Her Majesty the Queen v. Kurt Edward Fahlman, 2018 SKPC 66

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 66 Date: November 9, 2018 Information: 90165410 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen and Kurt Edward Fahlman Appearing: Andrew Wyatt For the Crown Mark Persick For the Defendant PEACE BOND APPLICATION R. GREEN , J I. INTRODUCTION [ 1 ] This is a peace bond application under section 810(1) of the Criminal Code . On August 10, 2018, an RCMP officer swore an Information claiming that Mr. Kurt Fahlman had given Mrs. Stacie Fahlman reasonable grounds to fear that Mr.

Fahlman would cause personal injury to her. Mr. Fahlman refutes this. The Crown witnesses at the hearing were Cst. Trent Lafferty, and Mrs. Fahlman. The defendant, Mr. Fahlman, testified on his own behalf. [ 2 ] This is a proceeding under the Criminal Code which is distinct from a criminal prosecution. In this peace bond proceeding, the Crown must prove on a balance of probabilities that Mrs. Fahlman fears Mr. Fahlman will cause personal injury to her, and that this

fear is reasonable. For the reasons that follow, I am so satisfied. II. BACKGROUND [ 3 ] Cst. Lafferty dealt with Mr. and Mrs. Fahlman, both in 2016 and in 2018. The two met in highschool in 2003, and were married in 2010. They have two children aged four years and two and a half years. [ 4 ] On April 29, 2016, the officer received a complaint that Mr. Fahlman was beating up Mrs. Fahlman, and that alcohol was involved. As a result, he attended to the Fahlman’s rural residence near Springside, and arrested Mr. Fahlman, without incident, for assaulting Mrs. Fahlman, who was nine months pregnant. Mr.

Fahlman was intoxicated. Mrs. Fahlman was sober and uninjured when Cst. Lafferty arrived on the scene. [ 5 ] The RCMP later discovered that Mr. Fahlman, after assaulting Mrs. Fahlman, had discharged a semi-automatic rifle outside their residence, and, as a result, he was as well charged with careless use of a firearm. After Mr. Fahlman was charged, the police received many phone calls about his charges. Some of these were from Mrs. Fahlman, who did not want to proceed with the charges. However, the Ministry of Justice’s policy is that a spousal assault charge must proceed. Mr.

Fahlman ended up pleading guilty to the assault, the Crown directed a stay on the firearms charge, and Mr. Fahlman received a conditional discharge. [ 6 ] Cst. Lafferty was, as well, on duty on August 6, 2018, and was, again, called to the Fahlman residence. Both Mrs. Fahlman and Mr. Fahlman had telephoned the police, alleging an assault by the other. When the officer arrived, Mr. Fahlman was in the driveway in a calm state with their youngest child in his arms. He detained Mr. Fahlman on suspicion of assault. Sgt. Adams spoke, separately, to Mrs. Fahlman.

After both parties had been interviewed, no charges were laid as the police officers did not believe there was any attempt by one to harm the other. However, as a result of what appeared to the police to be an escalating domestic situation, nine firearms were seized from the Fahlman residence. It was part of Cst. Lafferty’s job to deal with domestic violence and, given the history between the parties from 2016, he wanted to remove the firearms to avoid any threat they might pose. A list of these firearms was entered as Exhibit P-1. Mrs. Fahlman claimed ownership of four and Mr.

Fahlman claimed ownership of five. [ 7 ] Cst. Lafferty noted no injury to the defendant on August 6, 2018, but said Mrs. Fahlman claimed redness to her chest as a result of the incident. He described the emotional state of both individuals on that date as calm and level headed. III. MRS. FAHLMAN ’S EVIDENCE [ 8 ] Mrs. Fahlman said their marriage was initially good, but became rocky over time. In 2018, they were separated off and on. They were formally separated, at her instance, in May, although both continued to reside under the same roof.

At that time, she commenced a family law proceeding at the Court of Queen’s Bench in Yorkton, regarding many issues including divorce, custody, access and division of matrimonial property. [ 9 ] Mrs. Fahlman described four incidents in which the police were called to their marital residence, prior to the incident on August 6, 2018:

(1) The first incident was in 2007 in Calgary. There was an argument and Mr. Fahlman got physical with her and threatened to hurt her. Mr. Fahlman smashed a cell phone and punched a hole in the wall.

(2) The second incident was in September of 2015. Her infant daughter was feverish and would not settle down. Mr. Fahlman had been drinking the night before and was sleeping. When she could not calm the child down he got up, was mad that she could not calm the child, and pushed her in the arm and kicked her in the shin.

