Trial ends after judge accepts hearsay evidence

By Delon Shurtz - Lethbridge Herald on January 18, 2024.

LETHBRIDGE HERALDdshurtz@lethbridgeherald.com

The trial for a man charged with viciously beating his ex-girlfriend abruptly concluded this week after the accused’s lawyer told the judge he will not call any evidence and his client will not testify.

Calgary lawyer Andre Ouellette made the announcement Tuesday in Lethbridge court of Justice, moments after Justice Kristin Ailsby ruled to accept hearsay evidence presented by the Crown during a voir dire – a mini trial within a trial – to determine the admissibility of the hearsay evidence against the accused, Gordon Leslie Nash.

During trial, the Crown was forced to rely solely on comments and statements the victim gave to police, a 911 operator and paramedics, since the victim refused to attend the trial and testify against the accused.

Ouellette contested those statements as hearsay, but Ailsby ruled that the Crown had proven the reliability of, and necessity for, the statements, and she accepted them into the trial proper.

The trial began Aug. 10 of last year, and entered directly into the voir dire to address the admissibility of the hearsay statements. The prosecution presented its entire case, then waited for the judge’s ruling on the admissibility of its evidence.

During the presentation of the Crown’s case, court was told that on March 20, 2022, Nash and his girlfriend – who were prohibited by a previous release order from being together – planned a romantic night and went to a local pub. The romantic evening was cut short, however, and Nash was told to leave the pub because he was belligerent and aggressive to other patrons.

The couple returned to Nash’s motorhome that was parked in a compound belonging to a fibreglass business in Coaldale where Nash worked. Ailsby noted that as the evening progressed, tensions between the couple increased and they began to argue.

“These arguments led to insults, the insults led to hostility, and the hostility ended in violence when, the Crown alleges, Mr. Nash embarked on a campaign of various violent acts,” Ailsby said.

According to the Crown’s evidence, over the course of a few hours Nash punched, kicked, struck, scratched and hit the victim’s body, using his bare hands, his feet – he was wearing cowboy boots – and a metal baseball bat. He threw (his girlfriend) around the small camper, refusing to let her leave, and at one point near the end of his violent barrage, Nash wrapped his hands around her neck and choked her until she lost consciousness.

After Nash fell asleep, the victim grabbed a cellphone, snuck out of the camper and fled to a residential street on the other side of the industrial compound where she called 911.

RCMP and other first responders found the woman on a curb, wearing only a thin, short dress, despite the winter conditions, and her body was crumpled over in a fetal position.

“Her clothes were stained with blood, and she was hardly recognizable to one of the responding officers who was familiar to her,” Ailsby said.

Her face and hair were covered in fresh and dried blood and her eyes were nearly swollen shut. Her body was covered in bruises and contusions, many made more obvious by being exposed to the cold, and she appeared to be in shock and distress.

“She physically struggled to do some of the most basic human things like stand, talk and move. Even breathing with the assistance of an oxygen mask proved difficult for her, and that was because her nasal cavity was obstructed with dried and coagulated blood created by the multiple injuries to her face and her head.”

The woman sustained multiple fractures of the bones in her face, and multiple rib fractures, in addition to the numerous contusions all over her body. She also had subcutaneous emphysema – air trapped in tissue beneath the skin – a collapsed lung, extensive swelling and various cuts and bruises from blunt force trauma. The damage to her face required extensive surgery, including the insertion of a metal plate to help hold the bones in place.

Nash, who was remanded at the Lethbridge Correctional Centre and has remained there since his arrest, was charged with aggravated assault, unlawful confinement, choking with intent, assault with a weapon, and three counts of failing to comply with release conditions. He was also ordered not to contact his victim while he was in custody.

Evidence introduced at trial, however, indicated he contacted the woman while he was in custody, even after she moved out of the province.

“We also heard in this trial hours of phone calls between (the victim) and the accused when he was in jail, on this very charge, where he engaged in all kinds of tactical manipulation; everything from promises to threats, which appears to be designed to thwart (the victim) from ever coming to court to testify.”

Nash was subsequently charged with failing to comply with a non-communication order, uttering threats to cause death or bodily harm, and attempting to obstruct justice, stemming from the phone calls he made while in custody.

“Collectively, this evidence satisfies me that (the woman) chose not to testify because she reasonably feared that she would be seriously hurt if she ever did come to court and testify against the accused.”

Ailsby concluded that the hearsay evidence is necessary because the accused created the very circumstances required for it. She noted there is corroborative evidence that as the victim was describing her experience to first responders, police found the accused alone in his RV, with blood on his hands and arms. Police also noticed smashed furniture, broken windows, a baseball bat and blood smeared everywhere.

With the trial concluded and the defence not expected to call any evidence, the matter was adjourned until Feb. 26, when the Crown and defence will provide their closing arguments before the judge renders her decision. Both counsel may also make sentencing recommendations that day, and the judge may sentence Nash then or reserve her decision for another day.