Her Majesty the Queen - v. -, 2017 SKPC 49

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 049 Date: May 23, 2017 Information: 90128368, 90129242 Location: North Battlefor d _____________________________________________________________________________ Between: Her Majesty the Queen - and - Steven Isaac Dyck Appearing: Charlotte Morden For the Crown Dwayne Braun For the Accused JUDGMENT D.

KAISER , J [ 1 ] Stephen Isaac Dyck (hereinafter referred to as SD) stands charged, as follows: 1. that between the dates of February 23, 2016 and September 17, 2016 both dates inclusive at the City of North Battleford in the Province of Saskatchewan, knowing that [LD] is harassed or being reckless as to whether [LD] is harassed did without lawful authority engage in conduct that caused [LD] to reasonably, and all the circumstances, fear for her safety contrary to

section 264 of the Criminal Code .

2. that between the dates of September 6, 2016 and September 14, 2016, both dates inclusive, at the City of North Battleford in the Province of Saskatchewan, did being at large on his undertaking fail without lawful excuse to comply with that condition to wit: abstain from communicating directly or indirectly with [RD] or from going to 1522 107 th Street, North Battleford, Saskatchewan contrary to section 145(5.1) of the Criminal Code ., and 3. that on or about the 28 th day of June 2016 at North Battleford in the Province of Saskatchewan did by word knowingly utter a threat to [RD] to cause bodily harm to [RD], contrary to

section 264.1(1) (

a) of the Criminal Code . I am using letters to describe the individuals involved in this matter in an attempt to preserve some degree of privacy for the children. BACKGROUND FACTS [ 2 ] The following are findings of fact, but are set out here in order to provide a framework for the subsequent discussion of the evidence. SD and LD have been married to each other for approximately 18 years.

There are three children of the marriage, being: RD who is now 17 years of age and was 16 years of age during the relevant time, BD, who is 14 years of age, and ED, who is now seven years of age and was six years of age during the relevant time period. LD, RD, BD and SD testified in the trial. ED did not. [ 3 ] The harassment charge is alleged to have taken place over a period of approximately seven months, commencing on February 23 rd and ending September 17 th , 2016.

The breach of undertaking charge is alleged to have occurred between September 6 th and 14 th , 2016, that is, near the end of the period alleged in respect of the harassment count. The threatening charge is alleged to have happened near the mid-point of the seven month period. However, the threatening charge was the first charge to be laid. It is the undertaking in respect of the threatening charge that is alleged to have been breached by the accused. [ 4 ] SD and LD lived in Swift Current, Saskatchewan for a short period of time following their marriage.

They subsequently moved to La Crete which is a small community in the most northerly part of Alberta and would seem to be the community where LD grew up and where her birth family resided and continue to reside. In July 2008, SD and LD, along with their two sons, moved out of La Crete and resided briefly at a camp near Loon Lake, Saskatchewan. They then moved to Meota, Saskatchewan where they rented a relatively small basement suite. ED was born while the family was residing at Meota. In December of 2014 they bought and moved into a house in North Battleford.

It is at or near this house that most of the events pertaining to the charges took place. [ 5 ] SD is a journeyman carpenter and it would appear that he has been employed in that trade throughout most of the marriage. It would also appear that his employment has been sporadic in recent years. This is, at least in part, due to the current weakness of the economy in this Province. It would appear that LD was engaged in employment outside of the home throughout most of the marriage and has also been occupied with child rearing and home making.

Since moving to North Battleford, she has been quite actively employed outside of the home, while still maintaining her child rearing role. She works as a teacher’s aide and also is employed by the City of North Battleford as a staff member at the Battlefords Aquatic Centre and at the Nations West Field House. During the summer of 2016 she also obtained part-time employment with the Boys and Girls Club when her work as a teacher’s aide was interrupted by the summer break. [ 6 ] Renovations began at the home in North Battleford shortly after SD and LD took possession of the house.

This work was mostly performed by SD given his occupation. Unfortunately this work was never completed and the house remained in a considerable state of chaos up until the time that SD was ordered to vacate the home pursuant to an Emergency Intervention Order, issued on March 29 th , 2016. [ 7 ] Backing up slightly in time, RD left the family home on approximately February 22 nd , 2016 as a result of conflict with his parents, primarily his father, SD. He had just turned 16 years of age. He initially “couch surfed” at the homes of his friends and after about a week moved in with a family friend.

[ 8 ] On February 23 rd , 2016, which was LD’s birthday, SD threatened to beat up the van that LD generally drove, with a hammer, and did in fact let the nitrogen out of the tires of the van making it unusable. This was the first day of the offence period alleged in respect of the harassment charge. [ 9 ] In early March, LD received an e-mail message from a co-worker friend indicating that she had heard from someone who said he was LD’s brother and that LD’s father had had a stroke and was hospitalized in Fort Vermilion.

SD strongly resisted the notion that LD or the children would go to see LD’s father, but eventually agreed to drive all of them to northern Alberta. They travelled to Fort Vermilion. After one day, SD left LD and the three children in the Fort Vermilion area, taking their only vehicle, the truck, effectively abandoning them there. LD and the children stayed there for four more days. With help of family and friends they got back to Edmonton, where SD picked them up to drive them home. However, at Lloydminster, he threatened to abandon RD leaving him either in the Walmart parking lot or the RCMP detachment.

LD managed to get SD to relent and, on Sunday March 13 th , 2016, they all returned to North Battleford. On Monday, March 14 th , LD went to a lawyer, changed her bank accounts and told SD that she was seeking a divorce. From her point of view, this was the beginning of the separation. [ 10 ] LD and SD continued to reside in the same house but separately. On March 28 th , LD was telephoned by Social Services. LD invited them to come to the house. Two social services workers and two police officers attended. With the help of the workers, LD, BD and ED moved to Interval House, a shelter for women and children.

RD joined them there a few days later. [ 11 ] On March 29 th , LD obtained the previously mentioned Emergency Intervention Order, (hereinafter referred to as “the EIO”). In that order, LD was granted the exclusive occupation of the residence and a peace officer was ordered to remove SD from the home. SD was ordered not to have communication or contact with LD, RD, BD or ED. SD was ordered not to be at, near or enter LD’s places of employment or RD’s place of employment, being the North Battleford Co-op Grocery Store. He was also ordered not to be at the schools attended by the children.

The order was to expire on May 29 th , 2016. LD and the children remained living at Interval House for four days and then moved back into the residence. LD then had all of the locks changed. SD was not provided with a key. [ 12 ] The EIO was lifted on approximately May 4 th , when an Order, consented to by LD and SD, was made by the Court of Queen’s Bench (Exhibit P-7). This order provided for the joint custody of the children with both parents, with primary care and residence being with LD.

Beginning on May 10 th , SD was to have parenting time with the children every Tuesday and Thursday from after school until 8:30 p.m., every second weekend from Friday after school to Sunday at 8:30 p.m.; and “such additional reasonable times as agreed upon by the parties.” SD was to have the “…exclusive interim possession of the family home…” and the “…exclusive interim possession, use and enjoyment of the 2007 Buick Terraza Minivan”. [ 13 ] By May 4 th , SD had moved into a third floor apartment overlooking the family home and back yard.

Considerable communication occurred between LD and SD in order to facilitate co-parenting. Co-parenting went anything but smoothly. [ 14 ] Even though LD was entitled to the exclusive possession of the family home, LD allowed SD to leave a trailer on the family home property, the trailer contained the tools that SD needed for work purposes. Further, she allowed him to have access to the trailer for purposes of accessing these tools. However, SD seemed to have treated this as a blanket permission to be in the yard, even though LD objected to same.

