R. v. Gauthier, 2021 BCPC 221

Citation: R. v. Gauthier 2021 BCPC 221 Date: 20210727 File No: 241782-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. STEVEN JOSEPH STEWART GAUTHIER BAN ON PUBLICATION PURSUANT TO S. 517(1) OF THE CRIMINAL CODE ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Crown: Gail Barnes Counsel for the Defendant: Scott R. Wright Place of Hearing: Surrey , B.C. Dates of Hearing: April 6, 2021 and May 3, 2021 Date of Judgment: July 27, 2021 INTRODUCTION

[ 1 ] The accused, Steven Joseph Stewart Gauthier, is charged, by Information No. 241782-1, with the following offences, namely, that on or about June 2, 2020, at or near Langley, in the Province of British Columbia, he did: Count 1: knowingly utter or convey a threat to Denelda Philomena Richert to cause death or bodily harm to Steven Price, contrary to s. 264.1(1) (

a) of the Criminal Code ; Count 2: knowingly utter or convey a threat to Denelda Philomena Richert to cause death or bodily harm to R.G., contrary to s. 264.1(1) (

a) of the Criminal Code ; Count 3: knowingly utter or convey a threat to Denelda Philomena Richert to cause death or bodily harm to Denelda Richert, contrary to s. 264.1(1) (

a) of the Criminal Code ; Count 4: wrongfully and without lawful authority, intending to provoke a state of fear to the general public and to impede the administration of justice, did threaten to bring an explosive device to the New Westminster Courts, contrary to s. 423.1(1) (

a) of the Criminal Code ; and Count 5: wrongfully and without lawful authority, intending to provoke a state of fear in John Lester, a justice system participant, in order to impede him in the performance of his duties, did threaten to use violence against John Lester, contrary to s. 423.1(1) (

b) of the Criminal Code . [ 2 ] The Crown proceeded by indictment. Mr. Gauthier elected to be tried by a Provincial Court judge. He pled not guilty to all five counts. ADMISSION OF FACTS [ 3 ] Mr. Gauthier filed an Admission of Facts, which was entered as Exhibit 1. It reads as follows: The accused STEVEN JOSEPH STEWART GAUTHIER admits the following facts pursuant to

section 655 for the purpose of dispensing with proof thereof at the trial of this matter: 1. THAT the accused is the person named in the above-noted Information. 2. THE jurisdiction of the Court. 3. THAT the accused STEVEN JOSEPH STEWART GAUTHIER had been convicted by Madam Justice DEVLIN on Indictment number 66844 in the British Columbia Supreme Court holden at New Westminster on February 5, 2020 of the aggravated sexual assault of R.G. R.G. had been a former intimate partner of the accused. 4. THAT defence counsel for the accused at that trial had been STEVEN PRICE. 5.

THAT the Crown Counsel who had prosecuted that trial was JOHN LESTER. 6. THAT the accused had been scheduled to be sentenced on that charge on June 12, 2020. That sentencing date was adjourned and a new sentencing date of September 25, 2020 had been set. 7. THAT the accused had formerly been involved in a relationship with DENELDA RICHERT, the Crown’s civilian witness in this case. 8. THAT the accused’s cell phone number on June 1, 2020 was [omitted for publication]. 9. THAT the voicemails that are tendered in evidence were provided to Cst.

DEE of the Langley RCMP by DENELDA RICHERT and have not been altered or tampered with since they were provided to Cst. DEE. 10. THAT any and all judicial authorizations, and Production Orders were lawfully obtained. [ 4 ] The voicemails referenced in paragraph 9 of the Admission of Facts and entered as Exhibit 3 are as follows: (

a) the first voicemail is from Mr. Gauthier to Ms. Richert, on June 1, 2020, at 11:47:01 hours, for a duration of 152 seconds (approximately 2 ½ minutes) (the “First Voicemail”); and (

b) the second voicemail is from Mr. Gauthier to Ms. Richert, on June 27, 2020, at 17:52:09 hours, for a duration of 141 seconds (slightly less than 2 ½ minutes) (the “Second Voicemail”) (the First and Second Voicemails, collectively referred to as the “Voicemails”). [ 5 ] I will first set out the applicable legal framework, then review the evidence and the parties’ submissions, and finally discuss the issues and come to my conclusion. THE LEGAL FRAMEWORK Legislation [ 6 ] The relevant provisions of the Criminal Code are as follows:

Definitions

2 In this Act, bodily harm means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merelytransient or trifling in nature; justice system participant means (

b) a person who plays a role in the administration of criminal justice, including (ii) a prosecutor, a lawyer, a member of the Chambre des notaires du Québec and an officer of a court, (iii) a judge and a justice, Uttering threats 264.1

(1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (

a) to cause death or bodily harm to any person; Intimidation of a justice system participant or a journalist 423.1

(1) No person shall, without lawful authority, engage in any conduct with the intent to provoke a state of fear in (

a) a group of persons or the general public in order to impede the administration of criminal justice; (

b) a justice system participant in order to impede him or her in the performance of his or her duties; Case Law [7] In support of its position, the defence, relies on the following cases: (

a) R. v. Armstrong, 2012 BCCA 248 (“Armstrong”); (

b) R. v. Payne-Binder, [1991] Y.J. No. 232 (Y.T.C.A.); (

c) R. v. Cenciarini, 2000 BCSC 1223 (“Cenciarini”); (

d) R. v. Shaw, [1992] A.J. No. 1233 (A.B.C.A.) (“Shaw”); (

e) R. v. Medeiros, (ON CJ), [2000] O.J. No. 2697 (Ont. C.J.); and (

f) R. v. James, 2010 BCSC 1891 (“James”). Legal Principles [8] The relevant legal principles from these cases are as follows: (

a) With respect to s. 264.1(1) of the Criminal Code: James [23] . . . The purpose of this

section was described by the Supreme Court of Canada in the judgment R. v. McCraw, (SCC), [1991] 3 S.C.R. 72, [1991] S.C.J. No. 69, in which Justice Cory for the court stated at paras. 24-25 (cited to S.C.J.): Parliament, in creating this offence recognized that the act of threatening permits a person uttering the threat to use intimidation in orderto achieve his or her objects. The threat need not be carried out; the offence is completed when the threat is made. It is designed tofacilitate the achievement of the goal sought by the issuer of the threat.

A threat is a tool of intimidation which is designed to instill asense of fear in its recipient. The aim and purpose of the offence is to protect against fear and intimidation. In enacting the sectionParliament was moving to protect personal freedom of choice and action, a matter of fundamental importance to members of ademocratic society. The true nature of the offence was recognized by this Court in R. v. LeBlanc, (SCC), [1989] 1 S.C.R. 1583. There theCourt approved the trial judge's ruling that whether the threatener intends to carry out the threat is irrelevant to determining if aconviction can be maintained.

