R. v. Publicover

R. v. Publicover Court Provincial Court Date 2025-03-18 Citation 2025 NSPC 37 Docket 8846316-8846320 Judge/Registrar/Adjudicator Daley, Timothy (Honourable Judge) Document Type Decision Decision Content

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Publicover, 2025 NSPC 37 Date: 20250318 Docket: 8846316-8846320 Registry: Dartmouth Between: His Majesty the King v. Stephen Publicover Judge: The Honourable Judge Timothy Daley Heard: March 11, 2025, in Dartmouth, Nova Scotia Decision: March 18, 2025 Charge: ss. 266, 267(b), 267(c), 264.1 (1) (a) and 430(4) of the Criminal Code Counsel: Nichole Ford, for the Crown Mark Holden, for the Accused By the Court: Introduction [1] This is the trial decision respecting Stephen Allen Publicover. He is charged that, on or about the 9th or 10th day of September 2024, in Dartmouth Nova Scotia, he committed the following offences against Kaila Ford under the Criminal Code: 1. Assaulted her contrary to section 266; 2. Assaulted her, causing bodily harm, contrary to section 267(b); 3. Assaulted her by choking, suffocating or strangling her, contrary to section 267(c); 4. Uttered a threat to her to cause bodily harm or death to her contrary to section 264.1 (1) (a); and 5. Committed a mischief by damage to property, specifically damage to her glasses, contrary to section 430(4). Summary of Evidence [2] Both the Complainant, Ms. Ford, and the Accused, Mr. Publicover, as well as two police officers provided evidence. [3] There is common ground that Mr. Publicover and Ms. Ford were in a relationship for approximately three years and that Ms. Ford

generally lived for days at the time with Mr. Publicover but was never on the lease with him at any of his residences at any time. I infer from this evidence that she also had her own residence, which is consistent with the evidence of Mr. Publicover. [4] On or about the dates in question, Ms. Ford and Mr. Publicover agree that they were hanging out with friends at Alderney Landing, in Dartmouth. They borrowed some money and jointly purchased a 15 pack of Bush Iced Beer which Ms. Ford agreed had an alcohol content of between 5 and 6%. Both Ms. Ford and Mr. Publicover agree they each drank between seven and eight cans of beer during their time at Alderney Landing. They each became intoxicated. [5] Ms. Ford said that at some time during the evening, Mr. Publicover left without talking to her and went back to his residence. Mr. Publicover says he had words with a relative of hers and left without speaking to her. He says he walked to a Sobey’s store on the way home to get some food, returned to his residence, did not eat the food and went into his bedroom where he fell asleep. [6] The residence in question is located at 6 Russell Street in Dartmouth and is owned or controlled by a third-party named Mike. Mr. Publicover’s evidence was that he had made arrangements to stay there for one month for a set payment. He had a key to the front door and was allowed to sleep in the bedroom

close to that front door and living room area. [7] It was his evidence, with which Ms. Ford agreed, that she did not have a key, was not part of the rental agreement, though it was informal and verbal, and she did not contribute to the payment of rent for that one month. [8] Mr. Publicover says that each time that he wished Ms. Ford to stay over with him, he would ask Mike for permission for her to remain overnight with him. He testified that generally, this was agreed to but once in a while, it was declined. [9] On the evening in question, after Mr. Publicover left Alderney Landing and went home to bed, Ms. Ford later decided to go to his residence. She conceded she had not discussed this with Mr. Publicover prior to attending at the home that evening. She says she knocked and entered the home as she had often done, said hello to Mike who was in the living room area and walked through the house to the bedroom occupied by Mr. Publicover. It is here that their evidence diverges significantly. [10] Ms. Ford says that when she entered the bedroom, she observed Mr. Publicover asleep in the bed. She saw his cell phone and noticed that there was a message on it. It was only in cross-examination that she explained that the message was from another woman with whom there was some difficulty in the past. [11] She says that she shook Mr. Publicover’s leg to awaken him to discuss the