I am satisfied that he was frequently on the property, for purposes other than accessing his tools, contrary to LD’s expressed direction to him that this was not to happen. However, SD was never inside the house itself except as hereafter described. [ 15 ] In late April LD hired a contractor, a Mr. Bowers, to do some work on the home and bring it up to what she described as a livable standard. He took on this work, agreeing to fit it in among other jobs. He began work in the early part of May. SD did his best to stop Mr.

Bowers from working on the house, telling him such things as there is a “cease and desist order” in place regarding the house. Mr. Bower’s ignored SD and went about his work. However, SD continued to observe and occasionally attempt to stop Mr. Bowers from working.

[ 16 ] On June 28 th , a serious incident took place at the home. SD came there. BD and ED were playing in the backyard. The doors to the house were unlocked and perhaps ajar. SD entered the house. As it turned out, RD was in the house in his room in the basement. He saw SD in the basement of the house carrying and apparently removing a shop vac that had been inside the house. RD and SD had words. Those words are the subject of the threatening charge. Both RD and SD called the police. RD texted his mother who came to the house as did the RCMP.

BD, RD and LD gave statements to the police and SD was later charged with threatening RD. SD was released on an Undertaking before an officer in charge on June 11 th . An admission was made at the beginning of the trial that the accused was bound by the terms of the undertaking that included terms that he not communicate with RD or go to the family home. [ 17 ] During the evening of June 13 th , an incident occurred at the North Battleford Co-op parking lot. RD was at work at his job with the food store. His work requires him to go out into the parking lot to retrieve shopping carts.

He observed SD in the area of the store and parking lot. RD retreated to a location where his father would not see him and called his mother and asked her to come there. She agreed and came to the parking lot and told SD that he was not to be there because he was not to have contact with RD. Unpleasantness ensued. [ 18 ] Further serious incidents occurred on July 21 st at the family residence. There had been tension over the matter of the trailer in the yard and SD’s access to it and therefore to the yard. LD believed that SD had recently taken items from the yard and locked them in the trailer.

LD decided to have a locksmith attend to unlock the trailer so that she could retrieve these items. Very shortly after the locksmith arrived SD arrived and appeared to become very angry. LD told the locksmith to leave. She did this because she did not want to see anyone get hurt. SD was so loud that people from neighbouring houses and apartments came to view the cause of the commotion. The police were called, attended and were then called away to another matter. SD had a tow truck remove the trailer, and then took ED away given that it was SD’s parenting time. LD pulled herself together and went to work.

While she was away, SD got BD to get some ladders that were in the yard and poke them over the fence. SD was pulling them over the fence when RD observed this. RD took exception and a further confrontation developed. RD took a hockey stick (apparently as a potential weapon) and stood in the back lane. The police were called again and LD was called back from her work place. [ 19 ] Throughout late July and August there was conflict over parenting time.

LD felt SD was not returning the two boys (BD and EB) and SD takes the position that he kept them because LD did not come and get them or alternately did not want them. [ 20 ] In early September new problems arose. Both RD and BD were attending the North Battleford Comprehensive High School and both were playing on the high school football teams. RD was playing on the senior team and BD was playing on the junior team. Football practice took place on different football fields. These two fields were separated by another field and a row of trees. The senior team practiced on the field nearest the parking lot.

A walking path went by this field to the field where the junior team practiced. SD was at the field upon which RD practiced on a number of occasions. These all lead to the charge of breach of Undertaking. LEGAL CONSIDERATIONS UNIQUE TO THE HARASSMENT CHARGE [ 21 ] During the slightly more than three days of evidence in this trial, there was considerable testimony pertaining to events alleged to have occurred prior to the period during which the harassment offence is alleged to have occurred. Many of these events involved allegations of discreditable conduct on the part of SD.

Generally evidence of prior discreditable conduct is not admissible in that it tends only to show that the accused is a person inclined to commit offences. However, it is sometimes admitted in cases under

section 264 of the Criminal Code due to the somewhat unusual nature of the offence set out in that section.

[22] The relevant portions

section 264 read: 264

(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the otherperson is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, tofear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of (

a) repeatedly following from place to place the other person or anyone known to them; (

b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them; (

c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries onbusiness or happens to be; or (

d) engaging in threatening conduct directed at the other person or any member of their family.

(3) Every person who contravenes this

section is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or (

b) an offence punishable on

summary conviction. [23] In R v D.D. (2005), (ON CA), 203 CCC (3d) 6 (Ont CA) the Court dealt with a case where the learned trial judge had excluded evidence of prior discreditable conduct in a harassment case.

MacFarland J.A. wrote at paragraphs 15 to18: [15] In my view the trial judge failed to properly assess or weigh the probative value of the evidence and in so doing overemphasizedits prejudicial effect. [16] This evidence of prior discreditable conduct was proferred to provide a context within which to assess the effect of the incidentcharged on the complainant and whether the conduct of the respondent was of such a nature that he knew that the conduct would causethe complainant to be fearful or that he was reckless as to whether or not she was fearful, an essential element of the offence of criminalharassment.

Such evidence would also provide the necessary context in which to consider whether her fear was objectively justifiable. [17] The trial judge was obliged to consider the probative value of the evidence in relation to the purpose for which it was tendered. Inthese circumstances he was wrong to exclude the evidence because, as he put it, it lacked “similarity” or “connectedness” to the incidentcharged.

The trial judge placed undue emphasis on similarity given the issues to which the evidence of discreditable conduct wasdirected. [18] To minimize prejudice the trial judge on the new trial will instruct the jury in relation to the purpose for which the evidence istendered and the only use they are to make of such evidence and the use they are not to make of such evidence. [24] Other cases to a like effect are: R v Ryback (1996), (BC CA), 105 CCC (3d) 240 (BCCA) R v Kosikar (1996), (ON CA), 138 CCC (3d) 217 (ONCA) R v Krushel (2000), (ON CA), 142 CCC (3d) 1 (ONCA) [25] In the present matter, there was no strong objection taken to the admissibility of the evidence of prior discreditable conduct, though there was some discussion pertaining to it.

The evidence was clearly allowed for thelimited purposes described by MacFarland, J.A. in paragraph 16, above. Therefore the evidence of prior discreditable conduct isadmitted in the present case in order to provide context to the court in deciding what effect the accused’s conduct, during the periodalleged in the charge before the Court, had upon the complainant. In particular, the court must decide whether it is proven beyond areasonable doubt that LD was harassed and whether she feared for her personal safety during the alleged offence period.

The evidence ofprior conduct can also provide context in respect of issue of whether such fear was reasonable, within the meaning of

section 264. Theevidence of prior conduct can also be used to provide context in determining whether the Crown has proven beyond a reasonable doubtthat the accused had the necessary mens rea, that is whether the accused knew that his conduct was harassing the complainant or wasreckless as to whether or not this was so. It cannot be used to prove that the accused was disposed to commit this or any other offence.

THE EVIDENCE AND CREDIBILITY ASSESSMENT [ 26 ] Cst. James McMahon testified that he was assigned this matter to investigate on September 16 th , 2016. He went through the existing files and did some further investigation by way of statements. He, with the assistance of others, decided that charges should be laid. Charges were laid, and in due course SD was arrested. Cst McMahon seized LD’s cell phone and sent it away for analysis.

A large number of photographs were on the phone and some of those photographs found their way into Exhibit P-1. [ 27 ] Exhibit P-1 contains many photographs, taken on many separate occasions and generally (though not exclusively) involve LD, the family home, and family related vehicles. The photographs appear to show that at times, LD was aware that she was being photographed and that at other times, she was not. Overall, Exhibit P-1 shows that SD watched LD and her activities intensely and frequently.

