R. v. Crowell, 2020 NSSC 289

SUPREME COURT OF Nova Scotia Citation: R. v. Crowell , 2020 NSSC 289 Date: 20201016 Docket: Yarmouth , No. CRY 499736 Registry: Halifax Between: Her Majesty the Queen v. Dustin Kempton Crowell Decision Judge: The Honourable Justice Christa M. Brothers Heard: October 5, & 6, 2020, in Yarmouth, Nova Scotia Oral Decision: October 15, 2020, in Yarmouth, Nova Scotia Counsel: Saara Marja Johana Wilson, for the Crown Michael K. Power, Q.C., for the Defendant By the Court: [ 1 ] Dustin Kempton Crowell of Barrington, Shelburne County, stands charged that he committed the following offences on or about July 18, 2020: 1.

Wounded Justin Nickerson, thereby committing an aggravated assault contrary to Section 268(2) of the Criminal Code ; 2. In committing an assault on Justin Nickerson carried a weapon, to wit a 2x4 piece of wood, contrary to

Section 267 (

a) of the Criminal Code ; 3. Committed an assault on Jessica Lewis, contrary to

Section 266 of the Criminal Code ; 4. Kidnapped Jessica Lewis with intent to cause her to be confined against her will, contrary to Section 279(1.1) of the Criminal Code ; 5. Being at large on a release order, failed, without lawful excuse, to comply with a condition of that release order, to wit, not to contact Jessica Lewis, contrary to Section 145(5) (

a) of the Criminal Code ; 6. Being at large on a release order, failed, without lawful excuse, to comply with a condition of that release order, to wit, to remain at 2834 Highway 3, Barrington, Nova Scotia, contrary to Section 145(5) (

a) of the Criminal Code ; 7. Being at large on a release order, failed, without lawful excuse, to comply with a condition of that release order, to wit, to keep the peace and be of good behavior, contrary to Section 145(5) (

a) of the Criminal Code . Background [ 2 ] Dustin Kempton Crowell was arrested on July 19, 2020 and charged with the above-referenced counts. The Crown maintains that the accused assaulted Justin Nickerson at Jessica Lewis’s home, a location at which he was not permitted to be present. [ 3 ] The Crown called five witnesses. The evidence of the alleged victim, Justin Nickerson, and that of the accused and his ex- partner Jessica Lewis, are opposed in relation to the core allegations.

The question is whether the evidence establishes the accused’s guilt beyond a reasonable doubt. [ 4 ] Deciding whether the Crown has met the burden of proof requires an assessment of the credibility and reliability of the evidence. I will summarize the evidence. I will not recite back every topic canvassed in the evidence. I will touch on the evidence of each witness but will focus on the evidence going to the elements and the evidence necessary to place the factual conclusions in context. However, I have considered all of the testimony and each exhibit.

Presumption of Innocence and Burden of Proof [ 5 ] The most important principle in this matter, as it is in all criminal cases, is the presumption of innocence that stays with the

accused throughout (R. v. Starr, 2000 SCC 40, and R. v. Lifchus, (SCC), [1997] 3 SCR 320). The presumption ofinnocence continues unless the Crown proves the accused’s guilt beyond a reasonable doubt. There is absolutely no burden on theaccused to prove his innocence. The accused does not have to prove anything, and this never changes. The Crown must prove eachelement of the offence beyond a reasonable doubt. [6] Reasonable doubt is based on reason and common sense arising from the evidence or absence of evidence. Hunt, J.summarized the guiding principles in R. v.

Baxter, 2019 NSSC 274, at para 12: The Nova Scotia Court of Appeal and Supreme Court of Canada have provided clear direction on the issue of what is meant by proofbeyond a reasonable doubt. They have instructed as follows: • A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather it is based onreason and common sense. It is logically derived from the evidence or absence of evidence. • Even if you believe the accused is probably guilty or likely guilty, that is not sufficient.

In those circumstances you must give thebenefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonabledoubt. • On the other hand, you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so.

Such a standard of proof is impossibly high. • In short, if based on the evidence before the Court, you are sure that the accused committed the offence you should convict becausethis demonstrates that you are satisfied of his guilt beyond a reasonable doubt. • It has to be remembered that the burden of proof never shifts to the defendant. This is irrespective of whether the defendant himselfgives evidence or not. • In this case the Defendant did testify. This raises particular issues of analysis which the court will address.

But whether the defendanttestifies or not, at no time does the burden of proof shift to the defendant and the resolution of the case does not turn on the court pickingwhich version of the evidence it prefers or finds more believable. [7] The evidence is conflicting between the alleged victim, Justin Nickerson, the accused, and the accused’s ex-partner, JessicaLewis. To a large extent, the Crown’s case rests upon the testimony of Mr. Nickerson. I am guided by the decision of the SupremeCourt of Canada in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742. Here the instruction in considering evidence in such casesis: 1.

If the evidence of the accused is believed, he must be acquitted. 2. If the evidence of the accused is not believed, but the evidence still raises or leaves a reasonable doubt, he must be acquitted; and, 3. Even if the evidence of the accused does not raise a reasonable doubt, he must be acquitted if a reasonable doubt is raised by otherevidence that is accepted. In order to convict, the evidence that the court does accept must prove his guilt beyond a reasonable doubt. [8] This decision hinges on credibility and reliability.

It is not a matter of who I believe, but of whether, based on all the evidenceor absence of evidence, the Crown has proved its case beyond a reasonable doubt. It is not, however, a credibility contest. The courtcannot simply compare the evidence of the accused and Justin Nickerson and choose between them. I must weigh all the evidence. [9] I must not apply the standard of proof beyond a reasonable doubt piecemeal to the individual items or categories of evidence. Iapply it to the final evaluation of whether guilt is proven (R. v.

