R. v. FergusonDate:, 2014 BCPC 68

Citation: R. v. FergusonDate: 20140414 2014 BCPC 0068 File No:25258-1 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DUSTIN FERGUSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. J. BRECKNELL Counsel for the Crown: G. Hansen Counsel for the Defendant: T. Zipp Place of Hearing: Quesnel , B.C. Date of Hearing: August 22 and October 23, 2013; January 20, 2014 Date of Judgment: April 14, 2014 INTRODUCTION

[ 1 ] The Accused, Dustin Ferguson, is charged on Information number 25258 with the following offences that are alleged to have occurred in Quesnel, British Columbia on September 10, 2012:

a) Count 1- being unlawfully in a dwelling house contrary to section 349 (1) of the Criminal Code ( the Code ); and

b) Count 2-uttering a threat to cause death or bodily harm contrary to

section 264.1(1) (

a) of the Code . THE EVIDENCE Crown’s Case [ 2 ] The Crown called two witnesses, Cst. Matthew Baines, a member of the Royal Canadian Mounted Police (RCMP) and the Complainant, Sasha Liane Parr. [ 3 ] Cst. Baines evidence can be summarized as follows:

a) at approximately 23:45 on the day in question he was dispatched to an apartment complex in Quesnel where he met with the Complainant at her apartment (Unit 105);

b) the Complainant related an incident that occurred earlier that evening where a man had entered her apartment without her permission and then fled when she became aware of him only to return a few minutes later, pound on her door and utter threats against her;

c) the Complainant identified the man as residing in Unit 308 of the same complex. Based on that information Cst. Baines and another RCMP member attended at Unit 308 and met with a woman who advised that the man, her boyfriend, was the Accused but that he was not there at that time. Cst. Baines asked the woman to have the Accused call the detachment upon his return;

d) at that point he did not pursue his investigation further but returned to Unit 105 to advise the Complainant that the Accused could not immediately be found;

e) later, in the early morning hours of September 11, he encountered the Accused first at Unit 308 and later at the local hospital where he spoke to the Accused about injuries he had suffered as a result of another alleged assault incident and the allegations raised by the Complainant;

f) after speaking to the Accused Cst. Baines arrested him on charges of being unlawfully in a dwelling house and uttering threats and transported the Accused to the local RCMP detachment from where he was later released by another RCMP member;

g) subsequently, based on further complaints by the Complainant, he investigated damage to a window in her unit. [ 4 ] The Complainant’s direct evidence can be summarized as follows:

a) on the evening in question she had a friend over visiting who left in the late evening and she remained at home by herself watching television. At that time her door was closed but unlocked. No other person that she was aware of was present because her boyfriend was at work;

b) she felt the presence of somebody else in her unit and turned to see a man wearing glasses, blue jeans and a sweatshirt standing in the room. She observed the man for three to five seconds and then he ran out of the apartment laughing. She was so shocked she froze for approximately 20 seconds and then she got up, looked down the hall but saw no one and locked her apartment door. At first she did not recognize the man thinking it was maybe a friend playing a joke;

c) a few minutes after that incident the man returned to the door of the unit and knocked on the door. She opened it to the man yelling at her that she had been pressing his apartment buzzer last weekend. She denied those allegations stating that she was out of town at that time. She went on to accuse the man of having been in her apartment to which he replied that he could go wherever he wanted to. The man then stated that if she buzzed his apartment again “I’ll fucking kill you”. That conversation lasted approximately 45 seconds to a minute and although voices were raised nobody was screaming but the man’s face and tone of voice led her to believe he was angry;

d) it was during that interaction at the door that she noted the man was wearing the same clothes and had the same hair and glasses as the person who had been in her apartment minutes before. She knew the man to be the resident of Unit 308 because he and his girlfriend had lost their cat a few months before and she had found and returned a cat to Unit 308 and where she met the man;

