a vehicle, I had a safe place for my son to go which was beautiful down in Prospect. [ 59 ] She finished her answer by saying she was “having a hard time” understanding a question about the stress that the Crown was suggesting she had been experiencing in the family home. [ 60 ] Despite Vanessa’s response under cross-examination, the evidence indicates an unhappy environment in the Burgess household in July 2011.

David Burgess’ Drinking Problem [ 61 ] Adding to the mix of tensions in the Burgess home was the fact that Mr. Burgess had a serious drinking problem. Both Jonathan Burgess and Vanessa testified that their father had been an alcoholic before sobering up for many years. Then, some years before his death, he had started drinking again. Lynda Burgess went regularly to Al-Anon meetings. Jonathan testified that “a lot of the family issues” were because of Mr. Burgess’ drinking. Vanessa indicated this in her testimony as well. It was Jonathan’s evidence that when Mr.

Burgess “drank he got drunk.” [ 62 ] David Burgess’ drink of choice was vodka. Vanessa testified that he would “guzzle” vodka from a pint bottle until it was gone. According to her, Mr. Burgess drank every day in 2011. [ 63 ] In her July 22, 2011 police statement, Vanessa described her father as “very belligerent” when drunk. ( July 22 statement to police, 9:24 p.m .) When he drank, the family often tried to leave him alone. According to Jonathan, Mr.

Burgess would want to talk and “poke and prod” at an issue, “or try to elicit some sort of response from someone…” He would sometimes get agitated but it was Jonathan’s experience he could be easily made to “comply” and “chill out.” Jonathan never saw his father in a drunken state where people couldn’t deal with him. [ 64 ] Vanessa and Jonathan also described Mr. Burgess drinking to the point of passing out. According to Jonathan, when drunk his father could barely stand up and had “very little coordination”.

That made it “even easier to control someone [who] isn’t able to stand correctly or even walk.” [ 65 ] Jonathan testified on cross-examination that he does not remember his father getting into a physical altercation when drinking. He agreed he told the police about Mr. Burgess’ drinking: “I have seen him try to get in a little bit of a tessle here.” When asked on re-direct to explain this, Jonathan testified that what he had meant by “tessle” was a loose description for “like two people sort of standing” and one person is blocking the other person from passing.

It was his evidence that he didn’t mean a physical fight, more of an argument in close quarters involving “provoking each other in a verbal argument…” [ 66 ] Jonathan’s testimony that he viewed his father as capable of name-calling when he was drinking is confirmatory of Vanessa’s evidence that she experienced this behaviour while living at home in 2011. [ 67 ] A text exchange on July 22 between Vanessa and her cousin, Erin, the daughter of Christine and David Crocker, indicates an unhealthy dynamic existed in the Burgess home. Erin expressed hope that the fall would make Mr.

Burgess “smarten up.” Vanessa agreed, saying she “cant handle the dramma in this family.” ( Exhibit 17, page 1, 14:34:47 to 14:35:37 )

[ 68 ] The next day, Erin bluntly queried why Vanessa stayed in the family home: “I don’t even understand why in the hell if you hated him so much why you would live with them…” ( Exhibit 17, page 2, July 23 text at 11:27:34 AT ) Vanessa told her that finishing her Grade 12 was worth “all the bullshit I put up with…” ( Exhibit 17, page 2, July 23 text at 11:30:18 AT ) David Burgess’ State of Sobriety on July 20, 2011 [ 69 ] David Burgess spent much of the afternoon of July 20 at the home of Christine and David Crocker, a five minute drive from 43 Melody.

According to the Crockers he drank some beer but was fine to drive home around 4:30 p.m. Christine Crocker testified that she is very strict about drinking and driving and would have driven him herself if she thought he was impaired. It was her evidence that Mr. Burgess was in a good mood during the visit. [ 70 ] That may have been Mr. Burgess’ demeanor while he was at the Crockers but I find he was verbally abusive toward Vanessa when he got home. [ 71 ] David Crocker was viewed by his daughter, Erin, as complicit in Mr. Burgess’ alcoholism: in a July 22 text Erin told Vanessa her dad “doesn’t help in the least.

He’s just as bad now” and Vanessa wanted to know why on July 20 Mr. Crocker let Mr. Burgess “drive drunk again”. ( Exhibit 17, page 1, July 22 texts, 14:36:51 to 14:37:49 AT ) [ 72 ] Vanessa’s text exchange with Erin Crocker on July 22 suggests Mr. Burgess should not have driven. In response to Vanessa’s text query about why Mr. Burgess was permitted to drive himself home, Erin, who lived at her parents’ home, responded: “Fucked if I know.

If I had of known I’d have drove him myself.” ( Exhibit 17, page 1, 14:39:35 AT ) She described her own father as in denial and texted Vanessa that he “at first he said your dad wasn’t drinking.” ( Exhibit 17, page 1,14:39:35 AT) [ 73 ] Vanessa commented to D/Cst. Upshaw in her July 22 police statement that her father had been drinking at the Crockers and should not have been permitted to drive home. She said both her father and her uncle were “in denial.” ( July 22 statement to police, 9:35 ) [ 74 ] Discussing July 20 with Cst.

Stewart when giving her January 25, 2012 police statement, Vanessa said that her father had been “drunk right through that entire morning.” ( January 25 statement to police, 15:55:13 ) In her trial testimony, in greater detail, she described Mr. Burgess drinking throughout that day. [ 75 ] Given Mr. Burgess’ alcoholism and the evidence I heard about him being a heavy drinker it seems likely that he was intoxicated during the time he and Vanessa were at home together later on July 20. Cause of Death [ 76 ] The medical evidence about Mr. Burgess’ head injuries is highly relevant.

As I have noted, the Crown must prove beyond a reasonable doubt that Vanessa caused her father’s death; that his head injuries were not caused by Lynda Burgess kicking him in the head. [ 77 ] I will now consider the expert medical evidence and, following that, Vanessa’s testimony about her father falling down the basement stairs. The Evidence from the Neuropathology Examination [ 78 ] Dr. Robert Macauley was qualified by consent as a neuropathologist able to offer opinion evidence regarding structural changes and their causes in human brains, spinal cord, peripheral nerves, and muscles. Dr.

