R. v. J.D. Date:, 2013 BCPC 303

Citation: R. v. J.D. Date: 20131031 2013 BCPC 0303 File No: 3252-1 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA YOUTH MATTER RESTRICTION ON ACCESS Pursuant to ss. 110 and 118 Youth Criminal Justice Act REGINA v. J.D. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: L. Yip Counsel for the Accused: L. Farmer Place of Hearing: New Westminster , B.C. Dates of Hearing: June 11 & August 9, 2013

Date of Judgment: October 31, 2013 INTRODUCTION [1] J.D., a young person for the purposes of the Youth Criminal Justice Act, S.C. 2002, c. 1, faces charges under Information3252-1 of robbery, uttering threats to cause death or bodily harm, and having in his possession a knife for a purpose dangerous to thepublic peace or for the purpose of committing an offence. The Crown proceeds against him by indictment. [2] The offence date was September 13, 2012. The alleged victim of the robbery is another youth, A.S. (“Complainant A.S.”). J.D. is alleged to have threatened Complainant A.S. and used a knife in doing so.

He is also alleged to have stolen from ComplainantA.S. a skateboard with an extended wheelbase known as a longboard (the “Longboard”). [3] At the conclusion of the trial of J.D.’s charges, the Crown acknowledged that, on the evidence, there was no prospect of aconviction on count three—the charge of possession of a knife for a purpose dangerous to the public peace. That count is thereforedismissed by consent. What remain, therefore, are the charges of robbery and uttering threats. [4] Most of the facts germane to this prosecution are not in dispute.

The main issues in the case are whether the Crown hasproven, beyond a reasonable doubt, that: (

a) J.D. had the necessary intent to commit any offence involving a non-consensual taking (be it robbery or theft) of the Longboard fromComplainant A.S.; (

b) J.D. displayed threatening behaviour toward Complainant A.S.; and, if so (

c) The threatening behaviour occurred in the required temporal sequence and proximity to the alleged non-consensual taking of theLongboard to constitute robbery. [5] Insofar as J.D. elected to give evidence in his own defence, a subsidiary issue in the case also arises. That is the issue of J.D.’scredibility.

In the course of deciding the outcome of this prosecution I shall have to consider the extent to which, if at all, J.D.’s evidenceseeking to prove potentially exculpatory facts is believable or, at least, able to raise a reasonable doubt regarding his alleged guilt ofeither or both of the charges he faces: R. v. W.D., (SCC), [1991] 1 S.C.R. 742. THE UNCONTROVERSIAL FACTS [6] The following facts relating to this prosecution are uncontroversial and undisputed: (

a) In the early evening on the offence date of September 13, 2013, Complainant A.S. was playing basketball with his teenaged friendsA.H. (“Witness A.H.”) and K.V. (“Witness K.V.”). They were doing so outdoors on a paved basketball court located on the grounds ofGlenbrook Middle School in New Westminster, B.C. It was getting dark, but the basketball court area was lighted; (

b) The basketball court sits between part of the school building and a large playing field at the playing field’s southwest corner. Thepart of the field nearest to the court, and to the north of it, is fenced. The basketball court area opens into a paved walkway that tracesthe southwest side of the playing field, leading northwest. Closer to the northwest corner of the playing field there is an area within itconsisting of three circular, sandy playground areas. In the northwest corner of the playing field there is a garden-like area. The pavedwalkway area was less well lit and thus darker than the basketball court and the area near to it; (

c) On the evening in question, Complainant A.S. had left the Longboard “parked” alongside the fence separating the basketball courtfrom the playing field. It was his property. Some articles of clothing had also been left on the ground in the general vicinity where theboys had put them; (

d) As Complainant A.S. and his two friends played basketball, J.D. came past the basketball court, along the fence. J.D. was followedby two friends. He jumped onto the Longboard and propelled himself alongside the fence until he came to the paved walkway and thencontinued in a northwesterly direction some distance along it and into a darker area out of sight of the basketball court. His two friendsfollowed behind him; (

e) Complainant A.S. and his two friends were no more than 10 feet away from the location where the Longboard was mounted andthen ridden away. All three recognised J.D. as the person who had climbed onto and left on the Longboard. Complainant A.S. andWitness K.V. set off in pursuit. Witness A.H. stayed back at the basketball court, out of range and unable to see or hear anything thatoccurred when Complainant A.S. and Witness K.V caught up with J.D. and his two friends; (

f) When Complainant A.S. and Witness K.V. eventually caught up with J.D. and his friends a short while later, they were nearer to thenorthwest corner of the playing field and on a grassy area within it. J.D. had disembarked from the Longboard and left it in the grass. One of his friends had picked it up; (