e) after the confrontation with the man she closed and locked her apartment door and called her brother to come to her unit. At that point in time she heard glass breaking and looked out the window to see if a car window had been broken but none had. She then called the RCMP and had her initial dealings with Cst. Baines;

f) it was sometime later that she noted the broken window in her bedroom, which window had been intact the night before. She reported the broken window to the RCMP approximate two hours after the initial incident;

g) she did not give the man permission to enter her unit and although the door was unlocked it was closed and no one knocked and asked to enter or called out before entering. She felt threatened by the words and actions of the man believing that he could possibly hurt her;

h) she was able to identify the man who she dealt with as being the same person who resided in Unit 308 and who was the Accused.

[ 5 ] The Complainant’s cross-examination evidence can be summarized as follows:

a) she recalled there were some incidents in the past concerning pushing of apartment buzzers but that she had not ever participated in that activity because it was “childish”;

b) her return of the lost cat to Unit 308 was much earlier than September 2012 because she was living in a different apartment in the building at that time and she moved into her new apartment in June;

c) she had seen the Accused before in the apartment complex;

d) she had some dealings with the Accused at his apartment where there was some discussion about the ringing of buzzers and an apology for same;

e) she called the landlady of the apartment the next day because she knew the landlady went to bed early. She told the landlady that the person who had been in her apartment and threatened her was the Accused from Unit 308. She never told the landlady that she was uncertain as to the person’s identity;

f) she denied Defence counsel’s suggestion that the Accused was never in her apartment, there never was anybody at her door, and there were no threats uttered. Defence Case [ 6 ] The Defence called two witnesses, Ms. Maureen Ouimet, the apartment landlady and the Accused. [ 7 ] Ms. Ouimet’s direct evidence can be summarized as follows:

a) she was the landlady at the time of the alleged incidents and the Accused was a tenant in that building;

b) sometime in September 2012 she heard about an incident in Unit 105 when the Complainant called her one morning upset and crying and telling her that someone walked into her unit and that it was a man but she was not sure who it was;

c) she was not sure if the Complainant suggested it was Accused but the Complainant said nothing about being threatened because had she done so she would have remembered it. [ 8 ] Ms. Ouimet’s cross-examination evidence can be summarized as follows:

a) she heard about the incident in Unit 105 and also about a complaint of the Complainant’s boyfriend going to the Accused’s unit and hitting the Accused;

b) the Complainant told her that when the man came into her unit there was no light on and she was in bed asleep;

c) when the Complainant called the next morning she was upset and crying and Ms. Ouimet took her concerns seriously although she took no record or notes of the phone call. She only made notes of what she described as “serious” incidents. [ 9 ] Accused’s direct evidence can be summarized as follows:

a) he and his girlfriend owned cats and one went missing for a few days and was returned by the Complainant. He was not certain of the date but it was very close in time to the allegations;

b) there were some issues with their apartment buzzer being rung a few times and his girlfriend said it was the Complainant and called the RCMP. That occurred a considerable time before the incident and he later apologized to the Complainant about calling the RCMP when she returned their cat;

c) he holds no ill will towards the Complainant and was not concerned about the buzzer incident; his girlfriend was because of her work;

d) he did not go into the Complainant’s Unit 105 on September 10, 2012 or at any other time nor did he ever knock on her door, yell at her or utter threats to kill her;

e) there was an altercation on September 10, 2012 but that occurred at Unit308 when Complainant’s boyfriend arrived and then assaulted him;

f) he did not break the window of Unit 105 or do anything to it at all. [ 10 ] The Accused’s cross-examination evidence can be summarized as follows:

a) he normally wears glasses and his appearance was much the same at trial as it was on September 10, 2012;

b) he did not know the Complainant’s boyfriend; his girlfriend did; but he had seen that man around the apartment complex;

c) he does not recall whether he ever signed a petition to have Complainant’s boyfriend evicted but if there was one circulating hewould have signed it after that man attacked him;

