Her Majesty the Queen - v. -, 2011 SKPC 28

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 028 Date: March 22, 2011 Information: 39803678 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gary Albert Waskewitch Appearing: Robin Ritter For the Crown Eleanor Sunchild For the Accused JUDGMENT P.S. KOLENICK , J BACKGROUND [ 1 ] The accused is charged that he did, on or about July 10, 2006, at Saskatoon knowingly utter a threat to cause bodily harm to the complainant, contrary to s. 264.1(1) (

a) of the Criminal Code . The parties had been living in a common-law relationship at the time that this matter allegedly occurred. In the meantime, almost five years have elapsed and the accused denies that he had uttered the

threats as alleged. Therefore, the following issue has arisen during the course of the trial: Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt that the accused had uttered threats to cause bodily harm to the complainant as alleged by the Crown? REVIEW OF THE CROWN EVIDENCE Wendy Singer - The Complainant [ 2 ] Ms. Singer, age 29, advised that she had lived with the accused for roughly two years before this alleged matter occurred.

By the trial date, another four and one-half years, more or less, had elapsed before this matter proceeded. [ 3 ] In any event, at the time, the accused had attempted to call the complainant by telephone, with six attempts. She was able to see his name on her call display. She was scared and did not want to answer. On the seventh call she did answer and it was the accused again. He called her vulgar names and said words to the effect that her ass was worth $100.00.

As well, she should watch her back because somebody was waiting to kick her ass. [ 4 ] The complainant indicated herein that as a result of the accused’s alleged threats she was scared and did not feel safe. His words caused her to change the locks at her residence, get a new telephone number and a different cell phone. Immediately after this alleged contact, she called the police to make a complaint. She claimed also that roughly one year after that he had called asking her to drop the charge, but she refused.

She felt scared again and told him she was not prepared to do that. [ 5 ] In cross-examination, attempting to recall back, she believed the accused had babysat the children roughly two months after this alleged matter, but not for a full weekend in 2009, as suggested. As well, she initially denied that the break-up of the parties was due to the accused locating a love letter from her boyfriend.

However, she subsequently agreed that she had attempted to carefully stash it in her bag, so the accused would not locate it, to no avail, because he had found it. [ 6 ] The complainant also confirmed that she had telephoned the accused on one occasion to request the return of a portable DVD player. She agreed she had been scared making that call, but did it anyway. However, she denied having called the accused on six or seven occasions regarding the said DVD player.

She also did not remember the accused taking her son’s bed, after the separation. [ 7 ] She agreed as well that, initially, after the separation, she had some concerns with the visiting arrangements the accused was attempting to make with her son and the accused and his new family. However, that is no longer a problem, even though she is still scared of the accused. Again, she disputed that her son had spent a weekend in 2009, but believed instead that it had been only for roughly one hour in August of that same year.

Constable Reuben Wiebe [ 8 ] Constable Wiebe of the Saskatoon Police Service confirmed that he had attended at the scene, arriving at roughly 9:15 p.m. The complainant had been crying and had red eyes. He noted there had apparently been a call from the accused, which had occurred at 8:29 p.m. He obtained a statement from the complainant and went to see if he could locate the accused at the residence of his brother, Darwin Chief. As well, he sought a warrant for the arrest of the accused, to better ensure safety of the complainant. The accused was not located at the brother’s residence.

However, the officer was put in contact with him through his cell phone number, with the assistance of the accused’s brother and his family. The content of that conversation was determined to be voluntary and admissible, following a voir dire .

[ 9 ] The officer confirmed he had made notes at the time. He made connection with the accused on the cell phone number which had been provided. The officer initiated their dialogue by identifying who he was, to which the accused responded: “you’re calling me about those threats, aren’t you?” The officer confirmed with the accused that was the reason for the contact. The accused undertook to surrender in a few days when he returned from the job site where he was employed. All of the evidence on the voir dire was applied to the trial proper by consent.