Exhibit P-1 was referred to many times in the evidence and contains an index setting out the date and time that the subject photographs were taken. [ 28 ] It is of some note that Exhibit P-1 does not contain any photographs of people in football uniforms, and while Cst. McMahon did testify that there was one such photo on the phone, there is no evidence as to when it was taken or as to the identity of anyone in that photo. [ 29 ] Cst. McMahon was a credible witness. [ 30 ] LD, the complainant , testified at length. Much of her testimony is the basis for the Background Facts

section of this judgment. She testified that while they were living at La Crete SD assaulted her on a number of occasions. These were usually a matter of hair pulling but on one occasion in 2005 he pushed her down on the bed so hard that her jaw popped out and then punched her repeatedly on the right side of her leg where bruising would not show. The precipitating event was that SD asked her to telephone the rink to inquire as to the spectator admission charge for a particular hockey tournament and she told him to do it himself. He was also charged with threatening her.

SD pled guilty to these charges. [ 31 ] Later in the trial, the Crown filed Exhibit P-13 which is the transcript of the sentencing hearing on those charges. It is clear that the threatening charge arose in circumstances that were separate from the circumstances of the assault. [ 32 ] LD testified that the physical violence directed to her ended with the sentencing in the assault and threats matter, but that SD continued to act in very threatening ways. On many occasions he would break things while apparently angry.

While apparently angry he would come right up to her so that his face would be only a few inches from hers and yell, his face would turn red and he would shake. This would go on indefinitely, sometimes for hours, and the only way to make him stop was to agree with him. Then he would stop and things would go on as if everything was normal. This continued up to and including the summer of 2016. LD testified that she found all of this terrifying. [ 33 ] LD also testified to an incident in 2008 just before Christmas. They were living in La Crete as were her parents. I took this to be December 23 rd .

She wanted all of them to visit her family and SD refused. He eventually told her that she could go, but he would not drive her and that she would have to walk. She put on her white snow boots and walked through the snow to her parent’s home. She had just come through the front door and closed it, when SD burst through the door, which struck LD’s mother, driving her backwards onto a coat hook that was attached to the wall. A piece of the hook broke off in her mother’s head.

Her father became angry and threw a punch at SD who very quickly prevailed and punched and pounded her father, with blood splattering everywhere. Among her vivid memories of this event are the red blood spatters on her white boots. SD had a somewhat different version of this incident. [ 34 ] In July of 2008, they left La Crete and did not return until March of 2016. LD thought

they were going temporarily to a bible camp near Loon Lake, Saskatchewan where SD had some work. However, at the last minute, it was clear that SD had packed everything, and that they were moving. They had not discussed this at all, but she simply went along with it. They stayed at the camp for a while and then found the basement suite in Meota where they stayed until late 2014. [ 35 ] She felt very isolated at Meota. SD had told her that her family wanted no part of her and that she was dead to them. She believed him.

When she did get some contact, SD changed their telephone number, and did not tell her that he had done this, thereby breaking off the contact. She had some limited contact with a childhood friend but had no contact with any of her high school friends or with her family. She would get the children off to school and then spend her day crying. [ 36 ] While living in Meota, SD would discipline the boys. This would sometimes consist of what SD called “a drive.” He would take the offending son to a remote location and then apply a severe spanking to the child concerned.

LD testified that she believed in spanking but not like that. [ 37 ] When they moved to North Battleford SD began renovating the house. It was supposed to be done room by room but soon the whole house was torn apart. The flooring was all torn out, right down to the sub-floor plywood. A good deal of drywall was removed, or otherwise had holes in it. The bathrooms were torn apart. This was obviously an issue in the family. Her evidence is that when the subject of putting the house back in order came up, SD’s response was “you aren’t worth it” which she took as a reference to her, as opposed to the boys.

He would also ask her “what do you bring to the table?” which was his way of saying that she did not contribute anything to the family effort. At times he effectively forced LD to sleep on the basement floor (even though mattresses were available) because “…she didn’t bring anything to the table”. LD also testified that at all times she was very afraid to be kicked out because she did not have anywhere to go. [ 38 ] The general purport of her evidence is that up until the time she re-established contact with her family in March of 2016 she stayed with SD, despite the abuse, because she had no other options.

She testified that SD was very controlling and dominating and had cut her off from family and friends. [ 39 ] On February 23 rd , 2016, shortly after RD moved out of the home, she received a call from the high school guidance counsellor and went there to meet with RD and the counsellor. She decided to call SD as she knew he would be angry if she had a meeting without him because everything in their family went through SD. SD came, said his piece and was leaving and glared at LD intending that she leave with him. She did not and stayed and talked to the counsellor for about 45 minutes.

When she got home SD was very angry because he felt she should not have gone to the meeting without him and should have left with him. She said she needed to go to her second job and asked him to drive her. He said no. She said that she would take the van. He said that he was going to take a hammer to the van. She told him that if he did that she would phone the police. He took a hammer and went outside. She went and got changed for work. When she got outside she found that he had let the nitrogen out of the tires of the van. LD asked SD to drive her to work. SD had a truck available to him.

He said “no, you will have to walk”. She did walk. The walk takes an hour and she was late for work. Forty-five minutes after she got to work SD texted her that they would celebrate her birthday, which happened to be that day. He and BD brought coffee for her to work place, just as if nothing had happened. She decided that she would start a diary in order to track events in her relationship with SD. This was the first day of the period alleged in respect of the harassment charge. [ 40 ] Turning then to the events of early March, as previously indicated LD received an e-mail message from a friend.

LD did not have her own e-mail address and so SD was aware of the communication. The message indicated that a man had approached the friend while she was at an automotive dealership and asked her if she knew LD. She replied that she did and the man told her that he was LD’s brother and was trying to find her. Their father had suffered a stroke and was hospitalized in Fort Vermilion and he wanted to let her know. SD’s response was that “It's not our problem. It has nothing to do with us”. LD let the matter go until she received another e-mail from her friend the next day.

LD asked SD if she could call her sister, Judy. He said no. The next day she received another e-mail from her friend saying that her father was deteriorating. She again talked to her husband who again replied that this had nothing to do with them. She then locked herself in the van and used her cell phone to telephone her brother. In due course she was able to speak to some of her sisters who were at the hospital with their father and was also able to briefly communicate with her father.

She then spoke to her husband again and told him that she really wanted to go and that she wanted to take the children with her. His response was “absolutely not”. She said that she needed to take the truck as it was the only reliable vehicle. Again he refused, saying that she could go alone by taking the Greyhound bus. LD insisted that she wanted to take the children. SD then telephoned his own father and after that telephone call SD said that they would all go together and that he would drive them in the truck.

Upon LD's invitation RD joined them and they all travelled through the night, arriving in Fort Vermilion the next morning.

[ 41 ] LD and the three boys went into the hospital and visited her father. The three boys rejoined SD in the truck. LD visited with her family. LD was not a party to the conversation in the truck but learned of it later. That evening the five of them went to a hotel and all stayed in the same room. At about 9:30 p.m. SD began packing his bags and indicated that he was going back to North Battleford that he was going to turn over the keys to the house to the bank and that he was going to leave. LD told him he didn't have to give the keys to the bank. She suggested to him that he stay.

He invited the boys to go with him and they all declined. He left with the truck. At approximately 1:15 a.m. he texted LD indicating that he wanted to be let back into the room. She let him back into the room. In the morning, when LD woke up, SD was again frantically packing. The discussions of the previous evening were repeated. LD asked him to leave the truck because she and the three children needed to get back to North Battleford. She asked him to take the bus instead.

