Her Majesty the Queen - v. -, 2015 SKPC 96

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 096 Date: June 22, 2015 Information: 43843429 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Aaron Preston Katschke Appearing: Mr. M. Pilon For the Crown Ms. J. Basinski For the Accused JUDGMENT B.G. MORGAN , J INTRODUCTION [ 1 ] Mr. Katschke is charged with two threats respecting Clayton Shaw, a Corrections worker at the Regional Psychiatric Centre (RPC) in Saskatoon. Count 2 is the first in time, a threat to cause bodily harm to him made on September 30, 2014.

Count 1 is a threat to kill him, dating from November 7, 2014. The issue is the application of the correct test for both the actus reus and the mens rea of either offence. The tests are the same whether the threat is to cause death or to cause bodily harm.

THE LAW [2] The law has recently been stated by the Supreme Court of Canada in R v McRae, 2013 SCC 68 [McRae]. I parse the law asfollows, omitting the citations from that case. [3] The actus reus, or prohibited act, is made out by “the uttering of threats of death or serious bodily harm”. The presentwording of s. 264.1(1)(

a) of the Criminal Code refers to “death or bodily harm”, omitting the qualifier “serious” which appeared in priorversions of the charge. Whether the words “constitute a threat is a question of law to be decided on an objective standard”. The Court isto look at “the plain and ordinary meaning of the words uttered”. In those cases where there is no reason to believe the words may havea “secondary or less obvious meaning”, that ends the matter.

In cases where that analysis does not end the matter, the Court is to look atthe context to determine whether the words do in fact convey a threat within the meaning of the section. [4] The legal question respecting this “turns solely on the meaning that a reasonable person would attach to the words viewed inthe circumstances in which they were uttered or conveyed”. The Court is to use the “reasonable person” standard applied to theparticular circumstances of the case.

That person is “objective, fully-informed, right-minded, dispassionate, practical and realistic”. [5] The Court may rely on testimony from persons who either heard the alleged threat or were the subject of it in order to applythat objective test, but the question at this stage is not whether such a person in fact felt threatened; that person’s opinion is only relevantto the “application of the reasonable person standard”. [6] The above is all explained in more detail in paragraphs 10 through 15 of McRae.

The actus reus discussion is summed up atparagraph 16: ....the prohibited act of the offence of uttering threats will be made out if a reasonable person fully aware of the circumstances in whichthe words were uttered or conveyed would have perceived them to be a threat of death or bodily harm. [7] The mens rea, or fault element of the offence, is made out if it is shown that the words were meant to either intimidate or tobe taken seriously: there is no need for the Crown to prove that the threats were made with an intent that they be conveyed to theintended recipient.

Whether the words were meant to intimidate or be taken seriously is a subjective test, and determining that mayrequire the Court to rely on inferences drawn from all the circumstances. [8] In cases such as this, in which the accused testifies, the Court will need to assess that evidence, and may believe some, none,or all of the evidence of the accused. Context is again to be considered.

The decision stresses that the test respecting the intent of theaccused is on a subjective standard: what did the accused actually intend? (See generally paragraphs 17 though 23 of McRae, the lastparagraph containing a summing-up of the mens rea requirements.) [9] As the accused testified, I will apply the credibility test set out in R v McKenzie (1996), (SK CA), 141Sask R 221 (CA). I will deal with the two counts in chronological order. Count 2 - the threat to cause bodily harm of September 30, 2014 [10] I find the following facts. Ms.

Meghan Hryhor is a Complaints Officer at the Regional Psychiatric Centre in Saskatoon. It isobvious from her evidence that Mr. Katschke was constantly filing written complaints, primarily against Clayton Shaw. She noted she

would sometimes get four or five complaints a day from him. The threat alleged is set out in Exhibits P-1 and P-2, both written complaints filled out by Mr. Katschke on Correctional Services Canada forms entitled “Offender Complaint Presentation”, both dated September 21, 2014. [ 11 ] These complaints both start out by discussing a fire that Mr. Katschke set in his cell in August, and he complains in particular about the conduct of Mr. Shaw in response to that fire. Suffice it to say that it is obvious, from the tenor of the complaints in each of Exhibits P-1 and P-2, let alone the evidence of Mr.