g) Complainant A.S. and Witness K.V. demanded the return of the Longboard. J.D. denied that he had it, denied knowing anythingabout it and, as well, denied even that his friends had it, despite the fact that it was in plain view and held by one of them. Voices wereraised and the interaction quickly degenerated into a confrontation. Throughout the confrontation the Longboard was never in J.D.’sphysical possession. As tensions increased, the friend of J.D. who was holding it raised the Longboard over his shoulder as one would abaseball bat; (

h) Complainant A.S. and Witness K.V. returned to the basketball court area frustrated and upset, and without the Longboard. Complainant A.S. placed a cellphone call to his father who came and drove around the area with the three boys in search of J.D. and his

two friends but without finding them; and (

i) The Longboard was never returned to its owner, the Complainant A.S. THE CONTROVERSIAL FACTS Was J.D. Being Pursued by Friends in the Course of a Game of Tag when he Rode Off on the Longboard? [ 7 ] It was J.D.’s testimony that, on the offence date, after consuming a quantity of his mother’s wine, he and his friends, all teenagers, began playing the child’s game of tag. According to that account, J.D. was “it” and was being chased by his two friends.

As they came to the area where Complainant A.S. and his friends were playing basketball, J.D. saw the Longboard parked beside the fence and jumped onto it, presumably in order to improve his chances of escaping his pursuers in the game of tag. [ 8 ] The premise of J.D.’s evidence—that he and his friends were involved in a game of tag—is important to the narrative he gave and its implications for proof by the Crown of the mens rea element of a robbery or theft offence. It is thus deserving of close scrutiny.

If accepted, that evidence would, for example, provide some supportive context for J.D.’s contention that he was acting in haste and with a motive to escape his pursuers in a game and, accordingly, more likely to have failed to noticed the presence of the Longboard’s potential owners. In J.D.’s own words, “…I didn’t look to see if there was anybody.

I was just focussed on not getting tagged, I guess” ( Trans. , August 9, 2013, p. 5). [ 9 ] In this and in various other areas, however, J.D.’s evidence was internally inconsistent and also conflicted with that of the Crown witnesses. [ 10 ] The evidence of Witness A.H. was that J.D. was not running when he approached and ultimately climbed onto the Longboard and rode off. Rather, he said, J.D. and his friends came around the corner and into view where he, Witness K.V. and Complainant A.S. were playing basketball and then “just kept walking” until J.D. jumped onto the Longboard: Trans ., June 11, 2013, p. 4.

That characterisation was not challenged in cross-examination. [ 11 ] Witness K.V., in describing the lead-up to when J.D. climbed onto the Longboard and rode off, made no reference to any running of the sort that is commonly associated with the child’s game of tag. He testified simply that “[J.D.] and his two friends came in and they just started riding the longboard” ( Trans ., June 11, 2013, p. 15). That characterisation, too, was not challenged in cross- examination.

Similarly, Complainant A.S. made no reference to any running when describing the lead-up to when J.D. climbed onto the Longboard and rode off and that subject did not arise at all in his cross-examination. [ 12 ] I begin my assessment of the conflicting evidence in respect of this controversial fact by observing that, in my view, J.D.’s contention that he was playing tag at the material time lacks, on its face, an air of reality. Tag is a younger child’s game; J.D. was 16 years of age at the time of trial, less than a year after the events in question.

Rather than presenting an honest account of the relevant facts, J.D.’s narrative impressed me as being an implausible concoction intended to give the unreasonable behaviour of taking the Longboard a reasonable appearance. [ 13 ] J.D. was questioned by Mr. Yip during cross-examination about the inherent implausibility of his contention that he and his teenaged friends were playing tag when he (J.D.) took the Longboard. During the course of that questioning, this exchange occurred: “Q Okay. So I'm going to suggest to you that you were a little old to be playing tag with other 16 or 17-year-olds?

You're a little old for that, aren't you? A I'm a child at heart . Q A child at heart, I see. Okay. And I'm just suggesting that -- well, when was the last time you had played tag prior to this night? A Probably before -- actually, no, I was playing hide and go seek before I left with my brother, before I left to go to Montreal [on July 17, 2013, approximately two months earlier]. Q So you played hide and go seek with your brother? A Yeah, my little brother. Q Okay. How old is your little brother? A He's 15. Q I see. Okay. So you like playing a lot of these childhood games?