Macauley has extensive experience in neuropathology, has examined 2500 – 3000 “autopsy” brains, and has testified as an expert in more the two dozen cases in the Maritime Provinces, Ontario and Saskatchewan. From 2002 to 2014, Dr. Maccauley was a consultant for the Nova Scotia Medical Examiner Service. He received Mr. Burgess’ brain from Dr. Marni Wood, the Medical Examiner, examined it and prepared a report. ( Exhibit 9 ) [ 79 ] In Dr.

Maccauley’s opinion, his findings are, …in keeping with severe head impact occurring about one week before death, as may have been sustained from an accelerated fall, consistent with the accompanying description of circumstances. The extent of the contusions, axonal injury and herniation damage are sufficient to account for death. There is no suggestion of an underlying structural neuropathologic condition. ( Exhibit 9, page 2 ) [ 80 ] Dr. Macauley’s diagnosed a mechanical brain injury with Mr.

Burgess’ brain showing bilateral subdural hemorrhage, subarachnoid hemorrhage, recent contusions – bilateral and bitemporal, mainly inferior left frontal, bilateral uncal herniation and traumatic axonal injury. [ 81 ] In other words, and as revealed by the photographs taken by Dr. Macauley ( Exhibit 11 ), Mr. Burgess’ brain had extensive bleeding and sustained a big bruise. As Dr. Maccauley testified, the “big bruise” found on Mr. Burgess’ brain was the consequence of a severe head impact. [ 82 ] Traumatic axonal injury was found deep in Mr. Burgess’ brain involving both the cerebrum and the brainstem.

This indicated a severe, and in this case, fatal injury. Dr. Macauley found scattered axonal spheroids which he described as an “alarming finding” in a brain, characteristic of severe head injury and suggesting a significant degree of trauma. [ 83 ] Dr. Maccauley explained that the axons, very slender, delicate connections between the neurons in the brain, are susceptible to stretching and tearing if the brain is subjected to acceleration and rotation.

He testified that, …because they’re so slender, an element of acceleration and rotation can move the two sides of the brain hemispheres relative to one another and stretch the white band and it’s very fragile… [ 84 ] The brunt of the damage to Mr. Burgess’s brain was to the undersurface of the left frontal lobe. Dr. Macauley also found damage

on the right side of the brain on the frontal and temporal lobes. Referencing photographs he took of the brain ( Exhibit 11 ), Dr. Maccauley testified that the left side of Mr. Burgess’ brain was pushing toward the right side as a result of swelling, causing compression of the ventricles. [ 85 ] Dr. Maccauley saw changes in Mr. Burgess’ brain consistent with the passage of time between when Mr. Burgess sustained his brain injury and death about a week later. There was nothing to indicate any underlying problem with Mr. Burgess’ brain. Everything Dr.

Macauley saw in his examination was consistent with a recent traumatic injury. How Such Serious Brain Injuries Are Caused [ 86 ] In Dr. Macauley’s opinion the damage he found in Mr. Burgess’ brain is consistent with three causes: (1) a motor vehicle accident; (2) a fall from at least 1 to 2 stories; and (3) a violent assault. [ 87 ] For a fall to cause the injuries Dr. Macauley found in Mr. Burgess’ brain, it would be more than just a fall to the floor from the person’s own height. Dr. Maccauley testified that Mr.

Burgess’ brain injuries were inconsistent with injuries that are caused by a person who accidentally trips and tumbles. In Dr. Maccauley’s opinion, the velocity of such a fall down a set of stairs will be broken as the person’s body contacts the stairs. Dr. Maccauley explained that consequently the person is not falling as fast when he hits the bottom step or the floor as he would have been in a free fall. [ 88 ] Dr. Macauley testified the axonal injury in Mr. Burgess’ brain is not seen with mild or even moderate head impact.

It was his evidence that axonal injury “seems to be associated only with severe head impact…in conjunction with acceleration and rotation of the brain, causing it to shear those axons.” A greater degree of force is required to cause axonal shearing than is required for a subarachnoid or subdural hemorrhage. [ 89 ] Dr. Maccauley described what happens to the brain in a free fall down a staircase: …So the acceleration is sufficient to take their head to a velocity which, when it impacts the floor, suddenly goes to zero. And now the brain, moving at the same velocity impacts the skull and inner surface.

The skull may or may not fracture. There can be relative motion of the two hemispheres tearing the connections between them and that’s when we see the axonal injury…if one’s head is moving faster than it would normally be encountered in a fall from a standing position when it contacts a hard surface, then you can get the axonal injury. [ 90 ] Dr. Maccauley was unable to offer a precise velocity that could result in axonal trauma.

He testified that, “…whatever the velocity is, it’s greater than you would normally expect from an individual falling from their own height onto a level surface.” [ 91 ] The injuries found by Dr. Maccauley in Mr. Burgess’ brain were not consistent with a person who “collapses at the top of a staircase and tumbles down the stairs.” He testified: “It would fit for an individual who is at the top of a staircase being propelled away from the stairs so that their fall is unimpeded.” Such propulsion could be in the form of a push. Dr. Maccauley characterized such a fall as an accelerated fall.

The injuries did not fit a scenario of Mr. Burgess passing out and falling down stairs or falling accidentally. [ 92 ] Dr. Macauley testified that a person passing out crumples and hits the stairs as a ball. Although he agreed that a person who trips and falls down the stairs could sustain the kind of damage seen in this case, in his opinion it is “very unlikely”. Dr. Maccauley’s comment about this as the scenario was blunt: “It just didn’t happen.” [ 93 ] On cross-examination, Dr. Macauley indicated he has not seen injuries of this magnitude caused by a fall from less than two stories.

He agreed the injuries were more like a fall from a balcony than a fall down stairs and that the effect was similar to a person jumping off a balcony on to his head. In a fall from one’s own height, propulsion would be needed to sustain these injuries. Dr. Maccauley testified that the height which is required to accelerate the head “to the danger zone” is less if the person is already moving. A person who is pushed is already moving faster than someone who had just “gradually keeled over.” Dr.