Ménard, (SCC), [1998] 2 S.C.R. 109). [10] I have considered the totality of the evidence. I recognize I need not believe or disbelieve all of a witness’s testimony. I canbelieve none, part, or all of any of the evidence. (Novak Estate (Re), 2008 NSSC 283). Credibility is assessed in light of a witness’srecollection and how honest and reliable that recollection is. If I find the complainant credible, it does not in any way shift the onus tothe accused (R. v. C.L.Y., 2008 SCC 2). I must consider all of the evidence (R. v. E.M.W., 2009 NSPC 33, affirmed at 2011 SCC 31). AsCampbell, Prov. Ct.

J. (as he then was) stated in E.M.W.: 47 The concepts of "accepting" and "rejecting" evidence are a convenient judicial shorthand. For a trial judge they may not alwaysaccurately reflect that more complicated relationship between doubt and belief. In some cases, the evidence of the complainant may befound to be more reliable, believable, or credible. The evidence of the accused may be much less reliable, believable or credible.

Thatdoes not mean that his evidence may not be just reliable, believable or credible enough to raise a reasonable doubt in light of theremaining scope of doubt left by the complainant's evidence. It is not only appropriate, but necessary for judges to consider all thesources of reasonable doubt. The sources may include the doubt left by the complainant's evidence, the doubt created by the evidence ofthe accused, the doubt found in any other evidence or the doubt arising from the combination of those sources. Evidence [11] I will review the Crown evidence first, simply because of the order of witnesses.

Hannah Nickerson [12] Hannah Nickerson is Justin Nickerson’s sister. On the evening of Friday, July 17, 2020, after Justin Nickerson finished hisshift working at Sea Star fish plant, she drove him to Browns Pit Road, where Jessica Lewis resides. She testified that she did not see herbrother again until she saw him in hospital on Sunday evening. She testified that on Friday evening he had no injuries, and when shesaw him on Sunday, he was injured. When she drove him to Jessica Lewis’s home on Friday, she said, she did not see him carrying any

alcohol, or anything else, in the vehicle. By contrast, Mr. Nickerson’s own evidence was that he had alcohol and some weed. [ 13 ] Overall, Hannah Nickerson was a reliable witness. I have no difficulty accepting her evidence that she drove her brother to Jessica Lewis’s home on Friday, and that he did not have any facial injuries when she dropped him off, but did have injuries by the time she saw him on Sunday. Justin Nickerson [ 14 ] Justin Nickerson is 23 years of age. He testified that he knows the accused, who was a friend of his older brother and had been at his home a lot over the years.

In addition, the two dated young women who were friends during high school. As a result, they would spend time together. Mr. Nickerson said the accused was the first person he smoked weed with. He thought that he had not seen the accused for several years, since he graduated from high school or since Grade 11. [ 15 ] Justin Nickerson testified that he had known Jessica Lewis since Grade 9, but that they had not been close. He did not start hanging out with her until two weekends before the alleged events, when he spent time at her house in Clyde River. [ 16 ] Mr. Nickerson said he spent time with Ms.

Lewis the next weekend after seeing her at a friend’s house. He said he went to her house on a Friday or Saturday. He could not recall for sure, but said he believed it was Friday. [ 17 ] Mr. Nickerson said Jessica Lewis texted him that she was going to Bridgewater to drop her children off, one to a babysitter and the other to the child’s father, and he agreed to go along. He identified a photo of himself and Ms. Lewis, marked as Exhibit #1. He said it was taken that first night. They went to Boston Pizza in Bridgewater and then returned to her home. He testified he had one beer at Boston Pizza.

He said after they returned from Bridgewater and Boston Pizza, that they went for a drive before midnight and drank afterwards. [ 18 ] The next morning, Mr. Nickerson said, he got up and drank a cup of vodka with juice while waiting for Ms. Lewis to get up. He also let the dog out. When she got up they went to the Anchors Away for lunch and a beer. They were there for 30 to 45 minutes, then returned to her home. [ 19 ] Mr. Nickerson testified that after they returned to Ms. Lewis’s home, the accused showed up. He knocked on the door, and Mr. Nickerson saw him through the front door window.

He said he opened the door, greeted the accused, and let him in. There was small talk, such as: “how are you”; “I haven’t seen you for a while”; “watch the liquor I spilt”. Justin Nickerson then bent over to clean up the liquor. He did not sense any animosity from the accused. He said the accused said nothing and he did not think there was any sign of trouble. [ 20 ] Mr. Nickerson testified that as he bent down to clean up the spill, he was hit in the eyes with an object which he believed was wooden. He then felt the accused’s hands on his head and the accused kneed him in the face.

He said, “I saw Dustin strike me – clear as day”. He said he did not pass out or lose consciousness, but he felt fuzzy and dazed. [ 21 ] Mr. Nickerson described the wooden object that hit him as similar to a 2x4. He also said it was like a broken axe handle. He said there was no warning, and that it came from his right side and hit him in the eyes, and then a knee hit his face. He could not say which knee it was. In response to questioning Justin Nickerson said: “I wasn’t checking the fucking guy for weapons.” [ 22 ] Mr. Nickerson said he heard Ms.