Katschke, that he feels Mr. Shaw is a mean-spirited employee of the Correctional Service of Canada. I have no reason whatsoever to suspect that is in fact the case; Mr. Shaw testified, and I found him to be a competent and honest individual. However, Mr. Katschke clearly holds a different view. [ 12 ] The problematic part of one of the complaints, Exhibit P-2, for Mr. Katschke, is the comments he makes in the latter part of the complaint respecting Mr. Shaw: What if I decided to say “fuck it” and pull my shank out of my back left pocket and put it into his eye?

I consider these things as I am suffering from psychopathy/sociopathy. Luckily, however, I was able to control my temper/rage problem [thanks to my treatment team here.] During the “experience” Mr. Clay Shaw put on because he is a known hothead on Bow Unit. He also broke my glasses, and scratched my brand new sunglasses some f’n how. He is a problem and needs to be brought to some form of justice before it is too late! There is no question that Ms. Hryhor thought it was a threat.

As she put it in cross-examination, “he knows if you’re going to do these things you’ll be charged”. [ 13 ] Looking at the wording, one could conclude it is a threat; that view would be buttressed by the final sentence in which Mr. Katschke opines that Mr. Shaw needs to be brought to “some form of justice”. [ 14 ] Mr. Katschke testified that he had been told by the nursing staff at RPC to fill out these grievances and he had hoped that there would be some kind of remedial action taken against Mr.

Shaw if a number of people complained. [ 15 ] Dealing with the actus reus , objectively speaking, I cannot be satisfied beyond a reasonable doubt that the plain and ordinary meaning of the words uttered make out a threat in these circumstances. Thus, I’m looking at the reasonable person test, and I am considering the view of Ms. Hryhor, as well as Mr. Katschke. On balance, I have a reasonable doubt that the actus reus has been made out. I note that the initial threat to stab Mr.

Shaw is more in the way of what I might call musing, that is, somewhat of a rhetorical question, against a background in which I find Mr. Katschke wants something done about what he considers Mr. Shaw’s egregious behaviour. However, that does not necessarily mean that it is Mr. Katschke who is going to do that something. The final sentence about Mr. Shaw needing to be brought to “some form of justice” could equally be meant to refer to internal disciplinary action by Mr. Shaw’s employer, when one looks at the entire context, including the fact of the numerous complaints being made by Mr.

Katschke. [ 16 ] Turning to the mens rea issue on this, although I do not fully believe the evidence of Mr. Katschke as to his intent, it does leave me in some reasonable doubt on that issue. [ 17 ] I am therefore not satisfied that either the actus reus or mens rea of count #2 has been made out, and I find Mr. Katschke not guilty on that charge of threatening bodily harm. Count #1 - death threat of November 7, 2014 [ 18 ] This incident came about as a result of Mr.

Katschke placing a sign on the inside of the glass observation window of his cell, facing the corridor, stating that “Clay Shaw is a dead child word up”. The sign had initially said dead “man”, but the word “man” was stroked out with the word “child” placed immediately behind it.

[ 19 ] The background for this is that Mr. Katschke had been taken earlier that day from his cell to another area, and was being escorted by three guards, as was policy for inmates in Mr. Katschke’s category of risk. When he was removed from the cell, he was patted down by Mr. Shaw, and made the sarcastic query of Mr. Shaw of “was that good for you?” He was handcuffed with this hands behind him, and I find that Mr. Katschke was acting in an aggressive manner. As Mr.

Katschke approached an internal security door, he kicked at the door, following which the guards returned him to his cell as they did not feel it was safe to allow him to continue. It was shortly after he was placed into his cell that the sign was displayed. [ 20 ] Nicklaus Danczak was the officer who came across this sign during a security check. He had noticed, on a monitor, that the camera inside Mr. Katschke’s cell was covered, blocking the view inside the cell.