Maccauley also indicated that it is not necessary for the fall to have been right to the bottom of a staircase: a person’s head may be “already moving fast enough at the halfway down point” to cause severe brain injuries if an impact occurs. [ 94 ] Dr. Macauley agreed that Mr. Burgess hitting his head on any of the stairs could have caused the injuries depending on how fast he was moving. [ 95 ] Dr. Macauley testified that the description given to him of the incident informed his opinion that it was an accelerated fall. He was told that Mr.

Burgess was found at the bottom of the stairs and someone admitted to pushing him. He was not told the number of stairs involved. He agreed that a violent kick to the head could also explain the injuries. [ 96 ] It was Dr. Macauley’s evidence that it would be almost impossible for someone with these injuries to regain “normal, lucid consciousness”. In his view: “The extensive contusions, the degree of axonal injury, it all suggests that the person would have been extremely incapacitated.” Incomprehensible verbalizations might be possible but never in Dr.

Maccauley’s experience has he heard of a person sustaining these injuries being able to sit up and speak. With all the hemorrhage seen in Mr. Burgess’ brain, he would likely have been “unconscious for a considerable interval.” The Autopsy Results [ 97 ] Dr. Marni Wood, a forensic pathologist and medical examiner with the Nova Scotia Medical Examiner Service performed the autopsy of Mr. Burgess. She was qualified by consent as a forensic pathologist and medical examiner, able to offer opinion evidence regarding the cause and manner of death and injuries and their significance to humans.

She took photographs ( Exhibit 5 ) and prepared a report. ( Exhibit 12 ) She determined that the cause of death was “blunt force injury of the head.” She confirmed the devastating effect of axonal trauma, indicating that once axons are torn they cannot repair themselves and eventually the brain dies. [ 98 ] Dr. Wood’s examination determined that Mr. Burgess had sustained a skull fracture. She testified that the fracture was at the back

of the skull on the right side, “a relatively straight line fracture…starting on the right side…and running toward the centre of the brain.”(Exhibit 5, photographs 30, 31, 32, and 33) [99] It was Dr. Wood’s opinion that the skull fracture was consistent with Mr. Burgess’ head hitting a hard surface. As she explained it:“…a skull fracture is caused when either something impacts the skull or the skull impacts the surface hard enough to crack the bone.” [100] Dr.

Wood testified that the injuries she observed at autopsy were “consistent with impact to the surface of the bottom of the stairseither from a fall or a push.” She differed somewhat from Dr. Maccauley in stating that in her experience, it was “within the realm ofpossibility” that Mr. Burgess’ injuries could have been caused by an accidental fall “down those stairs.” On cross-examination Dr. Woodexplained that “…falls that tend to be fatal are falls down sets of stairs…where they are steep…the person, in falling, tends to fall fartherbefore they impact a stair or impact the floor.” [101] And although Dr.

Wood agreed on cross-examination that the bruises she observed on Mr. Burgess’ body might have been theresult of striking the stairs as he fell, she had indicated in her direct examination that they were non-specific and could not be reliablyaged. In her direct testimony, Dr. Wood said it was not possible to say how Mr. Burgess sustained the bruises. She acknowledged whenre-examined by the Crown that there were possibly many explanations for the bruises on Mr. Burgess’ body. [102] Like Dr. Maccauley, Dr.

Wood did not think it would have been possible that someone sustaining the injuries she saw would haveregained consciousness. In her opinion any level of consciousness would have been incoherent mumbling or a response to pain. What Can Be Determined from the Expert Medical Evidence? [103] Where the evidence of Dr. Mccauley and Dr. Wood differ slightly on whether an accidental fall down the stairs could have causedMr. Burgess’ brain injuries, I am persuaded by Dr. Mccauley’s opinion. He examined Mr. Burgess’ brain which Dr. Wood did not andDr. Wood sought out his opinion as an expert in neuropathology. Dr.

Wood only said that it was “within the realm of possibility” Mr.Burgess’ brain injuries could have been caused by an accidental fall. [104] I am satisfied Dr. Mccauley’s evidence establishes that a tumble by Mr. Burgess down the steep basement stairs, whether to thebottom or not as far as that, would not have resulted in the injuries he sustained. The evidence persuades me that a slight push and a lossof balance due to intoxication, in effect, a fall associated with an inebriated lack of coordination, could not have caused the brain injuriesfound by Dr.

Maccauley. [105] I find the medical evidence establishes that Mr. Burgess’ catastrophic brain injuries could only have been caused by an acceleratedfall down the basement stairs from the top to the bottom or a severe kick to his head. I am satisfied that an accelerated fall would haveneeded a push of greater force than described by Vanessa, a push that would have propelled Mr. Burgess to the bottom of the basementstairs.

Vanessa’s Evidence and the Assessment of Reasonable Doubt [106] Vanessa’s evidence is that her father fell down the basement stairs after she pushed him off her using a modest amount of force.She testified that she did not see Mr. Burgess fall, that when she found him he was coherent, and that it was her mother’s violent kick tohis head that caused the fatal injuries. [107] Vanessa’s testimony represents one of a number of occasions when she has described what happened to her father.

The existence ofthat other evidence – texts, conversations, and her statements to police – give rise to the application of the Supreme Court of Canada’sdirection in R. v. W.(D.), (SCC), [1991] S.C.J. No. 26. The W.D. caution applies where credibility is “a central orsignificant issue.” (R. v. Daley, 2007 SCC 53 , [2007] S.C.J.

No. 53, paragraph 106) Although the usual W.D. application iswhere there is conflict between the evidence of a complainant and an accused, in this case, as I will be discussing, there is conflictbetween Vanessa’s testimony and other evidence, not exclusively but most notably, what she herself said on other occasions. [108] W.(D.) provides that an accused must be acquitted if her evidence is believed, but that even if it is not, a trial judge must determineif there is a reasonable doubt left by the evidence, and ultimately, even if the accused’s testimony does not leave a doubt, thedetermination must be made whether on the whole of the evidence there is a reasonable doubt on the issue of guilt. (W.(D.), paragraph28) A conviction can only occur where, on the whole of the evidence, guilt is established beyond a reasonable doubt. (R. v.