A Yeah, I'm still a kid .” ( Trans. , August 9, 2013, p. 14, emphasis added) [ 14 ] J.D.’s answers to Mr. Yip’s legitimate questions here, and elsewhere, came across as being glib and unpersuasive. And his attempt to give verisimilitude to his claim that he was playing tag on the offence date by volunteering that, not long before, he had also played hide-and-seek with his 15-year-old brother, did nothing to augment the believability of his claim.

In fact the attempt fell badly flat and detracted from his credibility. [ 15 ] Moreover, I find it passing strange that J.D.’s account of the game of tag failed to carry the narrative thread beyond the point

where he climbed onto the Longboard and rode away on it. He made no reference in his testimony, for example, to any further effort to evade his friends, or attempts on their part to tag him, once he had kicked the Longboard into the grass some distance beyond where he had first boarded it. At that point, one of those friends was “just standing there” with him while the other was some distance behind. Neither, apparently, was any longer in pursuit of J.D. or trying to tag him: Trans. , August 9, 2013, p. 5.

No explanation was given for this precipitous pause in the game of tag—a pause that predated, on J.D.’s evidence, any indication that Complainant A.S. and Witness K.V. had raised complaint about the taking of the Longboard.

In this respect, J.D.’s fanciful story that he and his friends were engaged in a game of tag is internally contradictory; it simply doesn’t hold together. [ 16 ] The unchallenged, unimpeached and believable testimony of the Crown witnesses to the effect that J.D. and his friends were not running, but rather were walking, prior to when J.D. climbed onto the Longboard and rode away (discussed above) is also inconsistent with a running game of tag having been underway at the material time.

I accept that Crown evidence as being truthful and reliable, reporting as it does observations made at close range and under favourable conditions by witnesses who had no reason to know, when they testified, that a “tag” defence was going to be set up by J.D. [ 17 ] For the foregoing reasons I disbelieve J.D.’s evidence in this regard. I find that J.D. was not involved in a game of tag with his two friends during the lead-up to the point where J.D. rode off on the Longboard or at any time on the offence date. Did J.D.

See the Complainant A.S. and his Friends Before Riding Off on the Longboard? [ 18 ] J.D. initially testified that that he didn’t see anybody anywhere near the Longboard when he climbed onto it and rode away.

In his words: “I just didn’t think it belonged to anybody, I just thought it was abandoned or left there” ( Trans. , August 9, 2013, p. 5). [ 19 ] This evidence is important; it too goes to the issue of mens rea in a stealing offence and the question of whether, in the circumstances, J.D. appreciated that there was an owner capable of being deprived of the Longboard by his actions of climbing onto it and then riding off. [ 20 ] J.D.’s contention that he did not see anyone near the Longboard is patently untenable when one considers the unchallenged testimony of Witness A.H., given during Mr.

Farmer’s cross-examination of him , that he and his two friends (that is, Complainant A.S. and Witness K.V.) were playing basketball a “maximum 10 feet” from the Longboard before it was taken by J.D.: Trans. , June 11, 2013, p. 10.

Plainly, the Longboard’s owner and his friends were there to be seen at the time of the taking. [ 21 ] J.D. further undermined his contention that he did not see anyone and considered that the Longboard was abandoned by stating, immediately after giving testimony to that effect, that he “… didn’t look to see if there was anybody” ( Trans. , August 9, 2013, p. 5). [ 22 ] J.D.’s story in this regard then unravelled completely when, during cross-examination by Mr.

Yip, he admitted that he did look to see if there were people present at the time he rode off on the Longboard and, indeed, that he saw people there. “Q Okay. But there were people playing basketball at the basketball courts at Glenbrook there. You saw that? A Actually, when I was running to it I didn't see them and they didn't say anything. When I turned to look I saw somebody, but they didn't say anything at the time, so -- Q Well, you were running and you just hopped on the skateboard and left? A Yes. Q Okay.

You didn't announce, "Hey, I'm just gonna take this skateboard that's lying here," you didn't say that? A Yeah, well, I didn't see anybody. Q You just ran, jumped on and left? A Yes. Q Right? Okay. And very soon afterwards there were two guys chasing after you for the skateboard or the longboard, isn't that right? A I didn't have -- I wasn't on it when they were chasing me.

I left it and then they came up to me …” ( Trans. , August 9, 2013, pp. 8- 9) [ 23 ] Based in part upon his own admissions made during the course of cross-examination I find that, contrary to his initial contention, J.D. did see Complainant A.S and his friends playing basketball approximately 10 feet from the Longboard when he (J.D.) climbed onto it. I further find that he was aware of their presence as potential owners of the Longboard as he rode away on it. How Far did J.D.

