R. v. Sherwood Date:, 2016 BCPC 74

Citation: R. v. Sherwood Date: 20160301 2016 BCPC 0074 File No: 36943-1 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TROY SHERWOOD ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: N.S. Bennet Counsel for the Defendant: B. Movassaghi Place of Hearing: Port Alberni , B.C. Date of Hearing: March 1, 2016 Date of Judgment: March 1, 2016

[ 1 ] THE COURT: Troy Sherwood faces two allegations on Information 36943. On Count 1 there is an allegation that he did commit assault of another person, a Randall Brown, contrary to s. 266 of the Criminal Code , on or about the 28th of May, 2015, at or near Port Alberni, Province of British Columbia. On Count 2 is an allegation that at the same time and place he did knowingly utter a threat to Randall Brown to cause death or bodily harm to Randall Brown. That is contrary to s. 264.1(1) of the Criminal Code .

Crown has proceeded summarily on this case. [ 2 ] The allegations arise out of an incident between the accused and Mr. Randall Brown. Mr. Sherwood is hereinafter referred to as the “Accused” and Mr. Randall Brown is hereinafter referred to as the “Complainant”. The events took place at a residence which had been rented to the Accused's girlfriend, Tanya Laforge, in the fall of 2014. The arrangement remained in place until sometime close to the dates of this event. However, from the evidence there were numerous disputes between the Complainant and also through Ms. Laforge with the Accused.

THE EVIDENCE [ 3 ] The evidence before me which I do accept is that there was an order made pursuant to the Residential Tenancy Act for the Accused and Ms. Laforge to give up vacant possession of the premises. The evidence is somewhat unclear as to how that had proceeded, but in the evidence of the Complainant it is asserted that there was some $6,500 of rent owed. The evidence of the Accused and Ms.

Laforge is that monies had been paid previously to a property manager engaged by the Complainant and that the only monies that were left owing were monies that had accrued and withheld as a result of alleged breaches by the landlord Complainant in terms of the quiet enjoyment and possession of the premises rented by Ms. Laforge and by the Accused. [ 4 ] The evidence before me is that the Complainant, together with a friend, namely Mr. Robert Nadig, arrived at the rental premises around morning or midday, in order to view the premises to see if the Accused and also Ms. Laforge had given up the vacant possession.

At the time of arrival the Complainant was driving his vehicle. Mr. Nadig was sitting in the passenger seat. Upon arrival at the premises the evidence which I have heard from Mr. Nadig is that he recognized the parents of the Accused, Mr. and Mrs. Sherwood Senior. He had known them since he was a young child and he got out and spoke to them briefly and then continued the discussion while he sat in the vehicle with the Complainant seated beside him in the driver's seat. [ 5 ] The next thing that occurred according to the evidence produced by Crown, including that of the Complainant and Mr.

Nadig, was the arrival of the Accused on the scene. He very quickly became engaged in a verbal exchange with the Complainant. That verbal exchange and the events subsequent to the initiation of the exchange were captured on a video recording which was made by the Complainant with the aid of a cellphone. The discussions that took place, if they can be characterized as such, were highly provocative on the part of both the Complainant and the Accused.

There is no other way of characterizing it, as the words used were extremely profane, uncalled for, and highly provocative on the part of two middle-aged gentlemen, if I can describe them as that, in an exchange of epithets back and forth to the point where the situation became somewhat out of control. The words used by the Complainant were very personal in their nature and were directed at the Accused in front of his mother. The words were uncalled for in every sense of the word and they were words which would not be considered appropriate in any set of circumstances.

The fact that they were very personal in their nature and directed at the Accused while his mother was close and present and able to hear them made them that much more hurtful and unnecessary. [ 6 ] The video recording also captured certain discussions taking place between the Accused and the Complainant which referenced the dispute taking place with respect to the rental property. There is also some suggestion in the exchange between the parties that the Complainant had been at the premises earlier on and had caused distress to Ms. Laforge. In fact, Ms.