d) he never complained to the RCMP about their apartment door being buzzed repeatedly but his girlfriend did and he was aware thatshe reported to the RCMP the names of theComplainant and her boyfriend;

e) there were many incidents of their apartment door being buzzed; on some occasions over 30 times during the day which caused hisgirlfriend to be miffed and even into the night which caused her to be angry;

f) on the night in question he was at home playing video games while his girlfriend was working until midnight. He drank a halfmickey of vodka earlier in the evening;

g) on the night in question he was not angry at the Complainant, he was not blaming her for any ringing of his apartment buzzer, he didnot enter Unit 105 through an unlocked door, he did not run away from that unit laughing, he did not confront her, and he did not utterthreats against her;

h) he has no idea why the Complainant’s boyfriend came to his unit later that night and attacked him;

i) at the time of the incident he did not know where the Complainant lived except that she lived on the main floor of the apartmentcomplex because their lost cat had jumped into her window. SUBMISSIONS [11] Counsel made brief oral submissions supplemented by more extensive written submissions. In those submissions counselreferred to numerous well known cases concerning credibility including:

a) R. v. W(D) (SCC), [1991] 1 S.C.R. 742

b) R. v. Marquard (SCC), [1993] 4 S.C.R. 223

c) R. v S.(R.D.) (SCC), [1997] 3 S.C.R. 484

d) R. v. Avetysan 2000 SCC 56 , [2000] 2 S.C.R. 745

e) R. v. Shepperd 2002 SCC 26 , [2002] 1 S.C.R. 869

f) R. v. Gagnon 2006 SCC 17 , [2006] 1 S.C.R. 621

g) R. v. C.L.Y. 2008 SCC 2 , [2008] 1 S.C.R. 5

h) R. v. Dinardo 2008 SCC 24 , [2008] 1 S.C.R. 788

i) R. v. Vuradin 2013 SCC 38 , [2013] 2 S.C.R. 639 [12] The seminal case on this topic is W.(D.) which directs the Court to consider the following on the issue of credibility;

a) if I believe the evidence of the Accused I must acquit;

b) if I do not believe the evidence of the Accused but it raises a reasonable doubt by it I must acquit; and

c) if I do not believe and am not left in a reasonable doubt by the evidence of the Accused I must consider whether on the basis of theevidence which I do accept I am convinced beyond a reasonable doubt of the Accused’s guilt. [13] A

summary of the directions from the other cases provided includes:

a) the Court should not convict automatically if the Complainant’s testimony is more credible than the Accused’s; (Avetysan)

b) there is nothing sacrosanct about the formula set out in W.(D.) requiring the adoption of the three distinct steps. It will depend on thecontext and what matters is that the substance of the W.(D.) instruction be respected; (Dinardo)

c) the paramount question is whether, on the whole of the evidence, the Court is left with a reasonable doubt about the guilt of theAccused. The principle of reasonable doubt remains the central consideration; (Vuradin)

d) a guilty verdict must not be based on a choice between the Accused’s evidence and the Crown’s evidence; (C.L.Y.)

e) credibility must always be the product of the Court’s view of the evidence it has heard at trial combined with experience, logic andintuitive sense of the matter; (Marquard) f) “Assessing credibility is not a science”. It depends on “complex intermingling of the impressions that emerge after watching andlistening to witnesses and attempting to reconcile the various versions of events.” (Gagnon)

g) but for the burden of proof always resting on the Crown all witnesses are to be placed on the same footing. ( S.(R.D. )) [ 14 ] While considering the detailed oral and written submissions of both counsel it is clear that when stripped to the fundamentals and when applied the applicable case law a single question still remains. Has the Crown proven its case beyond a reasonable doubt? Defence [ 15 ] Defence counsel submits the Crown has not proven its case beyond a reasonable doubt and relies on the following submissions;

a) the Accused denied the events alleged of being unlawfully in a dwelling house and uttering threats and was not shaken on those issues in cross-examination;

b) the Accused’s evidence could be true and there is no reason based on the evidence, or at law, to doubt it;

c) there was no objective evidence to conclude that the Accused’s version of the events is more or less believable than that of the Complainant;

d) the Complainant’s evidence has difficulties including; I. her chronology of events was wrong; II. ii) she was initially unsure of who was in her unit and may have been mistaken as to that person’s identification; III. iii) the Complainant made no mention of receiving threats in her conversation the next day with the land lady.