message and he opened his eyes. She says when he saw her holding the phone, he "came at me" and assaulted her and threatened her. [12] Specifically, she says he choked her with his hands firmly wrapped around her neck and she told him she couldn't breathe. He took her to the floor at some point and while on the floor with his hands around her neck, he told her he was going to kill her, she would never see her children again, she believed he was going to further assault her and she was afraid. [13] At that point she told him to get off her which he did. They both stood and she says that he then dragged her out of the house, pushing her from behind and she fell while exiting the home, injuring her right knee, breaking the skin with blood flow and rocks and debris in the wound. This was the same knee that have been injured previously and had healed. [14] As she fell, her glasses fell off her face and were damaged. These were later recovered by the police and brought to her to confirm they were hers. Those glasses were entered into evidence, and I accept that those were the glasses that she wore that day and that were damaged in her fall. [15] She then went some distance down the street, and I understand she contacted a friend and ultimately 911 was called. EHS attended and provided medical care to her and the two police officers who gave evidence attended as part of the

investigation. [16] Ms. Ford took photographs of her neck later that morning, and these were entered into evidence. They show horizontal red marks on the front of her neck only and no marks on the side of her neck. [17] Mr. Publicover tells a different story. He says that he went to sleep in his bedroom and was awoken by Ms. Ford hitting him in the head repeatedly with his cell phone in her hand. He agrees that he had sent messages to a woman that evening after he arrived back at the residence but thereafter passed out and was only woke when the strikes were delivered by Ms. Ford. [18] He described himself as startled and wondered what was going on when he was first awakened. He jumped up and grabbed Ms. Ford by the wrist and took the phone from her. They had a verbal argument, and he told her to leave. He then reached out and held her shoulders by her sweater, pushing her or shoving her towards the door. [19] Mr. Publicover said in cross-examination that he grabbed Ms. Ford by the sweater at her shoulders. There was a scuffle. He had to shove her out and direct her out of the bedroom and out of the home while holding the sweater. [20] He denies choking her or making any threats to her, as described by Ms. Ford. [21] He acknowledges that he observed her fall when she left the home, but did not notice any damage to her glasses. [22] It was Mr. Publicover’s evidence in

cross-examination that his relationship with Ms. Ford was centred on drinking. He admitted to being drunk seven days a week and began drinking that day midafternoon around 2 to 2:30. [23] Mr. Publicover also testified that this was not the first time that there been issues about him texting other women and that caused difficulties in his relationship with Ms. Ford. [24] Both Ms. Ford and Mr. Publicover testified that she is diagnosed with borderline personality disorder (BPD) and is prescribed a mood stabilizer to assist in maintaining her emotional state. It was her evidence that she hadn't taken that medication for a few days before this incident and had not taken it on the date she gave her evidence. [25] Mr. Publicover’s evidence was that when she was not taking her medication for BPD, she could quickly become emotionally escalated. Ms. Ford testified in cross-examination that without taking her mood stabilizer, she would be more emotional but not violent. [26] With respect to marks on her neck, Mr. Publicover said these were likely caused when he grabbed her by her sweater in the bedroom and then held her sweater, pushing her and directing her out of the home. He denies that he pushed her through the doorway, causing her to fall. He simply says he directed her out of the home, and she fell going down the two steps outside of the doorway. [27] The two officers at the scene

also gave evidence. Constable Carpenter testified that he attended at the scene and observed Ms. Ford with EHS staff and could see an injury to her right knee. He described it as a baseball sized cut with blood and was swollen. He said it seemed to be a recent injury. [28] He testified that he observed marks on her neck which he described as press marks with some popped blood vessels. He also observed some marks in her hand, specifically scrapes on her knuckles. [29] He described Ms. Ford as very emotional and distraught but made no observations of intoxication. [30] Constable Verboom testified he likewise attended at the scene and observed an injury to Ms. Ford's right knee with blood on the cut area. He also observed bruising and marks on the front of her neck, but agreed that he was at a bit of a distance when making these observations. [31] He attended at 6 Russell St. and found the broken glasses which were later identified as belonging to Ms. Ford. [32] In cross-examination, he confirmed that the red marks observed on Ms. Ford’s neck were not determinative of aggression and that was nothing in his observation to suggest marks around the side of her neck. Issues [33] In this matter, credibility and reliability are the key issues to be decided. Specifically, I must assess the credibility and reliability of the evidence given by Ms. Ford and Mr. Publicover. [34] In addition,