Regardless, he left with the truck thus abandoning his three children and his wife more than 1000 kilometres from their home, in the winter, in a community that they had not lived in for more than eight years, and where, according to SD, LD was dead to her family. [ 42 ] LD managed to put her marital difficulties aside and visited with her father and her family. That evening she realized that the North Battleford RCMP had tried to call her. She returned the call and the constable that she spoke to informed her that this was a welfare check on the children.

Apparently SD had notified the RCMP that LD had the children and that he did not know where they were. [ 43 ] LD and the three boys stayed in the Fort Vermilion and La Crete area for a further four days. At that point LD advised SD by telephone that she and the boys were returning to North Battleford. Her sister and brother-in-law were going to drive them apart way, and then some friends were going to drive them the rest of the way to North Battleford. SD indicated that the friends could not come to the house in North Battleford. He said that he would pick them up in Edmonton.

SD did pick them up in Edmonton and they began the trip to North Battleford. When they got to Lloydminster he threatened and attempted to drop RD off at the RCMP detachment. LD and the RCMP managed to convince SD that this was not necessary. They all arrived back in North Battleford on Sunday, March 13 th . On Monday, March 14 th , LD went to a lawyer, changed their bank accounts, and told SD that she was seeking a divorce. LD considered this the first day of their separation. [ 44 ] They continued to reside in the same house, but to live separately.

Initially LD felt that they were having reasonable and decent conversations towards resolving their situation. However her opinion changed once she realized that SD was recording all of their conversations on his cell phone. They slept in separate beds. LD testified that she did not feel safe because of his highly escalating and bizarre behavior. She was in regular contact with the women's shelter, being Interval House, and kept a bag packed so that she and the boys could leave quickly. She felt like she was being watched.

I note that this would seem to be correct given the photographs under tab 2 and tab 5 of Exhibit P-1. The photographs under tab 2 show RD’s bed which LD was using in his absence and also show her packed bag. The photographs under tab 5 show LD going to bed in the bed in the living room that she later used when SD objected to her using RD’s bed. [ 45 ] On a day that I find to be March 28 th , 2016, SD had taken their van from the yard and would not tell LD where it was. Social services called, again with child welfare concerns.

Given LD’s transportation problems, LD could not go to the office but invited the social worker to come to the home. She told the social worker that things were very tense in the home and that she should not come alone. When SD heard that the social workers were coming he took ED and left the home. Two social workers arrived along with two police officers. SD drove by the house several times and eventually came in along with ED. SD was belligerent and left again. LD, RD and ED left the home with the Social Workers and went to Interval House. [ 46 ] The next day, March 29 th , the earlier described EIO was issued.

RD joined them at Interval House. They stayed there for four days. LD testified that they stayed that long because she was too shaken to return home right away. [ 47 ] LD’s evidence was that SD desperately wanted the EIO lifted, and it was, pursuant to the earlier described consent order. At about that time, LD moved into the third floor apartment facing generally onto the backyard of the family home. LD testified that she hoped that they could get along like reasonable adults. From her point of view this did not happen.

SD was frequently in the yard, apparently because she allowed him to leave the trailer in the yard that contained his construction tools and to have access to it. He was there frequently and obviously much more than was necessary in order to access his tools. [ 48 ] LD’s evidence is that she told SD many times that he was not to be there, except for the

purpose of accessing his tools. One such incident was on May 22 nd , when he came to the property and retrieved firewood out of the shed. She had expressly told him not to, and that she would bring the wood to him. He came anyway, went to the shed and took out the wood. They argued and she again told him not to be on the property. He took photo 47 under tab 4 of Exhibit P-1 to commemorate the event. LD also told SD many times not to take photographs of her and not record her speech.

Her evidence is that he completely disregarded the terms of the Order and her directions to him not to come onto the property except to retrieve his tools, to stop photographing her and to stop recording her. [ 49 ] There were many problems regarding co-parenting.

She felt that the problem was in the phrase regarding his parenting time that says “Such additional reasonable times as agreed upon by the parties.” LD felt that SD completely abused this, given his view that whatever he decided was reasonable was reasonable, without reference to what she agreed to or felt was reasonable. [ 50 ] LD believed that SD had been telling people that she had mental health problems. In fact, it appears that he sought a Mental Health warrant in respect of her.

LD heard from other people being their two youngest sons, SD’s cousins, her family doctor and her employer that he had been telling them that she had mental health problems. She had never had a mental health problem diagnosis. However, just to put an end to this, she went to a mental health counsellor, Mr. Sean Allen, and volunteered to be assessed. Mr. Allen told her that this was clearly unnecessary and that ended the matter. [ 51 ] As earlier mentioned, she hired a contractor, Mr. Bowers to do work on the house to bring it up to what she called “a liveable standard”. Mr.

Bowers told her that SD was there frequently taking photographs. Often SD would send e-mails to her, while she was at work, demanding that all work stop. This is how she would know that Mr. Bowers was at the house. She was told by other people that they had driven by and had seen SD taking photographs of the house. [ 52 ] LD testified that she was aware of the threats incident which arose in late June, but was not personally present when it happened. [ 53 ] She frequently saw SD at her places of employment except for the school where she worked.

She would see him taking photographs of her vehicle out in the parking lot. She saw this from inside the building. He also took photographs of her while she was seated at her desk. This happened 10 or more times, including about five times when he took photographs of her vehicle. [ 54 ] LD also saw SD taking photographs of her in the yard of the residence on many occasions. She saw him hovering as close to the property line as he could get. During the period of what she called the no contact order, he mostly stayed off the property. She further testified that she just wanted him to leave her alone.

In as much as she had made it clear that the relationship was over, there was no need for him to be around. [ 55 ] LD testified regarding the incidents of July 13 th . This occurred while SD was on the undertaking arising from the charge of threatening RD. RD was at work at the North Battleford Co-op Food Store. RD called her from the grocery store telling her that SD was there at the store. LD’s understanding was that RD was hiding in the stock room as a result of SD’s presence. She told him that he could not just hide there and that he had to go and tell his manager. RD asked her to come and she did.

By the time she got there RD was outside. She saw SD go back and forth several times to the Food Store carrying a water bottle. It was during the water ban in North Battleford arising from the Husky Oil pipeline spill and one could not buy water from any store in North Battleford. LD approached SD and told him that he could not be there. He started snapping photographs of her so she took one of him as well. [ 56 ] LD went through the photographs of Exhibit P-1 individually. She referenced the photographs on page 99, taken July 19 th .

This was obviously when he was on the undertaking from the threats charge, which undertaking included the term that he not be at the residence. The photographs make it clear that the person who took those photographs was on the property. It is however not within the time period delineated in the breach of undertaking charge.

[ 57 ] Regarding the events of July 21 st , earlier described, LD testified that for a couple of days preceding July 21 st there had been talk about getting the trailer, described as SD’s work trailer, off the yard. LD did not want him to be on the yard any more but did want SD to have the trailer. They were trying to make arrangements through the RCMP so that this could happen without SD getting into any trouble for coming onto the yard. She felt that SD had been on the yard before. I took her to mean that she felt he had been there illegally and that he did not care.

In the meantime everything disappeared from the backyard. By everything she meant the eavestrough spouts, the children’s sports equipment and toys, the lawnmower and everything else that was in the yard. She believed that SD had locked them in the trailer. However, the trailer still had not been moved. She arranged for a locksmith to come to the property to open the trailer so that she could retrieve these items. As soon as the locksmith came SD was there. LD expressed the view that he had to be watching the house given how quickly SD arrived after the locksmith.

