R. v. Alexander Date:, 2016 BCPC 315

Citation: R. v. Alexander Date: 20160825 2016 BCPC 0315 File No: 26194-1-K Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MAURICE LUIS ALEXANDER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. T. DOULIS Counsel for the Crown: A. Gal-Or Counsel for the Defendant: T. Zipp Place of Hearing: Quesnel , B.C. Dates of Hearing: March 14 and August 22, 2016 Date of Judgment: August 25, 2016 INTRODUCTION

[ 1 ] By way of Information 26194-1-K, Maurice Luis Alexander is charged summarily with the following three offences against his former girlfriend, A.E.: 1. Count 1: uttering threats to A.E. to cause her death or bodily harm contrary to s. 264.1 of the Criminal Code ; 2. Count 2: assaulting A.E., contrary to s. 266 of the Criminal Code ; 3.

Count 3: unlawfully confining A.E., contrary to s. 279(2) of the Criminal Code . [ 2 ] All offences are alleged to have occurred shortly before 11:00 p.m. on August 19, 2015, in (omitted) at a mobile home park at (omitted), Quesnel, B.C. [ 3 ] The matter came before me for trial on March 14, 2016 and August 22, 2016. The Crown called four witnesses, Constables McCarthy, Takhar, Pinnegar and the Complainant, A.E. The Defence did not call any evidence. ISSUES [ 4 ] The Defence submits the Crown has not proven the essential elements of the offences beyond a reasonable doubt.

The salient issues are: 1. the cred ibility and reliability of the complainant; 2. the degree of intoxication of the accused and its impact on the mental element of the offences BACKGROUND FACTS Evidence of A.E. [ 5 ] At the time of trial the complainant, A.E., was 30 years old. [ 6 ] On August 19, 2015, Ms. E. was living in a mobile home situated at (omitted), Quesnel, B.C. with her boyfriend of four years, Maurice Luis Alexander. Ms. E. worked at the local (omitted). [ 7 ] On the evening of August 19, 2015, Ms. E. and Mr. Alexander were at home having drinks. Ms. E. was drinking Sawmill Creek white wine, Mr.

Alexander was drinking an eight pack of TNT beer, which is 8% alcohol. Ms. E. says Mr. Alexander was intoxicated. She could not recall how much she had to drink or her state of sobriety. [ 8 ] At some point Ms. E. and Mr. Alexander began arguing. Ms. E. does not remember what it is they were arguing about. Ms. E. went their bedroom to get away from Mr. Alexander. The bedroom she shared with Mr. Alexander and situated at the far end of the mobile home. [ 9 ] Mr. Alexander followed Ms. E. to the bedroom. Ms. E. was laying on her back on the bed. She was not under any bed covers.

She had been there for less than five minutes when Mr. Alexander arrived. He was in a rage. He stood in the bedroom doorway, screaming at her. Ms. E. tried to ignore him. [ 10 ] Mr. Alexander came and jumped into the bed on top of Ms. E. He placed his fingers over her nose and the palm of his hand over her mouth. She couldn’t breathe. She was struggling and scared. She bit his finger and let her go. He again put his hand over her mouth and face. This happened two to three times. Mr. Alexander then started smacking her on the cheek with an open hand.

She said he hit her two or three times pretty hard and it hurt. [ 11 ] After he was finished smacking her, Mr. Alexander got off Ms. E. She got up and went to sit on the night stand in her room, beside her closet. Mr. Alexander went and stood between two dressers across the room from Ms. E. Ms. E. described and sketched the layout of the bedroom. This sketch was marked as Exhibit 1 at the trial. [ 12 ] After they got off the bed, Mr. Alexander asked Ms. E. for a cigarette, which she gave him. At this point, Mr. Alexander threatened to kill Ms. E. She took him seriously.

She was scared and crying. [ 13 ] The closet door was open. While sitting on her nightstand, Ms. E. reached in her closet where her cell phone was sitting on top of a pile of laundry. Without taking the cell phone out of the closet, Ms. E. called the police. Meanwhile, Mr. Alexander was standing on the other side of the bedroom, smoking. He was talking and yelling at the same time. Ms. E. did not believe he could see what she was doing. She did not take the cell phone out of the closet because she was afraid for her life and did not want Mr. Alexander to see she was calling the police.

She just left the cell phone on in the closet. Ms. E. kept her cell phone in the closet to hide it from Mr. Alexander because there were days he would smash her cell phones. [ 14 ] At some point, Ms. E. heard really loud knock on the door. She did not hear anyone say anything. When she heard the knock, Mr. Alexander grabbed her in his arms. He told her he was sorry and held her down on the bed with his arms around her. It was not a hug. Ms. E. did not want to be on the bed. She wanted to answer the door. She tried to get up and he wouldn’t let her. [ 15 ] Ms. E. does not remember if there was more than one knock.