Laforge had testified that upon the departure of the Accused earlier that morning from the premises that the Complainant had arrived on the scene, had dumped garbage at the front door and had thrown bricks at her and caused her great anxiety. That caused her to make a phone call to the Accused and report the incident to him. It was in response to that series of events, which are rejected in part by the Complainant, that the Accused arrived at the scene. [ 7 ] I do accept that there was garbage left on the premises. It is less clear as to what was the nature of the brick incident. There is a suggestion that Ms.

Laforge felt threatened by bricks being deployed in her direction by the Complainant. However, there is some uncertainty as to the proximity of those bricks and any potential injury to her. Notwithstanding the fact that there is the reference in the video to that event, the discussion primarily between the Accused and the Complainant was to the effect that the Complainant wanted the Accused to depart from the rental premises immediately. [ 8 ] The verbal exchange continued back and forth at which point a number of comments were made by the Accused to the Complainant which went beyond the mere exchange of insults.

The first comment which can be noted at approximately 47 to 50 seconds of the video were words directed by the Accused to the complainant to the effect of, "Get out before I hurt you." At approximately one minute and five seconds there is a further comment which started with the words directed by the Accused to the Complainant, "You have an order to get out", to which the Complainant responded, "From who?" And then the response from the Accused captured on the video were words to the effect, "From me because I will kick the fucking shit out of you." [ 9 ] Then there is a physical altercation that takes place which I will describe later which gives rise to the allegation of the assault in Count 1; thereafter is a continuing exchange of language that gives rise to the charges on Count 2.

The Accused on the video can be heard saying words to the effect as follows, "Everyone I talk to wants to take you out for me. I say no, no, no, I will do it myself. Don't worry, boy, it's coming.

You won't see it coming." That was the final threatening statement or alleged threatening statement made by the Accused to the Complainant and shortly after that I am told that the parties departed from each other's company. [ 10 ] Preceding the last comment was a further confrontation which had the Accused with his head inside the passenger window looking very sternly at the Complainant and with his finger pointing at the face of the Complainant. That location was not exactly apparent from the video recording which was created.

The video recording was taken from the perspective of the phone being held at a lower location, possibly in the lap of the Complainant, and hence it was capturing events as they appeared looking up from

approximately the waist level of the complainant to the Accused. In that portion of the video it is clear that there is a high level of anger on the part of the Accused, but being egged on by the Complainant in terms of the responding words that he was providing. [ 11 ] All of this was taking place while the witness, Robert Nadig, was sitting with his arm up in the window and the mother of the Accused standing in close earshot making observations of the events that were unfolding in front of them.

The Accused's mother, Dorothy Sherwood, certainly was able to see the engagement of the parties, but her view, as determined from the location of the video, indicated that at various points she did not have a clear view of what transpired when the Accused placed his hand inside the vehicle. When I say placed his hand inside the vehicle, the video clearly displays that his arm reaches inside in an extended motion with a fist that was closed.

It passes through the camera frame and then out of the view of the camera’s range, but clearly aimed at the area which would be consistent where the face and head of the Complainant were located. [ 12 ] The explanation given by both the Accused and Ms. Sherwood was to the effect that this was an attempt on the part of the Accused to grab the phone which was being held from the Complainant and which was being utilized to photograph the proceedings. The location of the phone that was completing the video recording was certainly much lower than the area where the arm of the Accused was directed.

The evidence that I have from the Complainant is that his face was struck by the hand of the Accused when it came into contact with an area in the approximate location of his nose. Mr. Nadig, who was seated immediately beside the Complainant, but who was not directly observing the location of the hit, said he heard a sound consistent with the hand of the Accused striking the face in the area of the nose and cheek of the Complainant. The evidence of Mr.

Nadig of the actual contact occurring is based both upon the noise that he heard and from the observation of a small welt appearing in the facial area of the Complainant. That situation gives rise, of course, to the allegation of the assault that is contained in Count Number 1. [ 13 ] The evidence is that subsequent to the unhappy events occurring at the rental accommodation the Complainant and Mr. Nadig left the premises and drove to the police station where a statement was eventually provided to Constable Marciano. She is a member of the local RCMP detachment.