LD and the locksmith were at the back of the trailer talking. (The trailer was pointing outward on the driveway, so LD and the locksmith were at the back of the driveway.) SD came onto the driveway at that time and started making a huge scene. LD sent the locksmith away because she did not want anybody to get hurt given that SD was extremely upset. She told the locksmith that they would do it another day. The locksmith left. Exhibit P-1 shows that SD took photographs of the locksmith on the property and the locksmith’s departure. SD was very loud.

The neighbour in the next property came out of his house apparently because of the noise. SD took a picture of the neighbour. SD was very angry that LD would even attempt to get into the trailer and he was not leaving. Two RCMP officers attended. SD decided at that time he was going to get a tow truck. The police got called away to another call and left. The tow truck came and removed the trailer. SD continued to take photographs of LD while the police were there and the trailer was being moved. It is clear that the trailer did not go very far.

It was left in the parking lot of a neighboring church. [ 58 ] LD described SD’s conduct that day, as follows. “[SD] threw an enormous fit that day on the street. He drew quite a crowd. SD was dancing in the street. He was yelling obscenities, he was, it was crazy, it was a horrible day.” She was asked if she could remember anything particular that he said. LD answered “He was accusing me of sleeping with RD. He was accusing me of sleeping with almost anyone I have ever spoken to. Just swearing and vile. He was um like ‘you psycho bitch’, like all kinds of names, it was ridiculous. He went on and on at length.

It was quite an ordeal.” She went on to say that the neighbours were looking and there were people looking out on the balcony of the apartment building across the street and that SD was very loud. When asked how this conduct made her feel, she answered, “It was horrible, that was pretty embarrassing but I was really glad to get rid of the trailer and of him”. It is my understanding that all of this occurred just after the locksmith was sent away. [ 59 ] After the police left and the trailer was moved, SD insisted on his parenting time with ED.

LD pulled herself together, sent ED with SD and took ED’s friend who had been visiting home. She then went to work. While she was at work, the police were called again and attended. She came from work and saw that there had been some kind of further incident. This was the incident referred to elsewhere as the ladder incident. [ 60 ] SD then kept ED and BD for the next six days over LD’s objections. LD did her best to get them back and tried to involve the RCMP. [ 61 ] When asked about her knowledge of the photographs being taken of her, she answered that she knew that there were a lot.

LD was not aware of all of the photographs in Exhibit P-1. She knew she was being monitored constantly. She said “You get that sense and those photographs [meaning P-1] just prove that that was true, that was correct that I was being watched all the time”. Friends had told her that they had seen SD watching her, parked around the corner from the residence. [ 62 ] Following the issue of the consent order, she continued communications with SD. She tried to be civil at the start and hoped that they could move forward as adults and parents and do a good job with the boys.

Initially she tried to have conversations but, as she put it, it got shut down when she realized that he was erratic, it was bizarre and he tried to twist everything she said. As a result, in late June or early July this changed and she stopped being so nice to SD. [ 63 ] LD also testified that SD used excessive violence in spanking or disciplining the boys, though her knowledge of what actually happened came from SD or RD or BD, in that she was not personally present. SD would take the child concerned for what he referred to as “a drive”.

He would take the child concerned to a remote location and administer a severe spanking. This occurred when the child concerned was between the ages of 10 and 15 and occurred between five and 10 times. Both RD and BD expressed their fear of SD to her. She said that both were terrified.

[ 64 ] In cross-examination she indicated that she tried to be civil at the outset of the separation but she became less accommodating as she became more harassed. This developed in late June or early July.

He acknowledged that at ED’s kindergarten graduation she and SD sat together and she may have introduced him to a couple who was present, as her husband. [ 65 ] Much of the cross-examination concerned events taking place many months after the last date of the offence period, which things might be relevant to a family law case, but have little, if any, relevance to any of the criminal charges. [ 66 ] Her evidence was that SD went back and forth about reconciliation, but that she was not interested in reconciliation. She made this decision in March of 2016.

LD was trying to be friendly, and would have been all along. Her goal was to be friendly, co-parent and raise the children with as little damage as possible, but this was not working because SD did not or would not understand what she was trying to do. [ 67 ] LD agreed that she made an effort to do things together with the children and SD, for the children’s sake, but quit doing so, because SD twisted everything and misrepresented what went on. To the extent that if she did anything with him, it was to benefit the children. [ 68 ] She acknowledged that on one occasion she caused BD to have a nose bleed.

She was giving him a swat on the shoulder as they drove and hit his nose, by mistake. [ 69 ] LD was not cross-examined at all with respect to her testimony about the events of February 23 rd , or the events of early March surrounding the trip to northern Alberta, or the events of July 21 st . [ 70 ] I found LD to be a very credible witness. Her evidence was internally consistent and her responses to counsel’s questions in cross-examination were strong but direct and not evasive. I found LD to be candid and to testify without exaggeration. [ 71 ] The evidence of RD consisted of two statements entered by way of

section 715.1 of the Criminal Code and viva voce evidence. The first of the two statements was taken on June 28 th , 2016 at approximately 6:00 p.m., several hours following the incident that led to the threats charge. This statement mostly focussed on that incident. The second statement was given on September 17, 2016 and covered a broader range of events. [ 72 ] In the June 28 th statement RD said that his two brothers were outside playing in the yard and that he, himself was lying down, downstairs in the family home.

He heard his brother, BD say “Dad, where are you?” He then heard someone downstairs and he saw that it was his father. He then said to his father “You can't be in here”. His father then said to him “Just try to stop me. I'll hit you so hard you won't know what's coming”. At the time his father was carrying a shop vac. SD then went outside with the shop vac. RD believed that SD put the shop vac in the trailer. RD went upstairs and got ED into the house. BD was already in the house.

RD tried to close the door so that SD could not come back in, but SD had come back and had his shoulder in the door, trying to push his way into the house. RD put his weight against the door and managed to close and bolt it. He telephoned the police and texted his mother, telling her that SD was in the house. SD walked around the house so RD opened some blinds to see if SD broke anything. When SD saw him there he yelled words to the effect “You son of a bitch, come out here. You think you are so tough standing there. Come out here and”.

He also said that earlier in the year, his father had tried to step into the house and that he, RD had stopped him and told him that he was not to be in the house. He also said that they, meaning his mother and perhaps he and his brothers had previously changed the locks on the house and had not given SD a key. [ 73 ] In the September 17 th statement, he was consistent with the June 28 th statement except

that his recollection of the words spoken changed slightly. RD said that his words to SD were “You are not allowed to be in here”. RD said that SD said to him that “he’d hit me so hard I wouldn’t see it coming”. He also spoke of September of 2016. He said that SD was showing up at his football practices and that this had happened four times. This only happened on the days when BD also had a practice, but BD’s practice was two fields away, so that SD would not have been able to see BD’s practice while he was at RD’s practice.

He said that sometimes at the practices, SD would take photographs of him. [ 74 ] In his viva voce evidence, RD adopted his two earlier statements as true. He gave an account of the threats incident that was very consistent with the description he gave on June 28 th . His version of the words spoken was the same as the version he gave on June 28 th . He testified that his father was angry when he said this but that he did not say it loudly. I do note that he had just watched and listened to the two earlier statements.

He testified that the reason he was watching SD while he was outside of the house was that on many earlier occasions he had seen SD break things while angry. Some of these things included RD’s iPod and walls of the house. The time when SD had earlier tried to get into the house was in the spring. RD had told him that he was not to come into the house. He told his mother about this shortly after it happened. He testified that at his football practices SD was close enough to him that they were both aware of the other’s presence.