The police kicked in the door, after which Mr. Alexander let Ms. E. go. He walked into the hallway. A police officer came and spoke to her in the bedroom and Mr. Alexander was arrested.

[ 16 ] This incident marked the end of Mr. Alexander and Ms. E.’s relationship, although Ms. E. admitted in cross-examination that in a series of weak moments, over several, she sent Mr. Alexander text messages trying to persuade him to call her and perhaps reconcile. Evidence of the Police Officers [ 17 ] Constables Luke McCarthy, Sujinder Takhar and Armand Pinnegar were dispatched to (omitted) in response to Ms. E.’s abandoned 911 call. Constable McCarthy says they was dispatched to the scene at 10:58 p.m. and arrived at 11:00 p.m. [ 18 ] Constable McCarthy described (omitted) as a residential mobile home park.

The mobile homes were in close proximity to each other. There were mobile homes on either side of (omitted) between 10 to 15 feet away. On the evening of April 19, 2015, the mobile home park was quiet. Nobody was out and about and there wasn’t much vehicle traffic on the nearby highway. [ 19 ] When the officers arrived at the scene, (omitted) was almost in total darkness. There was only one dim light on inside (omitted). To the officers, it did not appear anyone was home. Constable Pinnegar knocked loudly on the door four times, announcing police, asking whoever was in the residence to open the door.

No one answered. The officers did not hear any noise from within the mobile home. Constables McCarthy and Takhar walked around the mobile home to check the windows. They found that the blinds were down in most of the windows and they could not see anyone inside. There was a dim light approximately midway down the mobile home visible from one of the side windows. [ 20 ] Constables McCarthy and Takhar did not hear anything along the side of the mobile home. When he reached the rear of the mobile home, Constable Takhar heard a female inside the mobile home. He stated: Q Okay.

And so you heard -- you said you heard something? A Yes. At the back of the trailer, I heard muffled crying, just kind of going in and out. I don't know if it was a person moving around or kind of gentle sobbing, then it would go to full-on crying, but it was kind of that in and out. There was words being spoken, but I don't recall what they were, it was too muffled. Transcript, page 19. ll. 29-36. [ 21 ] Constable Takhar said at the time he heard these sounds, he was right underneath the rear window of the rear of the mobile home.

He did not hear any sounds from the neighbouring mobile homes or noises from the park. All he heard was the female crying and sobbing from inside (omitted). [ 22 ] Constable Takhar returned to Constable Pinnegar and told him of the sobbing female. At that point, Constable Takhar and Constable McCarthy were only away from Constable Pinnegar for about one minute. Constable Pinnegar, concerned that someone inside was in immediate distress, kicked in the door of (omitted) to gain entry. The police entered the mobile home. It was very dark with only one dim light. As they entered, Constable Pinnegar announced police.

The police were at (omitted) for approximately three to five minutes before they entered the residence. [ 23 ] The police saw a man and woman at the end of the hallway near the back bedroom at the rear of the mobile home. Constable Takhar later identified the man as Maurice Luis Alexander and the woman as A.E. Ms. E. was sobbing and crying. [ 24 ] Mr. Alexander was standing in front of Ms. E. Constable Pinnegar’s directed him to come towards the police. Mr. Alexander initially complied with command, albeit slowly and reluctantly. After a few steps, Mr. Alexander turned away from the police and walked toward Ms.

E. with his arms up, talking to her. The officers were unable to hear what he was saying to Ms. E. The police grabbed Mr. Alexander and forced him onto his stomach on the floor and applied handcuffs. Constable Takhar said he delivered a stunning knee strike to the right rear quadrant above his buttocks. While lying face down on the floor, Mr. Alexander complained he was having difficulty breathing. [ 25 ] After Mr. Alexander had been handcuffed, Constable Takhar lifted him to his feet, at which time Mr. Alexander vomited. The officers noticed emanating from Mr.

Alexander’s breath and vomit a very strong smell of liquor. The officers’ struggle with Mr. Alexander lasted under a minute. Constable Takhar believed it was less than 30 seconds. Constable Pinnegar estimates that it was less than three minutes between the time the police breached the door of (omitted) and Mr. Alexander been removed from the residence. [ 26 ] Mr. Alexander was taken to the detachment. Constable McCarthy says Mr. Alexander was sweating quite a bit, his eyes were blood shot and his speech slurred. Still, his balance was “decent” and he could follow directions. [ 27 ] Mr.