Dinardo,2008 SCC 24 , [2008] S.C.J. No. 24, paragraph 23) [109] Applying W.D. does not involve “three sequential analytical steps that a trier of fact must pass through, one at a time.” A trialjudge, …must look at all the evidence, when deciding whether to accept the accused's evidence and when deciding whether it raises areasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown's witnesses prove guiltbeyond reasonable doubt and whether the accused's contrary exculpatory account must necessarily be rejected.

In other words, thesedecisions are all made at the same time on the basis of the same total body of evidence. The so-called "three steps" in W.D. are simplydifferent results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of theevidence. (R. v. Thomas, 2012 ONSC 6653 , [2012] O.J.

No. 5692 (S.C.J.), paragraphs 22 and 23) [110] Ultimately in order to convict, what a trial judge must be satisfied of is that on the totality of the evidence there is no reasonabledoubt as to the accused’s guilt. [111] It is reasonable doubt, not credibility that is the ultimate issue in a criminal trial. As Binnie, J. explained in R. v. Sheppard, 2002SCC 26 , [2002] S.C.J.

No. 30, even where an accused’s evidence is rejected, a trial judge is required to address her mind to the …possibility that…there might nevertheless, given the peculiar gaps in the Crown's evidence…be a reasonable doubt as to the proof ofguilt. The ultimate issue was not whether he believed [the complainant or the accused] or part or all of what they each had to say. The

issue at the end of the trial was not credibility but reasonable doubt. (paragraph 65) [112] In short, an accused does not have to be believed to be acquitted. (R. v. J.H.S., 2008 SCC 30 , [2008] S.C.J. No. 30,paragraph 13) Vanessa bears no burden of proof. The burden of proof is borne exclusively by the Crown. I have to examine all theevidence, including Vanessa’s testimony, to determine if there is reasonable doubt.

The task of adjudication in a criminal trial is not toanswer the question, “what happened?” The task of adjudication is to assess the evidence for reasonable doubt. [113] Our Court of Appeal has offered the following guidance about the trial judge’s “responsibility in the search for the truth”: … Centuries of case law remind us that there is no formula with which to uncover deceit or rank credibility. There is no crucible fortruth, as if pieces of evidence, a dash of procedure, and a measure of principle mixed together by seasoned judicial stirring will yieldproof of veracity.

Human nature, common sense and life's experience are indispensable when assessing creditworthiness, but they cannotbe the only guide posts. Demeanour too can be a factor taken into account by the trier of fact when testing the evidence, but standingalone it is hardly determinative. Experience tells us that one of the best tools to determine credibility and reliability is the painstaking,careful and repeated testing of the evidence to see how it stacks up.

How does the witness's account stand in harmony with the otherevidence pertaining to it, while applying the appropriate standard of proof in a civil or a criminal case? (R. v. D.D.S., 2006 NSCA 34, [2006] N.S.J. No. 103, paragraph 77) Vanessa’s Trial Testimony [114] Vanessa’s testimony about certain key events of July 20 and July 21 is not consistent with what she has said on previous occasions.She was asked on cross-examination and by the police about inconsistencies in her narrative.

Examining Vanessa’s various descriptionsof events and her testimony about why she provided those descriptions is a necessary part of assessing whether the Crown has proven itscase against her beyond a reasonable doubt. [115] A final comment before I proceed further: as I have already said, this is a case where self-defence has been raised, a claim that isonly relevant in the event of the Crown proving beyond a reasonable doubt that Mr. Burgess’ head injuries were caused by Vanessapushing him and not Lynda Burgess delivering a lethal kick.

I will therefore be addressing these broad topics sequentially – Vanessa’stestimony, including what she has said she witnessed her mother do, the other statements she has made in texts and conversations, herstatements to the police, and the issue of self-defence. The onus remains on the Crown throughout to prove beyond a reasonable doubtthat Vanessa caused Mr. Burgess’ fatal injuries and did so by committing an unlawful assault on him. [116] I will now proceed to set out Vanessa’s evidence and discuss the prior statements she made and her explanations for them. Mr.

Burgess’ Harassment of Vanessa on July 20 [117] The atmosphere in the Burgess home on July 20, 2011 was tense. Mr. Burgess was drinking which seems to have had the effect offueling a hostile attitude toward Vanessa. Vanessa has been consistent in describing her father’s treatment of her on July 20 as nasty. Shetestified to this effect and spoke about it to her brother, in various text messages and in her statements to the police. [118] Vanessa’s father was in a combative mood when he saw her in the afternoon on July 20.

She testified that he was “very irritated”and “yelling”, telling her she “wasn’t going to amount to anything” and was “worthless.” [119] Vanessa did not engage with her intoxicated father. She wanted to avoid an escalation and used anger management strategies to“detach” herself. She secluded herself in her bedroom and ignored Mr. Burgess. [120] Between 6 p.m. and about quarter to nine on July 20, Mr. Burgess came to Vanessa’s bedroom door twice. He was “veryaggressive, very nasty”, hurling invective at her and questioning what she was doing with her life. He pounded on the door and used foullanguage.

Vanessa testified that she did not respond. [121] On a third occasion Mr. Burgess returned beating a new drum. According to Vanessa, he told her he was calling the police andwanted her out of “his fucking home.” His speech was slurred and once again, he pounded on the bedroom door. [122] It was Vanessa’s evidence that she felt frustration at her father on July 20 for calling her “a whore over 50 times that day.” [123] Vanessa’s trial testimony about her father’s behaviour on July 20 accords with what she told her brother later that night when shecalled him.

Jonathan testified that Vanessa said their father had been drinking and “verbally hounding her throughout the day”, poundingon the door of her bedroom, and verbally abusing her by calling her names like “loser.” Jonathan recalls Vanessa saying Mr. Burgesswas going to call the police on her. He was yelling at her, trying to provoke her. Vanessa told Jonathan she had been trying to stay awayfrom him, was in her bedroom “the majority of the day”, and had told their father to leave her alone. [124] In texts to James Frampton, Samantha Robson, and Erin Crocker, and in conversations with Ms.