Ride the Longboard? [ 24 ] J.D. testified in chief twice that, after he climbed onto the Longboard, he travelled only 15-25 feet before kicking it into the grass: Trans. , August 9, 2013, p. 5. This evidence is important because—given my earlier finding that J.D. was aware of the presence nearby of Complainant A.S. and his friends as likely owners at the time he rode off on it—it goes to the mens rea element in stealing offences of an intention to deprive a rightful owner of his or her property.

Arguably, the longer and farther J.D. travelled on the Longboard knowing of the existence of a likely rightful owner of it, the more inconsistent his conduct with the possessory rights of that owner became. [ 25 ] Here again, J.D. gave inconsistent accounts concerning an important fact and, thus, further injured his credibility. Contrary to his sworn testimony given during his direct examination that the distance he rode the Longboard was 15 to 25 feet, J.D. conceded in cross-examination that that distance was at least 100 feet: Trans. , August 9, 2013, p. 10. While almost always some allowance is made

for error in the estimation of distances by lay witnesses, a revised estimate that is 400% to 700% greater that an initial estimate in my mind transcends mere error. [ 26 ] Clearly, the initial estimate was given in order to minimise the significance of the taking.

In corroboration of J.D.’s concession that the distance ridden was at least 100 feet, the burden of the evidence of Witness A.H. was that the distance J.D. rode the Longboard was a good deal farther than 15-25 feet and, arguably, farther even than 100 feet: Trans ., June 11, 2013, pp. 5-6 (direct) and 10-11 (cross). [ 27 ] I find, accordingly, that after he climbed onto the Longboard, J.D. rode it a distance of not less than 100 feet. Did J.D.

Verbally Threaten to Cause Serious Bodily Harm with a Knife to Complainant A.S.? [ 28 ] In the testimony he gave in chief in his own defence, J.D. flatly denied that he did or said anything on the offence date to threaten the Complainant A.S. or anyone, either with a knife or otherwise: Trans. , August 9, 2013, p. 7. That denial remained essentially unshaken during cross-examination by Mr.

Yip. [ 29 ] The Crown evidence regarding what was said and done during the heated confrontation when Complainant A.S. and Witness K.V. attempted, without success, to recover possession of the Longboard from J.D. and his friends is to a markedly different effect. [ 30 ] I begin with the evidence of Complainant A.S.—the named complainant in the Information. He gave clear testimony in chief that when the confrontation escalated, J.D. reached for his pocket and, at the same time, said he would “stab or cut” him and Witness K.V.

Complainant A.S. explained that, though he saw no knife, he nevertheless took what J.D. had said seriously and that it led him and Witness K.V. to “back off” and leave the scene of the confrontation without the Longboard in order to avoid being hurt. “Q Okay. What next happens? A [Witness K.V.] was getting more frustrated and just started yelling, and then [J.D.] threatened with a knife, and that's when I told [Witness K.V.] we should just back off. Q Okay. Now, what -- what did he -- what did he say about a knife? A He said that he would like cut us or stab us. Q Okay. Did you see a knife at all?

A I did not see a knife, but he was reaching for his pocket at that time. Q Okay. So he's reaching for his pocket at that time. When was it in relation to the comment about he would cut us or stab us? A It was right after. Q Did you take that comment seriously? A Yes, I did. Q What were you concerned about? A I just didn't want to get hurt. Q Okay. So what did you do? A I just told [Witness K.V.] we should back off, and then -- so he agreed, and we walked back and I called my parents.” ( Trans ., June 11, 2013, p. 42) [ 31 ] During a close and pressing cross-examination, Mr.

Farmer succeeded in having Complainant A.S. acknowledge that he did not recall the specific words that J.D. had used when he “threatened [him and Witness K.V.] with a knife”. However, Complainant A.S. was firm and unyielding throughout that cross-examination in his insistence that it was J.D. who spoke those words, that they were threatening words, and that the threat referred to the use of a knife: Trans. , June 11, 2013, pp. 48-49. [ 32 ] Complainant A.S.’s testimony in this important area was corroborated, though not perfectly corroborated, by the testimony of Witness K.V.

His evidence-in-chief was similar to that of Complainant A.S. in that he made use of the word “stab” when describing J.D.’s threat once the confrontation began to escalate. “Q Okay. Now, the argument over the longboard, what -- how did that -- how did that end? A He threatened to stab us, so we just -- we were like, "Keep the longboard." Q Okay. When you say "he" who -- A [J.D.]. Q Okay, and what did he say, or what did he do? A He -- he motioned at his pocket, and then he said that -- he threatened us about stabbing us.