Alexander did not have any injuries on him which might indicate he was in a physical confrontation. Specifically, he had no injuries to his knuckles. Constable McCarthy said that prior to lodging an accused in the cells they inspected him to ensure he is fit for incarceration. The police would take note if he was bleeding. Constable McCarthy did not recall or note any conversations with Mr. Alexander with respect to injuries. [ 28 ] The only persons present when the police entered (omitted) were Mr. Alexander and Ms. E. [ 29 ] Constable Pinnegar spoke with Ms. E. after Mr. Alexander had been arrested.

He described her demeanour as follows: A She was very, very emotionally distraught when I began dealing with her. She was crying, she was holding herself, she was breathing heavily, she was just visually distraught and upset. Q Okay. Could you see any injuries on her? A I did not at the time, so later, as I was dealing with her, I also looked at her neck and face. I could not see any visual injuries at that time.

Transcript, p. 42, ll. 28-37 [ 30 ] Constable Pinnegar escorted Ms. E. to the porch where they sat down and discussed what had happened that evening. Ms. E. talked to Constable Pinnegar but declined to provide an audio statement at the time. She did not want to leave her residence for the night, even though the door was no longer intact. She declined victim services. She told Constable Pinnegar that she would not participate in the court process. [ 31 ] The following day, on August 20, 2015, at 11:45 Ms.

E. gave a short statement (six pages) to Constable Visser. (Transcript, page 71). [ 32 ] Constable Pinnegar did not observe any injuries to Ms. E. that evening however he says that is not unusual, as they often do not become visible until the following day. As Constable Pinnegar went on medical leave the following day, he did not return to assess whether any injuries did become apparent. Ms. E. told Constable Visser the following days that she was not injured in the incident. Assessment Credibility and Reliability [ 33 ] Defence counsel argues Ms. E. is neither credible or reliably credible.

He points to a number of examples why her evidence should not be accepted. Six pack versus eight pack of beer [ 34 ] Mr. Zipp, counsel for the Defence, points to the inconsistency between what she told the police the night of the incident and her evidence at trial with respect to what Mr. Alexander purchased to drink for the evening. In her statement to the Constable Visser on August 20, 2015, Ms. E. said Mr. Alexander purchased a six pack of beer. In her evidence at trial, she said it was an eight-pack (Transcript, p. 68, l. 39 to p. 69, l.15). When questioned about this inconsistency, Ms.

E. said that is what she thought at the time, but the next day she found the eight-pack. She said Mr. Alexander had purchased an eight pack of TNT, which was 8% alcohol. At trial she did not resile from her evidence that the beer Mr. Alexander purchased was an eight-pack. Mr. Zipp points out that when Ms. E. learned that it was an eight pack rather than six pack, she did not call Constable Visser or the Victim Service Worker or anyone else to correct this misinformation. [ 35 ] I do not find this inconsistency of any moment. I am not convinced a person in Ms.

E.’s circumstance would consider it necessary to call Constable Visser and tell him she had since discovered Mr. Alexander purchased an eight-pack rather than a six-pack of beer. There is no evidence that anyone suggested to her that she should advise the police or anyone of any change to her statement of details of that nature. [ 36 ] There is no evidence the police returned to Ms. E. to investigate or photograph the scene. I do not think that Ms. E. can be faulted for not alerting the police to the fact that the beer was an eight-pack rather than a six-pack.

There is no evidence that anyone suggested to her at the time this was a significant point which would warrant immediate correction if in error. [ 37 ] Moreover, Ms. E. did not say Mr. Alexander drank all the beer he purchased (Transcript, p. 59, ll. 28-34), so whether he purchased a six-pack or an eight-pack does not mean that he consumed six or eight beer. Finger bite [ 38 ] Mr. Zipp points to Ms. E.’s evidence that she bit Mr. Alexander’s finger when he was covering her nose and mouth while on the bed (Transcript, p. 71, l. 25 to p.72, l. 23). He suggested to Ms. E. that she actually bit Mr.

Alexander on the fleshy part of his hand opposite his thumb and not the finger. She said she didn’t remember which finger she bit, then added “and I’m sure it was his finger.” (Transcript, p. 71, l. 21 to p. 72, l. 23). Q Okay. You say you bit his finger, is that right? A Yes, I bit his finger. Q Which finger do you say you bit? A I don't know which finger it was. Q Do you remember which hand? A It was his right hand. Q His right hand. And the finger, you have no recollection of the finger -- which finger it was? A I don't remember. Q Don't remember. Okay.

You told the police about the finger the day after this happened, isn't that right? A I don't remember. Q Okay. Well, let me go through it with you. A If I told them that night or the next day. Q Do you have the statement in front of you?

