Her Majesty the Queen - v. -, 2014 SKPC 11

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 011 Date: January 17, 2014 Information: 24496788 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dana Trevor Keshane Appearing: Andy Wyatt For the Crown Christine Rosowsky For the Accused DECISION D. CHOW , J Ex Officio INTRODUCTION [ 1 ] The accused, herein, Dana Keshane, stands charged with 3 counts of uttering threats, contrary to sections 264.1(1) (

a) and 264.1(1) of the Criminal Code . [ 2 ] Having considered the evidence and the submissions of counsel, I have concluded, for the reasons set forth herein, that Mr. Keshane is guilty on all 3 counts. EVIDENCE

[ 3 ] The Crown’s first witness was the complainant in respect of count #1 on the Information, Twyla Kakakaway. [ 4 ] Ms. Kakakaway testified that she and the accused had been in a common-law relationship for some 14 years, and that this relationship, which had ended sometime around February 2013, produced 3 children. [ 5 ] According to her evidence, on the evening in question, the accused attended her residence, uninvited, and began banging on her door with a hammer. When she opened it, an argument ensued. Mr. Keshane demanded that he be allowed to leave with their two youngest children, and Ms.

Kakakaway refused. [ 6 ] Out of concern for her safety, she grabbed a golf club from a bag by the door and advised the accused to take a step back, which he did. While standing at the foot of the stairs, the accused then, according to the witness, began banging on the stair rail with the hammer. [ 7 ] Ms. Kakakaway testified that she instructed Ivan Severight, who was visiting at the time, to take the children to the bedroom and to call the police. The accused, she said, called out for Mr.

Severight, taunting him to come out like a man and fight, and threatening to damage his truck with a hammer, before telling them both that he would come back later and cut off their hands. Mr. Keshane warned, she went on to explain, that the police would never make it in time to be of assistance to them. [ 8 ] According to the complainant, Mr. Keshane finally left the residence when she advised the police had been called and were on their way. [ 9 ] She testified she was afraid, and was in the process of packing to leave when the police arrived.

After speaking with investigators, she and the children spent the night with Mr. Severight at his residence. [ 10 ] She also confirmed that a claw hammer, which was exhibited in the proceedings, appeared to be the same one wielded by the accused that evening and under cross-examination, reiterated that she genuinely feared the accused would make good on his threat to come back and cut off her hands. [ 11 ] The Crown’s next witness was Ivan Severight, who testified he was visiting with Twyla Kakakaway at her home on March 1 st , 2013, when the accused arrived and began banging on things with a hammer. Ms.

Kakakaway, he said, went to the door and the two argued for awhile before she instructed Mr. Severight to call the police. He too testified that he heard Mr. Keshane warn that the police would not be able to protect them, and threaten to come back and cut off both of their hands. [ 12 ] He denied saying anything to Mr. Keshane that evening, or provoking him in any way, and like Ms. Kakakaway, Mr. Severight confirmed that the exhibited hammer appeared to be the one wielded by the accused that night. [ 13 ] Under cross-examination, Mr. Severight denied seeing anything in Ms.

Kakakaway’s hands during the altercation. [ 14 ] The Crown’s final witness was Cst. Williams, of the RCMP, who testified that he was on duty the evening of March 1, 2013, when he was dispatched with 2 other officers to the residence of Ms. Kakakaway. Upon arrival, he observed Ms. Kakakaway to be visibly upset and distraught, and after interviewing both her and Mr. Severight, Cst. Williams departed to locate Mr. Keshane. [ 15 ] Approximately an hour later, he was advised that Mr. Keshane was aware police were searching for him, and wanted to meet with them at his home. There, Cst. Williams searched Mr.

Keshane’s vehicle and located the claw hammer earlier identified by Ms. Kakakaway and Mr. Severight. The hammer was made a full exhibit with the consent of counsel for the accused. [ 16 ] No signs of confusion or indicia of alcohol consumption were noted by Cst. Williams, and he agreed under cross examination that the accused was cooperative throughout.