It is the element of fear instilled in the victim by the issuer of the threat at which the criminal sanction isaimed.

Section 264.1 provides that the threat must be knowingly uttered or conveyed by the accused. Thus the Crown is required toestablish that the accused intended to threaten the victim with serious bodily harm. However the determination as to whether there wassuch a subjective intent will often have to be based to a large extent upon a consideration of the words used by the accused. In thosecases where the accused does not testify or call evidence the determination must be made on the basis of the words used. [24] It should be noted that the

section was amended after the decision in McCraw to remove the reference to serious in relation tobodily harm. . . . [26] In R. v. Clemente, (SCC), [1994] 2 S.C.R. 758, [1994] S.C.J. No. 50, Justice Cory for the court provided thefollowing discussion of the approach to be taken in the analysis of the evidence pursuant to charges under the

section at paras. 8-9 (cited

to S.C.J.):

Section 264.1(1)(

a) is directed at words which cause fear or intimidation. Its purpose is to protect the exercise of freedom of choice bypreventing intimidation. The

section makes it a crime to issue threats without any further action being taken beyond the threat itself. Thus, it is the meaning conveyed by the words that is important. Yet it cannot be that words spoken in jest were meant to be caught bythe section. This Court considered the provisions of s. 264.1(1)(

a) in R. v. McCraw, (SCC), [1991] 3 S.C.R. 72. The manner inwhich a court should approach charges of threatening was set out at pp. 82-83 in these words: How then should a court approach the issue? The structure and wording of s. 264.1(1)(

a) indicate that the nature of the threat must belooked at objectively; that is, as it would be by the ordinary reasonable person. The words which are said to constitute a threat must belooked at in light of various factors. They must be considered objectively and within the context of all the written words or conversationin which they occurred. As well, some thought must be given to the situation of the recipient of the threat. The question to be resolved may be put in the following way.

Looked at objectively, in the context of all the words written or spokenand having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to areasonable person?

Thus, the question of whether the accused had the intent to intimidate, or that his words were meant to be taken seriously will, in theabsence of any explanation by the accused, usually be determined by the words used, the context in which they were spoken, and theperson to whom they were directed. [27] Under the present section, the actus reus of the offence is the uttering of threats of death or serious bodily harm.

The mens rea isthat the words be spoken or written as a threat to cause death or serious bodily harm; that is, they were meant to intimidate or to be takenseriously. [28] To determine if a reasonable person would consider that the words were uttered as a threat, the court must regard themobjectively and review them in light of the circumstances in which they were uttered, the manner in which they were spoken, and theperson to whom they were addressed.

Obviously, words spoken in jest or in such a manner that they could not be taken seriously couldnot lead a reasonable person to conclude that the words conveyed a threat. Armstrong [33] As stated by Justice Cory at p. 763 of Clemente, the matter is most clearly understood by reference to the two components of acrime, actus reus and mens rea. The actus reus is the uttering of the threat to cause serious bodily harm, and the mens rea is theutterance with the intention the words will intimidate or be taken seriously.

In considering the actus reus, it is necessary to determinewhether the words are indeed a threat prohibited by the Criminal Code. . . . [35] If the expression of a prohibited threat is established, the trier of fact must consider the mens rea – did the accused utter thewords as a threat? Otherwise stated, did he, in Justice Cory’s description in Clemente, intend to intimidate or have the words takenseriously? As in other situations where there is no direct evidence of intention, intent is a matter to be inferred from the evidence.

In thistask the trier of fact gains some assistance from considering, objectively, the meaning a reasonable person would take from the words. Cenciarini [25] It is not a necessary element of proof to show an intention or ability to carry out the import of the words (R. v. LeBlanc (1989), (SCC), 50 C.C.C. (3D) 192, . . . [34] . . . the issue is whether or not there was an intention to instill fear. Shaw [7] Evidence as to how the recipient of the threat reacted to it, is also, in this case, some evidence of the intent of the author of thatthreat. . . . (

b) With respect to s. 423.1 of the Criminal Code: Armstrong [44]

Section 423.1 is a specific intent offence. In R. v. Bernard, (SCC), [1988] 2 S.C.R. 833 at 863, 45 C.C.C. (3d) 1,Justice McIntyre described the difference between a specific and general intent offence. He described specific intent by reference to “thepurpose” of the performance of the actus reus: A distinction has long been recognized in the criminal law between offences which require the proof of a specific intent and those whichrequire only the proof of a general intent. This distinction forms the basis of the defence of drunkenness and it must be understood andkept in mind in approaching this case. In R. v.

George, (SCC), [1960] S.C.R. 871, Fauteux J. said, at p. 877: In considering the question of mens rea, a distinction is to be made between (

i) intention as applied to acts considered in relation to theirpurposes and (ii) intention as applied to acts considered apart from their purposes. A general intent attending the commission of

an act is,in some cases, the only intent required to constitute the crime while, in others, there must be, in addition to that general intent, a specificintent attending the purpose for the commission of the act.

This statement makes the distinction clear. The general intent offence is one in which the only intent involved relates solely to theperformance of the act in question with no further ulterior intent or purpose. The minimal intent to apply force in the offence of commonassault affords an example. A specific intent offence is one which involves the performance of the actus reus, coupled with an intent orpurpose going beyond the mere performance of the questioned act.

Striking a blow or administering poison with the intent to kill, orassault with intent to maim or wound, are examples of such offences. [45] There is not, however, a clear equation of “intent” with “purpose”; intention as understood in relation to an offence does notalways require that the purpose of the act coincide with “intent” under the Criminal Code.

In Chartrand, for example, JusticeL’Heureux-Dubé, discussing the offence of abduction of a child “with intent to deprive a parent ... of the possession of that person”contrary to s. 281 of the Criminal Code, said at 889-890: General principles of mens rea apply to the words “with intent to”, and, accordingly, in order to conclude that the mens rea of theoffence under s. 281 has been made out, it is sufficient that the taker knows or foresees that his or her actions would be certain orsubstantially certain to result in the parents (guardians, etc.) being deprived of the ability to exercise control over the child.

In R. v. Buzzanga and Durocher (1979), (ON CA), 49 C.C.C. (2d) 369 (Ont. C.A.), although in the context of wilfulpromotion of hatred, Martin J.A. stated at pp. 384-85: I agree ... that, as a general rule, a person who foresees that a consequence is certain or substantially certain to result from

an act whichhe does in order to achieve some other purpose, intends that consequence. The actor's foresight of the certainty or moral certainty of theconsequence resulting from his conduct compels a conclusion that if he, none the less, acted so as to produce it, then he decided to bringit about (albeit regretfully), in order to achieve his ultimate purpose. His intention encompasses the means as well as to his ultimateobjective. This definition of intent was subsequently approved by this Court in R. v. Keegstra, (SCC), [1990] 3 S.C.R. 697, at pp.774-75. Moreover, in R. v.