She took audio statements from the complainant and Mr. Nadig. She followed up with the receipt of the video recording from the Complainant. She produced a report to Crown counsel that was eventually reviewed and charges were approved in this matter. THE APPLICABLE LAW [ 14 ] In s. 266 of the Criminal Code of Canada provision is made for an offence on the following terms under the heading "Assault": 266 Every one who commits an assault is guilty of (

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

b) an offence punishable on

summary conviction. As I noted above, Crown proceeded summarily with respect to the charge of assault in this matter. [ 15 ] Under s. 265 of the Criminal Code provision is made to deal with what amounts to an assault and also deals with certain provisions concerning consent. Under s. 265 it reads as follows: 265(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose ... Subsection (2) of s. 265 specifies that the definition of assault contained under subsection (1) applies to a number of offences, including the offence that is before the court. Subsection (3) of s. 265 provides as follows:

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (

a) the application of force to the complainant or to a person other than the complainant; (

b) threats or fear of the application of force to the complainant or to a person other than the complainant; (

c) fraud; or (

d) the exercise of authority. The provisions of s. (3) are not germane to the matter before me. Subsection (4) provides as follows:

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief. [ 16 ] The Criminal Code also provides certain defences that may be available to various offences under the Criminal Code . These defences are generally referred to as the self-defence provisions.

Section 34 of the Criminal Code reads as follows: 34(1) A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made

against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person fromthat use or threat of force; and (

c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstancesof the person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use offorce; (

c) the person's role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of forceand the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person's response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [17]

Section 264.1(1) of the Criminal Code provides as follows: 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; (

b) to burn, destroy or damage real or personal property; or (

c) to kill, poison or injure an animal or bird that is the property of any person.

(2) Every one who commits an offence under paragraph (1)(

a) is guilty of (

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

b) an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months.

(3) Every one who commits an offence under paragraph (1)(

b) or (c) (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. As noted above, the Crown has proceeded summarily on the charge under s. 264.1(1). CREDIBILITY AND W.(D.) [18] In this case I have heard evidence that is conflicting on material matters. Therefore, I must assess the credibility of thewitnesses who provided this conflicting evidence.

In doing so, I must weigh all of the evidence and so weighing the evidence I mayreject or accept some or all of the witness's testimony after having taken into account a multitude of factors which include, but are notlimited to, appearance or demeanour, ability to perceive, ability to recall, motivation, probability or plausibility, and internal or externalconsistency. I must also direct myself that even honest witnesses may make mistakes in their evidence or have errors of recollection, ormay present upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony.

It is an error incases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another (see R. v. Jackson, 2007BCSC 636; see also R. v. Mann, [2010] A.J. No. 1094). [19] In cases such as the present case where the accused has testified, the Supreme Court of Canada in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, sets out a proposed model for a trial judge to instruct a jury or present to themselves if there is no jury. Atparagraph 28 the Supreme Court stated as follows: First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[20] The supplemental test enunciated by the British Columbia Court of Appeal in R. v. C.W.H., (BC CA), [1991]B.C.J. No. 2753, adds a fourth step to the W.(D.) analysis, namely; if after considering all of the evidence the court is unable to decidewhom to believe with respect to the central issue in a prosecution, then the accused must be acquitted.

Josiah Wood, J.A., as he thenwas, suggested that logically this ought to be the second in order in the W.(D.) analysis. [21] It is important to instruct myself that the W.(D.) model is not intended to be a precise formulation to be used at all times or toachieve a level of sanctity or immutable perfection. I must further instruct myself on the main point that the burden never shifts from theCrown to prove every element of the offence beyond a reasonable doubt, and a lack of credibility on the part of the accused does notequate to proof of his or her guilt beyond a reasonable doubt (see R. v.