A Okay. Q If you take a look at the very first line, 20 -- and it starts out with Constable Visser saying [as read in]: So 2015, August the 20th today, the time right now 11:45. Do you see that? A Yes. Q Okay. I'm going to suggest to you that the statement was taken the next day after this incident? A Yes. Q Okay. Mr. Alexander was still in custody then, wasn't he? A Yes. Q Okay. All right. I'm going to suggest to you that what you did bite was the fleshy part of the hand opposite the thumb, isn't that true? A I don't know. Q Could have been? A I know I bit him. Q Okay.

Is it possible that that's where you bit him? A I don't -- I don't remember. Q You don't remember. A I remember biting him when it happened. Q I see. A And I'm sure it was his finger. [ 39 ] In my view there is nothing about this evidence which undermines Ms. E.’s credibility. She was reasonably confident and consistent in her evidence that she bit his finger. There is no suggestion in cross-examination that she lied about this fact or withheld it in her statement. The opposite is true it suggests her statement to Constable Visser was consistent with her evidence in both direct and cross-examination. [ 40 ] Mr.

Zipp also points to Ms. E.’s explanation as to where, or how, she made the 911 call to the police as demonstrating a lack of credibility. In cross-examination, Mr. Zipp asked Ms. E. if she was in the closet when she made the 911 call. She responded that she wasn’t in the closet; her hand was in the closet. Mr. Zipp then brought to Ms. E.’s attention that in her statement to Constable Visser, in which she said: And I had called them in my closet 'cause I didn't want him to see 'cause I was scared for my life. I just want him to get help and better." [ 41 ] Ms.

E. responded “Yes, meaning my hand was in my closet.” [ 42 ] Mr. Zipp then reads Constable Visser next question “So you're in your closet and you call the cops. Then what happens?” Ms. E. agrees she did not correct Constable Visser that she was not literally in the closet (Transcript, p. 73, l. 7 to p. 42). In re-direct she said that it was a very emotional time and she “didn’t look at the question of like whether I was in my closet or had my hand in my closet. . . I didn’t think it was something I would have to correct.” (Transcript, p. 81, ll. 19- 32). [ 43 ] I do not agree this confusion about whether Ms.

E. went into the closet with just her hand or her whole body in anyway undermines her credibility. People often say they went into the closet for one reason or another when they reach in and retrieve something. Constable Visser did not ask Ms. E. if her entire body was in the closet. She didn’t ask Ms. E. for further particulars or specifics of her whereabouts. Ms. E. is the civilian witness. Constable Visser is the professional interviewer. I would think that if clarification was required it would be the officer to make that inquiry. [ 44 ] I gathered from the sketch Ms.

E. was asked to make on the stand that the police neither took photographs of the alleged crime scene nor asked for a sketch. It does not appear they regarded the physical layout of the bedroom or the accused and complainant’s something they should record or document. I agree with Ms. E. that Constable Visser’s statement “so you're in your closet . . .” was not something she was expected to correct. [ 45 ] I also noticed that Ms. E. tends to provide more detail when specifically requested to do so. For example, the Crown asked Ms. E. in direct what was she drinking and she responded wine.

He asked how much she had to drink and she said “I don’t remember.”

(Transcript, p. 55, l. 42 - 47). In cross-examination she is questioned about her wine consumption, with further particularity in the following passage: Q Okay. All right. You got a bottle of wine? A Yes. A It was Sawmill Creek white wine? A Yes. Q One point five litres? A Yes. Q You finished it that night? A No. Q No? How much of it did you drink? A I'm not sure. (Transcript, p. 69, ll. 33-42) [ 46 ] Mr. Zipp refers to Ms. E.’s evidence that her cell phone was in the laundry basket in her closet as “bizarre.” In cross- examination he asked her why she kept her phone in the laundry basket.

In fact, he told it “defies belief that a person would keep a cell phone in the laundry basket in a closet for the entire day rather than having them in a more accessible area.” Ms. E. replied “I hide my cell phones some days from Maurice because he would smash my cell phones.” (Transcript, p. 76, l. 29 - p. 77, l. 34). Ms. E.’s evidence went unchallenged on this point. I have no reason to disbelieve her statement she kept the cell phone in her closet to hide it from Mr. Alexander so he wouldn’t smash it. [ 47 ] Mr. Zipp then points the discrepancy between Ms.

E.’s statement that she reached into the closet to call the police so that Mr. Alexander would not see what she was doing. I find it perfectly believable that if Mr. Alexander was in a rage and had a habit of smashing her cell phone that she would not want to pull out her cell phone and use it to call the police in plain sight. It is uncontroverted that Ms. E. called 911 from her cell phone on the evening of April 19, 2015. The police responded to an abandoned 911 call which is entirely consistent with her statement that she called the police and left the phone on in her closet. (Transcript, p. 65, l. 27).