Lewis arguing with the accused and saw her in the kitchen with him. She asked Mr. Nickerson how he was, and left with the accused, who took her by her wrists. Mr. Nickerson did not see anything else. Mr. Nickerson testified on cross-examination that the accused asked her “why are you with him” and “what are you doing with him”, and he described the rest of the conversation between the two as “yada, yada, yada”. [ 23 ] Mr. Nickerson called his mother to pick him up.

He said he cleared blood off his face, gathered his things, and waited for his mother to arrive, which took between 15 and 20 or 25 minutes after he called. Mr. Nickerson said he thought it would take between 15 and 25 minutes to travel between Skippers Lane (where he lives with his mother) and Brown’s Pit Road in Clyde River where Jessica Lewis lives. According to Mr. Nickerson, when his mother picked him up, the dog was still at Ms. Lewis’s home. He went to the hospital in Shelburne and was then taken by ambulance to Yarmouth, where he stayed the night. He then travelled to the hospital in Halifax. [ 24 ] Mr.

Nickerson testified that he had surgery and now has a metal plate in his right eye socket, which was fractured. His left eye socket was also fractured, but that side did not require plating. His right eye suffered an injury to the tear duct, and it constantly waters. Exhibit #2 is a photo book depicting his injuries, including two swollen and black eyes, cuts, and chipped front teeth. Mr. Nickerson’s mother took some of the photos and some were taken at the RCMP station before he went to Halifax to the hospital. [ 25 ] Justin Nickerson testified that over the two days he and Ms.

Lewis spent together they split two quarts of vodka, a bottle of Smirnoff and another type of Vodka. He said he had marijuana when he came home from work on Friday, but not on Saturday or Sunday. He had some remnants of a bag of marijuana with him but only consumed some after work. He testified that he smokes marijuana three times a week. He testified he did not have the marijuana on the kitchen counter in the Lewis home, and he was 100% sure he did not have cocaine with him. He denied the allegation by Ms. Lewis that he had cocaine. He denied taking any other drugs, including cocaine or narcotics.

He testified he had not had cocaine since the summer he graduated. He admitted to using cocaine years earlier. [ 26 ] Mr. Nickerson testified that Jessica Lewis has messaged him since this event and called him a liar. He blocked her. He saw her at a friend’s house and they had an exchange where she screamed at him. [ 27 ] Mr. Nickerson testified that alcohol did not impair his faculties on Saturday as he had a cup of vodka in the morning when he got up and then he had a beer at Anchors Away. However, later in his testimony he said he was not sure of the timing of events because he was impaired by alcohol.

His evidence on this point is not consistent.

[ 28 ] Mr. Nickerson testified that Ms. Lewis woke up after he had gotten up and that she too had a cup of vodka. Neither of them had marijuana or narcotics. He did not know when the accused arrived at the home but said it was after they returned from Anchors Away and it was still light outside. In direct examination, he never placed a time on the events in question. He could not narrow the time his mother arrived to pick him up any further than between 2:00 pm and 6:00 pm. He testified that when his mother arrived, he ran out to the car and went straight to the hospital.

This is in contrast to his mother’s evidence that she had to help him to the car. [ 29 ] Justin Nickerson denied that he ever told anyone that Jessica Lewis was kidnapped. He said he did not see an assault on Jessica Lewis, and added, “I don’t know where that is coming from”. This is noteworthy because the accused is charged with assault and kidnapping of Jessica Lewis, but neither Mr. Nickerson nor Ms. Lewis testified that this is what they saw or experienced. [ 30 ] Mr. Nickerson admitted on cross-examination that he called his mother and not an ambulance, 911, or the police.

He said that calling the police is not what he does. It was only after he spoke to people that he decided to call the police. He said he wanted his face fixed and no cops, and he did not want to be in court. He testified “I hate this. I didn’t want to be a part of this.” [ 31 ] Mr. Nickerson vehemently denied that he left Ms. Lewis’s residence to get drugs and alcohol and returned with injuries, as suggested in her evidence. He denied owing people money for drugs, saying this suggestion was absurd and that he never left her home without her at any time. [ 32 ] Mr.

Nickerson was cross-examined about the timing of these events, and gave a wide time range for these events, with his mother arriving between 2:00 pm and 5:00 pm or 6:00 pm. On direct, he testified that he and Ms. Lewis went to Anchors Away between 11:00 am and noon, and later he said around noon or sometime in the afternoon. He said he was impaired by liquor and could not recall the exact time, but that they were at the restaurant for 30 to 40 minutes and then went straight home.

It seemed convenient for him to point to alcohol as the reason he could not recall the timing of the alleged events, while earlier he denied being impaired by alcohol and said he only had a cup of vodka mixed with juice in the morning and a beer. This is not consistent with someone being so intoxicated that they do not know the timing of events. [ 33 ] Mr. Nickerson was asked about a Kaylen Nickerson. Mr. Nickerson said he returned from out west in December 2019 and became friends with Kaylen Nickerson in January 2020. [ 34 ] At times Mr. Nickerson was evasive.

He would answer questions by posing questions instead of providing responses. I found his evidence to be credible on some points (for example the events of Friday evening), but lacking detail on others. He was argumentative and non-responsive to some questions on cross-examination. Particularly of issue was his inability to situate events in time. Describing events occurring between about 11:00 am (earliest time he gave that they went to Anchors away) and 6 pm (latest time he says his mother picked him up) is problematic from a burden of proof standpoint, as I will further explain later in these reasons.

Sherry Nickerson [ 35 ] Justin Nickerson’s mother, Sherry Nickerson testified that she drove her son to Jessica Lewis’s house the first weekend. She said did not drive him the second weekend, but she did pick him up on Sunday after he called her. She testified that on Friday night his face was fine and when she picked him up “he was a bloody mess”. This reference to her picking him up on Sunday is inconsistent with the evidence that Mr. Nickerson was picked up on Saturday, the day after he arrived at Jessica Lewis’s. [ 36 ] Ms.