Robson and Tara MacDougall, allin the days immediately following Mr. Burgess’ fall, Vanessa mentioned her father’s harassment of her. She also spoke in her policestatements about her father being “drunk” and said he was “chasing me around the house.” (July 22 statement to police, 9:24) They hadbeen “arguing all day.” (July 22 statement to police, 9:42) She told D/Cst. Upshaw her father was intoxicated when he returned from theCrockers (July 22 statement to police, 9:29) and had been threatening to have her removed from the house.

In her January 25 statement topolice, Vanessa described her father’s verbal attacks as a “shit storm.” (16:18:52) Leaving Her Room [125] Vanessa testified that she decided to leave her room and the house. She opened her bedroom door and her father stepped into thedoorway. She asked her father why he would be calling the police. He told her he wanted her out of “the fucking house” and said she wasa loser and wasting her time going to school.

[ 126 ] Vanessa described her father as having his chest “puffed out” and “trying to make a wall with his body” to prevent her from leaving. [ 127 ] It was Vanessa’s evidence that she was “happy her father had not opened her bedroom door” on July 20. She said her parents actually respected her closed door because “I paid for it.” In the Area of the Kitchen [ 128 ] Vanessa testified that when she left her room she moved down the hallway toward the kitchen with Mr. Burgess yelling and spitting at her. He had a cup of fresh coffee in his hand. He walked backwards in front of her as they went down the hallway.

As Vanessa stepped toward the kitchen, her father “became physical” with her. Vanessa thinks she “pissed him off.” He stepped on her bare foot. He was pushing his chest into her chest. He held the cup of coffee directly next to her face and was threatening to pour it on her face. He hit her “with such force with his chest” that it knocked her phone out of her hand. At this point they were right in front of the kitchen sink. [ 129 ] Vanessa testified that she “just wanted to leave”. She wanted to “move forward enough to get to the sunroom to leave the house.” [ 130 ] According to Vanessa, Mr.

Burgess had his coffee cup in his right hand and was holding it by the side of her face. Vanessa’s glasses were knocked off and, as Vanessa described it, “the coffee spilled on my face.” Vanessa picked up her glasses and wiped the coffee off her face. [ 131 ] Mr. Burgess was facing Vanessa and yelling at her. He told her he wanted her “out of his fucking house” and taunted her to “hit” him. He said he wanted a reason to call the police. [ 132 ] Vanessa testified she feared for her safety at this point.

The Push [ 133 ] It was Vanessa’s evidence that after her father confronted her in the kitchen she still just wanted to leave and tried to ease her way out. For Vanessa to leave the house she needed to go down the three steps from the small landing to the sunroom. Directly on the other side of the landing were the basement stairs. Her father was “sticking out his hip” to prevent her from going around him. [ 134 ] Vanessa testified that she pushed her father “off of” her. The physical contact was to Mr. Burgess’ chest area. In Vanessa’s words, I just knew I had to get him off of me in order to leave.

I was terrified of being hurt any more. I had already had coffee poured down my face.

I had already been poked in the chest extremely hard, my foot was starting to hurt at this point, I was fearing for my safety, I just wanted to leave…I just wanted to get my sneakers and leave the property…I was trying to go down the three steps into the sunroom. [ 135 ] When asked how much force she had used, Vanessa responded that she “didn’t use a lot of force.” Describing what happened, she testified that her father was “actually forced in back more with his body weight, I just needed about a foot…so my frame could get past him to get down the steps.” On cross-examination, she posited that Mr.

Burgess may have been unsteady: “I can’t say his intoxication didn’t have something to do with his stability that day.” [ 136 ] It was Vanessa’s evidence that she didn’t see where her father went after she pushed him off her. She was concentrating on getting down the steps to the sunroom and locating her sneakers. She said she thought her father had gone out the front door and would meet her in the driveway. She testified that she expected her father would “still fight with me in the driveway and not let me leave.” Mr.

Burgess on the Basement Stairs [ 137 ] Noticing her phone lying where it had fallen in the kitchen, Vanessa went back up the three stairs from the sunroom to retrieve it. Once on the landing she saw her father “3 to 4 steps from the bottom” of the basement stairs. His back was against the stairwell wall with his legs extended toward the opposite wall. He was still yelling at Vanessa, calling her a “whore” and a “bitch” and telling her “now you are going to get it.” [ 138 ] At this point, Vanessa says she went down the basement stairs and tried to help her father up.

She succeeded in getting him up a few steps before he became weaker and was unwilling to continue. Vanessa testified her father was talking but not making sense. When he became a dead weight in her arms, she brought him back down the stairs and laid him on the basement floor at the base of the staircase. [ 139 ] In a July 23 text to Erin Crocker Vanessa related this description of Mr.

Burgess being coherent after the fall and angry. ( Exhibit 17, page 1, 11:23:56 AT ) She also said this in both of her police statements. ( July 22 statement to police, 9:38 and 9:44; January 25 statement to police, 17:10:47; 17:10:55; 17:12:17; 17:13:33 ) Vanessa told Cst. Stewart that amongst other things, her father “…was like complaining that I crushed his cigarettes.” The Phone Call to Jonathan Burgess [ 140 ] It was Vanessa’s evidence that after depositing her father at the bottom of the basement stairs she went and retrieved her phone. She then called her brother on the house phone.

She testified that she needed someone to help her get Mr. Burgess up the stairs and into bed. [ 141 ] Vanessa described herself as “hysterical, very upset, so panicked” when she called her brother. That accords with Jonathan’s characterization of how she sounded on the phone. [ 142 ] In the conversation with Jonathan, Vanessa says she was “chopping and cutting” the entire day. I take her to mean she did not relate events in an entirely coherent or logical sequence. Jonathan’s testimony about Vanessa’s narrative suggested this as well: “It was difficult to get it all out at once…”

[ 143 ] Vanessa testified that she was “very dramatic” when talking to her brother and used “bold terms to get his attention to let him know I needed help.” [ 144 ] It was Vanessa’s evidence that she told Jonathan Mr. Burgess had been “poking” her, that she “pushed him”, and that he had been “chasing [her] around the house all day.” [ 145 ] Vanessa was emphatic in her trial testimony: she did not push her father down the basement stairs, “absolutely not”, and did not see him go down the stairs. When asked in direct examination why she had told her brother that she had pushed Mr.