Olan, (SCC), [1978] 2 S.C.R. 1175, at p. 1182, this Court examined the possibility that intentunder s. 338 (now s. 380) of the Code may encompass a contemplated outcome distinct from the purpose of the conduct. It adopted theEnglish Court of Appeal's dictum in R. v. Allsop (1976), 64 Cr. App. R. 29: Generally the primary objective of fraudsmen is to advantage themselves. The detriment that results to their victims is secondary to thatpurpose and incidental.

It is “intended” only in the sense that it is a contemplated outcome of the fraud that is perpetrated. [Emphasis added in original.] . . . [47] The offence of which Mr. Armstrong is convicted is expressed in somewhat different language, with “in order to” in place of“with intent to”. Yet although the words differ, I do not consider the phrase “in order to” has a more specific meaning than the phrase“with intent to”, and it seems to me the approach described in Chartrand is the approach that should apply to the mens rea component ofan offence under s. 423.1.

Thus I do not accept the Crown’s submission that the mens rea test is “relaxed somewhat” from the testexpressed in Chartrand; nor do I accept that it is more rigorous. Assessment of Credibility [9] This case raises issues of credibility and involves the application of the presumption of innocence. This presumption, enshrinedin s. 11(

d) of the Charter of Rights and Freedoms, requires that an accused not be convicted unless each essential element of the offencehas been proven beyond a reasonable doubt. The Crown bears the burden of proof. The accused need not prove the existence or non-existence of a fact essential to guilt. This standard of proof is higher than the standard applied in civil actions of proof based upon abalance of probabilities, yet less than proof to an absolute certainty. That is, it is not proof beyond any doubt: R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320, para. 14. [10] In a criminal trial, in assessing credibility, the test is not whose evidence I believe – that is, the evidence of the Crown or theaccused – but rather, whether, on the totality of the evidence, viewed as a whole, the Crown has proven each essential element of theoffence beyond a reasonable doubt. [11] In this context, the law concerning credibility assessment is well settled. The analytical framework for such assessment is set outin the decision of the Supreme Court of Canada in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, at p. 757, as augmented bythe decision of the Court of Appeal for British Columbia in R. v. H.(C.W.) (1991), (BC CA), 68 C.C.C. (3d) 146(C.A.). Based on this framework, I instruct myself as follows: (

a) first, if I believe the evidence of the accused, I must acquit the accused; (

b) second, if, after a consideration of all of the evidence, I am unable to decide whom to believe – the accused or the Crown witnesses,I must acquit the accused; (

c) third, if I do not believe the evidence of the accused, but am left in reasonable doubt by it, I must acquit the accused; and (

d) fourth, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence I doaccept, I am convinced beyond a reasonable doubt by that evidence of the accused’s guilt. [12] I will now turn to the evidence in this case. WITNESSES

[ 13 ] Cst. Michael Dee, a member of the Royal Canadian Mounted Police (“RCMP”) and Ms. Richert testified on behalf of the Crown. [ 14 ] Mr. Gauthier testified on his own behalf. Due to COVID-19 restrictions and protocols, at Mr. Gauthier’s request and with the consent of the Crown, I made an order under s. 650(2) (

b) of the Criminal Code permitting Mr. Gauthier to be out of court during the whole of his trial. He was permitted to appear by video, allowing him to engage in simultaneous visual and oral communication with the court, witnesses, and counsel. [ 15 ] I will now review the evidence of the witnesses. EVIDENCE OF THE WITNESSES Cst. Dee [ 16 ] The following is a

summary of Cst. Dee’s evidence. [ 17 ] On June 28, 2020, Cst. Dee received a telephone call for service from Ms. Richert. He met with Ms. Richert that same day and took an audio statement from her regarding a complaint that she received threats of various nature from Mr. Gauthier. [ 18 ] On July 16, 2020, Cst. Dee followed up with Ms. Richert at her residence for two reasons: (1) to see how she was doing, because she was apprehensive in her initial complaint and was concerned for her safety; and (2) to obtain a second audio statement, as Ms. Richert said she had more detailed information to share.

At this time, Ms. Richert played the Voicemails on her telephone, and Cst. Dee recorded them with his audio recorder. [ 19 ] In June 2020, Mr. Gauthier’s cell phone number was [omitted for publication] and Ms. Richert’s cell phone number was [omitted for publication] (the “5128 Number”). Cst. Dee obtained cell phone records for both of these numbers. However, only Ms. Richert’s cell phone records for the period June 1, 2020 to June 30, 2020 were introduced into evidence and entered as Exhibit 2 (collectively, the “Phone Record”). [ 20 ] Next, I will discuss Ms. Richert’s evidence. Ms.

Richert [ 21 ] The following is a

summary of Ms. Richert’s evidence. [ 22 ] Ms. Richert met Mr. Gauthier on August 24, 2015, and they started dating immediately. They were in a romantic relationship until about the end of June 2016, when Mr. Gauthier met R.G., a much younger woman, who became his girlfriend. [ 23 ] Even after Ms. Richert stopped dating Mr. Gauthier she continued to have telephone contact with him, even though he was with R.G. [ 24 ] Ms. Richert and Mr. Gauthier were involved in certain financial transactions regarding the purchase of a 2015 Chevy Cruze (the “Car”) for Ms. Richert’s use, which caused some friction between them.

However, Ms. Richert repaid Mr. Gauthier monies she owed him for the Car by a bank draft on September 13, 2016. She did not take $700 from Mr. Gauthier to pay for the winter tires, but rather he gave her the $700 and told her to pay him back when she could. She did not take money from Mr. Gauthier while he was asleep, or use his bankcard to withdraw $1,600 from his Royal Bank of Canada account. [ 25 ] Ms. Richert told Mr. Gauthier that she did not trust R.G. She did not ask Mr. Gauthier to get an acknowledgement in writing from R.G. that she was aware of Mr. Gauthier’s HIV status. However, Ms.

Richert had a heated conversation with R.G. on September 12, 2016 at the Chilliwack hospital, when Mr. Gauthier was there for a hernia procedure. In that conversation, Mr. Gauthier’s HIV status came up. [ 26 ] Ms. Richert provided emotional and secretarial support to Mr. Gauthier. She assisted him in finding a realtor and selling his house. [ 27 ] Later, Mr. Gauthier was charged with various offences against R.G., and was ultimately convicted of aggravated sexual assault of R.G. by Madam Justice Devlin in the Supreme Court of British Columbia on February 5, 2020 (the “G. Case”). Mr.