(3) The third incident happened two weeks later, in September of 2015. Mr. Fahlman threw a knife on the floor by her. Two weeks before this, on the second occasion the police had been called, she swore she would not let him do this to her again.

(4) The fourth incident was on April 29, 2016. Mr. Fahlman was out drinking, and she came to give him a ride home. He was very intoxicated, and she took the keys away from him. He was very upset. She was nine months pregnant and, when they arrived home, he pushed her and told her to get out of the vehicle, and then threw her car keys across the garage. He as well threw a bottle at her, and continued in an angry rage. She contacted his mother by cell phone, to try to have her calm Mr. Fahlman down. This had little effect. Mr. Fahlman then threw Mrs.

Fahlman’s phone across the garage, grabbed his semi-automatic rifle, and went outside and started firing this rifle. At that point, his mother, who was still on the phone, decided to call the police. Mrs. Fahlman locked Mr. Fahlman out of the house, but he yelled at the door saying he would break the door down if she didn’t open it. He also said he would kill her and they would never find her body. The police then arrived and arrested Mr. Fahlman for assault. The next day Mrs. Fahlman received a picture on her digital device, by Snapchat, apparently from an airport, with Mr.

Fahlman saying: “See you later Saskatchewan”. He later told her that he went to Vancouver. [ 10 ] After the fourth incident, Mrs. Fahlman was concerned about Mr. Fahlman’s safety, and did not want him charged. As a result, she wrote a letter of support to the prosecutor handling his charges (Exhibit D-1). She said, at that time, she was terrified of the prospect of being alone with a newborn child and, as well, did not want to hurt Mr. Fahlman’s career prospects as a nurse. [ 11 ] The Fahlmans’ next child was born on May 17, 2016. Mrs. Fahlman said things got better for awhile, but then went downhill again.

When Mr. Fahlman drank, there were arguments and he would throw things around. He once threw her cell phone and at one point threw an object that dented a doorknob. He told her that if she tried to take the children away from him he would murder her and hide her body. These threats caused her to fear for her safety. [ 12 ] In May of 2018, she said Mr. Fahlman claimed that he had checked himself into the Mental Health Pine Unit at Yorkton Hospital, and that he was taking anti-depression medication. It was around this time that she commenced the family court application to end their marriage.

She as well said, prior to the incident on August 6, 2018, that Mr. Fahlman smashed a laptop and threw her phone outside during an argument. On one occasion, Mr. Fahlman woke her up in the middle of the night to argue, despite her being very tired from a full day of work before that, and argued with her about matrimonial issues. She said her family court application had brought a lot of stress with it, as Mr. Fahlman had threatened to kill her if she took his children away. [ 13 ] On August 6, 2018, Mr. Fahlman was sleeping downstairs and had the monitor to hear whether the children were crying. Mrs.

Fahlman got up in the morning and discovered her son was crying and was covered with dried vomit. She was upset, and Mr. Fahlman did not respond to her calls for help. She said the upstairs was a mess, and as a result she called her mother to come over and help with the children so that she could get the house straightened up. When Mr. Fahlman got up at 1:00 p.m., he was upset because he did not want her mother coming over as he was not working that day and he wanted to be with the children. She said this led to an argument during which Mr. Fahlman pushed her out of the room and slammed the door.

She said that she then tried to take her daughter out of Mr. Fahlman’s arms and in doing so made physical contact with him. She denied that she assaulted him or had any intention of doing so. [ 14 ] When the police arrived, a police officer told her she should take the children and leave. As a result, she took them to her parents’ place. Because all of their things were back in the marital home, in a day or two her father changed the locks and she went back into the matrimonial home.

She claimed, very soon thereafter, that the tractors had been moved, parts went missing and three locks were drilled out. [ 15 ] Taken together, at the date of this hearing on October 25, 2018, she said she knew that Mr. Fahlman was angry about the court applications, and she said that the history between them told her that his abuse of her happened when he was under stress. She said when Mr. Fahlman is under stress, he drinks a lot and becomes angry and abuses her.

She said his anger and temper have grown worse over the time they have been together, and she was concerned about the potential danger of him having firearms, both for her safety and the possibility he might harm himself.

[ 16 ] On cross-examination, Mrs. Fahlman was asked whether the disputes between them went back and forth and each were equally responsible. She admitted she had said things, although none that she regretted, but further said that she had never threatened Mr. Fahlman nor slapped him or pushed him. She said while alcohol contributed to his behaviour, he also has been abusive to her without alcohol. [ 17 ] Mrs. Fahlman said Mr. Fahlman became more and more angry during their relationship. As a result, over time, she became more and more concerned about his escalating anger.