S.(J.H.), 2008 SCC 30 , [2008] 2 S.C.R. 152). It is alsoimportant that I instruct myself that the burden never shifts and if self-defence is raised as a defence in matters of this nature, the Crownstill bears the burden to demonstrate that self-defence does not apply or should not apply to the case at hand. CROWN'S POSITION WITH RESPECT TO THE ASSAULT CHARGE [22] Crown says that although there may be some conflict in the evidence that the evidence of the Crown witnesses, namely theComplainant and Mr. Nadig, is to be preferred over the evidence of both the Accused and the other defence witnesses.

In particular,Crown says that the assault has been made out within the meaning of the definition of assault contained in the Criminal Code, which Ihave noted above. [23] Crown rejects the position advanced by the defence that s. 34(1)(

a) to (

c) is applicable to the present set of circumstances. TheCrown says that there was, first of all, no reasonable grounds to suggest that force was being used against either the Accused or that athreat of force was being made against him or another person; second, with respect to subsection 34(1)(

b) that the evidence is clear thatthe offence was not committed for the purposes of defending or protecting either the Accused or another person from the use of threat orforce; and (c), that even if it were, the act was not reasonable in the circumstances. [24] In this situation Crown points to the fact that there is a video which captures a great deal of the events as they unfolded. Thesituation caught by the video clearly shows that the Accused was reaching into the car. Crown asserts that it is incredible to suggest, ashas the Accused, that he was reaching in to grab a phone.

Crown points out that there was no mention made of a phone by the Accusedin his examination in chief until such time as on cross-examination the viewpoint of the phone as being down towards the waist of thecomplainant became apparent. At that point it is suggested by Crown that the further excuse was then offered that there was somethingin the hand of the complainant or the existence of another phone. [25] The second thing that the Crown points to is the fact that the video shows in fact that the Accused was reaching inside in amanner which was consistent with him using a closed fist to strike at the Complainant.

The point that I noted when I was viewing thevideo was that at the time that the Accused's arm was extended, it was being done in a fashion such that the Accused was not watchingwhere he was reaching for; this makes it somewhat unlikely that he was trying to grab a phone, but rather was more appropriately seekingto use his closed fist to strike at the Complainant who was seated at least a passenger seat way.

The Crown points to the evidence of Mr.Nadig who was a more independent witness who heard the contact of the hand of the Accused on the face of the Complainant, hence theapplication of force occurred and based on the evidence of the Complainant, that was not a force that he had consented to. [26] Crown asserts that the contact was not trifling in nature and did not amount to a de minimis situation as is advanced by defence.

The Crown also points out that the full context of this action by the Accused was that of a heated exchange which was taking place andthe exchange of significant insults between the parties and the threatening comments made and directed by the Accused at theComplainant. Hence, Crown says that it is satisfied beyond a reasonable doubt that the assault occurred. CROWN'S POSITION WITH RESPECT TO THE THREATS OF CAUSING DEATH OR BODILY HARM CONTRARY TOS. 264.1(1) OF THE CODE [27] Crown relies on the case of R. v. McRae, [2013] 3 S.C.R. 68. That case is a decision of the Supreme Court of Canada.

It is theseminal case dealing with charges under this

section of the Criminal Code. The proposition for which this case is presented is asfollows, and I am quoting from the headnote: The actus reus of the offence of uttering threats will be made out if a reasonable person fully aware of the circumstances in which thewords were uttered or conveyed would have perceived them to be a threat of death or bodily harm. The Crown need not prove that theintended recipient of the threat was made aware of it, or if aware of it, that he or she was intimidated by it or took it seriously.

Nor mustthe words be directed toward a specific person; a threat against an ascertained group of people is sufficient. The mens rea of the offence is made out if the accused intended the words uttered or conveyed to intimidate or to be taken seriously. It isnot necessary to prove an intent that the words be conveyed to the subject of the threat or that the accused intended to carry out the threat.A subjective standard of fault applies.