Nickerson described her son going to the Shelburne, Yarmouth, and Halifax hospitals, but said it was not until after going to Halifax that he went to the RCMP station to give a statement. This is inconsistent with Mr. Nickerson’s own evidence that he gave a statement before he went to Halifax. [ 37 ] Ms. Nickerson spoke about Exhibit #2 and said she took the pictures in the hospital and that the photos showed the cleaned-up version of his face. [ 38 ] Ms. Nickerson confirmed that she knew the accused through her older son, and that he had been at her home years before. [ 39 ] Ms.

Nickerson said she picked up her son between 9 and 9:30 in the evening. She testified that when she arrived at the Lewis house, she had to exit her vehicle and help him to the car because he could not see through the blood. She said she saw him close what looked like a gate and exit the house and then she went to help him. [ 40 ] I accept that Ms. Nickerson was trying to give accurate evidence at trial. Her evidence about when she picked her son up is vastly different from his own account. He said it was still light out and between 2 pm and 6 pm, while she placed it much later, at 9 or 9:30 pm.

This chronology is significant in view of evidence as to when the accused was working and when he left work, with an individual present who could attest to his whereabouts. [ 41 ] It is clear that the Crown’s witnesses were not sure of the timing of these events. The lack of clarity around timing will be discussed in greater detail and is important to my assessment of the evidence. Constable Donovan [ 42 ] Constable Dennis Ryan Morris Donovan, the lead investigator, has been a member of the RCMP for five years, stationed in Barrington over 3 ½ years.

He testified that on July 19, 2020, Justin Nickerson reported he was assaulted by the accused at Jessica Lewis’s home. Cst. Donovan went to the accused’s home, but he was not there. He then went to Ms. Lewis’s home, around 4:00 pm on Sunday, but she was not there. The doorway was slightly open. He did not recall a dog being present. He called Jessica Lewis and spoke to her. [ 43 ] Cst. Donovan then went to Tanya Nickerson’s home. She told him that she had just dropped off the accused at his home. She is his surety. He then returned to the accused’s home and arrested him.

[44] Cst. Donovan confirmed that Jessica Lewis denied being assaulted and refused to provide a statement. She was neverinterviewed in relation to the kidnapping charge. The arrest was based entirely on information provided by Justin Nickerson, who cameto the detachment on Sunday at 2:30 pm. This is in contrast to Mr. Nickerson’s evidence that he did not see Ms. Lewis assaulted and didnot say she had been kidnapped. [45] Cst. Donovan said Jessica Lewis was asked to go to the nearby Liverpool detachment to verify her safety. She did so, andeverything seemed fine. [46] Cst.

Donovan said he did not find blood in or around the doorway at Ms. Lewis’s house. There was no evidence of analtercation except the door was ajar. He looked around but did not see a weapon. This is despite the fact that Justin Nickersonmaintained he had blood all over him from the assault. [47] Jessica Lewis never complained about an assault or confinement. Justin Taylor Nickerson [48] Given this witness has the same first and last name as the complainant, I will reference him by his middle name, as TaylorNickerson. [49] Taylor Nickerson testified that he has known the accused since childhood.

He recalled playing video games on a PlayStationwith the accused for three days prior to this incident. They played on July 18, 2020, until the accused said he had a woman coming overto his home, and said it was not a good day. Taylor Nickerson was pretty sure this was July 18, 2020. He thought they stopped playingvideo games some time between supper time and 8:00 pm on July 18, but said he was not sure of the time. [50] While they were playing PlayStation and chatting online, Taylor Nickerson could not say where the accused was located.

Hetestified that they would usually play from dinnertime until supper, that is, from around noon or 1:00 pm until 5:00 pm. [51] Taylor Nickerson’s evidence was not challenged in any respect. I accept that at the least he was playing video games with theaccused until 5:00pm and he may have played as late as 8:00 pm. Agreed Statement of Facts [52] The parties entered an Agreed Statement of Facts as Exhibit #3. These agreements are important in the analysis. First, theparties agree that the injuries suffered by Mr. Nickerson are sufficient to make out wounding, so as to constitute an aggravated assault.

Secondly, they agree that the accused was on a release order with three conditions that are relevant to this matter. Lastly, andimportantly, it is agreed that the accused was working with his grandfather on July 18, 2020, from 6:30 am until 4:00 pm, and on July19, 2020, from 7:15 am until 3:45 pm. The Agreed statement provides as follows: 1. The nature of the injuries suffered by Justin Nickerson would make out “wounding” sufficient to meet the definition of aggravatedassault. 2. The accused was on a Release Order at the relevant time with the conditions: a.

That he not have any contact with Jessica Lewis with certain exceptions that do not apply in the circumstances. b.That he not be outside of the residence at 2834 Highway 3, Barrington, NS with certain exceptions that do not apply in thecircumstances. c. That he keep the peace and be of good behavior. 3. That on July 18th, 2020, Mr. Crowell worked with his grandfather Leo Atkinson between approximately 6:30 am and approximately 4:00 pm. On July 19th, 2020, Mr.

Crowell worked with his grandfather Leo Atkinson between approximately 7:15 am andapproximately 3:45 am. [53] The agreed statement of facts places the accused at work until 4:00 pm on the day in question. This is significant, as JustinNickerson testified that he was picked up by his mother after the alleged attack, between 2:00 pm and 6:00 pm. This means during asignificant period of time that Justin Nickerson believes this event occurred, the accused was at work, and was nowhere near JessicaLewis’s home.