He then went down the corridor and saw the sign which he felt “appeared to be a direct threat against Clay Shaw”. [ 21 ] Exhibit P-3 is a video of the interaction between Mr. Danczak and Mr. Katschke while the former was in the corridor, and the latter was in his cell, respecting the sign. The officer asked Mr. Katschke if he was making a threat, to which Mr. Katschke replied he didn’t know. He then said that he didn’t make threats, he only made promises. [ 22 ] Mr. Shaw testified that Mr. Katschke was on his caseload, and that he was “difficult as far as security was concerned”. Mr.

Shaw had told him to remove that sign, a sign that Mr. Shaw interpreted as a threat, to which Mr. Katschke replied “I will see you in the streets of small Saskatoon in the near future, or in a few months”, referring to Mr. Katschke’s upcoming release from RPC. [ 23 ] The above deals with the facts as I find them on count #1. I will now turn to the evidence of Mr. Katschke on this. [ 24 ] Mr. Katschke said that the reason he kicked at the door was to open it, as his hands were cuffed behind him, and he had no option.

I reject that explanation; he was accompanied by three guards, any one of whom would have opened the door. He kicked at the door because he was in a foul mood. He also stated that he was bi-polar, and had been trying for some time to find a way to stabilize that condition. He spoke of having “issues with Mr. Shaw my whole time there”, and acknowledged that “if someone wants to make a problem for me, I’ll get angry”. He did testify to be on mood stabilization drugs at the time. [ 25 ] This situation is different from count #2, and I find Mr.

Katschke guilty on count #1 for the following reasons. [ 26 ] Turning to the actus reus, the plain meaning of the words “Clay Shaw is a dead child” conveys a threat. I am further fully satisfied that the reference by Mr. Katschke of seeing Mr. Shaw on the streets of Saskatoon in the near future is equally a threat in the circumstances and reinforces the meaning set out in the sign. [ 27 ] As to the mens rea , and Mr. Katschke’s subjective state of mind, the thrust of the defence argument is that Mr. Katschke did not subjectively intend his words to be a threat, and that the Crown has not proven that Mr.

Katschke knowingly made a threat, based on his mental state at the time. I am not able to accede to either of those arguments. [ 28 ] Firstly, dealing with Mr. Katschke’s subjective state of mind, I am not able to accept any suggestion from Mr. Katschke that he didn’t intend what he did to be threats. He clearly had issues with Mr. Shaw for some time, and he made two very specific threats within approximately one hour. I have no doubt that he intended the sign to convey a threat. [ 29 ] I note that Mr.

Katschke couldn’t say for certain what he had said at times relevant to the charges, and in cross-examination, although initially presenting as being reasonably calm, quickly displayed the attitude of a person with issues respecting control of his temper. He rambled at times, and tended to justify his actions. As one example, he spoke of how one may act if another driver cut one off on the highway, and that although one might get angry and say, “in the heat of the moment”, that you will kill that person, you soon settle down.

He did not appreciate that in fact that is the very actus reus and mens rea of the offences he is charged with. [ 30 ] Further, there is no issue raised as to Mr. Katschke’s ability to stand trial or any defence under the mental disorder provisions

[ 30 ] Further, there is no issue raised as to Mr. Katschke’s ability to stand trial or any defence under the mental disorder provisions of the Criminal Code . The best that can be said for Mr. Katschke is that, as he put it in referring to the sign, “I was in the heat of the moment”. All that means in looking at the mens rea is that Mr. Katschke made an unwise decision to make a threat; it does not exempt him from criminal liability. Many criminal offences are made out due to the bad decision of the perpetrator.

That doesn’t change the fact that an offence is committed. [ 31 ] As to the issue of the effects of any medication being taken by Mr. Katschke, I have no evidence before me to suggest these medications, whatever they were and whenever he took them, somehow deprived him of the ability to control his actions. [ 32 ] Specifically, on this count, I accept the evidence of all of the officers. I reject the evidence of Mr. Katschke as to many of the details of that day, and I specifically reject any suggestion that he did not know what he was doing when he made the threat.

I am satisfied beyond a reasonable doubt that both the actus reus and the mens rea of the death threat are made out, and I find Mr. Katschke guilty on that count. ________________________ B.G. Morgan, J