Q Okay. A So we just -- we let it go. Q Okay. You mentioned he motioned at his pocket. Did you ever see something that you might be stabbed with? A No. Q Okay. But in terms of the motioning the pocket and the comment about stabbing, what -- in your mind, were you concerned? A Yes. Q Okay, and what were you concerned about? A I didn't want to get hurt over a longboard, so I just let it go.” (Trans., June 11, 2013, pp. 17-18) [33] During an equally close and pressing cross-examination, Mr.

Farmer did unintentionally elicit some answers that wereconsistent with and fortified the evidence Witness K.V. gave in this regard during his examination-in-chief. For example: “Q All right. Just to clarify, my friend was asking, in terms of when the -- the individual motioned to his pocket, the comment aboutstabbing, how long after was the motion to the -- the pocket? A It was during. Q Okay. And it was as a result of that, you backed away? A Yes.” (Trans., June 11, 2013, p. 20, emphasis added) [34] However, Mr.

Farmer also elicited answers that not only confirmed that Witness K.V. could not specifically recall any knife-related words used by J.D. during the course of the alleged threatening, but that also established that Witness K.V. may not have recalledthe actual content of J.D.’s utterance at all but, rather, only inferred that a threat to stab him and Complainant A.S. had been made basedon the fact that J.D. had motioned to his pocket with his hand and, in response, he and Complainant A.S. had retreated from theconfrontation to safety: Trans., June 11, 2013, pp. 23-25, 28-29, and 33-37. [35] As I have mentioned, after the very effective cross-examination conducted by Mr.

Farmer, the evidence of Witness K.V. wascertainly weakened. He went from giving specific evidence of recalling a verbal threat employing the word “stab” to acknowledging thepossibility that he may have inferred that J.D. threatened to injure him and Complainant A.S. with a knife from his decision, andComplainant A.S.’s, to retreat to safety when, in the course of a lot of noisy shouting on both sides J.D. motioned to his pocket with hishand.

But, that said, Witness K.V.’s evidence under cross-examination nevertheless remained broadly consistent with the testimony ofComplainant A.S. whose more precise recollection embraced the same outline of events as that reflected in Witness K.V.’s testimony butalso included an unshaken recollection of J.D.’s words, accompanied by a gesture of his hand to his pocket, that threatened knife-relatedactions like cutting and stabbing. [36] The Crown witnesses’ evidence also resonates better than does that of J.D. with what one might expect in circumstances whereComplainant A.S.—having been dispossessed of a valuable piece of his property and having taken forceful steps, with a friend, torecover it— suddenly abandoned his effort to regain possession of the Longboard: see Faryna v.

Chorny, (BC CA),[1951] B.C.J. No. 152 (C.A.) at para. 11. Their behaviour of giving up and retreating to safety bespeaks a dramatic escalation in the riskprofile of the situation that Complainant A.S. and Witness K.V. faced—a much more dramatic escalation than someone brandishing theLongboard over his shoulder would produce in my judgment. A stabbing or cutting threat would, undoubtedly, change the landscapecompletely and raise the risk profile to an intolerable level for any person with a reasonable concern for his or her own safety.

Nocomparable factor capable of raising the risk profile and explaining the sudden change of heart of Complainant A.S. and Witness K.V.about recovering the former’s property figures in the testimony of J.D. [37] Based on this assessment of the evidence, I find as a fact that—while motioning to his pocket with his hand—J.D. uttered wordsto Complainant A.S. that conveyed the meaning that he intended to cut or stab him (and possibly Witness K.V.) with a knife. R. v. W.D.

CONCLUSIONS [38] The law concerning credibility determinations is well settled and defined in the protocol set out by the Supreme Court ofCanada in R. v. W.D. as augmented by the B.C. Court of Appeal in R. v. H.(C.W.), (1991), (BC CA), 68 C.C.C. (3d)146 (C.A.). [39] Under that protocol: (

a) If I believe the exculpatory evidence of J.D., I must acquit him; (

b) If, after a consideration of all of the evidence I am unable to decide whether to believe the exculpatory evidence of J.D. or theCrown witnesses, I must acquit J.D.; (

c) If I do not believe the exculpatory evidence of J.D., but am left in reasonable doubt by it, I must acquit him; and (

d) Even if I am not left in reasonable doubt by the exculpatory evidence of J.D., I must ask myself whether—on the basis of theevidence I do accept—whether I am convinced beyond a reasonable doubt by that evidence of his guilt. [40] As can be seen, the credibility issues in this case have fallen to be determined pursuant to the fourth step in the augmented R. v.