When they arrived Mr. Alexander and Ms. E. emerged from the rear bedroom where Constable Takhar heard a woman sobbing and crying a minute earlier. [ 48 ] Mr. Zipp cites Ms. E.’s admission that Mr. Alexander might have seen her when she reached into the closet to use the cell phone but he didn’t, as an example of her incredibility and unreliability. I took Ms. E. to mean that Mr. Alexander might have been able to see what she was doing if he was paying attention but he didn’t because he was across the room smoking and “talking and yelling at the same time.” (Transcript, p. 64, ll. 23-27). [ 49 ] Mr.

Zipp also points to Ms. E.’s evidence about her post-offence attempts to contact Mr. Alexander. (Transcript, p. 67, l. 19 to p. 68, l. 2). When asked if she had contact with Mr. Alexander since the incident, Ms. E. said no, nothing. When asked “letters?” Ms. E. admitted that she messaged him in a “very weak moment.” When challenged that it was “several very weak moments over several days” Ms. E. simply responded “Yes.” She continued to agree with Mr. Zipp’s questions about her desire to reconnect with Mr. Alexander. [ 50 ] In reviewing Ms. E.’s responses, it appears to me that Ms.

E. understood contact to mean physical contact. As soon as Mr. Zipp said letters, she understood that might include writing and she volunteered that she had written to him. [ 51 ] Mr. Zipp argues that for someone who had undergone what Ms. E. claimed to have experienced, it would be “completely illogical to try and generate contact with Mr. Alexander” and that logical and common sense would suggest she would not want anything to do with her assailant.” I believe I can take judicial notice that in affairs of the heart, people often abandon logic and common sense.

The frequency of reconciliation after an incident of domestic abuse is common place and I am not prepared to find Ms. E.’s attempts to reconcile as evidence of fabrication. [ 52 ] Mr. Zipp also says the fact that neither Ms. E. nor Mr. Alexander had any injuries militates against the offences having occurred. It is not at all implausible the assaults as Ms. E. described them may not have resulted in any visible or enduring injuries. She did not complain of been assaulted in a manner which would likely result in such injuries.

When asked by Constable Visser if she had any injuries, she said “No, not really.” (Transcript, p. 79, l.10). She agreed in cross-examination that she had not suffered any injuries. [ 53 ] Ms. E. said Mr. Alexander put his hand and fingers over nose and mouth and slapped her. The only defence injury in the incident as she described it might have been a bite mark. As Mr. Zipp elicited in cross-examination, the police inspect an accused for fitness before they are lodged into the cell, but the focus appears on bleeding. A bite mark which did not puncture the skin might have well escaped their notice.

Findings of Credibility and Reality [ 54 ] Ms. E. responded to questions in direct and cross-examination in a remarkably economic, even minimalistic manner, often in one word answers. Answers requiring more than a simple “yes” or “no” were generally clip and to the point, free of superfluous adjectives or adverbs. For example, when asked to describe her relationship with Mr. Alexander, all she said was, “It had spurts, some good, some bad.” (Transcript, p. 59, l. 16). She provided a bare bones version of the events which brought her to court. For things she

did not know or recall, she did not try and reconstruct, speculate or surmise. For things she did recall, she did not embellish or exaggerate or dramatize. When she first began her evidence, I thought Ms. E. may have been a reluctant witness compelled to testify. This impression was fostered by Ms. E.’s unwillingness to provide a statement to Constable Pinnegar, even though she called 911 for assistance. She didn’t want to provide an audio statement; she didn’t want to access victim services; she didn’t want to participate in the court process.

It wasn’t until the next day she provided a statement to Constable Visser, and even then, it was only six pages. Ms. E. did not express any particular hostility or animus against Mr. Alexander. As Mr. Zipp pointed out, she later tried to reconcile with Mr. Alexander. [ 55 ] By the end of her evidence, however, I came to accept that Ms. E.’s minimalistic manner of speaking was a matter of style rather than attitude. It was apparent that for the events Ms. E. did recall, her evidence was unequivocal as it was succinct. She testified that Mr.

Alexander went into a rage, he jumped on top of her when she was lying on the bed and he put his fingers over her nose and the palm of his hands over her mouth so she couldn’t breathe two or three times; on the first occasion she bite his finger; he smacked her on her cheek with his open hand, he hit her hard and it hurt. She said after she gave him the cigarette he requested, he told her over and over again he was going to kill her. She took him seriously and she was scared and crying; she called the police. [ 56 ] In my view, Ms. E. was a trustworthy witness, both reliable and credible.