Burgess, Vanessa said: I couldn’t convey that my push could have been a result of my father falling down the stairs. I was more worried about getting him up at that point than how I was coming across. [ 146 ] Vanessa’s trial evidence is that when talking to her brother she was preoccupied by the problem of how to get her father back up the stairs. I take the statement about her inability to “convey” that the push “could have been a result” of Mr.

Burgess falling down the stairs to be intended to mean either that she could not adequately communicate the events to Jonathan or that she was having trouble processing that her push caused the fall. Whatever Vanessa intended to express in this testimony, I find the evidence clearly establishes that in their July 20 telephone conversation Vanessa told Jonathan she had pushed their father. [ 147 ] Vanessa told other people, including her mother, that she had pushed her father. She has not been consistent in describing why she pushed him. Later in these reasons I will discuss what she has had to say about that.

Lynda Burgess Comes Home/Mr. Burgess at the Foot of the Basement Stairs [ 148 ] Vanessa testified that when her mother came home around 9:30 p.m. she told her Mr. Burgess had fallen and there had been an accident. According to Vanessa, Mrs. Burgess went and inspected her husband at the foot of the basement stairs, determining that he should be left there. Vanessa then described making a cup of tea in the kitchen with her mother and talking about Mrs. Burgess’ work day. The tea break lasted for about 20 to 25 minutes. [ 149 ] The kitchen calm was disrupted by Mr. Burgess vomiting at the foot of the stairs.

Vanessa went down with a view to cleaning up the mess. Lynda Burgess followed shortly after. While Mrs. Burgess was standing next to the prone Mr. Burgess, he defecated. Vanessa then testified to a scene she had not mentioned to anyone previously. She testified that she observed Mrs. Burgess “getting really upset and then she got violent and then I witnessed her viciously kick him in the back of the head with her right leg, and then kick him in between the shoulder blades…” According to Vanessa, her mother kicked Mr. Burgess a third time from a different angle, while facing him.

Vanessa described her mother as, …disgusted, she was out of control, she was furious…I observed mother kick him 3 times – vicious, very aggressive kick to the back right side of his head… [ 150 ] After this, Vanessa says she understood she was to leave her father to wake up in his filthy condition. She testified, as she said to Samantha Robson in a text on July 21 ( Exhibit 16, page 1, 11:29:45 AT ) and to D/Cst. Upshaw ( July 22 statement to police, 9:39:55 ), that she slept with one eye open, terrified that her father would come into her room and “strangle” her.

Vanessa’s Explanation As to Why She Told Her Mother on July 21 that She Had Pushed Mr. Burgess [ 151 ] On the night of July 20 Vanessa told her mother Mr. Burgess had experienced an accidental fall. It was the next morning that she told Mrs. Burgess she had pushed him. As I will discuss in more detail, in a text to Samantha Robson on July 21 and in her July 22 police statement, Vanessa described what she told her mother on the morning of July 21 as “the truth.” In her trial testimony she blamed her brother for what she told Mrs.

Burgess on July 21: I was still really scared, really confused about what had happened because I was coached and then convinced and then threatened by my brother and that was a lot of the reason why I was terrified that night because I knew even if my brother wasn’t even in the province, she would still believe my brother over me and I was still trying to understand what happened with the accident and I told my mother I pushed my dad and he fell down the stairs. She wanted to know what do you mean you pushed your dad? Told her you know how he can be a dick when he’s drinking?

I just had to leave and when I pushed him, he fell down the stairs. [ 152 ] Vanessa testified, as she said in a text to Samantha Robson on July 21, ( Exhibit 16, page 1, 11:29:49 AT ) that her mother was “ok” with the disclosure of the push, that “she was the same the night before when I disclosed there was an accident.” Vanessa had also told Cst. Stewart about Mrs. Burgess’ benign reaction when she told her “the truth.” ( January 25 statement to police, 17:21:20; 17:22:34 ) [ 153 ] WhenVanessa was cross-examined about why she came to tell her mother she had pushed Mr.

Burgess, she attributed it to her brother’s coercion. Vanessa testified that during their telephone conversation Jonathan threatened her, saying that if Vanessa didn’t tell their mother, he would have to. Jonathan testified that he had said that to Vanessa, “…because this couldn’t go unexplained.” [ 154 ] Testifying at trial, Vanessa said her brother had convinced her she had to take responsibility for Mr. Burgess’ fall.

This, she said, was even though during their telephone call she was “still trying to comprehend and piece together” the events and was incapable of “relaying a clear message of what had happened.” Vanessa testified that she hadn’t felt her actions had caused their father to fall but that her brother’s pressure led to her assuming responsibility for what had been an accident, as she had told their mother in the first place. [ 155 ] Vanessa testified that her brother “didn’t have the full information about what had happened” and that he had constructed his own version of the events, a version that involved Vanessa being responsible for pushing Mr.

Burgess so that he fell down the stairs. [ 156 ] Vanessa has a theory for why her brother testified that she told him during their July 20 telephone conversation she had pushed her father and he had fallen to the bottom of the basement stairs. In her view what her brother has had to say was influenced by being at the hospital and seeing Mr. Burgess’ condition and then formulating, in collaboration with the family, “the whole situation that they wanted

to build” against her. As Vanessa put it in her testimony: I am suggesting to the court that my brother was the only one that started that my father landed at the bottom of the stairs and thereforethat information ran through everybody else.

Because my brother concluded that my father was at the bottom of the stairs that night fromthat phone call which he did not have accurate information of I put my father at the bottom of the stairs that’s how all of that started,that’s what I believe … Summarizing Vanessa’s Trial Evidence [157] Vanessa’s evidence can be summarized as follows: her father’s relentless harassment led to her trying to leave the house andhaving to push him off her to get past him and avoid harm. The push followed physical contact by Mr. Burgess that made Vanessafearful. She then discovered Mr.

Burgess had fallen part of the way down the basement stairs sustaining no visible injuries but still angryand belligerent. After an unsuccessful rescue attempt which ended with her lying him down at the foot of the stairs, Vanessa called herbrother, Jonathan, for help. In the course of that telephone conversation she was coerced by Jonathan to take responsibility for Mr.Burgess’ fall even though it was an accident. This led to her telling their mother the next day that she had pushed Mr. Burgess althoughthe evening before, when Mrs. Burgess returned home, she told the truth, that the fall had been an accident.