In cross-examination, the officer had confirmed the accused made it clear he knew what they were talking about regarding the alleged threats, which the officer had noted in his report at the time. As well he had an independent recollection of the call and Darwin Chief handing the telephone to him for that contact with the accused to occur. EVIDENCE FOR THE DEFENCE The Accused [ 10 ] The accused confirmed that the parties had been living in a common-law relationship. At the time when he located the letter confirming that the complainant had been with someone else, the relationship was at an end.

He left a phone message that he was leaving, and put his property in storage. [ 11 ] That same day the accused was en route to La Ronge for work. When he was near to Prince Albert, he received a cell phone call from the complainant asking why he had taken the children’s bed. On a second cell phone call she asked the whereabouts of the DVD player. On a third call, the accused told her to stop the calls because she was harassing him. The complainant said that she would call the cops and hung up.

Therefore, the accused called the Saskatoon Police Service for the purpose of making a complaint against her for harassment. He was advised he would need to come back to the Saskatoon Police Service building to make the complaint and provide a statement. Regardless, he had not made any nature of threats to the complainant. Rather, he told her that it was over between them. The complainant had threatened in one of those calls to contact the police and apparently had followed through with that threat. [ 12 ] While he was still on route the accused received the cell phone call which had been arranged by his brother.

However, Constable Wiebe had initiated the discussion by stating words to the effect: “We’re here because of you uttering threats to Wendy.” However, the accused had not responded in any way confirming he had uttered threats to the complainant. [ 13 ] The accused indicated that he has not had very much contact with the complainant since this alleged matter occurred and denied he had contacted her to request the charge be dropped. He believed also that the complainant’s son had visited with them for a weekend, perhaps in 2008.

Despite the accused having requested further visits of that nature, the complainant was not in favour, so no more occurred. [ 14 ] In cross-examination, the accused confirmed that he was shocked that the complainant had fooled around on him but was not even angry a little bit, because he knew it was coming. [ 15 ] Afterward, he had spoken to a lawyer and left the whole matter with him.

As such, he had not gone to the police to make a complaint against the complainant as initially he had indicated, and just let it go. [ 16 ] He also denied having made spontaneous inculpatory comments to Constable Wiebe regarding the threats as alleged, despite the evidence of the officer to that effect and his notes. As well, he confirmed he had not made notes himself at the time.

He agreed that some people might benefit from notes almost five years later, but he had no difficulty recalling the details of what allegedly occurred. [ 17 ] The accused also confirmed the existence of a criminal record, which was entered as an exhibit for the Crown herein. Pursuant to s. 12 of the Canada Evidence Act , the accused may be questioned as to the contents of same, as occurred here. However, that information can only be used to impeach the credibility of the accused, and not as an indicator of bad character or propensity to commit crime.

It is not apparent that the nature of the accused’s Criminal Code convictions, nor the timing of them, would be a reasonable consideration in regard to the accused’s credibility. As such, the criminal record will not be considered herein because the result will be too prejudicial rather than probative. The criminal record has no relevance on the issue of credibility and will not be

considered in that context. Nellie Waskewitch [18] Ms. Waskewitch confirmed that as the accused’s spouse she is familiar with Ian Singer, the child of the complainant. Shecould recall that Ian had come to their place for one entire weekend, and believed that had occurred in February or March 2008. [19] In cross-examination Ms. Waskewitch confirmed that she had discussed with her husband what had allegedly occurred. Shehad learned that the parties apparently had gotten into an argument while the accused was en route to La Ronge and the complainant hadcomplained that the accused had made threats.

Apparently he had not confirmed to his spouse that the threats had actually occurred. ANALYSIS Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt that the accused had uttered threats to causebodily harm to the complainant as alleged by the Crown? [20] As noted, in general the burden is on the Crown to prove the constituent elements of the offence beyond a reasonable doubtwith credible evidence, and the accused is presumed innocent until proven guilty. In assessing credibility, the Court is guided by theprinciples restated in R. v. McKenzie (P.N.) (1996), (SK CA), 141 Sask.

R. 221 (Sask. C.A.) (from R. v.

Rose (A.)(1992), (BC CA), 20 B.C.A.C. 7 (B.C.C.A.)), para. 4: First, if you believe the accused, obviously you must acquit; Secondly, if after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [21] The determination of credibility does not involve the Court opting for one version of events or the other.