He believed that his father had photographed him two or three times while he was at practice. RD confirmed that he felt that his father blamed him for the divorce and that he was worried that his father might lash out at him and that he had told his mother about this concern. [ 75 ] RD also testified that his father emotionally and physically abused him. The emotional abuse occurred about once per week. His father would get right into his face and yell at him. He would get within inches of his face, so close that he would feel spit on his face from his father, as his father yelled.

It made him feel belittled and scared. By way of physical abuse he testified that about three or four years earlier, while they were living in Meota, his father grabbed him by the shirt, pushed him down the hallway and then to the floor so that he, RD, banged his head on the floor. The whole family were in the apartment at the time and would have known of this, though no one ever spoke of it. On another occasion, about two years ago, SD took RD and BD in the truck out to a back road and stopped the truck. He told RD that he was going to spank him with a belt. RD said that he was scared and he was panicking.

SD said that he either had to let it happen or he would leave him there. RD told him that he would rather stay where he was. He drove away leaving RD where he was. A few minutes later SD came back and at that point he was no longer given an option. He was made to bend over the truck box and SD spanked him very hard with a belt. He testified that he did not tell anyone about this incident because he has embarrassed and afraid and did not want his father to find out that he had told anyone.

It was clear that RD found it very emotionally difficult to speak of this event. [ 76 ] RD also spoke of La Crete and the family connection there. After they left La Crete he was not allowed to have contact with the family members there. However, after a few years, he set up a fake Facebook profile and got into contact with a cousin. He had to use a fake profile because he was not allowed to use Facebook. Except for that contact he did not have contact with the La Crete relatives until the trip there when his grandfather had a stroke.

While there, and while LD was not present, SD told RD and his brothers that their grandfather really had not had a stroke, but was faking it in order to get attention. From the full context of the evidence, it is evident that he told his mother of this. He testified to his father leaving them there. RD further testified that he and his father fought at Edmonton, and for that reason, on the trip from Edmonton to North Battleford he kept his earphones in.

They stopped in Lloydminster and his father tried to leave him in a Walmart parking lot, yelling at him that they did not want him around. [ 77 ] RD testified to the incident at the Co-op store. Given the whole of the evidence, this was clearly on July 13 th . That evening he was at work and, along with a co-worker, was leaving the store going into the parking lot in order to retrieve shopping carts. He first noticed his father’s truck and saw his father walking towards the store. RD went back into the store and went into the back of the store.

He went out the staff entrance and around to the parking lot to help with the carts. He texted his mother to tell her that SD was there at the Co-op and carried on with work. In the parking lot, he took photographs of his father’s truck in order to be able to prove that his father was there. He believed that his father was in the store when he took the photographs. After he took the photographs he returned to collecting the carts. He saw his father return to his truck and sit in it for period of time. Then his mother drove up. [ 78 ] I turn now to my assessment of RD’s credibility.

I found that he was very consistent in his evidence. There were no meaningful inconsistencies between his two statements and his viva voce evidence. His evidence of what he did and why he did it all made sense. With respect to his demeanour, he exhibited what appeared to me to be genuine emotional responses appropriate to the matters that he was describing. RD did testify that during the July 21 st incident, he did pick up a hockey stick in case his father became violent.

That action makes sense from the perspective of a sixteen year old having a confrontation with a fit 41 year old who had threatened him with violence 24 days earlier. RD did testify that the events that led to his moving out of the family home in February of 2016 involved the fact that he had lied to his parents about where he had been with a family vehicle. I note that if every teenager who mislead his parents at to where he or she had been were to be forever painted as be incapable of belief, there would be very few people who could give credible evidence.

I also note that he faced that area directly without evasion or

rationalization. Overall, I found RD to be very credible. [ 79 ] BD’s evidence consisted of his statement given on June 28 th , 2016, which was entered pursuant to

section 715.1 of the Criminal Code , and viva voce evidence. The statement was taken at 4:51 p.m. which was less than two hours after the incident. BD gave his statement before RD. Regarding the incident, he said that his father arrived on a bicycle. He and ED were playing in the backyard. His father said “Hi” and he replied and then went back to ED or about 20 seconds. When he turned back to his father, he was not visible. He looked in the driveway for his father and he was not there. BD then went into the house and heard his father saying something to RD while walking up the stairs carrying a vacuum.

When asked to describe his father’s words, he said “It was something about hitting and not knowing what’s coming or something. Something like very like vague”. When asked what RD was saying he answered “No. Just like you can’t be in here and like just like please get out. You’re not supposed to be down here, you know”. His father took the vacuum outside, and RD got ED inside. SD came back and got his shoulder into the door and RD pushed it back and got the door closed. He was watching this from a distance and could hear it and see it to some degree.

After this, his father was knocking on the windows and the door and swearing. [ 80 ] In his viva voce evidence he confirmed that what he could remember was in his statement. He said that his father had his back to RD when he spoke. Prior to his father going into the house, he had not been asked to get anything for his father. After his father took the vacuum, his father asked him to get the attachments. BD said that he looked for the attachments in a “half-assed” way because he knew that his father was not supposed to be in the house. He testified that he had an okay relationship with his father.

He also testified that his father could get angry and he would remain angry for up to a week. [ 81 ] BD testified that for a lengthy period of time there was no place to bathe in the house and they would go to the field house or the pool or use a large Rubbermaid tub to bathe. [ 82 ] I found BD to be credible. He seemed to understand the questions and tried to answer them. He did show some reluctance to remember events, which I attribute to the fact that he was and is rather stuck in the middle between his parents. [ 83 ] SD’s evidence was difficult to follow because it did not proceed in a chronological way.

Instead he referenced various events taking place at widely different times as support for various positions that he was putting forward. The thrust of these positions was as follows. The EIO put him in very difficult circumstances because he had no place to live, he had no money and he could not see his children. He was forced to sign the consent order in order to have the EIO lifted. He was trying hard to maintain a relationship with BD and RD. There were problems regarding co-parenting but these were entirely LD’s fault.

He kept the boys longer than set out in the consent order because LD did not come and pick them up because she was too busy doing other things like seeing her lawyer. He did not withhold the boys at any time. He was not seeking reconciliation but he thought that LD was. There was frequent communication by text and e-mail. LD participated in and instigated many agreeable meetings and social meetings between the two of them, such as ED’s kindergarten graduation, and a meeting of several hours duration at the picnic table in the backyard of the family home. She brought him meals on occasion.

They went out in the van for a drive and coffee. [ 84 ] Dealing with the situation at La Crete, he testified that “…there was a lot of interference and influence from LD’s family in our lives which was causing us a great deal of pain and hurt both to LD, myself and our children”. However, their family remained strong. He testified that the final reason they left La Crete is that one of LD’s sisters refused to let a child of hers attend RD’s birthday party. He further testified that he and LD discussed matters and mutually agreed to move. It was false that SD prevented LD from having contact with her family.

She had a cell phone at all times and a land line. He described the time living in Meota as peaceful and happy times for their marriage. I was struck by the contrast between this version and the evidence of LD that she felt extremely isolated and cried each day. SD made no mention of changing the land line telephone number and not advising LD of it. [ 85 ] SD’s testimony regarding the incident around Christmas of 2008, was that during an argument with LD she went over to her parent’s house. SD then went to her parent’s house. There was an amicable conversation about marital matters in the area of the entranceway.

Her father who had been sitting at the top of the stairs attacked SD without warning, punching him in the temple, and that SD then used enough force to defend himself and get out of the house. He was not charged on that occasion. He made no mention as to whether or not this was around Christmas, as to whether or not LD had been left with no alternative except to walk to her parent’s home and whether LD’s mother suffered an injury occasioned by his forceful entry into the house.

