R. v. M.S.U. Date:, 2015 BCPC 433

Citation: R. v. M.S.U. Date: 20150930 2015 BCPC 0433 File No: 209843-1-K Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. M.S.U. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D.R. GARDNER Counsel for the Crown: K. Fast Counsel for the Defendant: S.R. Chamberlain, Q.C. Place of Hearing: Surrey , B.C. Date of Hearing: September 29, 2015 Date of Judgment: September 30, 2015

[ 1 ] THE COURT : The accused is charged on a four-count Information with assault with a weapon, that being a knife, uttering threats on Counts 2 and 3 and possession of a knife for a purpose dangerous to the public peace. [ 2 ] The Crown has properly conceded that Counts 1 and 4 have not been made out. [ 3 ] The primary witness against the accused is his wife who he married in 2003. There are two children of the marriage.

They now share joint custody. [ 4 ] In her evidence in chief, the complainant characterized the accused in very negative terms: that he did not give her any money for a year; he was taking money by using her credit card; that he was not making his payments on time. [ 5 ] She then went on to say that during the course of a heated argument, he threatened to kill her. Even on her evidence, he never used the word "kill"; rather, he said, "I'm going to end everything." [ 6 ] Curiously, although he is charged with assault with a weapon, on the witness stand, she admitted she never did see him with a knife.

She did, however, say that he reached in the drawer in the island in the kitchen where the knives were kept. This appears to be contradicted by the officer who initially attended the scene who was shown the drawer from which the knife came. He described the kitchen as being small and he did not see an island in the kitchen. She was unable to describe the knife to the officer. [ 7 ] When the police investigated a complaint of this nature, one has to wonder why the accused was charged on Counts 1 and 4 if she never saw a knife.

I cannot help but think that this contradicts what she initially told the investigating officer. [ 8 ] In any event, on the witness stand, she was very light on specifics on what happened on the night of the alleged offence.

She denied that this argument was about the sale of the three warehouses. [ 9 ] The Crown has played the 9-1-1 call and argues it confirms that she was emotionally distraught because of the threat she had received but, in my view, it is also consistent with someone who has been involved in a heated domestic argument or perhaps consistent with someone who is fabricating a complaint against her husband. [ 10 ] She has admitted that there were acrimonious proceedings in Supreme Court where she attempted to deny the accused access to their children. [ 11 ] On cross-examination of the complainant and her brother, defence counsel referred to a transcript of a meeting involving five people, including Mr. and Mrs.

U., her father, her brother and his father. I recognize that this meeting was taped without the consent or knowledge of all the parties; however, the complainant's brother acknowledged that there were discussions regarding the sale of these warehouses and that once this problem was resolved, there would be marital peace between the parties. The Crown has argued that the court cannot rely on these transcripts because we do not know if they reflect everything that was said in the meeting or if they had been transcribed by a certified interpreter.

In my view, if the Crown objects to the authenticity of these transcripts, the time to do so was at the time these transcripts were put to the Crown witnesses, as opposed to final submissions. [ 12 ] In any event, I am satisfied that there was such a meeting discussing the finances of the complainant and the accused and at the end of this meeting, people were hoping for a resolution of these problems. [ 13 ] As I have discussed earlier, I have serious reservations about the reliability of the complainant. She has not come before the court at her objective best.

Her evidence of the threats supposedly made by the accused is not supported by any other witnesses, in this case, the accused's mother and father, although I do acknowledge they are not independent witnesses. The accused has admitted there was tension in the relationship because of the financial problems the couple were facing. He has denied ever making any threats. [ 14 ] We are all aware of the test in R. v.

W.D. and let me say, in order to convict the accused of Counts 1 and 3, I would, of course, have to find the complainant to be an honest and credible witness but I am unable to do so. [ 15 ] When I couple my reservations with her reliability with the denial of the accused, I am unable to find that the Crown has proven their case on Counts 2 or 3. Accordingly, all four counts are dismissed. (REASONS FOR JUDGMENT CONCLUDED)