John Lester was the Crown counsel and Mr. Steven Price was the defence counsel in that matter. [ 28 ] Ms. Richert assisted Mr. Gauthier with the G. Case. She attended meetings with Mr. Price, and acted as the intermediary between Mr. Price and Mr. Gauthier in receiving emails, other communication, and documents, as Mr. Gauthier did not have internet. She also assisted in putting together witness lists and document binders for Mr. Price. Ms. Richert did not receive any compensation from Mr.

Gauthier for this work, but she did receive some money for putting together a letter and some documentation to the Prime Minister, and sending it by registered mail in May 2020. [ 29 ] Mr. Gauthier wanted Ms. Richert to testify on his behalf in the G. Case, but she did not. She attended court only on the day the judgment was delivered. [ 30 ] Mr. Gauthier also wanted Ms. Richert to provide a statement at his sentencing in the G. Case (the “Sentencing”), but she again refused to do that. Mr. Gauthier wanted her to include untrue facts in her statement.

In his words, he wanted her to “make things right.” He was of the belief that the police worked against him, that R.G. testified against him, and that Mr. Price did not do a good job and worked against him. [ 31 ] The Sentencing was first scheduled for April 2020, but was adjourned to June 12, 2020 due to COVID -19. It was once again adjourned to September 25, 2020. [ 32 ] When Mr. Gauthier first called on June 1, 2020, Ms. Richert did not pick up the phone because she knew that he was getting

agitated, and he was yelling and screaming at her on the phone, so she blocked his number. That is when Mr. Gauthier left the First Voicemail, just before noon on June 1, 2020. [ 33 ] Between the First Voicemail and the Alleged Threats Call described below, Ms. Richert had at least one other long conversation with Mr. Gauthier on June 1, 2020 (the “Lengthy Call”). I note that the Phone Record indicates that this was an incoming call from Mr. Gauthier at 22:43:03 hours, and it lasted 2,223 seconds (approximately 37 minutes). Ms. Richert picked up this call. [ 34 ] In the Lengthy Call, Mr.

Gauthier did not mention to Ms. Richert that he had left her the First Voicemail . He asked what she was going to do (referring to the statement he wanted), but he was calm and was not upset. [ 35 ] After the Lengthy Call, Ms. Richert listened to the First Voicemail, in which Mr. Gauthier sounded very upset and frustrated. Ms. Richert was confused, so she called Mr. Gauthier back on June 2, 2020, at 00:19:39 hours, which call lasted 950 seconds (approximately 16 minutes). In this call, when Ms. Richert mentioned the First Voicemail, Mr. Gauthier got very upset, and he started yelling and screaming at Ms.

Richert, and uttered the threats at issue (the “Alleged Threats Call”). Mr. Gauthier was agitated, angry and upset. He was ranting and raving. [ 36 ] Ms. Richert described the threats (the “Alleged Threats”) as follows: He was threatening to strap a bomb to his chest and walk into the courthouse and blow it up to get rid of that bitch, referring to the judge. And he said, “I’ll make sure you and Steven,” referring to his lawyer, Steven Price, “be in that courtroom.” He then proceeded to go on to say he’s also going to kill the Crown counsel, John Lester.

His exact words were, “I’m going to snuff him out.” And then I tried to explain, “You can’t do that. How are you going to find out where he lives?” He says he has his ways. And I said, “How are you going to carry a bomb in the courtroom?” He said he’ll sneak it in where it’s not detected. [ 37 ] Mr. Gauthier also told Ms. Richert “he was going to kill” R.G., and at another time mentioned to Ms. Richert that “he was going to slit her face and make her not pretty for anybody else.” [ 38 ] Regarding Mr. Lester, Mr. Gauthier told Ms. Richert, “I’m going to find out where he lives and I’m going to snuff him out.” Mr.

Gauthier “was going to leave his body on the front yard for his family to see.” At other times, Mr. Gauthier talked about killing Mr. Lester, and that is why Ms. Richert made a report to Crime Stoppers in August 2018. [ 39 ] Ms. Richert took the Alleged Threats very seriously. She was very upset. She was worried for the people Mr. Gauthier mentioned. She tried to calm him down. She told him she would help him do things the “legal way.” Mr. Gauthier told her, “I will try it your way. When it doesn’t work, Dee, I will do it my way.” [ 40 ] Ms. Richert phoned Mr.

Price’s office and spoke with his legal assistant about the Alleged Threats, and the legal assistant relayed her message to Mr. Price. [ 41 ] Ms. Richert did not tell R.G. about the Alleged Threats because she had no way of contacting R.G. However, in 2019, Ms. Richert called Crime Stoppers, as Mr. Gauthier uttered threats against R.G. on August 1, 2019. He made more threats and she reported again. [ 42 ] Ms. Richert tried her best to help Mr. Gauthier through the G. Case. [ 43 ] On June 27, 2020, Ms. Richert received another phone call from Mr. Gauthier. By the end of June 2020, Mr.

Gauthier was getting more and more upset, and he was irrational. He told Ms. Richert that her dead father (who died in 1998) reached out to him. Ms. Richert got more worried, and she contacted the police on June 28, 2020 and spoke with Cst. Dee. She contacted the police “so that they could take the necessary precautions.” [ 44 ] Ms. Richert did not make any notes of the Alleged Threats. Her first statement to the police on June 28, 2020 (the “June 28 th Statement”) was purely from her memory. [ 45 ] Ms. Richert would never forget the conversation with Mr.

Gauthier about him “strapping a bomb to his chest” and “snuffing out a prosecutor.” [ 46 ] Ms. Richert spoke with Cst. Dee again on July 16, 2020 regarding the Phone Record. She provided her second statement to the police on July 16, 2020 (the “July 16 th Statement”). [ 47 ] When Ms. Richert attended court on February 5, 2020 to hear the judgment on the G. Case, Mr. Gauthier’s family members were not there. Ms. Richert phoned Mr. Gauthier’s son, Michael Gauthier, and Mr. Gauthier’s brother, Rick Gauthier. Ms. Richert did not tell Michael Gauthier where R.G. worked. [ 48 ] After Mr.

Gauthier was found guilty on February 5, 2020, he became more and more agitated. He is someone who vents a lot, “absolutely” uses colourful language, and rambles on. [ 49 ] Mr. Gauthier threatened Ms. Richert in the Alleged Threats Call because he blames her for being found guilty, as she did not testify at the trial of the G. Case. [ 50 ] I will now turn to Mr. Gauthier’s evidence. Mr. Gauthier [ 51 ] Mr. Gauthier is 59 years of age. He has five children, four grandchildren, and two great- grandchildren . He has a grade-seven education. He has been doing construction-type work for a long time.