If Sherry Nickerson was correct, and she picked her son up at 9:30 pm, this could place the events at a time when theaccused was home alone, for a short period of time, before or after Tanya Nickerson arrived home and then went to do laundry. Directed Verdict [54] At the end of the Crown’s case, the Crown invited the Defence to bring a motion for a directed verdict on counts three and fourof the indictment. The Defence so moved. [55] The test for a directed verdict was commented upon in R. v.

Beals, 2011 NSCA 42, at paragraphs 20 and 21: It has long been understood that the test a trial judge is to apply on a motion for a directed verdict is the same as that which an extraditionjudge or a judge at a preliminary inquiry must employ. In United States of America v. Shephard, (SCC), [1997] 2S.C.R. 1067, [1976] S.C.J.

No. 106 (Q.L.) Ritchie, J., for the majority, wrote at p. 1080: I agree that duty imposed upon a “justice” under s. 475(1) is the same as that which governs a trial judge sitting with a jury in decidingwhether the evidence is “sufficient” to justify him in withdrawing the case from the jury and this is to be determined according towhether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The “justice”, in

accordance with this principle , is, in my opinion, required to commit an accused person for trial in any case in which there is admissibleevidence which could, if it were believed, result in a conviction. These directions were re-affirmed by Chief Justice McLachlin, writing for a unanimous court, in R. v.

Arcuri, 2001 SCC 54. 21 The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trialjudge considering a defence motion for a directed verdict, namely, “whether or not there is any evidence upon which a reasonable juryproperly instructed could return a verdict of guilty”: Shephard, supra, at p. 1080; see also R. v. Monteleone, (SCC),[1987] 2 S.C.R., 154, at p. 160.

Under this test, a preliminary inquiry judge must commit the accused to trial “in any case in which thereis admissible evidence which could, if it were believed, result in a conviction”: Shephard, at p. 1080. 22 The test is the same whether the evidence is direct or circumstantial: see Mezzo v. The Queen, (SCC), [1986] 1S.C.R. 802, at pp. 842-43; Monteleone, supra, at p. 161. The nature of the judge’s task, however, varies according to the type ofevidence that the Crown has advance. … [56] I am to consider the evidence offered by the Crown and decide whether it is sufficient to reasonably support a conviction.

Thetask is simple in this matter. There was no evidence offered to support a charge of assault and kidnapping of Jessica Lewis. No evidencewas called. In fact, the only evidence was from Justin Nickerson who said he did not see an assault and never said a kidnappingoccurred. [57] There is a lack of evidence to support a conviction on counts three and four. Given the lack of evidence called by the Crown inrelation to the assault charge concerning Jessica Lewis and the kidnapping charge, I grant the defence motion and direct an acquittal onboth of those counts.

Defence Evidence [58] The defence was called to its election and called three witnesses, including the accused. Tanya Nickerson [59] Ms. Nickerson testified that she is the accused’s surety. She stayed with him at his residence, at 2834 Highway 3 inBarrington. She worked at the Starboard Inn, which is located three to five minutes from his home. She also maintained a residence at11 Andrews Lane, five minutes away from the accused’s home. She testified that most days he would play video games and invitefriends over. He did not have an automobile. [60] Ms.

Nickerson’s evidence was that she worked on July 18, 2020 and was home by 8:00 pm. She saw the accused then, and sheasked if he had clothing to be washed. She took a basket to 11 Andrews Avenue and came back around 9:30 pm, although she was notsure of the exact time and later gave an earlier time. He was upstairs and she yelled to him that she had returned. He responded. Shewent into her bedroom. [61] Ms. Nickerson said she went to bed and watched television for a bit. When she woke up, the accused was not in his bedroom,but she picked him up from work that day. She believed she picked him up around 3:40 pm.

She then went to 11 Andrews Avenue topick something up. [62] On cross-examination, Ms. Nickerson said she had her wash cycle on casual, and between washing and drying it took an hour. She believed she was back by 9:00 to 9:15 pm. She said she texted the accused that night but said she had since gotten a new phone andthe messages were lost. She admitted that she was asked about this at a bail hearing in July and agreed she had them at that time but didnot keep them. She said she deleted all the messages, including Facebook Messenger. [63] Ms.

Nickerson admitted that as the accused’s surety, if he is found to have violated the terms of his bail, she could lose money. [64] Ms. Nickerson was emotional on the stand. She became flushed and had tears in her eyes while testifying. I am troubled by thedeletion of the messages to the accused on the evening of these alleged events, given that this witness was asked about these messages incourt and deleted them afterwards. Despite this, I do accept some of her evidence. I accept that she worked until 8:00 pm. This placesthe accused alone in his home from 4:00 pm until 8:00 pm.

We have Taylor Nickerson playing video games with the accused untilsometime between 5:00 pm and 8:00 pm. Then we have the accused alone again until about 9:00 pm or 9:15 pm or 9:30 pm. [65] Ms. Nickerson was forthright in that she was not at the home with the accused throughout the night. She came and went. Iaccept her evidence on this point. It was clear that she took this seriously and took her position as his surety seriously. Jessica Lewis [66] Ms. Lewis confirmed her address was 36 Brown’s Pit Road in Clyde River.