Although I am not convinced that she did not remember why she and Mr. Alexander were arguing, I accept the events of the evening of April 19, 2015 happened as she described. I find her disinclination to speculate, elaborate, dramatize or embellish her evidence enhances her credibility. She said she was scared, not terrorized or petrified or panic stricken, simply scared. Her most profound expression of her feelings was in response to the Crown’s asking her why she called the police.

She responded, “Because I was scared for my life.” Her most dramatic language was when she said sometimes hid her cell phone because Mr. Alexander would smash them. Yet this fact was only elicited in cross-examination when asked why she kept her cell phone in a laundry basket in her closet. [ 57 ] Ms. E.’s evidence was consistent as between her direct evidence and cross-examination. It also appeared that Ms. E.s’ evidence at trial was consistent with evidence in her out-of-court statements to the police.

I have already set out above why I do not accept the Defence’s submissions to the contrary on a number of points. I also note, that in his cross-examination, Mr. Zipp showed Ms. E. her statement to Constable Visser and asked her to agree that the first time she said that she was restrained when the police were knocking at the door was at trial. (Transcript, p. 78, l. 10). I take it that in her statement to Constable Visser, Ms. E. did not mention Mr. Alexander restraining her on the bed when the police arrived. Ms. E. said she thought she did but then responded “I guess so.” The exchange between Mr. Zipp and Ms.

E. is as follows: Q. Okay. You didn't tell Constable Visser that you had been restrained as the police were knocking at your door or anything like that, did you? A No, not right then. Q Or at any other time? A I'm pretty sure I did. Q I see. In that statement? A I don't know. Q I'm sorry, I didn't catch your answer. A I'm not sure what to answer right now. Q Okay. I'm going to suggest to you that your suggestion that you were restrained when the police were knocking at the door, this is the first time today that you've said anything about that in this investigation. Do you agree with that?

A I guess so. [ 58 ] It is apparent from the Crown’s re-examination that Ms. E. told Constable Pinnegar immediately after the assault on April 19, 2015, that Mr. Alexander had restrained her. Her confusion in this regard is understandable and does not detract from her credibility or reliability. [ 59 ] In

summary, I find that Ms. E.’s story as to what happened on the evening of April 19, 2015, inherently believable. It was internally consistent and consistent with the evidence of the peace officers. It went unchallenged in any significant manner. Intoxication [ 60 ] Mr. Zipp argues that Ms. E. and Mr. Alexander were heavily intoxicated. Ms. E. could not recall how much she had to drink, but was certain it was not a full bottle of wine. She said she did not know whether she was sober or drunk, but denied the suggestion put to her by Mr.

Zipp that she did not really recall what occurred on the evening of April 19, 2015, because of her intoxication. (Transcript, p. 55, ll. 46-47; p. 79, p. 14-19). I note that when Constable Pinnegar was asked to describe Ms. E.’s demeanour he said she was visually distraught, upset, crying, holding herself and breathing heavily. He says nothing about her being intoxicated. [ 61 ] Ms. E. and the police officers agree Mr. Alexander was intoxicated and I accept their evidence on this issue. Constable McCarthy says Mr. Alexander was sweating quite a bit, his eyes were blood shot and his speech slurred.

Still, his balance was “decent” and he could follow directions. Constable McCarthy said when he was in of his police vehicle Mr. Alexander answered all of his questions very politely and was cooperative. The police had no issues with him in the cells at the detachment while booking him in.

(Transcript, p. 11, ll. 21-27). [62] Constable Takhar said Mr. Alexander initially complied with Constable Pinnegar’s commands. (Transcript, p. 21, ll. 3-32). Constable Takhar said when he lifted Mr. Alexander up he could smell a very strong odour liquor emanating from Mr. Alexander’svomit and breath. After he was on his feet, Mr. Alexander was cooperative and followed directions. (Transcript, p. 34, ll. 18-26). [63] Given the physical altercation between the officers and Mr. Alexander, I cannot discount that Mr.

Alexander’s vomiting mayhave resulted from degree and nature of physical force used against him by the officers in their efforts to bring him under control. I doaccept that Mr. Alexander was more than moderately intoxicated. [64] The relevance of Mr. Alexander’s voluntary intoxication is limited to those offences which classified as specific intent. As theSupreme Court of Canada recently reaffirmed in R. v.