[ 52 ] Mr. Gauthier has many health issues, including HIV. [ 53 ] Mr. Gauthier’s relationship with Ms. Richert was initially romantic, but later turned to platonic, even though Ms. Richert wanted it to be romantic. Their relationship was fine until part way through the G. Case. [ 54 ] Initially, Ms. Richert assisted in putting together binders for the G. Case. She attended meetings that Mr. Gauthier had with Mr. Price. [ 55 ] Ms. Richert told Mr. Gauthier that she would help him through the G. Case. Mr. Gauthier expected Ms. Richert to testify at the trial of the G.

Case regarding her discussion with R.G. about Mr. Gauthier’s HIV. But, Ms. Richert did not show up at the courthouse until the day Mr. Gauthier was convicted. Then Mr. Gauthier wanted Ms. Richert to provide a statement at the Sentencing, but she would not provide that statement. Mr. Gauthier became increasingly upset with Ms. Richert. He swore a lot when talking to her on the phone. He swears a lot. That is who he is. [ 56 ] Mr. Gauthier was very frustrated at that time because his personal circumstances were not good. He had no food, no power, no driver’s license and no wheels.

Everything was tumbling down for him. Ms. Richert made promises to him, but would not fulfill them. [ 57 ] Mr. Gauthier left the Voicemails because Ms. Richert would not answer his calls. She blocked his number . She kept playing him all along. He became agitated with her. T hat is why he swore at Ms. Richert in the Voicemails. [ 58 ] Even in the Voicemails, he did not say “anything bad or anything that was threatening.” He was swearing at Ms. Richert out of frustration because she would not provide the statement he wanted. He knows he should not have sworn at Ms.

Richert on the phone, but says , “I swear all the time anyways. . . . swearing to me isn’t out of my norm, I swear. Unfortunately, that’s who I am. I swear a lot, that’s just my nature.” [ 59 ] The Voicemails were not “polite” or “calm,” but his tone of voice on the Voicemails was not angry. He did not intend to say what he did on the Voicemails, but he was “agitated,” “flustered,” and “lost his cool.” [ 60 ] In none of the phone calls with Ms. Richert did he threaten anyone. He was angry with Ms. Richert, but not angry enough that he would want to hurt her or anybody else. [ 61 ] Mr.

Gauthier never made the Alleged Threats to Ms. Richert. He never said that he would strap a bomb to himself and blow up the courthouse. He never said that he would harm Mr. Lester “in any way, shape or form.” He told Ms. Richert that he was not happy with Mr . Price, but never said that he would harm Mr. Price. He never said that he would strap a bomb, walk into the courthouse, and get rid of that bitch, referring to Justice Devlin. He never said that he was going to harm R.G. It was Ms. Richert who told him and his son Michael about where R.G. worked. [ 62 ] Mr. Gauthier never talked to Ms.

Richert about a bomb. [ 63 ] Mr. Gauthier had a number of disputes with Ms. Richert about money. One time, she stole $4, 000 from him, and Mr. Gauthier and his friend Rick called the police. Ms. Richert eventually paid back the $4,000. He also had some issues with Ms. Richert regarding the Car that he helped her buy. [ 64 ] Mr. Gauthier paid Ms. Richert $500 to help him write a letter to the Prime Minister and the Attorney General, but he believes she did not do this work. [ 65 ] In spite of these financial issues, Mr. Gauthier and Ms. Richert got along well with each other. They would talk on the phone. Ms.

Richert would bring her children to Mr. Gauthier’s place to visit, as he did not have a driver’s license or a vehicle. He would buy things for them, such as a bow and arrow set and fishing rods, and he would take them fishing. [ 66 ] However, after the Second Voicemail, Mr. Gauthier and Ms. Richert did not speak on the phone , except for one phone call about a week later regarding taking the children fishing. [ 67 ] At the trial of the G. Case, Mr. Gauthier’s brother Rick, grandson Braydon and his wife Tileah, son Michael, and oldest son Tim were all present.

His family took him to the courthouse for his trial, as he did not have a driver’s license or a vehicle. [ 68 ] Mr. Gauthier believes that Ms. Richert was mad at him because he told her that she did not do the job that he paid her $500 to do. That is why she made up a story about the Alleged Threats and reported to the police. This is the second time she has gone to the police. The first time was when they had a dispute about the payments on the Car. [ 69 ] In October 2020, Mr. Gauthier had a flip phone on which he received two text messages on October 9, 2020 (collectively, the “October 9 th Text Messages”).

The first one at 5:42 p.m. read “Your nothing in van,” and the second one at 5:53 p.m. read “Gotcha yah buddy.” They came from the 5128 Number. That is the number Mr. Gauthier would call to talk to Ms. Richert, and it is the number from which Ms. Richert would call Mr. Gauthier. Mr. Gauthier did not reply to those two messages, as he does not know how to text. He has no technological training. He does not even know how to turn on a computer. [ 70 ] I will now turn to the parties’ submissions. PARTIES’ SUBMISSIONS The Defence [ 71 ] The defence submits that if I accept Mr.

Gauthier’s evidence, or am left in doubt by it, I must acquit him.

[ 72 ] The defence says that Mr. Gauthier was clear that he did not utter any threats to anyone. He was not shaken on cross- examination. He candidly admitted that he swears a lot, and because he was “frustrated,” “flustered” and “agitated” by Ms. Richert’s unwillingness to provide the statement he wanted, he swore a lot in the Voicemails, but he did not make any threats in the Voicemails or at any other time. Therefore, the defence submits that I should accept Mr. Gauthier’s evidence and acquit him on all counts. [ 73 ] The defence says that Ms.

Richert’s evidence is inconsistent in many respects, and it evolved during her testimony at trial, as she added new information compared to her two statements to the police. Some aspects of her evidence were simply nonsensical. [ 74 ] The defence submits that Ms. Richert is not a credible witness, her evidence is unreliable, and I should reject her evidence. I will discuss the defence’s concerns regarding Ms. Richert’s evidence shortly. [ 75 ] In the alternative, the defence submits, if I do not accept Mr. Gauthier’s evidence or am not left in doubt by it, Ms. Richert’s evidence is insufficient to convict Mr.

Gauthier, as there are shortcomings in her evidence regarding proof of the mens rea component of the various alleged offences. [ 76 ] With respect to Count 2, the alleged threat against R.G., the defence submits there is no evidence before the court, as Ms.

Richert testified that the threat against R.G. was not made on June 2, 2020 in the Alleged Threats Call, but was made on a different unspecified date. [ 77 ] With respect to Counts 1 and 3, the defence submits that the Crown has not proven beyond a reasonable doubt the mens rea component of these alleged offences, namely, that the threats were uttered with the intention that the words will intimidate or be taken seriously. The defence says Ms.

Richert did not take the Alleged Threats seriously, as she did not do anything about them between June 2, 2020 and June 12, 2020, when the Sentencing was initially scheduled. There is no evidence to suggest that Mr. Gauthier intended for Ms. Richert to relay the Alleged Threats to those allegedly named in them. The context in which these Alleged Threats were made was that Mr. Gauthier was upset, agitated and frustrated, as is evident from the Voicemails.