Rather, the Crown must prove that its evidence is credible, and there is no onus on the accused whatsoever in that respect. Even if the Court prefers the evidence of the Crown, it must still consider whether the evidence for the defence raises a reasonabledoubt. Therefore, credibility of the material witnesses needs to be considered, in that context. [22] I had occasion to consider the appropriate legal principles on this subject in R. v. Janzen (P.J.) (2006), 2006 SKPC 30, 281 Sask. R. 98, and noted the following, starting at para. 18: [18] Specifically, s. 264.1(1)(

a) of the Criminal Code provides as follows: 264.1

(1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (

a) to cause death or bodily harm to any person; ... [19] Obviously every case will depend on its particular circumstances. In R. v. Jaeb (C.) (2000), (SK PC), 197

Sask. R. 296 (Sask. Prov. Ct.), I had dealt with a series of alleged threats made to different complainants. In general, the judgment statedas follows, at para. 25: [25] In R. v. Clemente (V.F.), (SCC), [1994] 2 S.C.R. 758; 168 N.R. 310; 95 Man. R. (2d) 161; 70 W.A.C. 161; 91C.C.C. (3d) 1, the court had occasion to consider and interpret the wording of s. 264.1(1) of the Criminal Code. In that regard, Cory J.,stated the following at page four: Under the present section, the actus reus of the offence is the uttering of threats of death or serious bodily harm.

The mens rea is thatthe words be spoken or written as a threat to cause death or serious bodily harm; that is, they were meant to intimidate or to be takenseriously. To determine if a reasonable person would consider that the words were uttered as a threat the court must regard them objectively; andreview them in light of the circumstances in which they were uttered, the manner in which they were spoken, and the person to whomthey were addressed.

Obviously, words spoken in jest or in such a manner that they could not be taken seriously could not lead a reasonable person toconclude that the words conveyed a threat. [23] There are inherent problems for anyone attempting to recall and relate matters which are alleged to have occurred almost fiveyears earlier. The Court must be vigilant to ensure that no injustice occurs. [24] The complainant has alleged that the accused had said words to the effect that her ass was worth $100.00 and that she shouldwatch her back because somebody was going to kick her ass.

Understandably she feared for her safety and contacted the police. Constable Wiebe attended at the scene, noted her distraught state and took a witness statement from her. At trial, while there wereinconsistencies and contradictions on some aspects of her recall of the history between the parties, those matters were not significant.

Aswell, she did not indicate anything materially different in cross-examination that the accused had indeed uttered the threats as alleged. [25] Constable Wiebe was also able to confirm the tenor of the conversation which he had with the accused on his cell phone, inrespect to which he had also made notes at the material time.

He indicated that the accused had initiated the pertinent dialogue betweenthem by stating “you’re calling me about those threats, aren’t you?” In that regard, the accused was not particularly credible that it hadbeen the officer who had started the conversation by referring to the alleged threats, and the accused confirmed nothing in his reply of aninculpatory nature. The comments of the accused in the cell phone call, as recalled and specifically noted by Constable Wiebe tends toconfirm the allegation claimed herein.

The accused may well have a faulty recollection with the passage of time, not having made anynotes, and despite his claim that he has a good memory of what occurred herein. [26] While there is no onus on the accused in these proceedings, he was not credible in denying that he had uttered the threats asalleged. As well, the testimony from his current spouse, although done with good intentions, was not helpful in the determination ofguilt or innocence herein. The complainant may well have an imperfect memory of particulars of when her son may have attended for avisit with the accused and his spouse.

However, that does not detract from her clear allegation of the threats which the accused haduttered and the inculpatory nature of his comments made to Constable Wiebe in the cell phone call. [27] Therefore, the evidence for the Crown is sufficiently credible to prove beyond a reasonable doubt to prove the constituentelements of the offence. He is guilty of the count of utter threats, contrary to s. 264.1(1)(

a) of the Criminal Code. _____________________

P.S. Kolenick, J