W.D. protocol. [ 41 ] It should be obvious from my findings with regard to the contentious facts that, for the specific reasons I have given above, I did not find J.D.’s exculpatory testimony to be believable. I simply did not believe him when he testified under oath that he was involved in a game of tag and climbed onto the Longboard and innocently rode away on it for a very short distance as part of that game. I did not believe his denial that he did not see any potential owners of the Longboard nearby when he boarded it and rode away on it, thinking it had simply been abandoned.

And I did not believe his denial that he said he would injure Complainant A.S. and his friend, Witness K.V. with a knife if they persisted in their efforts to recover possession of the Longboard from him and his friends. [ 42 ] As I have stated, J.D.’s exculpatory evidence was often contradicted by contrary admissions he made against his own interests, sometimes in his direct evidence and sometimes under cross-examination.

Those admissions occasionally came as the result of the slips and stumbles back into truthfulness that are often seen when an accused, like J.D., seeks to mislead the court with false testimony. Some of the admissions came as the result of careful and effective cross-examination by Mr. Yip. Those admissions, coupled with the not perfect but generally reliable and trustworthy evidence of the Crown witnesses, opened a window onto the true facts in this case. The exculpatory evidence that J.D. gave in his own defence was so plainly false and unreliable that I am able confidently to reject it. To be clear for R. v.

W.D. purposes, J.D.’s exculpatory evidence was not only unworthy of belief; it was also not capable of raising in my mind a reasonable doubt in any of the areas to which that exculpatory evidence was material. ANALYSIS RE: THE CHARGE OF ROBBERY Intent to Deprive [ 43 ] Robbery and theft are both stealing offences, that is, offences that entail non-consensual taking. Theft is thus an element of, and an included offence within, the offence of robbery. The relevant portions of

section 322 of the Criminal Code provide that “[e]very one commits theft who fraudulently and without colour of right takes … anything … with intent … to deprive, temporarily or absolutely, the owner of it … of the thing …” and that “[a] person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved …”. [ 44 ] That there was a non-consensual taking from Complainant A.S., by J.D., of his property—the actus reus of any stealing offence —is not really disputed.

As I indicated at the beginning of these reasons, the controversy for present purposes is whether the mens rea element in a stealing offence—that is, an intention to deprive the rightful owner of his or her property—has been proven before me beyond a reasonable doubt. [ 45 ] Mr.

Farmer submits that the testimony given by J.D. in his own defence should raise, in the court’s mind, a reasonable doubt concerning the mens rea requirement of robbery (and of the included offence of theft) of an intent to deprive Complainant A.S. of the Longboard. [ 46 ] Based on the facts as I have found them, seen in the context of the applicable law, I disagree. [ 47 ] J.D. plainly took the Longboard without the consent of its owner.

He rode it at least 100 feet before disembarking from it at a point where it was dark and where he and the Longboard could not be seen from the basketball court where he first mounted it. By his own admission J.D. did so having seen, immediately after boarding it, that there were people at the basketball court that could reasonably have been the Longboard’s owners. [ 48 ] At a certain point, more than 100 feet away from where he initially took the Longboard, he stepped off it. One of his friends picked it up.

When Complainant A.S. and Witness K.V. demanded its return, J.D. denied that he had it, claimed to know nothing about it and denied as well that he and his friends had it, even though one of them was holding it in plain view. When pressed further by Complainant A.S. and Witness K.V. for the return of the Longboard, J.D. threatened to cut or stab them and motioned to his pocket with his hand, causing them to retreat to safety. [ 49 ] All of J.D.’s behaviour as recounted above is wholly inconsistent with Complainant A.S.’s possessory and other rights concerning the Longboard (which was Complainant A.S.’s property).

Unquestionably J.D. “moved” the Longboard for the purposes of s. 322(2). J.D.’s actions were the operative cause of Complainant A.S. being first dispossessed of the Longboard. J.D., after all, is the person who climbed onto it and rode away on it. J.D.’s every action thereafter, beginning with his continued movement further and further away from the basketball court knowing that likely owners were there, incrementally perfected the deprivation. That evidence reinforces my conclusion that he had the requisite intent to deprive Complainant A.S. of the Longboard—certainly temporarily and, arguably, permanently.

That conclusion is further strengthened and solidified (if it need be strengthened and solidified) by the denials and active (and, ultimately, violent) resistance that J.D. raised to the efforts of the Longboard’s rightful owner to recover possession of it.

Those denials and that resistance were, again, entirely inconsistent with Complainant A.S.’s stated ownership rights vis à vis the Longboard and entirely consistent with a continuing intention on J.D.’s part to keep him out of possession of it. [ 50 ] In my view, the necessary mens rea was established when J.D. continued to ride the Longboard away once he was aware of the presence of its likely owners at the very place from which he had taken it.