[ 86 ] SD testified regarding the assault and threatening charges as follows. He was arrested by a SWAT team take down in front of RD and BD in July of 2005, after a marital argument. There was a no contact order, but LD was leaving him love notes daily. His lawyer negotiated to get the family back together and to spare the boys from a trial. I note that BD would have been three years old at the time and that RD would have been five, and so it is very unlikely that either of them would have had any

part in or attendance at a trial. In order to reunite the family, he pled guilty to a charge of uttering a threat directed to LD. It was dealt with by way of a one year conditional discharge. SD testified that this is the extent of his criminal record. [ 87 ] In cross-examination SD said that the allegations LD made against him were false. He pled guilty to these false allegations. He acknowledged that it was possible that he pled guilty to both an assault charge and an uttering charge. He said the assault did not happen. He said that if there were any bruises it was because of LD’s taste for rough sex.

It was not entirely clear if he was saying that the uttering threats allegation was also false. [ 88 ] SD was presented with Exhibit P-13, a transcript of the plea and sentencing proceedings of August 16 th , 2005. It shows a rather different scenario. First of all, on July 30 th , 2005, the day of his arrest, at the residence in La Crete, SD was in a truck parked next to a van. LD and the two boys were in the van. A constable approached the truck and directed SD to get out of the vehicle. He did not get out and started asking “why in front of the boys?” He was asked again to get out of the vehicle and did not.

The door of the truck was then opened and he was arrested. He was released from custody four days later, on certain conditions. On August 16 th , LD pled guilty to a charge that between January 1 st and March 31 st , 2005 he assaulted LD and a separate charge of threatening LD on approximately July 30 th , being the date of the arrest. With respect to the assault charge, the facts stipulated by the Crown and acknowledged by the defense were that during an argument SD told LD to go to the bedroom.

He then punched her in the leg area between the hip and the knee, leaving bruises and that he did this so that no one would see the bruises there. The facts of the uttering threat charge, advanced the Crown and again accepted by the defense were that SD and LD were arguing. He told her to get out. She decided to leave. As she was getting her purse and keys, she was told by SD that she was not taking them and she would have to walk. She walked around La Crete and spent the night at a relative’s house. He drove around looking for her that night. The next day she returned to the home wanting to leave with the boys.

Various exchanges took place and in the course of this, LD made the subject threat by way of words accompanied by a throat slitting gesture. The words were to the effect that he was willing to die and that he would not go alone. Defense counsel emphasized the accused’s acceptance and contrition. Portions of a letter from LD were read out in court. They indicated that LD wanted SD to get anger management counselling and that they should live separately while this happens. She expressed that her long–term goal was to remain married to SD.

After some consideration the learned presiding Judge imposed a two year conditional discharge including probation and mandated anger management counseling, as opposed to the one year conditional discharge described by SD. I note that the incident at LD’s parent’s home took place approximately two years and four months later, and that the family left La Crete seven months after the latter incident. [ 89 ] SD’s testimony regarding these charges is troubling. Logically, there are only two possible scenarios. The first is that on August 16 th , 2005, SD and his lawyer mislead the Provincial Court of Alberta.

The other is that the SD is now misleading this Court. Both scenarios negatively impact SD’s credibility. Exhibit P-13 is a Court record and I accept as true the statements of fact set out in that record. Based upon that record and the evidence of LD, I am satisfied that SD did assault his spouse in early 2005 and did threaten her with death on July 30 th , 2005. [ 90 ] SD’s explanation of all of the photographs was that Cst. McMahon phoned him on one occasion and “…he stated document, document, document, you have a very strong civil case. It’s been reviewed by the Crown attorney.

You have a very, very strong case and I encourage you to continue to document”. He testified that his understanding was that he should have the care of the children if she was at work and that is why he took photographs of her vehicle at work. The point was that he might need to prove that she was working and that he did not have the boys. The photographs were evidence for the civil proceedings. [ 91 ] SD’s account of the conversation with Cst. McMahon does not have the ring of truth to it. Police officers tend to be very reluctant to say anything about civil matters.

They have no training in or experience with them. Crown counsel do not spend time looking at someone’s civil case, and if for some strange reason they did, they would not go around expressing an opinion as to its strength. Finally, and it is a small point, a lawyer working in a courtroom in Canada is not referred to as an attorney. [ 92 ] Returning then to the examination in-chief, SD testified that they moved out of the property in Meota as a result of problems LD had with the landlord related to the volume of water usage and the possibility that the

building would be sold to a co-worker of LD’s. Allegedly LD did not get along with the co-worker. SD found a suitable home in North Battleford and they bought it, despite problems in getting a mortgage related to past credit issues of LD’s which SD got sorted out. They began renovating and upgrading the house. SD did all of the work. It was in progress when the EIO removed him from the home. I note this as 15 to 16 months into the renovation. [ 93 ] Regarding the matter of Mr. Bower’s working on the home, SD expressed the view that Mr. Bowers was in a difficult spot.

However, he tried to stop the work on the home. He took the photographs of Mr. Bowers and his truck because of this and to document what was going on. [ 94 ] SD alleged a plot by LD and her brother to have SD’s name removed from title without his agreement. LD was never asked about this in giving her evidence. [ 95 ] He alleged that someone named Dave Anderson, a marriage counsellor or mediator, tried to force him into signing a separation agreement. [ 96 ] Regarding the spanking of RD, he testified that the decision to inflict this punishment was mutual.

He took RD for a drive and tried to avoid spanking him, so he phoned LD, who told him to “grow a pair of balls and man up and get the job done”. Therefore he went ahead and spanked RD with a belt. He denied leaving him alone on a back road for a period of time. I note that LD was not cross-examined as to whether such a telephone conversation took place. [ 97 ] When his counsel asked him about the charge of threatening RD, SD went directly to July 10 th being that he said he was arrested. He expressed the opinion that it was unnecessarily forceful and should not have taken place in front of BD.

His counsel had to steer him to the factual occurrence of June 28 th . He testified that BD was going to get a shop vac for him. BD had said that he would get it for SD. He saw BD and ED playing nicely in the yard. Both doors were propped open. He testified that he said to BD “you know what [BD], never mind, you guys are playing nice. I’ll get it”. I note that when BD gave a statement less than two hours later, he made no reference to such a conversation.

He went into the house and picked up the shop vac and then “…there was some kerfuffle with RD in terms of RD coming out; he was mumbling; I was looking for the shop vac; I was looking for some attachments and I had my hands full with this vac walking up the stairs”. When asked by his own counsel if words were spoken between the two, he said “There was mumbling between us both but I don’t recall the matter is I don’t recall what was said either what RD said to me or what I said to him. I don’t recall”. When his counsel asked him if he could have threatened him his reply was “I would never threaten my son”.

When his counsel asked him if he appreciated or agreed that he should not have been in that house, his reply went on for one minute and 10 seconds without truly answering the question. The response involved not knowing the law and this was personal property and there was no order about the personal property and the boys were playing in the back yard. [ 98 ] He went on to allege various conspiracies involving LD, RD and assorted police officers to trap him in a breach situation. [ 99 ] Regarding the ladder incident, the cargo trailer was removed from the yard with RCMP supervision by a towing company.

Some ladders were left behind. BD volunteered to get the ladders. As he was doing so, RD came out tried to stop them. A confrontation occurred. RD picked up a hockey stick and was waiving it at them. Then RD got an iPad and for some reason began taking photographs SD, BD and ED. SD neglected to mention that he had been taking photographs of RD all along. The photographs that SD took are in Exhibit P-1 and show RD with a hockey stick but do not show him waiving it. RD did his best to portray himself as acting reasonably throughout.

