R v Breckeridge, 2023 ABCJ 183

In the Alberta Court of Justice Citation: R v Breckeridge, 2023 ABCJ 183 Date: 20230814 Docket: 211192083P1 Registry: Didsbury Between: His Majesty the King - and - Anthony Breckeridge Decision of the Honourable Justice B.R. Fraser Introduction [ 1 ] The accused is charged with intimidation of a justice system participant being the complainant of a sexual assault complaint against him and a potential witness in that trial. The complainant had made the complaint to the RCMP and as a result the accused had been arrested and charged.

As a result, the accused allegedly threatened her family, to burn their house down, kill her parents in front of her and kill the people she was staying with, unless she got the charges dropped. As a result of these threats, she again went to the RCMP and told them her complaint of sexual assault was a lie and she wanted them to drop the charge.

Upon consultation with the Crown the charge was stayed. [ 2 ] Eventually the complainant attended the RCMP a third time to tell them that the original complaint was not a lie and she had recanted because he had threatened to kill her family and burn their house down if she did not have the charge dropped. As a result this charge was laid. [ 3 ] The complainant testified the accused made the threats multiple times by way of Facebook Messenger, Instagram, text messages, by phone and face to face. The threats were made up to 30 times.

He was under a release order not to contact or communicate with her but he ignored that court order and made the threats and contacted her. [ 4 ] The Crown called the complainant and the RCMP officer who took the complaints and arrested and charged the accused originally with sexual assault and then with this charge. The defence called the accused. The Law of Credibility

[5] Clearly there are two versions before me on a number of issues going to credibility. When credibility is an issue it raises theSupreme Court of Canada case of R v WD, [1991] 15 SCR 742 (WD) and authorities following. [6] In a case where the accused testifies and the issue is credibility, the rule of reasonable doubt applies to that issue. There aretwo situations where the Court must acquit the accused. First, if the trier of fact believes the accused.

Second, even if they do not believethe accused but his evidence raises a reasonable doubt as to. his guilt when considered in the context of the evidence as a whole. [7] The concept of reasonable doubt was explained by the Supreme Court in R v Lifchus, (SCC), [1997] 3SCR 320. The standard of proof beyond a reasonable doubt is intertwined with the presumption of innocence. It is based on reason andcommon sense. It is logically connected to evidence or absence of evidence. It does not involve proof to an absolute certainty. It is not proof beyond any doubt, nor is it animaginary or frivolous doubt.

On the other hand, more is required than proof that the accused is probably guilty. If the conclusion is onlythat the accused probably guilty, he must be acquitted. [8] In 2019, the Alberta Court of Appeal handed down the case of R v Ryon, 2019 ABCA 36, where they reiterated not only thatthe accused’s evidence must be considered in the context of the evidence as a whole but that WD does not stand for the proposition thatthe accused’s evidence must be considered first.

They adopted the approach proposed by Doherty J.A. in R v Carriere, (2001), (ONCA), 151 OAC 115 (Ont CA) as set out at paras 48 and 50 and reproduced at para 46. [9] They then referred to the Supreme Court case R v Dinardo, 2008 SCC 24 as support for considering the accused’s evidencein the context of the evidence as a whole. [10] In assessing credibility there is no magic formula provided to triers of fact.

Instead, there are a number of questions to be considered,for example, whether the witness seems to have a good memory of the relevant events, whether the evidence provided by a witnessseems reasonable and consistent and whether there is any reason why a witness would not be telling the truth.

When assessing theevidence of the accused, it is impermissible to assume that the accused will lie to escape conviction, to do so would undermine thepresumption of innocence, R v Laboucan, [2010] 1 SCR 379, at paras 14-18. [11] In R v Page, 2017 ABQB 33, Justice Renke, under the heading “Rejection of the Accused’s Account”, states that an accused’saccount need not raise a reasonable doubt, even if that account was plausible and unshaken in cross-examination.