Tatton, 2015 SCC 33 , [2015] 2 SCR 574, at paragraph 20, “[t]he law doesnot allow offenders to rely on self-induced intoxication falling short of automatism as an excuse for general intent offences.” Where anoffences involves a more complex thought and reasoning processes they may be classified as specific intent. An accused’s intoxicationmay negative the mental element required for specific intent offences. In Tatton, the Supreme Court: [43] As a general observation, and without setting out a general rule, alcohol habitually plays a role in crimes involving violent orunruly conduct: Bernard, at p. 880.

It also tends to be prevalent in crimes involving damage to property. As such, it makes little sensefrom a policy perspective that it should provide a defence for crimes in which people or property are harmed or endangered: Daviault, atp. 123. Of course, there are well-established exceptions to this general proposition. Murder, for example, has long been considered acrime of specific intent for which the defence of intoxication is available.

As Daviault explains, at p. 124, this is a function of theheightened thought and reasoning processes required, the gravity of the offence, the serious fixed punishment upon conviction, and theavailability of the lesser included offence of manslaughter. It is therefore incorrect to state that intoxication may never be considered incrimes involving violence against people or damage to property. However, given the prevalence of alcohol in these crimes, there arelikely to be strong policy reasons militating against an intoxication-based defence.

Application of the facts to the law Elements of the Offences Charged [65] With respect to all offences, I find the Crown has proven beyond reasonable doubt the elements of identify of the accused, thetime and date of the offence, jurisdiction of the offence. Specifically, the person before the Court is Maurice Luis Alexander charged onInformation 26194-1-K, the offences took in the evening of August 19, 2015, at or near Quesnel, British Columbia.

Count 1: Assault [66] On Count 1, the charge of assaulting A.E. contrary to s. 266 of the Criminal Code, the Crown must prove the followingessential elements of the offence beyond a reasonable doubt: (

a) Mr. Alexander applied force against Ms. E.; (

b) Mr. Alexanderintentionally applied the force; (

c) Ms. E. did not consent to the force Mr. Alexander applied; and (

d) Mr. Alexander knew that Ms. E.did not consent to the force he applied. [67] The Crown must prove beyond a reasonable doubt that Mr. Alexander knew that Ms. E. did not consent to the physical contact. The Crown may do this by: (

a) showing Mr. Alexander knew Ms. E. did not consent; or (

b) showing Mr. Alexander knew there was arisk that Ms. E. did not consent and proceeded in face of that risk; or (

c) Mr. Alexander was aware Ms. E. did not consent, butdeliberately chose to ignore them because Mr. Alexander did not want to know the truth. Any one of these would be sufficient toestablish Mr. Alexander’s awareness of Ms. E.’s lack of consent. See: R. v. A.D., 2010 BCSC 1780. [68] The evidence shows that beyond a reasonable doubt that: (

a) Mr. Alexander applied force against Ms. E. in the nature of jumping on top of her, covering her nose and mouth so she couldn’tbreathe and slapping her on the cheeks; (

b) Mr. Alexander intentional applied force to Ms. E. This was no accident. Assault is a general intent offence so Mr. Alexander’svoluntary intoxication is not a defence: See R. v. Snelgrove, 2004 BCSC 102, at paragraph 231, citing R. v. Bernard, (SCC), [1988] 2 S.C.R. 833, at p. 863. There is no suggestion his degree of intoxication approached a state of insanity or automatism asdescribed in R. v. Daviault, (SCC), [1994] 3 S.C.R. 63, at p. 123 or Bernard, at pp. 865 and 878-880; (

c) Ms. E. was sobbing and crying and surreptitiously calling the police for help. She was scared for her life. She did not consent tothe force Mr. Alexander applied; and (

d) Mr. Alexander knew Ms. E. did not consent to the force he applied because she was sobbing and crying and bit him. Count 2: Uttering threats to cause death or bodily harm [69]

Section 264.1 of the Criminal Code states: 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

[70] The Supreme Court has considered this offence in R. v. McRae, 2013 SCC 68 , R. v. McCraw, (SCC), [1991] 3 S.C.R. 72, R. v. Clemente, (SCC), [1994] 2 S.C.R. 758, and R. v. O'Brien, 2013 SCC 2 , [2013]1 S.C.R. 7. [71] The elements of the offence include: (1) the utterance or conveyance of a threat to cause death or serious bodily harm(Clemente, at p. 763) and (2) an intent to threaten.

In McRae, at paragraph 10, the Supreme Court said “The threats can be uttered,conveyed, or in any way caused to be received by any person.” Whether words spoken or written constitute a threat must be looked atobjectively; that is, as it would be by the ordinary reasonable person. [72] In this case, Ms. E. said that Mr. Alexander “just kept telling me he was going to kill me, over and over again.” He said thesewords immediately having jumped on her, covered her mouth and nose so she couldn’t breathe and smacking her two or three times inthe face. They had argued and Mr. Alexander was in a rage, screaming at her.