J.D.’s further actions, some of which occurred while one of his friends had actual physical possession of the Longboard, compound the proof of mens rea because those actions contributed to the barring of access by Complainant A.S. to his property. They thus evinced a continuing intention on J.D.’s part to play a continuing role in sustaining the deprivation that he himself had initiated. [ 51 ] In some respects, what has been said by J.D. in his testimony and then said by his counsel, Mr. Farmer, in submissions, has the look and feel of a colour of right defence.

By referring to the Longboard as being apparently abandoned, J.D. invokes the notion that it had no reasonably apparent owner and that, accordingly, no deprivation could result from its taking. Beyond being unmaintainable at law (see, for example, R. v. Higginbotham , [1988] P.E.I.J. No. 54 (S.C. – T.D.) ), that contention is easily scotched on the facts. The Longboard’s owner, Complainant A.S., and his two friends, Witness A.H. and Witness K.V., were playing basketball no more than 10 feet away from where the Longboard was sitting before it was taken.

J.D. cannot say, in these circumstances, that throughout he had an honest belief that the Longboard had no rightful owner. He asks too much when he asks the court to accept that he did not see

Complainant A.S. and his friends when he (J.D.) climbed on the Longboard and road off but, even if he did not, by his own evidence he saw them very soon thereafter and a short while later those same individuals approached, demanding its return. Those demands were met with denials, refusals and threats.

No colour of right defence based upon allegedly apparent abandonment of the Longboard can be made out by J.D. against the background of those facts. [ 52 ] J.D.’s answers to questions put to him both in his direct and cross-examinations revealed that he believed he had a measure of control over the activities of his friends in relation to the continued withholding of the Longboard. And, importantly, he confirmed that, notwithstanding his having that measure of control, or possible control, he had no intention whatsoever of facilitating the return to Complainant A.S. of the property that he, J.D., had first taken.

That, surely, is further compelling evidence of a subsisting intention to deprive of the kind contemplated by s. 322 . [ 53 ] Here is J.D.’s testimony during in his examination-in-chief on the subject of the residue of control he had over the Longboard, even after it had passed into his friend’s physical possession: “Q Did you ever feel you could've taken [the Longboard] from [the friend] and returned it?

A In a sense, yes, but, also, I didn’t want to -- I didn’t want it to be my problem, I guess, ‘cause I wasn’t -- in my -- as it wasn’t my intention in taking it, it wasn’t my problem, I guess, so I didn’t really bother with it. Q Did you play any

part in -- in what happened with that skateboard after you threw it in the grass? A No. After that [the friend] went home and he kept it, I guess.” ( Trans. , August 9, 2013, pp. 7-8, emphasis added) [ 54 ] And here is what J.D. had to say about the absence of any intention on his part even to “lift a finger” to see that the Longboard he had taken and that he then knew belonged to one of his challengers was restored to its rightful owner. “Q I see. Okay. So you would agree you were responsible for taking that longboard? A I -- yes. Q Okay. And [the friend] continued to keep that longboard? A I -- yes, I guess.

Q Okay. And you are the one that took it from that location, so didn't you have a responsibility to actually give it back to the people that say you took it from them? A Well, I didn't know that I -- it was theirs until they confronted me. Q Okay. And once they confronted you they said it was theirs, you didn't do anything to give it back to them, did you? A No, I didn't have it on my -- in my hands, so there's not a whole lot I could do. Q Your friend was standing right there with it in his hands. You could easily have just go up and give it to them, but you didn't, did you? A No.

Q So you took it, but you didn't lift a finger to give it back, did you? A No. Q You had no intention of giving it back to them, did you? A No.” ( Trans. , August 9, 2013, pp. 17-18) [ 55 ] For all of the foregoing reasons I am satisfied that the Crown has proven, to the criminal standard, that J.D. acted with the requisite intent to deprive Complaint A.S. of the Longboard—that is, his actions coexisted with the state of mind necessary to make out a case against him for a stealing offence.

Temporal Sequence and Proximity of the Threatening Behaviour and the Non-consensual Taking [ 56 ] On the facts as found, J.D. took the Longboard from its position alongside the fence at the basketball court and rode away on it without having any interaction, threatening or otherwise, with Complainant A.S. or either of his friends. Threatening did occur, but a short time later and in a different location at least 100 feet away from the site of the taking.