However, in order to determine what was in the accused's mind, a court will often have to drawreasonable inferences from the words and the circumstances, including how the words were perceived by those hearing them. Crown also draws the court's attention to paragraph 11 of the R. v. McRae decision which reads as follows: 11 The starting point of the analysis should always be the plain and ordinary meaning of the words uttered.

Where the words clearlyconstitute a threat and there is no reason to believe that they had a secondary or less obvious meaning, the analysis is complete.However, in some cases, the context reveals that words that would on their face appear threatening may not constitute threats within themeaning of s. 264.1(1)(a) (see, e.g., O'Brien, at paras. 10-12). In other cases, contextual factors might have the effect of elevating to thelevel of threats words that would, on their face, appear relatively innocent (see, e.g., R. v.

MacDonald (2002), (ONCA), 166 O.A.C. 121, where the words uttered were "You're next"). [28] With respect to the uttering threats, Crown points to the three separate utterances made by the accused in the course of theexchange with the Complainant. Crown says that based on the tests outlined in R. v. McRae that it has satisfied the requirements forproving the actus reus of the offence and that they have also proved the mens rea of the offence. Crown says that based on that test they

need not prove that the threats were being taken seriously by the Complainant, but only that the Accused intended that they be taken seriously by the Complainant. The Crown says that clearly the comments were made in a repeated fashion to intimidate the Complainant into leaving the location of the rental accommodation and departing from the scene. [ 29 ] Crown does agree that there was a significant amount of strong language being exchanged between the parties and an amount of name calling, and then the physical response taken by the Accused, all in the context of a highly conflicted situation.

However, the Crown does say that with respect to the assault it goes beyond a de minimis situation, and with respect to the uttering threats it goes beyond a mere exchange of harsh words between the parties and has crossed the line into criminal conduct. ACCUSED'S POSITION WITH RESPECT TO THE ASSAULT ALLEGATION [ 30 ] Defence's starting submission is that there was not an assault that took place. The basis for that is that it was not evident from the video and also from the evidence of Mrs. Sherwood and of the Accused that he did not make contact.

This it is submitted should be accepted by the court and would therefore make any contact that took place to be trifling or de minimis or at the lowest possible end. Therefore, the starting position is that what took place was a very minor physical exchange by two individuals of an adult age who were acting like children and were fuelled by and engaged in what defence described as a testosterone-driven argument. The suggestion is that Ms.

Sherwood had a good view of the events that took place and that she did not observe the landing of any blow; there was a further suggestion made that the evidence of the Complainant should be disregarded and also that of Mr. Nadig should not be accepted given the fact that he was not directly watching where the hand of the Accused landed or reached out towards. Hence, I am being asked to reject the notion that an assault has occurred within the definition of the Criminal Code . [ 31 ] An alternative argument is raised and that is that there should be available a defence based on s. 34 of the Code .

The essential elements of that defence are that the behaviour of the complainant towards Ms. Laforge earlier on in the day and consistently throughout the relationship between Ms. Laforge and the Complainant, which included, on the basis of evidence provided by Ms. Laforge, significant harassment and untoward behaviour towards her would be enough to engage the provisions of s. 34(1) (

a) of the Criminal Code , or, in the alternative section, 34(1)(

b) of the Criminal Code . [ 32 ] In that regard I then must look at the provisions and the relevant factors that are set out in s. 34(2). The suggestion being made is that notwithstanding that the potential threats being made to Ms. Laforge as a person captured by s. 34(1) (

a) were not immediately imminent, they were imminent enough that the response utilized by the Accused in this case is defensible. Also I am asked to consider a number of the other factors that are set out in s. 34(2) which would include: (

f) the nature, duration and history of the relationship between the parties to the include, and including any prior use of threat or force and the nature of that threat or force or threat, and (f.1) any history of interaction or communication between the parties or the incident. The submission essentially relies upon the dysfunctional and somewhat poisoned relationship between the tenants and the landlord which came to a head with the matters that took place on May 28, 2015.

ACCUSED'S POSITION WITH RESPECT TO THE UTTERING ALLEGATIONS [ 33 ] Defence's submission is that the utterances that were made by the Accused were not sufficient in order to meet the test as outlined in R. v. McRae .