He failed to address or make any reference whatsoever to the incident of a few hours earlier where it is alleged that he was dancing on the sidewalk in front of the house yelling at LD and calling her a psycho bitch and accusing her of sleeping with RD and many others. [ 100 ] Regarding what came to be referred to as the Co-op incident, SD testified that he went there to buy groceries and get water. He said that he went into the store with his water bottle and saw a sign indicating that water was not available. He took the bottle back to his truck and went back into the store to get groceries.

As he exited the store he saw a figure in a red shirt standing at his truck peering into the truck. He went on “As I was leaving the store, the entryway, the figure emerged from

the truck holding an electronic device and it appeared to be in a recording position, and as the figure emerged from the truck it appeared, I couldn’t see completely but appeared to be [RD]”. RD left the area and SD went to his truck and was about to leave when LD came racing up and stopped right beside him. She told him he could not be there and he said that there was no condition that said that he could not be at the Co-op. He testified that RD’s

schedule had not been communicated to him and he did not know he would be there. LD used very forceful and threatening language. He testified that he contacted the RCMP and said “How does she always know where I am? How does LD know that I am getting groceries? How does she know what my movements are? She seems to know everything….I was feeling creeped out and I contacted the police.” He went on to testify that he “…was concerned about the constant involvement in day to day even my private affairs.

I couldn’t even get groceries, I couldn’t get water without some sort of involvement where she was, I did not understand why I could not shop at the Co-op”. He went on to say that it was the co-op membership benefits that motivated him to shop at the Co-op. [ 101 ] I found SD’s expressions of surprise and angst to be very odd. LD’s arrival at the Co-op was entirely foreseeable in the circumstances. At the risk of stating the obvious, I will spell it out. SD did not know RD’s

schedule but he certainly knew that he worked at the Co-op grocery store, and that if SD went to that store there would be substantial possibility that RD would become aware of his presence. If that happened, given their history, RD would be quite concerned and upset and would very likely contact LD who would come to the Co-op to support and protect her son. SD knew of all this before he went to the store and despite this, or because of this, he did go to the store. Further, once he saw that RD was near his truck and using an electronic device to record its presence, LD’s imminent arrival was even more likely.

The fact that SD chose to come to his son’s work place only two days after SD was released on conditions in respect of a charge of threatening to cause bodily harm to his son suggests that his motive was to trigger such an occurrence. Regardless of his motive, the outcome was so predictable that I find that SD’s expressions of surprise and angst are contrived and untrue. I consider his evidence in this respect to be more brazen given that he, himself, was actively watching and recording LD’s activities. [ 102 ] In cross-examination SD was asked why the photographs on page 23 were taken.

He gave a number of reasons. One of them was that the vehicle in the driveway was involved in illegally replacing the gas water heater. When asked how he knew this he said that BD told him. By SD’s own evidence he did not see or talk to BD until approximately four days after the photo was taken. Therefore, unless he is clairvoyant, the supposed matter of a water heater could not have been why the photo was taken. [ 103 ] He justified the photographs on page 24 as being evidence of denial of access. The photographs show LD in the back yard. They were obviously taken from SD’s apartment or apartment building.

That day was May 4 th , being a Wednesday and the very day that the consent order was made by the Court. The consent order stated that the co-parenting

schedule would begin on May 10 th . The photo has nothing to do with denial of access or co-parenting. These photographs are purely a matter of snooping and spying on his estranged spouse. [ 104 ] On the subject of SD’s entry into the house on June 28 th , in connection with the threatening charge, Crown counsel asked him if he had the right to be in the home at that time. He answered that he did not know what his legal rights were at that time. It seems that his notion that he needed the vacuum somehow trumped the fact that LD had the exclusive possession of the home.

Crown counsel asked him if he thought that he was legally entitled to go into the house. He answered “Yes, I thought as a co-owner, a property owner, I was legally entitled at that time. I did not know specifically one way or another, but I thought I was, yes.” At the end of cross-examination, I asked the accused how he could reconcile the order of the Court of Queen’s Bench that granted exclusive interim possession to LD with his view that he had the legal right to go into the house.

He answered, “Well, I just thought that as a co-owner, name on mortgage, name on the signature, that it was just something that was out of respect that didn’t have to but it was something that I didn’t believe it was illegal”. His answer was essentially unintelligible. [ 105 ] I do not believe him when he says that he did not know what his legal rights were or later when he said that he thought that he had the legal right to enter the home. He knew that the order gave exclusive interim possession of the home to LD. He knew that he did not have a key.

He knew that he had not been able to enter this home for any reason since he had been removed pursuant to the EIO. He could not have misunderstood that he could not enter that house. I am satisfied that he simply saw an opportunity to get what he wanted and thought he could accomplish this without being caught, and so he went for it. [ 106 ] Regarding the events in early September, he testified that he went to the football fields to watch BD and that he was not aware of RD’s

schedule or even whether or not he was playing football that fall. He went to the field that BD said he would be on and could not find BD. Therefore he went to another field where there were football players to look for BD. He did not see him there either. He stayed for a while watching that practice and then left that field. He did not see RD. On subsequent days he walked past the first field to the second, but did not stop. He did not take any photographs.

[ 107 ] I asked SD how it was that he wound up with an apartment overlooking the backyard of the family home. He stated a number of reasons. The security of a third floor balcony and the opportunity to have a barbecue and to be able to store a bicycle were among them. He said it was also so he could co-parent. I took this to mean that it was geographically close to the home where the children were primarily resident. He did not say that one of the reasons was so that he could watch and photograph the family home. [ 108 ] SD obviously went to great effort to observe and record the activities around the home.

Having that view from that apartment greatly facilitated his activities in this respect. North Battleford is not a large city, but it is most certainly a city. There were numerous other locations available to SD. I am satisfied that a very significant reason that he chose that apartment was that it had a view of the family home. His failure to include that reason in his answer damaged his credibility. [ 109 ] He also said that he did not recall LD specifically requesting that he stop taking photographs of her and also not to come onto the yard except to access the trailer.

I am satisfied that she did ask him on many occasions including in an e-mail entered as Exhibit P-8, and that he chose to do these things regardless what LD said or wanted. [ 110 ] SD made no mention of the events of February 23 rd , the events of early March involving the trip to and from La Crete, or the events that occurred during the afternoon of July 21 st . I take it that he does not contest the Crown’s version of those events.

While those events portray SD in a rather negative light, the fact that he does not deny them or try to justify them goes to his credit, and I am taking this into account in my assessment of his credibility. [ 111 ] One of the largest areas of concern pertaining to SD’s credibility is in respect of the things occurring in his mind. His expressions of motive for engaging in some kinds of conduct, such as the monitoring and photographing of LD give me concern. This is an area that I will deal with later in this judgment.

His evidence that he does not remember what he and RD said to each other in the house on June 28 th is another example, which again I will address in due course. His evidence that he believed that he had the right to go into the house, was simply unbelievable and as already indicated, I disbelieve it. I do not believe his evidence that he felt “creeped out” in respect of the Co-op incident.

I also disbelieve his evidence to the effect that he does not recall LD asking him to not photograph her and not to come onto the yard except to access the trailer. [ 112 ] I find that SD is prone to exaggerate those things that seem to him to be unfair. For instance, his reference to a SWAT team arrest in July of 2005 seems rather much. He tends to minimize at least some of the evidence that puts him in a bad light. For example he initially only made mention of the threats charge, but later acknowledged that there may also have been an assault charge.

He said that the sentence was a one year conditional discharge when in fact it was a two year conditional discharge. His denial of guilt in the matter of the 2005 charges also damages his credibility. [ 113 ] Having observed SD testify and having considered his evidence, I assess his credibility as low. FINDINGS OF FACT [ 114 ] I accept the evidence of each of the five Crown witn

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