the defence of defence property may be applicable in this matter. Applicable Law [35] In this criminal trial the Crown bears the burden of establishing proof of every element of each offence beyond a reasonable doubt. That burden never changes and never lessens. [36] Proof beyond a reasonable doubt does not involve proof to an absolute certainty. It is not proof beyond any doubt. Nor is it an imaginary or frivolous doubt. In R. v. Starr (2000) 2SCR 144, the Supreme Court of Canada held that this burden of proof lies much closer to absolute certainty than to a balance of probabilities. Mere probability of guilt is never enough in a criminal matter. [37] In R. v. W.D. [1991] 1 S.C.R. 742, the Supreme Court of Canada indicated the way a trial court should assess the evidence of an accused who testifies. The accused’s evidence is treated in a way different from other evidence. I must consider whether I believe the accused’s evidence, and if so, then he is entitled to be acquitted on a charge where I believe his denial. Even where I do not believe the accused’s evidence, if it serves to raise a reasonable doubt in relation to his guilt for any of the occurrences, then he is entitled to the benefit of the doubt and he is entitled to be acquitted of the charges relating to that occurrence. [38] Even where I do not believe the accused, and his evidence fails to raise reasonable doubt,

I must still consider whether, on the evidence I do accept, the Crown has proved the essential elements of each offense beyond a reasonable doubt. I may only convict the accused of offenses proven beyond a reasonable doubt. Proof beyond a reasonable doubt also applies to issues of credibility. [39] If I am left in doubt where I don’t know who or what to believe, then I am, by definition, in doubt and the accused is entitled to the benefit of the doubt. Having said that, however, the accused’s evidence is not considered in isolation. It is part of the whole of the evidence that I have heard and must consider. [40] Further, I adopt the restatement of these principles by the Nova Scotia Court of Appeal in R. v. N.M, 2019 NSCA 4 where the Court adopted a reframed statement of the WD factors as expanded by the Supreme Court of Canada in the case of R. v. JHS, 2008 SCC 30. The restatement was as follows: First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not know whether to believe the accused or a competing witness, you must acquit. Thirdly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit. Fourthly, even if you are not left in doubt by the evidence of the accused, that is that his or her evidence is rejected, you must ask yourself whether, on the basis of the evidence that

you accept you are convinced beyond reasonable doubt by that evidence of the guilt of the accused. [41] The process I must follow is first to determine whether I believe the accused’s evidence or, if I do not believe it, whether it raises a reasonable doubt as to his guilt. If I am left in either of those states of belief by his evidence, I must acquit him. [42] If I do not believe his evidence and it does not raise a reasonable doubt, I must go on to consider whether on the whole of the evidence, and considering the application of the Villaroman principles, the Crown has proven his guilt beyond a reasonable doubt. [43] A criminal trial is not a credibility contest. [44] On the issue of credibility, I am guided by the case of Faryna v. Chorny [1952] 2 DLR 34 where the Court held that the test for credibility is whether the witness’s account is consistent with the probabilities that surrounded currently existing conditions. The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the witness carried conviction of the truth. In short, the real test of the story of the witness in such a case must be how it relates and compares with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those

conditions. [45] Or as stated by our Court of Appeal in R. v. D.D.S. [2006] NSJ No 103 (NSCA), 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 other evidence pertaining to it, while applying the appropriate standard of proof in a …criminal trial? [46] With respect to the demeanour of witnesses, I am mindful of the cautious approach that I must take. There are a multitude of variables that could explain or contribute to a witness’ demeanour while testifying. As noted in D.D.S., demeanour can be considered by a trier of fact when testing the evidence but standing alone it is hardly determinative. [47] Credibility and reliability are different. Credibility has to do with a witness’s veracity, whereas reliability has to do with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately observe, recall and recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. [48] Credibility, on the other hand, is not a proxy for reliability. A credible witness may give unreliable evidence. Reliability relates to the worth of the item of evidence, whereas credibility relates to the