She thought he was serious. They were alone in(omitted) and she was scared for her life. She called the police. When he arrived Constable Pinnegar noted Ms. E. was visuallydistraught and upset. [73] Uttering threats is a specific intent offence: R. v. McRae, 2010 BCSC 558 , paragraphs 107 and 108. Mr. Alexander’sintoxication must be taken into account: McRae, paragraph 109. I am not convinced Mr. Alexander’s intoxication was such as to impairhis foresight into the consequences of his actions. In reaching this conclusion, I have considered how he responded to the policeknocking on the door. He grabbed Ms.

E., told her he was sorry and held her down on the bed. Although there is no direct evidence thatMr. Alexander heard the police knocking, there is sufficient circumstantial evidence that I find he did hear the knock. ConstablesMcCarthy and Takhar said that after Mr. Alexander was handcuffed he was cooperative, he answered questions, he was able and didfollow their directions. There is no evidence suggesting Mr. Alexander had any hearing impairment. Given the context in which thisoffence occurred, I am satisfied beyond a reasonable doubt that Mr. Alexander told Ms.

E. he was going to kill her and that he and therequisite intent to make the threat at the time. Count 3: Forcible confinement [74]

Section s. 279(2)(

a) of the Criminal Code sets out the offence of forcible confinement. That

section reads:

(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of:

a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or (

b) an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. [75] The elements of the offence of forcible confinement were reviewed by the Supreme Court of Canada in R. v. Pritchard, 2008SCC 59 , which focused on the requirements for forcible confinement sufficient to classify a death as first degree murder. Onthe subject of s. 279(2), Mr.

Justice Binnie, writing for the Court, held that the victim was unlawfully confined if “for any significantperiod of time… [she] was coercively restrained or directed contrary to her wishes, so that she could not move about according to herown inclination and desire…” (at para. 24). Binnie J. went on to note that not every offence, in that case a robbery, involved“confinement of the significant duration required to satisfy s. 279(2)” (at para. 26).

Although unlawful confinement does not requireproof of total physical restraint of the complainant, it does require proof that the accused deprived the complainant of her liberty to movefrom one place to another for a “significant” period of time. [76] In the case at bar, Ms. E. testified that when she heard a knock on the door, Mr. Alexander grabbed her and held her in his armsand told her he was sorry and held her down on the bed with his arms around her. She didn’t want to be on the bed. She wanted toanswer the door. It was not a hug. She tried to get up and he would not let her.

He released her once the police kicked in the door. Onthese facts I find the Crown has proven beyond a reasonable doubt: (

a) Mr. Alexander restrained Ms. E. for approximately three to fiveminutes between the time when the police first knocked on the door and when they kicked in the door and entered the residence; (

b) Ms.E. did not consent to the confinement; (

c) Mr. Alexander had no lawful authority to confine Ms. E.; (

d) Mr. Alexander intended toconfine Ms. E.; (

e) and Mr. Alexander used force or threat of force to confine Ms. E. The two factors yet to be considered is whether theperiod of confinement was significant and the impact of Mr. Alexander’s insobriety. [77] I am of the view that three to five minutes in the circumstances of this case was significant. It occurred after Ms. E. had beenassaulted and threatened. She was scared for her life. She called the police. The knock on the door was potentially if not likely herrescuers. She was restrained so she could not answer the door. Had Constable Takhar not overheard Ms.

E.’s sobbing, the police mighthave assumed no one was home and left. Although she did not testify to this fact, those few minutes must have been anxiety laden. Constable Pinnegar’s evidence supports this inference. When he spoke to her after having arrested Mr. Alexander, he found her upsetand distraught. [78] As to Mr. Alexander’s degree of intoxication, it is not a defence. Like assault, forcible confinement is a general intent offence:R. v. Snelgrove, 2004 BCSC 102. It only requires minimal intent to effect deprivation of freedom of movement: R. v. S.J.B., 2002 ABCA143 , at paragraph 41, R. v.

Drydgen, 2011 BCSC 393 , at paragraph 120, ref’d on other grounds R. v. Drydgen, 2013BCCA 253 DISPOSITION [79] With respect to Count 1, uttering threats to A.E. to cause her death or bodily harm contrary to s. 264.1 of the Criminal Code, Ifind you guilty.

[ 80 ] With respect to Count 2, assaulting A.E., contrary to s. 266 of the Criminal Code , I find you guilty. [ 81 ] With respect to Count 3, unlawfully confining A.E., contrary to s. 279(2) of the Criminal Code , I find you guilty. ________________________ J. T. Doulis Provincial Court Judge Province of British Columbia