After the peace bond application was filed, she had concerns about exchanging the children with Mr. Fahlman at the marital home as opposed to at a daycare centre, largely because she did not have to see Mr. Fahlman at the daycare. While she said she does not have as many concerns for her personal safety when her children are in her immediate company, she is taking steps to protect herself at the marital home including security cameras. IV. MR. FAHLMAN ’S EVIDENCE [ 18 ] Mr. Fahlman admitted to punching a hole in the wall in Calgary in 2007, but said he did this because Mrs.

Fahlman would not leave their residence. He denied damaging a cell phone, and had no recollection of punching or hitting Mrs. Fahlman in 2015. Regarding what happened with the knife, he said he bobbled a knife and it fell near Mrs. Fahlman. Regarding damaging a laptop, he said the parties were having an argument and he closed the lid on a computer. Taken together, he claimed Mrs. Fahlman was overstating his behaviour, and said that he had learned to leave their residence when he was angry to defuse any tense situation.

He, as well, downplayed his drinking in recent years. [ 19 ] Regarding his assault charge in 2016, when asked by his lawyer whether he recalled threatening Mrs. Fahlman at the time of the incident, he said “No, I tend to say a lot of stupid things and I don’t recall it though”. [ 20 ] Regarding the incident on August 6, 2018, he said they had an argument over parenting issues. He was upset when he heard that Mrs. Fahlman’s mother was coming over to look after the children as he was not working that day. He claimed that, as the argument progressed, he had his daughter in his arms and when Mrs.

Fahlman could not get his daughter away from him she hit him. He claimed she hit him again as he was walking towards the door. As he was setting the child down, he said that he made physical contact with her, but denied that he meant to hit her. [ 21 ] Mr. Fahlman said after Mrs. Fahlman and the children left on August 6, 2018, he was in the marital home for a few days. Then, while working a night shift at a health centre in Theodore, he received a phone call from Mrs. Fahlman’s mother saying that Mrs. Fahlman and the children were back in the marital home.

Because he had a no-contact condition upon his release on the peace bond application, this meant he could not go there. He had to get Sgt. Adams to come with him to get his things. He was upset about being displaced like this, and, as well, claimed he had never been in the psychiatric centre in Yorkton nor had he been taking any medications for depression or other mental health concerns. He filed a recent affidavit from the family proceeding which includes a copy of his medical records (Exhibit D-2).

The medications listed do not include any psychiatric medications, and he swore in the affidavit that he has not been suicidal since he was married to Mrs. Fahlman and that he is not under the care of a psychiatrist. [ 22 ] Mr. Fahlman was asked by his lawyer whether he had threatened Mrs. Fahlman, and he responded that when he was intoxicated it was possible. He, however, thought that Mrs. Fahlman may have misconstrued his comments about the court proceedings, when he said to her that he would bury her in court documents, as meaning he would bury her body. He denied wanting to cause physical harm to her.

He, as well, claimed that she had hit him in the past. He denied wanting to reconcile with her, but said that he needs to go back to the matrimonial farm to get his things and to be in the yard and shop outside. [ 23 ] On cross-examination, Mr. Fahlman admitted that punching a hole in the wall in Calgary in 2007 was as a result of frustration and anger. Regarding the 2015 incident, he did not recollect punching or kicking Mrs. Fahlman but said it was possible, because in his words “I don’t dwell on every aspect of the past”.

He responded to a number of things he was alleged to have done by saying “I can’t dispute or acknowledge it, because I was highly intoxicated”. [ 24 ] When asked by Mr. Wyatt whether he had ever said to Mrs. Fahlman that he would murder her and they would never find her body, he said it was very unlikely that he said this but he was not 100% sure. He then claimed he is not a violent person, but when asked why he had assaulted his nine month pregnant wife, he responded by saying he had said stupid things in the past. He then claimed he had never said to Mrs.

Fahlman that he would murder her and they would never find her body.

[ 25 ] Regarding the incident where he shot a semi-automatic rifle outside after he assaulted Mrs. Fahlman, he admitted that it was a scary situation for the people around there and, as well, said that people should not do this. Regarding his drinking, he said he stopped for a few months after the 2016 incident, but not permanently. When asked whether he threatened to kick the door down on April 29, 2016, he responded that he didn’t recall, and when asked whether he said to Mrs. Fahlman that day: “You are lucky you are pregnant or I would have killed you”, he did not recall.