While Mr. Burgess waslying at the foot of the basement stairs, Vanessa witnessed her mother kick him violently in the head. [158] That evidence, taken at face value and without consideration of any other evidence could explain Mr. Burgess’ injuries and raise areasonable doubt about Vanessa having caused his death. [159] But the task of adjudication requires me to do more than simply recite and accept an accused’s evidence.

Doing so would ignore allthe other evidence including evidence of what Vanessa said on other occasions, statements that are in conflict with her testimony. [160] The task of adjudication requires that I look at the whole of the evidence to see if I am ultimately left with a reasonable doubt. (R.v. Lake, 2005 NSCA 162 , [2005] N.S.J. No. 506 (C.A.), paragraph 22) Vanessa’s Earlier Descriptions of Events and Her Explanations for What She Said Previously Leaving Her Room [161] Vanessa’s testimony that her father had not opened her bedroom door on the evening of July 20, is not what she told Sgt.

Carlisleon January 25. [162] Although Vanessa originally told Cst. Stewart that her father couldn’t get her to open her bedroom door “that night” (January 25statement to police,16:04:24), she later said he came into her room (January 25 statement to police, 16:36:40) which prompted her toleave. She described being “cornered” (January 25 statement to police, 16:41:25) and agreed when Cst. Stewart suggested that byleaving her room she was protecting her “sanctuary”. (January 25 statement to police, 16:37:32) [163] Vanessa was not asked at trial about this more dramatic account of why she left her room.

In the Area of the Kitchen [164] According to Vanessa’s January 25 statement to police, she and Mr. Burgess ended up at the top of the stairs arguing. (16:36:32)She told Cst. Stewart she was on her way “to the exit” for the house. (16:48:22) [165] Vanessa also told her brother and Samantha Robson that she and Mr. Burgess had been arguing and said this in her July 22statement to police.

In her trial testimony Vanessa denied arguing with her father, saying: “I did not participate in any argument with myfather that day.” [166] The evidence establishes that in July 2011, Vanessa weighed at least 50 pounds more than her father. Notwithstanding heradvantage of size, she did not push her father out of the way when they were at or in the kitchen and make good her escape from thehouse.

It remains unclear to me why, in the face of what she has said was intolerable verbal abuse, Vanessa ended up in the kitchen withher father rather than muscling her way past him when she got to the sunroom steps and leaving the house at that point. [167] In her July 22 statement to police Vanessa described her father “stepping” on her and pulling her hair. This, she told D/Cst.Upshaw, she “didn’t mind”. She indicated that these were techniques Mr.

Burgess used when he was intoxicated and that he would alsostick his chest out and push up against her. (July 22 statement to police, 9:27:53) Vanessa said she was used to dealing with thesebehaviours from her father when he was drunk: “I can’t say that he pushed my buttons because in reality these are now characteristicsthat I have to live with and accept as my father.” (9:28:35) Acknowledging that She Told Her Brother She Pushed Mr. Burgess [168] It was on the morning of July 22, only 48 hours after her telephone call to her brother that Vanessa gave her first statement topolice. Vanessa told D/Cst.

Upshaw in that July 22 statement she had called her brother and told him “that I pushed him.” Sheacknowledged she may have waited to tell her mother what happened, “…but I’m not a criminal by any means because that’s how honestI am. I called my brother and I told him immediately.” (July 22 statement to police, 9:43) [169] In her January 25 police statement Vanessa acknowledged having told her brother she had pushed their father. Referring to thephone call with her brother she said: “I called and admitted it…” (19:09:30) Admitting the Push to Others in the Immediate Aftermath Texts to James Frampton on July 21

[ 170 ] On July 21 Vanessa texted Mr. Frampton to say: “U now how I said all that shit yesterday I snapped last night after being abused all day from my druck father I thru him donw the steps. ( Exhibit 3, page 1, 10:40:44 (AT) ) She followed this up with: “I left him at the bottom of the steps after checkin viduals and told mom he fell druck so she just left him thereall night he was there when we left for work this morning.” ( Exhibit 3, page 1, 10:43:43 – 10:43:46 (AT) ) [ 171 ] Still on the subject of what had happened the night before, Vanessa texted Mr.

Frampton the following message: “Lol :) sorry to bother u with this but im sick to my stumick and needed to tell someone: thank u xxxx for the rocord I still don’t hit just thro people around lol” ( Exhibit 3, page 1, 10:55:59 to 10:56:01 (AT) ) [ 172 ] Vanessa was asked about the “I snapped” text on cross-examination. She testified that her definition of “snapped” in the text was that she had “to leave…to remove myself.” She then said that, “The “snapped”

part is just me engaging my father verbally.” This, in spite of Vanessa testifying that she had not engaged her father verbally or argued with him. [ 173 ] As for texting that she had thrown her father, Vanessa testified that she was being dramatic. Texts to Samantha Robson on July 21 [ 174 ] Vanessa texted Ms. Robson at 11:12:07 a.m. (AT) on July 21 to tell her, “Shit hit the fan at my house last night r u gonna be at work?” When Ms.

Robson confirmed she would be and asked what happened, Vanessa replied: “Dad was drunk and I thru him down the stairs lastnight when I had enough of his mouth.” She went on to say she had, “…told mom he fell druck and we just left him at the bottom all night and he was still there when we left this morning.” ( Exhibit 16, page 1, 11:24:36 – 11:29:49 AT ) [ 175 ] On cross-examination Vanessa was directed to this text which she had concluded by saying “this morning” she had told her mother “the truth and she seems okay with it.” She responded by testifying, I feel that I already touched on this – I was being very dramatic at this time, I have a different way of speaking, I was using bold terms and trying to come to terms with the incident itself.

So me using the word “threw” and “the truth” both are examples of my dramatics and trying to come to terms with the situation here. July 21 Conversation with Tara MacDougall at Work [ 176 ] When Vanessa came in to work on July 22, Tara MacDougall, a friend and co-worker, could tell something was wrong. Ms. MacDougall testified that Vanessa said her father had been drinking and was calling her names and belittling her. He threatened to throw hot liquid in her face. She was frustrated and pushed him. He fell down the stairs, backwards. Vanessa described him after the fall as still coherent and alert.