The threat to cut or stab Complainant A.S. and, perhaps, Witness K.V., was made by J.D. in response to their efforts to retrieve the Longboard from him and his friends. [ 57 ] On the binding authority of R. v. Jean , [2012] B.C.J. No. 2406 (C.A.) , that temporal sequence takes the facts of this case outside the ambit of the offence of robbery and the definition of the same set out in s. 343 of the Criminal Code . In this regard Finch C.J.B.C. (Garson and Harris, JJ.A., concurring) stated the following, at para. 26: “Robbery within the meaning of s. 343 (

a) therefore requires the use of violence or threats of violence in the course of, and for the purpose of, taking whatever it is that is being stolen. In other words, the violence or threat must occur before or contemporaneously with the theft : R. v. Newell , 2007 NLCA 9 at para. 32 .”

[58] Mr. Yip sought to urge upon the court a “continuing transaction” analysis of J.D.’s conduct, such that the violence that occurredwhen the threat was made could be treated as being coextensive with the taking, thus forming a single criminal event as it were. However, the court in Jean itself was faced with a similar argument and rejected it, in part on the authority of R. v.

Downer (1978), (ON CA), 40 C.C.C. (2d) 532 (Ont.C.A.): see Jean at para. 29ff. [59] I conclude, accordingly, that because the threatening came later in the chronology than did the taking, the Crown has not madeout a case of robbery against J.D. However, I do also note that the facts proven by the evidence adduced in the case against J.D. aresufficient to support a conviction of him of the included offence of theft under s. 322. For greater certainty I say that I have concludedthat the Crown has proven theft by J.D. of Complainant A.S.’s Longboard beyond a reasonable doubt.

ANALYSIS RE: THE CHARGE OF UTTERING A THREAT [60]

Section 264.1(1)(

a) provides that “[e]very one commits an offence who, in any manner, knowingly utters, conveys or causesany person to receive a threat … to cause death or bodily harm to that person”. The case law has glossed that language to require that thethreatened harm in question be “serious bodily harm”: see R. v. Clemente, (SCC), [1994] 2 S.C.R. 758. [61] The reasons of Cory J. (for the court) in Clemente provide helpful guidance to trial judges concerning the analysis they mustmake of the proven facts in cases like the case at bar. At paras. 8 and 9, his Lordship states: “8

Section 264.1(1)(

a) is directed at words which cause fear or intimidation. Its purpose is to protect the exercise of freedom of choiceby preventing 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. 9 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 orspoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harmto a reasonable 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.” [62] Earlier in these reasons I have written that I have found as a fact that—while motioning to his pocket with his hand—J.D.uttered words to Complainant A.S. that conveyed the meaning that he intended to cut or stab him (and possibly Witness K.V.) with aknife.

He uttered those words at a time when a confrontation, arising out of Complainant A.S.’s attempt (with Witness K.V.’sassistance) to recover possession of Complainant A.S.’s Longboard, taken earlier by J.D., had begun to escalate. [63] I have no hesitation in concluding that, when viewed in the factual context just described (including the contextual fact of thegesture J.D. made with his hand toward his pocket), that utterance would have conveyed to any reasonable person a threat of seriousbodily harm.

Any stabbing and cutting with a knife that is done in anger manifestly has potentially life-threatening implications for thevictim. [64] Moreover, on the proven facts I also have no hesitation in concluding that the subject utterance was a threat that J.D. intendedComplainant A.S. and his friend, Witness K.V. to take seriously. J.D. and his friends were faced with unwanted pressure fromComplainant A.S. and Witness K.V. to recover possession of the Longboard. The situation had all of the hallmarks of a confrontationthat could soon degenerate into actual physical violence.

J.D. knew that a threat to cut or stab the individuals applying that unwantedpressure could cause that pressure to abate and the risk of a violent confrontation to pass. As it happens, J.D.’s objective was realised. Both Complainant A.S. and Witness K.V. responded to the threat by immediately retreating to safety. As Witness K.V. put it, “I didn’twant to get hurt over a longboard so I just let it go”: Trans., June 11, 2013, p. 18. [65] For all of the foregoing reasons, I am satisfied that the case against J.D. on the charge of uttering a threat has been provenbeyond a reasonable doubt.

DISPOSITION AND ORDER [66] Applying the applicable law to the facts as found I find J.D.: (

a) As to Count 1, not guilty of the offence of robbery contrary to s. 344 but guilty of the included offence of theft, contrary to s. 322(1)

(a); (

b) As to Count 2, guilty of the offence of knowingly uttering a threat to cause death or bodily harm to Complainant A.S., contrary to s. 264.1(1); and (

c) As to Count 3, not guilty of the offence of having in his possession a weapon, a knife for a purpose dangerous to the public peace or for the purpose of committing an offence, contrary to s. 88(1), by consent. [ 67 ] Order accordingly. ______________________ Thomas S. Woods, P.C.J.