There are no threats in the Voicemails. [ 78 ] With respect to Counts 4 and 5, the defence says, in addition to the threats discussed with respect to Counts 1 to 3, the Crown must prove beyond a reasonable doubt, Mr. Gauthier’s specific intent to: (1) provoke a state of fear in the general public to impede the administration of justice; and (2) provoke a state of fear in Mr. Lester, as a justice system participant, to impede him in the performance of his duties. The defence submits there simply is no evidence that that was Mr. Gauthier’s intent. There is no proof that Mr.

Gauthier knew that provoking a state of fear and impeding the administration of justice would be certain or substantially certain to result. Similarly, there is no proof that Mr. Gauthier knew that provoking a state of fear and impeding Mr. Lester in the performance of his duties would be certain or substantially certain to result from his comments. Also, there is no evidence that Mr. Gauthier intended any of the Alleged Threats to be communicated to those concerned. [ 79 ] The defence submits that, if Ms. Richert’s evidence is accepted, all it proves is that Mr.

Gauthier rants, raves, uses colourful language, and may have vented to Ms. Richert. It does not prove the alleged offences. [ 80 ] In conclusion, the defence submits that based on Mr. Gauthier’s evidence there is no basis to conclude that Mr. Gauthier made the Alleged Threats, and in light of the flaws in Ms. Richert’s evidence, the only conclusion that can be reached is Mr. Gauthier’s acquittal on all counts. The Crown [ 81 ] The Crown submits that Mr. Gauthier made the Alleged Threats as Ms.

Richert related, he intended the natural inferences to be drawn from those statements, and he is guilty of all of the alleged offences. [ 82 ] Regarding the defence’s alternative argument that even if Mr. Gauthier made the Alleged Threats, he did not intend them to be taken seriously or to be acted upon, the Crown submits that Mr. Gauthier should have testified to that effect, but he did not. [ 83 ] Therefore, the Crown submits that the court is free to give the words comprising the Alleged Threats their ordinary dictionary or colloquial

interpretation, and draw the natural inferences from them. [ 84 ] The Crown says even though the Voicemails do not contain any words of threat, they provide the context in which Mr. Gauthier made the Alleged Threats in a live call with Ms. Richert. The Voicemails were “vile” and “rude,” and they show how angry Mr. Gauthier was because Ms. Richert would not provide the statement he wanted. [ 85 ] The Crown says the discrepancies in Ms.

Richert’s statements to the police and her evidence at trial are minor in nature, and they in fact lend credibility to such evidence, as “it is not rehearsed and recited by rote.” [ 86 ] The Crown submits that Ms. Richert is a credible witness, as her evidence “hangs together,” and she has no bias or motive to lie. The evidence indicates that Ms. Richert helped Mr. Gauthier with the G. Case, perhaps not in the way that Mr. Gauthier might have wanted, but she still helped him. In spite of the disagreements Mr. Gauthier and Ms. Richert had regarding the Car, they continued to maintain a friendly relationship. Ms.

Richert had no motive to fabricate the fact that Mr. Gauthier made the Alleged Threats. [ 87 ] The Crown submits that Ms. Richert’s evidence about the Alleged Threats is believable because Mr. Gauthier was mad at Mr. Price since the G. Case did not turn out the way he had hoped, he was mad at Mr.

Lester for bringing the case to court, and he was mad at Justice Devlin for deciding against him. [ 88 ] The Crown says the cases on which the defence relies on are distinguishable. [ 89 ] In the domestic cases, the words of threat are made between people who know each other while they are angry or emotionally stressed, and they just snap. The courts recognize that these types of domestic threats are basically people being mad and saying things they do not mean, and that it is important to understand the context in which these threats are made – the parties are generally upset, mad

and frustrated with each other – so the courts give them a pass. [ 90 ] In Cenciarini , the Crown says, the accused’s first language was not English, so the court gave him a pass. In Shaw , the threats were in the family context, between family members. In Armstrong , the threats were veiled and indirect, unlike those Mr. Gauthier made to Ms. Richert. [ 91 ] With respect to Counts 1 to 3, the Crown says based on Ms. Richert’s evidence, Mr. Gauthier made specific threats to each of Mr. Price, R.G. and Ms.

Richert. [ 92 ] With respect to Count 4, the Crown says if the general public knew that somebody was threatening to blow up the courthouse, that would provoke a state of fear in them. [ 93 ] With respect to Count 5, the Crown says Mr. Gauthier clearly wanted Mr. Lester to know about the threat against him; otherwise, why would Mr. Gauthier name Mr. Lester? [ 94 ] The Crown submits that Mr.

Gauthier named specific people he wanted to hurt, which means that he intended for those people to know about the threat. [ 95 ] In conclusion , the Crown submits that it has proven each count beyond a reasonable doubt, and that Mr. Gauthier should be convicted on all counts. The Defence’s Reply [ 96 ] With respect to the defence’s alternative argument, the defence disagrees with the Crown’s submission . The defence says it is not necessary for Mr.

Gauthier to testify, “Yes, I did say those things but I didn’t mean them.” [ 97 ] According to the W.D. analysis and the burden of proof, the question is, “what was proven?” Even if the threatening words were said, the onus is still on the Crown to prove the mens rea component of the alleged offences. [ 98 ] With respect to the Crown’s submission regarding the natural inferences from the words spoken, the words spoken do not automatically mean that there was an intention to commit the alleged offence. [ 99 ] With respect to the Voicemails, all that can be gleaned from them is that Mr.

Gauthier was perhaps ranting, but that does not equate to proof of the threats that are alleged to have somehow been uttered on a different occasion. [ 100 ] With respect to the discrepancies between Ms. Richert’s statements to the police and her evidence at trial, it is not sufficient to say it is new evidence because she was not asked about it before. Ms. Richert’s evidence before the court should be scrutinized carefully. [ 101 ] With respect to motive, the law is clear there is no onus on Mr. Gauthier to provide a motive for why Ms. Richert was saying the things she was saying.

In other words, there is no obligation on the accused to prove a motive to fabricate; the onus remains on the Crown throughout to prove guilt beyond a reasonable doubt. [ 102 ] The defence points out that absence of evidence of motive to fabricate is not the same as absence of motive to fabricate, as the court in R. v. L.L. , 2009 ONCA 413 noted at para. 44 : [44] When dealing with the issue of a complainant’s motive to fabricate, it is important to recognize that the absence of evidence of motive to fabricate is not the same as absence of motive to fabricate. As Rowles J.A. stated in R. v.