He states a trier of factmay reject an accused’s plausible account wholly, because the trier of fact accepts the counter-account of the Crown’s evidence beyond a reasonabledoubt. That is if the trier is convinced beyond a reasonable doubt by the Crown’s evidence and no reasonable doubt arises from theevidence that the trier accepts. H refers to R v Vuradin, 2013 SCC 38 as well as R v Gordon, 2015 ABCA 341; R v (S(T), 2012 ONCA 289 by WattJ.A. [12] In R v CLS, 2021 ABCA 147 , 2021 ABCA147 the Court stated the trial judge did not reject the accused’s evidencebecause it was a bare denial.

He disbelieved his evidence because it conflicted with the balance of the Crown’s evidence, including thecomplainant’s. It did not raise a reasonable doubt because it was inconsistent with the complainant’s evidence which he accepted ascredible. He does not need to find fault with the accused’s evidence in order to convict. [13] In R v TS, 2012 ONCA 289 Justice Watt stated as follows: ...as a matter of law, reasoned acceptance of a complainant’s evidence is a basis upon which a trial judge can reject the evidence of anaccused and find guilt proven beyond a

reasonable doubt. A reasoned and considered acceptance of the complainant’s evidence is as much an explanation for rejecting the contrary evidence of an accused as are problems inherent in an accused’s own testimony.... [ 14 ] I have recently reviewed R v Clarkson , 2023 ABCA 212 which confirms most of the above. Analysis [ 15 ] I will apply all those authorities in my analysis of the evidence of both the complainant and the accused. [ 16 ] I choose to analyze the evidence of the complainant first.

I found the complainant had a good memory of the relevant events with the exception of dates as to when each event occurred. Her evidence of those events were reasonable and consistent. I could detect no reason why she would invent any of her allegations, particularly the threats which she says she endured multiple times by way of numerous social media, phone and face to face.

It was clear she was fearful of the accused and thought him very capable of carrying out the threats no doubt based on his drug addiction and those drugs making him hyper, and the violent associations he had in the drug trade and gangs that he described as his lifestyle.

Her fear is also evident in the fact she went with him when he picked her up and virtually confined her at his home for a week until she was able to escape when he was asleep and then hide in a washroom until she could get help, as she described. [ 17 ] Defence submits her motive was to get money back from him or some financial gain, or he cheated on her or she was angry with him. I find if they were motives at all, they were secondary. Her real motive was to get away from him.

I heard nothing about the sexual assault allegation but the fact she made that allegation suggests he may have been violent towards her and he frightened her, not only for her own safety but what he threatened to do to her family. [ 18 ] Defence also suggests her parents made her make the sexual assault complaint because they accompanied her to see the RCMP. The complainant dismissed that suggestion noting she was an adult, not living with her parents, and made her own decisions. She struck me as quite capable of doing so. [ 19 ] I do not find her motivations were anything other than fear of the accused.

I find her to be a credible witness and her evidence to be reliable. I believe her evidence as to why she recanted, and the threat she received to get her to recant. [ 20 ] As to the accused, I find his evidence to be very unreliable. By his own admission he was a severe drug addict at the time which made him hyper and affected his memory. He admitted the complainant did not take drugs as the complainant testified to when the defence counsel accused her of “doing quite a bit of drugs.” The accused’s evidence was a bare denial that he did anything the complainant said.

According to him, he had no reaction to being accused of sexual assault or being charged and arrested. He thought nothing of violating his release conditions by not only contacting and communicating with her but picking her up and keeping her at his place for a week. According to the complainant, she was confined there for the week until she could escape. [ 21 ] I find the accused’s bare denial of making any threats to have the charge dropped is either because his memory is so affected by his drug addiction or he chooses not to remember.

In any event, I believe the version of events as described by the complainant and the accused’s evidence does not raise a reasonable doubt as to her evidence. I do not believe the accused nor do I have a reasonable doubt that his version may be true. Conclusion [ 22 ] I find the accused guilty of engaging in threatening conduct with the intention to provoke fear in the complainant so she would recant her complaint thereby impeding giving evidence against him.

Dated at the Town of Didsbury, Alberta this 14 th August, 2023. B.R. Fraser A Justice of the Alberta Court of Justice Appearances: A. Nanji for the Crown Self-represented for the Accused