[ 17 ] Mr. Keshane elected to give evidence in his own defence. [ 18 ] Although he prefaced his testimony by acknowledging he could not really recall everything that occurred that evening, he did recall that he had been sending text messages that evening to Ms. Kakakaway, objecting to her choice in men and in particular, expressing concern about their children being in the company of Mr. Severight. At some point, he advised Ms. Kakakaway, again via text message, that he was on his way to remove their 2 children. [ 19 ] According to Mr. Keshane, when he arrived, he knocked on the door, at which point Ms.

Kakakaway emerged wielding a golf club. He denied having a hammer or anything else in his hands during the confrontation, and denied further having ever threatened to kill Ms. Kakakaway or to cut off her hands as alleged. [ 20 ] He acknowledged that he was aware of the presence of Mr. Severight’s truck that evening, and confirmed that he left when Ms. Kakakaway advise the police had been called – in his words, “he didn’t want any bullshit”. [ 21 ] Under cross-examination, Mr. Keshane conceded that he had previously provided investigators with text messages from Ms.

Kakakaway, relating to an earlier incident, but testified that on this particular occasion, he had erased all text messages without bringing them to the attention of the police. [ 22 ] He acknowledged further having previously pleaded guilty to assaulting Ms. Kakakaway, that he was likely angry with her and not thinking straight on this particular occasion, and that he knew there was the possibility that there might be a confrontation. [ 23 ] He also conceded that he wanted to fight Mr.

Severight, that he may well have threatened to smash his truck and in his words, “kick his ass”, and that the hammer, exhibited as P-1 was in indeed located in the truck he was operating that evening; he denied however, having any knowledge of it being there until after the incident. [ 24 ] The final witness to testify for the defence was the parties’ 13 year old daughter, Keegan Kakakaway. [ 25 ] Although she and her sister were present and seated in their father’s vehicle during the altercation at their mother’s home, she testified that she could not recall much of what had occurred, that she could not hear what was being said, and could not recall either Mr.

Keshane or Ms. Kakakaway holding anything in their hands. [ 26 ] While she acknowledged that she may have previously told investigators that her mother was holding a golf club, she also conceded under cross-examination that it was possible that her father, Mr. Keshane, may have had something in his hands as well. ANALYSIS [ 27 ] As the defence notes, the central issue for determination in this case is one of credibility. Counsel for Mr.

Keshane submits that the veracity of his denial in this case is bolstered by the fact that he readily admitted responsibility and pleaded guilty to a previous allegation of assaulting Ms. Kakakaway. [ 28 ] As for the evidence of Mr. Severight, defence counsel submits that he had little to say about the alleged threat to damage his vehicle, that it was not reasonable for him to take Mr. Keshane’s comment about “kicking his ass” as a serious threat, and further, that his entire evidence is tainted by the fact that he claims to have not seen Ms.

Kakakaway wielding the golf club that evening. [ 29 ] Finally, the defence draws the Court’s attention to the evidence of Keegan Kakakaway, who testified that she did not recall seeing her father with a hammer in his hand.

[30] The Crown, by contrast, submits that Ms. Kakakaway gave her evidence in a forthright manner, readily conceding that she hadresorted to brandishing the golf club, and that Mr.

Severight’s failure to testify to that effect is of little import given that he was with thechildren in another room throughout part of the altercation. [31] As for the evidence of the parties’ daughter, Keegan, the Crown argues it is of little assistance, as she readily admitted shecould not hear what was being said, and she ultimately could not recall whether either her father or mother had anything in their handduring the altercation. [32] Finally, the Crown notes that Mr. Keshane testified that he probably did threaten to damage Mr.

Severight’s vehicle and to“kick his ass” and submits that by his own evidence, he is guilty of having committed the offences set forth in counts 2 and 3 of theinformation. [33] Beyond that, the Crown submits, Mr. Keshane is not to be believed. [34] Having heard the evidence, I must agree, and have no hesitation in finding, with respect to each of the three allegations, thatthe Crown has proven its case against Mr. Keshane, beyond any reasonable doubt. [35] Counsel for the accused and for the Crown readily agree that the essential issue to be determined in this case is one ofcredibility.