B. (R.W.) (1993), 24 B.C.A.C. 1(B.C.C.A.), at para. 28 : “it does not logically follow that because there is no apparent reason for a witness to lie, the witness must be telling the truth.” Put another way, the fact that a complainant has no apparent motive to fabricate does not mean that the complain ant has no motive to fabricate. [ 103 ] With respect to the Crown’s submission that Mr. Gauthier specifically named certain individuals in the Alleged Threats, Ms. Richert was involved with the G. Case and she already knew the people involved in that case.

Those people’s names being part of the Alleged Threats is not new information that she would not otherwise have. [ 104 ] With respect to the Crown’s submission about the courts giving a pass to parties known to each other in the domestic context, the courts, in such cases, were not creating a different approach for those parties, but were simply assessing the context and deciding whether the requisite mens rea was proven (for which the context is relevant). [ 105 ] With respect to the Crown’s submission on Counts 4 and 5, the threshold is not whether the words uttered are “capable” of provoking a state of fear, but rather “what was intended” by those words. “If someone knew of the threat, it would provoke a state of fear” – that does not necessarily lead to the intention, and that is not proof of the offence.

The question to ask is, “is there evidence of an intention that it be relayed?” Referring to the James case, the defence says just because someone is named in a threat does not equate to proof of that threat or that that proves the intention. [ 106 ] Finally, the defence submits that, most importantly, no submission has been made as to why Mr. Gauthier’s evidence should be rejected. Nothing has been pointed out as a flaw in his evidence. DISCUSSION [ 107 ] As I said earlier, this case raises issues of credibility. [ 108 ] Cst.

Dee’s evidence was limited in scope, and the defence did not raise any concerns with his evidence. I, too, have no concerns with his evidence, and I accept it.

[ 109 ] However, the defence raised serious concerns with Ms. Richert’s evidence. I, too, share those concerns. I will now discuss some of those concerns. [ 110 ] There were numerous inconsistencies between Ms. Richert’s statements to the police and her testimony at trial. The following are a few examples: (

a) Ms. Richert described Justice Devlin figuring prominently in the Alleged Threats, in that Mr. Gauthier specifically named her, and referred to her as a “bitch.” There is no reference to this in her statements to the police even though the police asked her to describe everything she could remember, and she claimed that she would never forget that conversation with Mr. Gauthier as it was memorable. (

b) Regarding Mr. Lester, Ms. Richert testified that Mr. Gauthier was going to leave his body on Mr. Lester’s front lawn, and when Ms. Richert asked Mr. Gauthier how he was going to find Mr. Lester, Mr. Gauthier said, “I have my ways.” There is no reference to this conversation in Ms. Richert’s statements to the police. Furthermore, in her statement to the police, she says she did not follow up with Mr. Gauthier about how he was going to find Mr. Lester because she did not want to know, but that is not what she said at trial. When confronted with this inconsistency, she said she got mixed-up because Mr.

Gauthier made many threats against Mr. Lester before, and that is why she made a report to Crime Stoppers in August 2018. This was new information. Again, she did not mention any prior threats on Mr. Lester in her statements to the police. (

c) On the one hand, she said the threat against Mr. Lester was memorable and her memory has not faded in this respect because Mr. Gauthier said he was going to “snuff out” Mr. Lester, but on the other hand, she said Mr. Gauthier made so many threats against Mr. Lester that she got mixed-up. This, the defence says, is nonsensical. It says, in a scrambling effort to explain the inconsistencies, Ms. Richert was not making any sense. I agree. (

d) Regarding R.G., Ms. Richert testified that Mr. Gauthier told her that he was going to “slit [R.G.’s] face and make her not pretty for anybody else.” There is no reference to this in her statements to the police. (

e) Ms. Richert said she took the Alleged Threats very seriously. She was very upset. She was worried for the people Mr. Gauthier mentioned in the Alleged Threats. She tried to calm down Mr. Gauthier. She told him she would help him do things the “legal way.” Mr. Gauthier told her, “I will try it your way. When it doesn’t work, Dee, I will do it my way.” This conversation is not in her statements to the police. (

f) When asked why she did not do anything about the Alleged Threats for almost a month, Ms. Richert said she notified Mr. Price’s legal assistant, who in turn relayed the message to Mr. Price. There is no reference to this in her statements to the police. Nor is there any evidence that Mr. Price’s legal assistant relayed the message to Mr. Price. (

g) Ms. Richert claimed that Mr. Gauthier was talking to dead people, namely, her deceased father, and that was very concerning to her. However, when Cst. Dee asked her whether Mr. Gauthier had any mental health issues, she does not say anything about Mr. Gauthier talking to dead people, but says Mr. Gauthier was never diagnosed with any mental health issues, or prescribed any medication for such issues. (

h) Ms. Richert testified that Mr. Gauthier never mentioned a bomb before, but this is directly contrary to what she told Cst. Dee in her July 16 th Statement, wherein she said Mr. Gauthier had made prior bomb threats. When questioned about this inconsistency, she said she specifically recalls not hearing the word “bomb” in Cst. Dee’s question. This is hard to believe, considering more than nine months later, she is able to recall specifically that she did not hear the word “bomb” in Cst. Dee’s question. She seemed to be making up things in the spur of the moment in an effort to explain her inconsistencies. (

i) Ms. Richert admitted that in her June 28 th Statement, she told the police that the Sentencing was on June 5, 2020, but that was a mistake because the Sentencing had been adjourned to June 12, 2020, which was a day before Mr. Gauthier’s birthday. [ 111 ] Other troublesome aspects of Ms. Richert’s evidence are as follows: (

a) When confronted with the Phone Record, Ms. Richert’s evidence evolved in terms of the long gap between the First Voicemail and the Alleged Threats Call. She claims not to have listened to the First Voicemail, which was left just before noon on June 1, 2020. She has a lengthy, normal call with Mr. Gauthier just before midnight on June 1, 2020, and then hardly a few minutes later, in the early hours of June 2, 2020, she calls Mr. Gauthier. In that call, she alleges that Mr. Gauthier was ranting and raving, and made the Alleged Threats. (

b) Ms. Richert’s evidence that she blocked Mr. Gauthier’s calls, but she could still tell that it was Mr. Gauthier calling her is implausible. (

c) Ms. Richert’s evidence that Mr. Gauthier threatens to strap a bomb to himself and blow up the courthouse, and yet expects to get himself there, have Ms. Richert come to the courthouse to give a statement on his behalf without anyone else knowing about the Alleged Threats, where Mr. Price and Justice Devlin would be present to conduct the proceedings is nonsensical. It is not clear why Mr. Lester, as the prosecutor, would not be there as well, but was to be targeted at his home. All of this makes no sense at all. (

d) Also troubling is Ms. Richert’s vivid description of the Alleged Threats, and her reaction to them that they were “very scary,” and yet she does nothing about them from June 2, 2020 to June 12, 2020, when the Sentencing was initially scheduled. She does not alert anyone about the Alleged Threats. When asked why she did not mention the Alleged Threats to Crown counsel, she said, “nobody ever asked me.” (

e) If the Alleged Threats were made, so many lives were truly at risk, Ms. Richert was truly “very scared” as she claims, and she took the Alleged Threats seriously, why did she not contact the authorities immediately? A reasonable person in her situation would have at least contacted the police to avert any potential threat. However, almost a month passes before Ms. Richert calls the police. Ms. Richert’s “blasé” attitude towards the Alleged Threats and her subsequent conduct raise serious concerns about whether the Alleged

