R v Mullins Date:, 2014 BCPC 242

Citation: R v Mullins Date: 20141017 2014 BCPC 0242 File No: 25349 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAMES DOUGLAS MULLINS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. D. MORGAN Counsel for the Crown: G. Hanson Counsel for the Defendant: T. Zipp Place of Hearing: Quesnel , B.C. Date of Hearing: June 11 and August 25, 2014 Date of Judgment: October 17, 2014

[ 1 ] Mr. Mullins is charged with threatening to cause death or bodily harm to the daughter of RCMP officer Alan Slaney, contrary to

section 264.1 of the Criminal Code . The charge arose out of an incident that occurred on October 16, 2012. Overview: [ 2 ] On October 16, 2012, the accused was arrested as a suspect on a mischief charge. The accused was intoxicated and was rude and belligerent with the arresting officers. He was taken to the RCMP city cells. [ 3 ] While he was standing at the booking-in counter at the RCMP detachment, he apparently noticed Const. Slaney who was behind the counter. Const.

Slaney was not involved with the actual arrest or transport of the accused nor was he involved at that time in the booking-in process. [ 4 ] The accused, without provocation or any immediate prior interaction with Const. Slaney, told Constable Slaney that Const. Slaney would feel differently some day when Mr. Mullins had Const. Slaney’s daughter in the trunk of his car and Mr. Mullins would be the only person able to touch her. [ 5 ] On the day prior, Const. Slaney, while off-duty, was walking with his young daughter and happened to walk by the accused, who was someone with whom Const.

Slaney had prior dealings with in his capacity as a police officer. [ 6 ] Const. Slaney was shocked and appalled at the threat and asked the accused to repeat what he had just said. The accused started to repeat his threat and Const. Slaney, in a fit of anger, reached over the counter, grabbed the accused by his clothing, and punched him one time in the face, dislodging one of the accused’s teeth. [ 7 ] Const. Slaney was subsequently charged and pled guilty to assaulting Mr. Mullins and has been sentenced on that matter.

He was also subject to an internal RCMP disciplinary process that is now complete. [ 8 ] The accused testified and said due to his level of intoxication he cannot recall what occurred on the evening in question. He says that during that time period in his life he had a serious problem with alcohol and that it was not unusual for him to not be able to recall events that occurred while he had been drinking. [ 9 ] Mr. Zipp, counsel for the accused, submits the accused was so intoxicated that he was unable to form the specific intent required for the charge of threatening. The Law: [ 10 ] The relevant part of

section 264.1 reads as follows: 264.1(1) Everyone 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 … [ 11 ] Justice Romilly, in his usual comprehensive and helpful manner, sets out the law on uttering threats in his decision in R. v.

McRae 2010 BCSC 558 , at paragraphs 103 to 108 , from which I distill - and guide myself on - the following: • The actus reus of the offence of threatening is the uttering of the words. • The mens rea is the intent for the words to intimidate or be taken seriously. • The decision as to whether the words constitute a threat is determined by an objective ‘reasonable person’ test. • The requirement of an intention to intimidate makes the offence of uttering threats a crime of specific intent. • Given the requirement for a specific intent to instill fear, the words are to be considered in context, and a relevant circumstance that must be considered is the drunkenness of the person uttering the threats. • The determination of whether a subjective intent existed will very often turn on a consideration of the specific words used. [ 12 ] In McRae , Justice Romilly found the accused in that case could not have formed the necessary intent to intimidate or intend that his threats be taken seriously.

The evidence was that the accused had drunk heavy amounts of alcohol prior to an incident that

manifested itself in reckless and irrational behavior that included making threats. [ 13 ] Justice Romilly noted Mr. McRae was so intoxicated that he misplaced his shoes in winter weather, did not seem to experience the chill as a sober person would, and was ‘speaking strangely’ on the drive to his apartment, and forgot his keys.

There is evidence of wild mood swings that included the accused threatening the complainants, and then, after an immediate shift in his mood, attempting to shake their hands and introducing himself as their neighbour. [ 14 ] Justice Romilly found that there was a “wealth of other circumstantial evidence as to the accused’s intoxicated state” which included the bizarre fact that after the accused had been convinced to leave the apartment in which he had just committed a sexual assault, he returned, knocked on the door of the apartment and asked to be let in to go get his “smokes”. [ 15 ] The evidence of intoxication in Mr.

Mullins’ case is not nearly so extreme. [ 16 ] Const. Phammatter, who arrested the accused and was present during the booking in process, said the accused was intoxicated but not grossly so. He said the accused was rude and belligerent but that this behavior was not unusual for the accused based on Const. Phammatter’s prior dealings with him. [ 17 ] The accused responded to the Const.’s questions regarding his Charter rights in a manner that indicated he understood the questions and intended his answers.

For example, when asked if you wanted a lawyer he said “Yes sir.” When he was asked if he understood the official police warning he said “Okay.” Mr. Mullins asked to speak with the Watch Commander. [ 18 ] Const. Phammatter noted that although the accused was aggressive and yelling at the police, he was able to stand and move on his own and although he was saying some ridiculous things, it was not gibberish nor was it, from Const.

Phammatter’s perspective, “out of the norm” for the accused. [ 19 ] While in the police cruiser being transported to the RCMP detachment the accused was yelling at the officer and rambled about corruption and stated he wanted to speak with David Suzuki. Mr. Zipp submits, and I accept, that this is consistent with the accused’s high level of intoxication. However, it is also consistent with his prior noted belligerence. [ 20 ] I observed the accused on the RCMP detachment video. There was no sound on the video however my observations of the accused while he was at the booking counter were consistent with Const.

Phammatter’s description of the accused’s mobility. [ 21 ] The accused’s behaviour after he had been placed in a cell, which was after the incident that occurred at the booking counter, did become somewhat irrational, but was consistent with the accused being intoxicated and very upset with having been assaulted by Const. Slaney.

I note that the accused knew to go to the door to yell out towards the officers and he also knew to lie down on the bunk. [ 22 ] When I consider the words actually spoken by the accused, I conclude that any reasonable person would interpret the words as a threat. [ 23 ] I also conclude the words used are consistent with an ability to form a specific intent to utter a threat that was meant by the accused to be taken seriously. The threat was not to cause personal harm to Const. Slaney but to his young daughter, whom I accept from Const. Slaney’s evidence the accused had seen with Cst.

Slaney just the day prior. [ 24 ] Although the accused denies any knowledge of Const. Slaney or his family, I find the general theme of the accused’s evidence is that he cannot recall much of anything during that low period in his life, and I find his evidence to be unreliable and do not find it raises any doubt in my mind as to the veracity of Const. Slaney’s evidence regarding what occurred the previous day, or as to the fact Const. Slaney has had previous dealings with the accused. [ 25 ] I accept the words spoken by the accused were as recalled by Const. Slaney.

I find the words indicate the accused recalled having seen Const. Slaney the previous day, recalled having seen a young girl with Const. Slaney, and show the accused deduced the young girl was Const. Slaney’s daughter. The words chosen by the accused were calculated by him to cause fear and concern in Const. Slaney’s mind.

The abduction of one’s child would strike fear in any reasonable person’s mind. [ 26 ] Although the accused’s intoxication likely reduced his inhibitions and resulted in him saying something that may be out of character, I find the accused was nevertheless able to form, and did form the specific intent to cause Const. Slaney to fear for the safety of his daughter. [ 27 ] I convict the accused on the charge of uttering threats. ______________________________ R. D. Morgan Provincial Court Judge