He told Vanessa to just leave him. Ms. MacDougall recalls Vanessa saying he was incontinent and vomiting. [ 177 ] Ms. MacDougall testified that Vanessa had been very distraught when describing what had happened. She said she had had no intention of hurting her father, she just wanted him to leave her alone. July 22 Statement to Police [ 178 ] In her July 22 statement to police Vanessa balked at giving D/Cst. Upshaw a description of what happened at the top of the basement stairs. As she said in a text to James Frampton, she didn’t want to talk about pushing her father. (Having told Mr.

Frampton she had been arrested and released, Vanessa sent the following text message to him: “I told almost all the truth I just said no statement for my physical

part in it and they where goin to hold me till Monday when the judge was there but the just held me for 6 hrs last night…”) ( Exhibit 3, page 2, 10:45:31 – 10:45:35 AT ) [ 179 ] Vanessa rejected D/Cst.

Upshaw’s characterization of what she did as a “shove”, saying: “I didn’t shove him.” ( 9:41:07 ) When asked what force she had used to “push him”, Vanessa responded: “I don’t want you to be mean to me after this but I really can’t give a statement on that right now.” ( 9:41:19 ) [ 180 ] Farther along in the statement, Vanessa says about her father falling down the stairs: “It’s like the first time I touch him, too, right.” ( 9:50:59 ) Much later in her statement she said: “But I didn’t push him down the stairs.

I pushed him and he fell down the steps.” ( 10:14:10 ) July 23 Texts with Cousin Erin Crocker [ 181 ] Erin and Vanessa had exchanged texts on July 22 although Vanessa, without saying anything about a push, only mentioned being angry and seeing Mr. Burgess fall. Erin Crocker’s July 23 texts indicate her tone had changed from the night before when she had been expressing concern for Vanessa. She responded to Vanessa’s texted denial of having threatened her father with a blunt statement: “You pushed your dad down the stairs.” ( Exhibit 17, page 1, July 23, 11:05:12 AT ) Vanessa didn’t deny this.

She replied: “Yeah cause I didn’t want freash coffe in my face and the fuck was really playin durty i push he fell I needed the fuckin shit to stop and he wasn’t letting up all fuck day…” Vanessa described nasty names her father was calling her and concluded, “He tried to get me to fight back all day and I didn’t till I had enough.” ( Exhibit 17, page 1, 11:07:10 to 11:08:39 AT ) [ 182 ] Vanessa told Erin she had been “putting up with mom and dad shit for the last yr I hear these things daily from both of them.” She believed her mother would also be charged for having left Mr.

Burgess at the bottom of the stairs and says she “cant wait to see what she has to say when she getting put in the back of the cop car.” (Vanessa told Erin in a subsequent text that Lynda Burgess made the decision to leave Mr. Burgess at the bottom of the stairs “and shes goin to have to face that to cause the time pereit was so long.” ( Exhibit 17, page 2, July 23, 11:26:46 AT) ) Vanessa explained to Erin that, “…when u corner an animal sooner or later that animal will roll over and die or fight back.” ( Exhibit 17, page 1, 11:10:11 to 11:13:21, AT ) July 23 Conversation with Samantha Robson

[ 183 ] Vanessa spent July 23 at a campground with friends from work. One of those friends was Samantha Robson who testified that she and Vanessa had “a very big talk” on Sunday once everyone else had left. [ 184 ] According to Ms. Robson, Vanessa told her about what had happened on July 20. She said that she and her father were fighting and he was going to throw hot coffee in her face. She was staying in her room and talking to friends and staying out of trouble. Ms. Robson does not recall what Vanessa’s father was hounding her about. “All in her face” was how Vanessa put it. Ms.

Robson was not aware the police would need to be involved. [ 185 ] On cross-examination, Ms. Robson agreed with the following: Vanessa told her that her father was really drunk and in her face all day. She tried to stay in her bedroom. Her father was there whenever she left to go to the bathroom or outside for a smoke. They were arguing in the kitchen. He was going to throw hot coffee in her face. That’s when she pushed him back. Talking About the Push in Her January 25 Statement to Police [ 186 ] When asked by Cst.

Stewart where on “the scale of your normal argument” her July 20 conflict with her father fell, (16:44:17) Vanessa responded by saying: I pushed an addict instead of hugging him that day and I will forever regret that. I could not hug my father at that time and that’s when he needed a hug. I couldn’t do it anymore. I didn’t want a hug. ( January 25 statement to police, 16:44:32 ) [ 187 ] She and Cst. Stewart then had the following exchange: Cst. Stewart: Why couldn’t you do it? Vanessa: Because I didn’t think that he deserved a hug. I was tired of the lashings, right.

At that point, it was just too hard to bring him in. ( January 25 statement to police, 16:44:48 ) [ 188 ] Vanessa told Cst. Stewart she “didn’t intentionally think that I wanted to push my father. It just happened the way that it did.” She did not want him to go down the stairs. ( January 25 statement to police, 16:46:03 ) She repeated this to Sgt.

Carlisle during the “bad cop” routine the police interrogators employed. ( January 25 statement to police, 18:38:23 ) Vanessa insisted that she did not see her father hit his head and thought her father would get up. ( January 25 statement to police, 18:41:08 ) Vanessa said her father got up after falling and then chose to lie back down. ( January 25 statement to police, 18:41:52 – 18:41:56 ) [ 189 ] Toward the end of her January 25 statement Vanessa told Cst. Stewart she had not talked about “how she came to push” her father.

She said she had “danced a lot around it” but there were “some things” she needed to talk to a lawyer about “before she disclosed her

part in what happened on the night of July 20. When Cst. Stewart observed: “You pushed him, he went down the stairs”, Vanessa responded by saying: “I admitted that…back when. I’m not disputing that. But how I came to push him is what I’d like to speak about…” ( January 25 statement to police, 19:30:47-19:30:55 ) Vanessa went on to say that she didn’t really understand now why she pushed her father. The exchange with Cst. Stewart went as follows: Cst. Stewart: …You were saying…the reason around the push was somethin

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