She confirmed that Exhibit #1 depicted her andJustin Nickerson but said she did not recall that photo being taken. She said she did not know Ben Gorman, who was mentioned in thephone log where the picture appears. [67] Ms. Lewis confirmed that she and the accused lived together on and off for four to five years and have a three-year-old child. She said they were last together as a couple two years ago and they no longer date. [68] Ms. Lewis confirmed that she and Justin Nickerson met on Friday, July 17, 2020, when he was dropped off at her home, andthey drove to Bridgewater to drop her daughter off.

They ate at Boston Pizza and drove home, where they had drinks. She said Mr.Nickerson may have had a beer at Boston Pizza. She could not recall what time they returned to her home, but said they met herdaughter’s father in Bridgewater at about 7:00 pm.

[ 69 ] The evidence of Ms. Lewis and Justin Nickerson is very similar up to the afternoon of July 17, where it diverges significantly. Ms. Lewis said Mr. Nickerson drank a quart of alcohol, and she had some Smirnoff coolers. [ 70 ] Ms. Lewis said the reason Mr. Nickerson came with her on the evening of July 17 was because she had had a few drinks with a friend, Chris. Chris and Justin were friends, and Chris could not accompany her, so Justin said he would. She said things finished up around midnight or 1:00 am on the Friday night. She was not sure.

She said Chris was there for the drinks, and was picked up, but Justin did not want to leave, so he stayed. [ 71 ] Jessica Lewis testified that she saw Justin Nickerson snort cocaine that evening. She said she saw it on her table on a red plate. She testified that the next day she woke up and he was drinking from a bag of wine she had in her fridge. There had only been one glass out of the bag, but she said he drank the rest of it when he got up, and he was drunk. Given Mr.

Nickerson’s inability to give any real sense of timing of events, and his reference to being impaired by alcohol, I do not accept his evidence that he had only a cup of vodka and juice in the morning, and then a beer. I find Ms. Lewis’s evidence more reliable in relation to the ingestion of alcohol that night and morning. [ 72 ] Ms. Lewis testified that Mr. Nickerson left in a pickup truck with a person named Darryl and another individual called Tombstone. She said that when he left, around 3 pm, he had no marks or injuries.

She was unsure what time he returned, but that it was still daylight, and he had cocaine and two quarts of alcohol. He put the cocaine on the counter. She told him she was not drinking that day and was going to a friend’s home. When she left, she said, he was already somewhat beaten up, but not as badly as the photographs in the court exhibits depict. [ 73 ] Ms. Lewis said she did not return to 36 Brown’s Pit Road. She said she had plans and did not feel comfortable there. She said Mr. Nickerson refused to leave when she told him to. She thought she left at 5:00 pm. It was still daylight.

She became agitated at this point and responded that she did not jot down the time. [ 74 ] Ms. Lewis said that when she left, Mr. Nickerson had cuts on his face, a black eye, and dried blood on his face. She said he was drunk and could not have a conversation. She had no desire to speak with him. She said no one came to her door and knocked, and that she had no other visitors. She said she did not see the accused at her home on July 18, 2020. She confirmed that the accused did not have a car. [ 75 ] Ms. Lewis said the RCMP contacted her the next day while she was in Liverpool with her two children.

She went to her father’s home. The RCMP called her and asked her if she was kidnapped and held against her will. To prove she was not, she went to go to the Liverpool detachment to show herself. [ 76 ] On cross-examination Ms. Lewis said Justin Nickerson had been at her home on two occasions, but not on back-to-back weekends, and not for entire weekends. He had suggested in his evidence that it was her birthday weekend and she did not want to spend it alone, so he came over. She denied this, saying it was her birthday weekend, but she was not celebrating.

She agreed that he stayed the night and that she got up quite late the next day. She said that when she got up, he left her house with Tombstone. She told him she had plans that day. When he returned, she said, he was drunk and obnoxious and would not leave. She called him “oblivious drunk.” She said he left around 3 pm and was back by 5 pm. [ 77 ] When she left, Ms. Lewis said, she went to her friend’s house and helped put her friend’s three children to bed. She was unsure of the time, but said it was still light out. She then went to her friend Chris Nickerson’s house.

She stayed there and went to Liverpool the next day. She testified that her dog remained in her home at Brown Pit’s road. [ 78 ] Ms. Lewis testified that the next day, July 18, she picked up her children and took them and her nephew, who was at her father’s, to McDonalds. She could not say what time this was. At this point, she became very argumentative. She was belligerent at times and did not want to answer questions. [ 79 ] Ms. Lewis testified she did not come home until Sunday, after going to the RCMP detachment. Her dog was still in the home.

She would have the court believe she left her dog alone for some 24 hours, and that the dog stayed in the home despite the police seeing a door ajar and not seeing a dog in her home. Ms. Lewis explained that there are baby gates in the home to prevent the dog from leaving certain areas. She was impeached on this, and agreed that she said earlier in court that she took her dog with her to Liverpool. She then said she recalled leaving the dog in a room which was secure. The evidence concerning the dog was confusing to say the least, and the witness was all over the place as to where the dog was.

Her evidence changed conveniently and constantly on this point. [ 80 ] Ms. Lewis was confronted with evidence she gave at a bail hearing in July. On a prior occasion she said Justin Nickerson was at her house the previous weekend, but now she maintains she was in Alberta that prior weekend, so he could not have been. Additionally, on the prior occasion she had not described Mr. Nickerson having cuts on his face when he returned from being with Tombstone. She claims she did not see both of his eyes damaged on July 18, 2020. [ 81 ] On direct Ms.