sincerity of the witness. A witness may be truthful in testifying, but may, however, be honestly mistaken. [49] A credibility assessment is not a science. As noted in R. v. Gagnon, 2006 SCC 17 (S.C.C.), para.20, it is not always possible to "articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events...” [50] There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety: Novak Estate, Re, 2008 NSSC 283 (N.S.S.C.). On the contrary, a trier may believe none, part or all of a witness's evidence, and may attach different weight to different parts of a witness's evidence. [51] It is important to remind myself of my role, and duty, as the trial judge. The Nova Scotia Court of Appeal in R. v. Brown [1994] NSJ 269 (NSCA) confirmed at paragraph 17: …There is a danger that the Court asked itself the wrong question: that is which story was correct, rather than whether the Crown proved its case beyond a reasonable doubt. [52] In the case of R. v. Mah 2002 NSCA 99, the Court stated: The W.D. principle is not a magic incantation which trial judges must mouth to avoid appellate intervention. Rather, W.D. describes how the assessment of credibility related to the issue of reasonable doubt. What the judge must not do

is simply choose between alternative versions and, having done so, convict if the complainant’s version is preferred. W.D. reminds us that the judge at a criminal trial is not attempting to resolve the broad factual question of what happened. The judge’s function is the more limited one of deciding whether the essential elements of the charge have been proved beyond reasonable doubt…the ultimate issue is not whether the judge believes the accused or the complainant or part or all of what they each had to say. The issue at the end of the day in a criminal trial is not credibility but reasonable doubt. [53] The Mah case makes it clear that my function as a judge at a criminal trial is not to attempt to resolve the broad question of what happened. My function is more limited to having to decide whether the essential elements of the charges against the accused have been proved beyond a reasonable doubt. The onus is always on the Crown to prove the elements of the offenses beyond a reasonable doubt. The onus is not on the Defence to disprove anything. Analysis and Decision [54] I do not intend to review in great depth the evidence of each witness other than as summarized earlier, but I will instead highlight where I find their evidence to be problematic in the assessment of credibility and reliability. [55] With respect to the evidence of Ms. Ford, I find her evidence to be

generally clear, though it did vary as she was asked questions throughout her testimony. First, she was unclear about whether Mr. Publicover choked her before or after they went to the floor. Second, she was unsure as to whether she was being choked before or after she was being dragged out of the house by Mr. Publicover. Additionally, at one time she described being pushed out the door and when her statement to the police was put to her, she agreed that she had told the police that he chased her down and pushed her on the street. This, of course, must be seen in the context of what she alleges and the circumstances she faced that day which would likely affect her recollections. [56] But I also find that Ms. Ford lacks credibility when she says that, upon discovering the text between Mr. Publicover and the other woman, she simply pushed Mr. Publicover on the leg to awaken him to discuss the matter. Given her BPD diagnosis, the fact that she was not on her medication at the time, that she was intoxicated and, when not taking medication, she can be emotionally elevated, I find it difficult to believe that she wanted to have a calm communication with Mr. Publicover about these texts in that moment. It stretches credulity in my view. [57] As for Mr. Publicover, I have difficulties with his credibility and reliability as well. First, he at one point denied that he became emotionally

escalated upon being awoken. He did say in his evidence that he "might have flipped out" and then later denied doing so. I find that stretches credulity as well. Based on his evidence, being awoken by being struck multiple times in the head by a cell phone would surely have escalated anyone emotionally and, given the verbal confrontation that he described, it's clear to me that it was emotionally escalated for both parties. I find that he, in his evidence, tended to downplay his own behaviours at the time of the confrontation. [58] Likewise, he is inconsistent in his description of what happened when he arrived at the front door while directing Ms. Ford out of the residence. He describes on one hand, pushing her out of the home and another directing her out of the home. This raises questions of his credibility on that evidence as well. [59] There is no doubt in my mind that the injuries suffered by Ms. Ford are as real and are because of her striking the ground outside the home. The injury to her knee was significant, as described in the police and by her, and the damage to her glasses is clear. [60] With all that said, I will assess the evidence at two points of time. First, while inside the bedroom I have two versions of events which are contradictory. Applying the test WD I do not believe all the evidence of Mr. Publicover concerning that confrontation within the bedroom