He denied saying he was going to Vancouver after the incident in 2016, saying instead he went to Saskatoon, because he didn’t know where else to go. [ 26 ] After repeated questions from Mr. Wyatt about his anger, Mr. Fahlman responded on a number of occasions that he had not been angry but, rather, he had been frustrated. When asked why he should be allowed to have contact now with Mrs. Fahlman, he said that the situation is different as there is no chance of reconciliation and the emotional side is done and therefore “we can’t get under each other’s skin”.

He referred to the incident in April of 2016 as letting off steam and an isolated incident. All that said, he admitted that he had an anger issue in the past. V. MY ANALYSIS [ 27 ] This is not a criminal proceeding where the Crown has to prove its case beyond a reasonable doubt. As already noted, in this peace bond application the Crown must prove on a balance of probabilities that Mrs. Fahlman fears Mr. Fahlman will cause personal injury to her, and that there are reasonable grounds for that fear. [ 28 ] I am satisfied on a balance of probabilities that the Crown has proved that Mrs. Fahlman fears that Mr.

Fahlman will cause personal injury to her. That is because, having heard and considered her evidence in-chief, and her cross-examination in which I did not find any significant inconsistencies, I accept her evidence about what happened in the incidents she described and, in particular, what Mr. Fahlman said to her and did in her presence. I am satisfied that she was not under the influence of alcohol or drugs when these incidents happened, and I am as well satisfied that she accurately described how Mr.

Fahlmans’s anger toward her intensified over the course of the marriage, and how it was triggered by alcohol and stress. [ 29 ] Given that Mr. and Mrs. Fahlman are now in the midst of a heated, and as a result stressful, contested family law court proceeding, I, without hesitation, accept that Mrs. Fahlman is afraid Mr. Fahlman will cause personal injury to her. I make that finding considering her account of what Mr. Fahlman did and said to her in the various incidents she described, and his behaviour in shooting a semi-automatic rifle outside their residence after he assaulted her in 2016.

I do not find that she embellished her account for the purposes of the family court proceeding, nor am I satisfied that her decision to return home with her children to a rural location casts any doubt on whether she fears him. [ 30 ] Further, I am satisfied on a balance of probabilities that the Crown has proved that Mrs. Fahlman’s fear is reasonable. That is because:

(1) Mr. Fahlman entered a guilty plea to assaulting Mrs. Fahlman on April 29, 2016, and as well was charged with careless use of a firearm, as a result of firing his semi-automatic rifle outside the marital home after he assaulted Mrs. Fahlman. At the time he did all of this, I am satisfied that he was out of control, and that Mrs. Fahlman feared for her safety, whether or not she subsequently asked that he not be charged or sent a letter of support to the prosecutor;

(2) Mr. Fahlman on more than one occasion threatened Mrs. Fahlman’s life and said her body would never be found, and on one of these occasions specifically linked the threat to what he would do if she took the children away from him;

(3) I accept that alcohol is one of the triggers of Mr. Fahlman’s anger, and while he said that he stopped drinking for a few months after the 2016 incident, he as well said he did not stop permanently, and there was no suggestion at the hearing that he no longer consumes alcohol; and

(4) I further accept that stress is another trigger of Mr. Fahlman’s anger, and as I, as well, accept Mrs. Fahlman’s evidence that his

anger towards Mrs. Fahlman has increased over the course of their marriage, I find, based on his past behaviour toward Mrs. Fahlman, that there is a significant risk that he will not be able to control his anger toward her. [ 31 ] While Mr. Fahlman tried to downplay what he may have said to Mrs. Fahlman in the past, and in effect that he may have said some stupid things which he really did not mean, I am satisfied that he did say these things to her. As a result, in the midst of contested, acrimonious and stressful family law proceeding, and as I find that Mr. Fahlman’s behaviour toward Mrs.

Fahlman has been affected by his anger, his alcohol consumption and the effects of stress on him, or any combination of these, I am satisfied that Mrs. Fahlman’s honest fear that Mr. Fahlman will hurt her and cause personal injury to her is reasonable. VI. CONCLUSION [ 32 ] As a result, pursuant to s. 810(3), I order that the defendant Mr. Fahlman enter into a recognizance to keep the peace and to be of good behaviour for a period of not more than 12 months. I will defer a final decision on the content and length of the recognizance, as governed by s. 810, until I have heard submissions from counsel. R. Green, J