Lewis testified that she left her home at 5:00 pm on July 18, but at the bail review she said Mr. Nickerson arrived at her house at 8:00 pm, and she arrived at her friend’s house at 9:30 pm. She said her memory was foggy and became very argumentative. [ 82 ] Jessica Lewis agreed that her relationship with the accused had been marked by violence. He had assaulted and threatened her in the past. She denied being fearful for her safety and denied fabricating her evidence. [ 83 ] Ms. Lewis agreed that she barely knew Justin Nickerson and had no relationship with him.

It was put to her that she left him alone in her home and did not return until the next day. She said she would rather leave peacefully and safely than stay and have the situation escalate. [ 84 ] Portions of Ms. Lewis’s evidence are difficult to accept. She continually changed her testimony and her evidence was marked with inconsistencies between her direct and the evidence she gave at the bail hearing. She was argumentative, tried to avoid answering

questions, was belligerent and clearly did not want to be testifying. It is difficult to assess what can be believed of her evidence. However, she maintained that she left home at about 5:00 pm or, alternatively, after 8:00 pm. Again, this makes it possible for the eventsto have occurred before Tanya Nickerson arrived home from work or not, depending on what evidence is accepted. I do accept Ms.Lewis’ evidence concerning the complainant’s consumption of alcohol, which would explain his inability to give any time frame forthese alleged events. Dustin Crowell [85] Mr. Crowell testified in his own defence.

He is currently at the Central Nova Scotia Correctional Facility in Burnside(CNSCF). He was recently sentenced to four years after pleading guilty to aggravated assault upon Kaylen Nickerson. He testified thatthis occurred when he and two others were drinking and taking cocaine, and he stabbed Mr. Nickerson. Mr. Crowell denied guilt of anyof the charges in the current indictment. [86] Mr. Crowell testified on July 18, 2020 that he attended work with his grandfather Leo Atkinson who is a lobster buyer and runsa fish plant. Mr.

Crowell works as a labourer, including running the forklift and working in the fish tank. He has worked with hisgrandfather from time to time since he was 15, while out on bail and out of prison. He has been incarcerated several times. He testifiedwhen the lobster season is on, he works every day, but it is over at the end of May. After that he works three to four times a week. Heusually gets picked up by his grandfather somewhere around 7:00 to 8:00 am. [87] On the day in question, Mr. Crowell said, his grandfather brought him home in the afternoon to 2834 Highway 3. He owns atwo-story home at that address.

He believed he got home around 3:00 or 4:00 pm. He then took a shower, watched television, andplayed PlayStation. He testified to being on house arrest at the time, so he did not do much. While he had a valid driver’s license, he didnot have a car. He said Tanya Nickerson got home around 8:00 pm and took laundry to her place. He believed she left between 8:00 and9:00 pm and returned around 9:30 – 10:00 pm. He was unsure of the time because he did not have a clock in his bedroom. He said heplayed PlayStation and went to bed at 10:30 or 11:00 pm.

He recalled playing PlayStation with Taylor Nickerson on July 18, 2020,briefly. He worked the next day and was up at 7:00 am and worked until 4:00 pm. [88] Mr. Crowell testified that he never left his home on July 18, 2020, except to work. He did not go to Jessica Lewis’s house. Infact, he said, he had never been to her home on Brown’s Pit road since she has lived there. [89] Mr. Crowell denied all of the allegations by Justin Nickerson. He said he worked from 7:00 am until 4:00 pm and then was athome the rest of the day.

He denied seeing Justin Nickerson that day, July 18, 2020, and said he never had a weapon and never struckhim. [90] Mr. Crowell testified at the bail hearing that he was playing PlayStation and video games all day. He did not say anythingabout work until after the bail hearing. He also testified at the bail hearing that Tanya Nickerson was there the whole day and left brieflyand was back the whole night. Based on her evidence that was incorrect because she was at work during the day. Mr. Crowell sincelearned he was working that day and this now is part of the agreed statement of facts. [91] Mr.

Crowell denied that he was upset that Ms. Lewis was romantically involved with Justin Nickerson. He said, in fact, thatshe had been in several relationships, so he was not upset. He denied going to her residence, denied he got upset, and denied he struckMr. Nickerson. He said, “didn’t happen”. He then said, “I disagree with everything you just stated”. Positions of the Crown and Defence [92] The Defence says that Justin Nickerson is not to be believed. He was drunk the morning of July 18, 2020. He left JessicaLewis’s home with others and returned with the injuries, and with more alcohol and cocaine.

The defence argues that the unsupportableallegations of kidnapping and assault in relation to Jessica Lewis casts doubts on his credibility. The Defence says he proved to be a poorhistorian of time and events and that a conviction should not rest upon his evidence. The Defence alleges that the accused was an easytarget for Justin Nickerson who has a friendship with Kaylen Nickerson, who the accused previously assaulted and took responsibilityfor that assault.

The Defence asks the court to accept the accused’s testimony and the testimony of Jessica Lewis who has consistentlysaid these events did not occur. [93] The Crown argues that if I accept the evidence of Justin Nickerson, I can convict on that basis alone. The Crown relies on R. v.JJRD (ON CA), 2006 CarswellOnt 7552 (CA) for this proposition. The Crown says Justin Nickerson was notshaken on cross-examination, that he clearly was injured, and that his evidence is credible and reliable.

The Crown says the evidence ofJessica Lewis does not make sense and argues that Justin Nickerson would not have left and returned to her home, injured. The Crownsays she is fearful of the accused and is putting together a story for the court because of the fear she has of the accused and because theyshare a child. [94] The Crown argues the accused cannot be believed and that his account of what he was doing on the day in question haschanged. They say he has a criminal record that should be weighed in an assessment of his credibility. Law and Analysis [95] To find Mr.