Threats were actually made, and suggest that even if the Alleged Threats were made, they did not cause fear or intimidate her, nor did she take them seriously. (

f) Ms. Richert testified that Mr. Gauthier made a number of threats against R.G., and that in 2019 she called Crime Stoppers to report his threats. It is hard to understand why she would act in the interest of R.G. and against Mr. Gauthier, when she claimed to not like R.G., had a heated argument with R.G. at the Chilliwack hospital, was on friendly terms with Mr. Gauthier, and was providing him emotional and secretarial support. At one point, she said Mr. Gauthier never made threats against R.G., and then said she was worried about Mr. Gauthier’s threats against R.G. All of this is internally inconsistent, and makes no sense. (

g) Ms. Richert testified that she contacted the police on June 28, 2020 because Mr. Gauthier was acting irrationally, she was very worried about the Alleged Threats, and “so that [the police] could take the necessary precautions.” There is no evidence as to what precautions, if any, were taken, assuming the Alleged Threats were made. Cst. Dee only testified regarding the Voicemails, the Phone Record, and the wellness check of Ms. Richert he made on July 16, 2020. Therefore, Ms. Richert’s testimony regarding why she contacted the police is also suspect. (

h) Ms. Richert’s evidence about Mr. Gauthier’s family members not being present in court on February 5, 2020 and her denial about telling Michael Gauthier where R.G. worked is contrary to Mr. Gauthier’s evidence. Mr. Gauthier’s family members were present at the trial before me in this matter. I have no reason to disbelieve Mr. Gauthier’s evidence that his family members were present in court on February 5, 2020 in the G. Case. (

i) Ms. Richert testified that she changed the 5128 Number on June 28, 2020 to a number that started with 236, and gave that number to Cst. Dee. She denied sending the October 9 th Text Messages to Mr. Gauthier. She denied that she tried to “get” Mr. Gauthier by lying to the police. (

j) While Ms. Richert may very well have gotten a new phone number starting with 236 and gave that number to Cst. Dee, that does not establish, and there is no evidence to confirm, that she cancelled her subscription to the 5128 Number on June 28, 2020, from which the October 9 th Text Messages were sent. (

k) Ms. Richert’s evidence that she changed the 5128 Number on June 28, 2020 is also contrary to Mr. Gauthier’s evidence that after the Second Voicemail, Mr. Gauthier and Ms. Richert did not speak on the phone, except for one phone call about a week later regarding taking the children fishing. He testified that the only phone number he had for communicating with Ms. Richert was the 5128 Number. Furthermore, Mr. Gauthier’s Sentencing was on September 25, 2020, and Ms. Richert testified that she was present in court on that day.

The timing and the content of the October 9 th Text Messages, particularly the words, “Gotcha yah buddy,” are consistent with the sequence of events and the strained communication and discord between Ms. Richert and Mr. Gauthier during that period. I infer that Ms. Richert did not cancel her subscription to the 5128 Number on June 28, 2020, and it was Ms. Richert who sent the October 9 th Text Messages to Mr. Gauthier. [ 112 ] In light of the numerous inconsistencies and implausibilities in Ms. Richert’s evidence, I am unable to accept it, as it is unreliable. I found Ms.

Richert to be not a credible witness. [ 113 ] On the other hand, I found Mr. Gauthier to be a credible witness. He was direct and forthright . For example, he admitted that: (

a) he was upset with Ms. Richert because part way through the G. Case, she started behaving differently and would not testify at his trial; (

b) the Voicemails were not “polite” or “calm”, and he “lost his cool”; (

c) it was not his intention to “go off” on Ms. Richert in the Voicemails; he was hoping to have a conversation with her, but she would not answer the phone and was not cooperative; so, he did “go off” on her, as he got “flustered;” (

d) he was frustrated, flustered, and agitated when he left the Voicemails because Ms. Richert led him to believe that she was going to provide the statement he wanted, but she was uncooperative, and in the end she did not deliver; (

e) he swears a lot, and that is who he is; (

f) he realizes now that he should not have sworn so much if he wanted Ms. Richert to do what he wanted; (

g) he was upset with his lawyer, Mr. Price, as he was of the view that Mr. Price did not do a good job for him; (

h) even though he had some disagreements with Ms. Richert about some financial issues, such as those relating to the Car, they still maintained a friendly relationship; and (

i) he is not technologically savvy, and he does not even know how to turn on a computer. [ 114 ] I found Mr. Gauthier to be an honest and direct person – a “straight shooter,” so to speak. I did not find that he embellished his evidence in any way. He related the events, as he saw or understood them. [ 115 ] With respect to the Alleged Threats, Mr. Gauthier said: I wouldn’t hurt John Lester or Steven Price or the judge. Sure I was mad at Steven Price, but I’m still not going to bring no harm to him. I wasn’t mad at John Lester, he was just doing his job . . .

[ 116 ] Mr. Gauthier categorically denied making the Alleged Threats. He said, “I never made the threats; [Ms. Richert] never told me that I made a threat.” [ 117 ] I believe his evidence. Also, Ms. Richert’s conduct, which I have already discussed at length, leads me to the conclusion that Ms. Richert contacted the police because she was annoyed with Mr. Gauthier repeatedly asking her to provide a statement to the court, and that she did not do anything for almost a month because there were no threats. [ 118 ] I find that Mr. Gauthier did not make the Alleged Threats.

Therefore, I would acquit him on all five counts. [ 119 ] In light of this conclusion, it is not necessary for me to discuss the defence’s alternative argument. Suffice it to say, I have reviewed and considered the case authorities and the parties’ submissions regarding the alternative argument. Even if I do not believe Mr. Gauthier’s evidence, and am not left in doubt by it, I would still acquit Mr. Gauthier on all counts because based on the evidence of the Crown witnesses alone, I am not convinced beyond a reasonable doubt of Mr. Gauthier’s guilt.

The Crown has not proven beyond a reasonable doubt the mens rea component of the various alleged offences for the reasons the defence points out in its submissions, which I have set out above, and with which I agree. CONCLUSION [ 120 ] In conclusion , having accepted Mr. Gauthier’s evidence and found that he did not make any of the Alleged Threats, I acquit him on all five counts on Information No. 241782-1. By the Court, The Honourable Judge V. Chettiar Provincial Court of British Columbia