Bearing in mind that that the presumption of innocence is both a constitutionally enshrined right, and a fundamental tenet ofour justice system, and that the burden rests with the Crown throughout to prove each essential element of the offence beyond areasonable doubt, the court must be necessarily cognizant of, and guided, by the analytical framework enunciated by the Supreme Court of Canada in R. v. W. (D.) (1991), (SCC), 3 C.R. (4th) 302 (S.C.C.), and subsequently refined by the Saskatchewan Courtof Appeal in R. v. McKenzie (1996), (SK CA), 141, Sask. R., 221 (Sask. C.

A.); that is to say: - First, if you believe the accused, obviously you must acquit; - Secondly, if after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; - Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; - Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [36] In the present case, not only do I not believe the accused, but I reject much of his evidence. [37] Both Ms.

Kakakaway and Mr. Severight gave their evidence in a forthright manner, and their testimony was internallyconsistent, and largely corroborative on germane issues, including the accused’s specific and rather peculiar threat to come back and cutoff their hands, and his assurance that the police would be unable to protect them. [38] Ms. Kakakaway testified that she took Mr. Keshane’s threats seriously and that she feared for her safety, so much so thatwhen the police arrived she and Mr. Severight were in the process of leaving with the children to spend the night at his residence.

Herdecision to flee the residence and the observations of Cst. Williams as to her demeanor when he arrived, are entirely consistent with themenacing nature of the alleged threat and the seriousness with which Ms. Kakakaway perceived it.

[ 39 ] Moreover, Ms. Kakakaway did not attempt to deny or otherwise minimize her use of the golf club, and I place little or no weight in the fact that her evidence in this respect conflicts with the testimony of Mr. Severight, given he was by all accounts with the children in a different room of the house during part of the confrontation. [ 40 ] Similarly, the testimony of Keegan Kakakaway is of little probative value, insomuch as it is simply unreliable. She could not hear what was being said and admitted being unable to recall much of what had happened.

Moreover, although Keegan agreed she may have previously told investigators that her mother was holding a club, she also conceded under cross-examination that her father may have been holding something as well. [ 41 ] By contrast, Mr. Keshane was often evasive while giving his evidence, and much of his testimony simply does not accord with common sense and experience. He readily admitted having provided investigators with text messages from Ms.

Kakakaway in the past, but could offer no credible explanation for the fact that he deleted her messages on this occasion without making any effort to provide them to authorities, and his departure from the scene when advised that the police were on their way is inconsistent with the accused’s rather innocuous version of events and stated desire to simply remove the children from what he believed to be an unhealthy environment. [ 42 ] In fact, under cross-examination, Mr. Keshane admitted he was probably angry and not thinking straight when he made his way that evening to Ms.

Kakakaway’s home, and that he knew there was a good possibility that an altercation might occur. He saw Mr. Severight’s vehicle there, acknowledged he objected to the latter being near his children, and admitted that he possibly threatened to “kick his ass” and to “smash his truck”. Nonetheless, and despite his claims that he could not really recall much of what had occurred that evening, and that his memory was not that good, Mr.

Keshane attempted to minimize his culpability in the incident by steadfastly denying that he ever went so far as to threaten to kill or dismember anyone that evening. [ 43 ] Most telling however, is the conflicting evidence with respect to whether or not the accused brandished a hammer during the course of the altercation. Ms. Kakakaway testified that Mr. Keshane was holding it and banging on the door and stair railing; her evidence in this regard was corroborated by Mr. Severight, and there is, quite simply, no reasonable way to reconcile Mr.

Keshane’s denial in this respect with the fact that both witnesses described the hammer as being similar to the claw hammer discovered by investigators on the floor of the accused’s vehicle later that evening. [ 44 ] In

summary, I find as a matter of fact that the Mr. Keshane not only threatened to damage Mr. Severight’s truck, but to cut off his hands and those of Ms.

Kakakaway as well on the evening of March 1 st , 2013, as alleged, that he intended his words to intimidate and be taken seriously, and that viewed objectively and in context, a reasonable person would have interpreted the words he employed as a threat to cause bodily harm and to damage personal property as alleged. [ 45 ] Taken as a whole and viewed within the context of the analytical framework set forth above, I am satisfied that evidence which I do accept is sufficient to prove each and all of the allegations against the accused, Dana Keshane, to the requisite criminal standard, and I am left with no reasonable doubt as to his guilt. _________________________ D.

Chow, J Ex Officio