that night. [61] I must therefore turn to the second stage of WD to resolve the matter. Specifically, if I do not know whether to believe Mr. Publicover or Ms. Ford respecting the circumstances of the confrontation in the bedroom, I must acquit Mr. Publicover of the charges arising from that confrontation. [62] Each of their versions of events in the bedroom that night is possible. It is possible that what occurred is as Ms. Ford describes it while is likewise possible that everything occurred as Mr. Publicover describes it. [63] Specifically, with respect to the allegation of assault on her by taking her by the wrist and removing the cell phone from her hand and the uttering a threat to cause her bodily harm or death, each of their versions of events are equally credible and possible. [64] With respect to the allegation that Mr. Publicover assaulted Ms. Ford by choking, suffocating or strangling her, the evidence is inconclusive. They each have a different version of what it did or did not occur with respect to the damage to her neck. I accept that there was an injury to her neck, consisting of red marks on the front of her neck with some broken blood vessels. I find these marks are equally consistent with the possibility that she was choked and the possibility that, in grabbing her by the sweater, struggling with her and directing her or pushing her out of the bedroom in the

home, some injury was caused to her neck. This will also be addressed below as part of the defence of property analysis. [65] Based on the application of the second stage of WD I therefore find Mr. Publicover not guilty of the charges of assault, assault by choking, suffocating or strangling and uttering a threat to cause bodily harm or death. [66] When I then turn to the events that occurred at the front door and on the way to the door, it is clear from both Ms. Ford and Mr. Publicover that he was moving her towards the door while holding her sweater. As found earlier, this is consistent with the injury suffered to her neck and her equally explicable by either the choking allegation or the sweater causing marks and blood vessels to burst at the front of her neck. [67] When he either pushed or guided her out of the home, it raises the question of defense of property. When I consider that defence under section 35 (1), I note that defence is applicable if several findings are made. [68] First, I must find that Mr. Publicover believed on reasonable grounds that he was in peaceable possession of property. I do so find. He had made arrangements with Mike for a one-month rental of the property, had paid that in advance, was provided a key to the home and was, by that agreement, entitled to be in that property, and in the bedroom at the time of the incidents. [69] I must further find

that Mr. Publicover believed on reasonable grounds that Ms. Ford had entered the property without being entitled by law to do so. I find this is supported by the evidence. Ms. Ford was not part of the discussion regarding the rental of the property, was not provided a key to the front door, did not provide any payment or portion of payment towards that rental and based on the evidence of Mr. Publicover, had been denied the opportunity to stay over on at least a few occasions by Mike who controlled the property. I find that this constitutes evidence that she was not entitled to enter or entitled to be within the property by law. [70] I must also consider whether the act that constitutes the offences, specifically Mr. Publicover putting or pushing her out of the house, causing her to fall and injure herself and damage her glasses was committed for the purpose of removing Ms. Ford from the property. On the evidence is clear that that was the purpose of Mr. Publicover directing her and pushing her through the home and out through the door. [71] Finally, I must find that the act committed is reasonable in the circumstances. It is here that there is some discrepancy in the evidence. [72] Ms. Ford maintains that she was pushed out the door and in a manner that caused her to fall and injure her knee and break her glasses. Mr. Publicover says that he directed her out the door and she

fell. [73] I find that the act committed of directing her out the door is consistent with this defence of the property and was reasonable in the circumstances. The evidence overall makes clear that the emotional level was very elevated as between Ms. Ford and Mr. Publicover. I find it unlikely that Ms. Ford was calm and collected, but rather I find that she was emotionally escalated due to her and finding the text on the phone, hitting Mr. Publicover as alleged, not being medicated for her BPD diagnosis and therefore being emotionally escalated in the circumstances. In such a moment as this I find Mr. Publicover’s actions to be reasonable. [74] In the final analysis, therefore, I find Mr. Publicover not guilty on all counts. Timothy Daley, JPC