Crowell guilty of aggravated assault, Crown counsel must prove each of these essential elements beyond areasonable doubt: 1. that the accused intentionally applied force to Justin Nickerson; 2. that Justin Nickerson did not consent to the force the accused intentionally applied; 3. that the accused knew that Justin Nickerson did not consent to the force that the accused intentionally applied; and

4. that the force the accused intentionally applied wounded Justin Nickerson. [96] Crown counsel must satisfy me beyond a reasonable doubt of each of these essential elements. I will first deal with this firstcount on the indictment, since the rest of the charges relate to this charge. [97] In Baker-Warren v. Denault, 2009 NSSC 59, the Court made the following observations about credibility, at para 19: With these caveats in mind, the following are some of the factors which were balanced when the court assessed credibility:

a) What were the inconsistencies and weaknesses in the witness' evidence, which include internal inconsistencies, prior inconsistentstatements, inconsistencies between the witness' testimony, and the documentary evidence, and the testimony of other witnesses: NovakEstate, Re, 2008 NSSC 283 (N.S. S.C.);

b) Did the witness have an interest in the outcome or was he/she personally connected to either party;

c) Did the witness have a motive to deceive;

d) Did the witness have the ability to observe the factual matters about which he/she testified;

e) Did the witness have a sufficient power of recollection to provide the court with an accurate account;

f) Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonablegiven the particular place and conditions: Faryna v. Chorny (1951), (BC CA), [1952] 2 D.L.R. 354 (B.C. C.A.);

g) Was there an internal consistency and logical flow to the evidence;

h) Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased; and

i) Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving? [98] Considerations of these factors are helpful to a court assessing credibility. However, it is not a perfect recipe for makingfindings of credibility. In R. v. Gagnon, 2006 SCC 17, the majority of the Supreme Court considered the difficulty of assessingcredibility as follows, at paragraph 20: Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is whythis Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptionsshould be respected. [99] In R. v.

R.E.M., 2008 SCC 51, the court said, at paragraph 49: While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on aparticular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize.Furthermore, embellishing why a particular witness's evidence is rejected may involve the judge saying unflattering things about thewitness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting hisevidence and convicting him, but adding negative comments about his demeanor.

In short, assessing credibility is a difficult and delicatematter that does not always lend itself to precise and complete verbalization. [100] The evidence of Justin Nickerson and the accused cannot be reconciled. I must apply the principles set forth in R. v. W.(D.),supra. When I step back and consider the evidence of the accused, there is nothing on its face which raises a concern in relation tocredibility or reliability which would cause me to reject the accused’s evidence in a wholesale fashion.

I have considered the Crown’sevidence concerning the accused’s criminal record and their argument that this should be considered in an assessment of credibility. While I did consider his history, it does not lead me to reject his evidence entirely. [101] As stated in R. v. Baxter, supra: 124 The Court must never lose sight of the fact that the accused is to be regarded as innocent until proven guilty on a criminalstandard. It is well established that while the Crown always has the burden of proving the essential elements of the offence(

s) to acriminal standard, it is not required to prove every single piece of the evidence beyond a reasonable doubt... [102] The accused did not have many inconsistencies in his evidence. While initially (at the bail hearing) he stated that he was at homeall day, he explained that he determined after seeking information from his work, that he indeed worked the whole day. This is in theagreed statement of facts. I do not have a basis to reject the accused’s evidence on this point.

He has given evidence of where he was forthe day and what he was doing for the evening, much of which is corroborated by others. [103] The accused’s evidence, taken as a whole, is a denial of the assault and of ever being at Jessica Lewis’s home that day orevening. It is true that there is a span of time when the accused would have been alone with no one to account for his whereabouts,depending on when this alleged event is to have occurred. [104] It is clear Justin Nickerson suffered some significant injuries the weekend in question. The question is whether the Crown hasproven it was at the hands of the accused.

Justin Nickerson’s wide-ranging timeline is difficult to reconcile. He finally explained thesediscrepancies by saying he was intoxicated, which he had denied previously in his evidence. [105] The evidence of Ms. Lewis and Justin Nickerson is consistent to a point, and then diverges significantly. They corroborate muchof each other’s evidence up until the next morning of July 18, 2020.

[ 106 ] The fact is the alleged victim can not pinpoint the time the alleged attack is said to have occurred. He gives a wide range of times over about four hours. This results in the accused having an alibi if this occurred before 4:00 pm or around 8:00 pm and a little after. I accept that the accused was at work until 4:00 pm. I accept he played PlayStation with Taylor Nickerson until about 5:00 pm at the very least. I accept that Tanya Nickerson arrived home at 8:00 pm and was gone for an hour.

The accused did not have a car at the time. [ 107 ] All of this taken together raises a reasonable doubt in my mind that the accused assaulted Justin Nickerson. Given I can not say what occurred at what time, the Crown has failed to meet its burden and prove the accused was at Jessica Lewis’s home and assaulted Justin Nickerson. [ 108 ] In the circumstances, given the burden of proof, the inconsistencies in the evidence, lack of recall, impairment of the Crown’s main witness and issues with the timeline, all taken together, and when considering the evidence in its totality, I am left with a reasonable doubt.

It is not enough to show something likely or probably happened. The burden is one of proof beyond a reasonable doubt. Accordingly, I must acquit the accused of the offence of aggravated assault contrary to section 268(2) of the Criminal Code . [ 109 ] Given my assessment of the evidence and given I am left with a reasonable doubt, the rest of the charges are similarly unable to be proven by the Crown and an acquittal will be entered in relation to those as well. Brothers, J.