Crown [ 16 ] Relying on the case law the Crown submits that there is no “magic” to the W.(D.) formula. [ 17 ] The Crown submits that the case has been proven beyond a reasonable doubt and asked the Court to consider the following: a. all of the evidence presented; b. the Complainant’s conversations with the RCMP member and the landlady; c. the clear identification of the Accused by the Complainant at the time of the events and in Court based on her past dealings with the Accused; d. the Accused’s claim that he had no animus towards the Complainant but that his girlfriend did; e. the Accused’s evidence was given in an often monosyllabic form; f. the Accused had no permission to be in the Complainant’s unit but on all of the credible evidence he was there; g. the Accused uttered words to the Complainant which were threatening and meant to be taken seriously.

DISCUSSION [ 18 ] The Complainant’s evidence was given in a straightforward manner and was not fundamentally undermined in cross- examination. She explained what she saw and heard and who she believed she interacted with on the night in question. I conclude that she believed that the Accused was the person she interacted with and she provided that information to her boyfriend when he returned home from work. [ 19 ] The evidence of Cst. Baines was straightforward and not controversial.

Based on the information he had at hand he made the necessary investigations and drew appropriate conclusions based on those investigations in his decision to arrest the Accused. [ 20 ] Based on the testimony of Cst. Baines there is strong evidence to suggest that based on the Complainant’s information to her boyfriend that gentlemen attended at the Accused’s unit and assaulted him for what the boyfriend believed to be the Accused’s actions towards the Complainant. [ 21 ] The evidence of Cst.

Baines concerning his investigation provides some potential contradictions to the evidence of the Accused as it pertains to the Accused being at home all evening. [ 22 ] Cst. Baines’ evidence was that when he went to the Accused’s unit he encountered a woman who purported to be the Accused’s girlfriend who advised that the Accused was not home at the time, which was approximately midnight and soon after the events relayed by the Complainant. [ 23 ] That evidence, if admissible for the truth of its contents (which it is not), would undermine the Accused’s version of the events of the evening.

However, that person was not called to give evidence so there is no evidence as to whether or not the Accused was at home when Cst. Baines attended at Unit 308.

[ 24 ] The Accused’s evidence was given in a very flat monotone, almost as if detached from both the seriousness of the alleged events of the evening and the possible consequences that could result from the Court process [ 25 ] However, the Crown’s cross-examination of the Accused did nothing to undermine his version of events; that he was not at the Complainant’s unit, he did not enter the unit, and he did not later returned to threaten the Complainant. [ 26 ] It is not the place of the Court to rely on conjecture or inference unless there is a solid evidentiary basis on which to do so.

In this case, at the end of the day, the Court is left with two conflicting versions of the events alleged in the Information. [ 27 ] Neither version provides overwhelming evidence pointing to an inevitable conclusion of what occurred. Although the Crown’s version may well have met the civil standard of a balance of probabilities and the Accused’s version although not shaken has its own frailties. However, when considering the whole of the evidence presented and the case authority provided by counsel I am left with a reasonable doubt as to what occurred that night.

DECISION [ 28 ] The Crown has failed to prove either Count on Information No. 25258 beyond a reasonable doubt and as such the Accused, Dustin Ferguson, must be found not guilty on Count 1 and Count 2. ___________________________ M. J. Brecknell Regional Administrative Judge Northern Region Provincial Court of BC