Again some emphasis is placed on the fact that what we really have here is the untoward exchange on a mutual basis between two individuals with a highly conflicted relationship; that the actus reus of the offence has not been made out by Crown based on the test of a reasonable person fully aware of the circumstances in which the words were uttered would have perceived them to be a threat of death or bodily harm.

In this case it is said that the full context was a trading of insults and nothing that approached the uttering of threats. [ 34 ] In the alternative, if the actus reus has been made out, the mens rea of the offence has not been made out on the basis that there was really no intention to intimidate or to be taken seriously in this set of circumstances, but rather simply should be viewed again in the context of a highly conflicted mutual exchange of insults between the two parties.

Hence, I am being asked by the Defence to dismiss both the charges of the assault as well as the uttering threats on the basis of the Crown has failed to discharge its burden of proof on these two charges. [ 35 ] Furthermore with respect to the assault charges, defence has relied upon, for an appropriate application of the W.(D.) analysis , the decision of R. v. Galligos , a decision of Judge Flewelling of the Provincial Court, Campbell River Registry, file number 39820-2-C; and with respect to the issue of uttering threats, defence has relied upon the decision of Judge Gouge in R. v. Scarpino , 2014 BCPC 62 .

ANALYSIS - THE ASSAULT ALLEGATION AND CHARGE [ 36 ] The evidence before me on the issue of the assault conflicts on some points. The existence of the video becomes the background against which much of the evidence can be reviewed and assessed. I accept the evidence of the Crown provided by both the Complainant and Mr. Nadig that there was intentional physical contact by the Accused with the face of the Complainant. I reject the evidence of the Accused that he either missed the face or that he was simply attempting to reach to grab something out of the hand of the Complainant.

Much of what is evident from a review of the video shows that there was a closed not an open hand purportedly attempting to grab, and whatever he may have thought he was trying to grab at was not readily evident to him by reaching somewhat blindly into the vehicle and extending his arm in a rapid fashion.

This is more consistent with attempting to strike the Complainant rather than to grab something from the hand of the Complainant. [ 37 ] With respect to the argument raised in submissions that this action was part and parcel of an attempt to extract something or knock something away from the hand of the Complainant, I note that the definition of assault would capture such an action on the part of the Accused. Essentially it would fall within what can be described under s. 265(1)(

b) as an attempt or threat by

an act or a gesture to apply force to another person if he has present ability to effect its purpose. In any event there was clearly a blow received by the

Complainant in this matter. [38] I do acknowledge that the actions of the Complainant were highly provocative. However, provocation does not provide adefence in this situation. As noted in R. v. Tran, 2010 SCC 58 , [2010] S.C.J. No. 58, provocation is the only defence which isexclusive to homicide under our Criminal Code, and that provision is found under s. 232 of the Criminal Code. [39] With respect to whether or not a defence is available under s. 34 of the Criminal Code as is submitted by defence, I am of theview that Crown has satisfied the burden to demonstrate that the defences are not available.

In this case there was not an imminent threatof force towards Ms. Laforge. There clearly were a number of historical factors between the Complainant on one hand and Ms. Laforgeand the Accused on the other. Had there been a closer nexus between the assaultive behaviour of the Accused and the behaviour that hadbeen demonstrated by the Complainant previously towards Ms. Laforge based on her recounting of the facts, then those incidents mayhave in that set of circumstances been more appropriate to offer up a form of defence.

However, when I take into account the factors setout in s. 34(2), notwithstanding the history of interaction and the other factors set out therein, the steps that were taken by the Accused inthis case certainly were disproportionate to the immediate threat to Ms. Laforge. [40] I do acknowledge that there is evidence on the part of the Complainant that he felt threatened when he went to the rentalpremises. I prefer the evidence of and the explanation offered by Ms. Laforge as to the series of events that she experienced while beinga tenant at the residence.

They make more sense of the circumstances, but unfortunately for the Accused did not provide a sufficientbasis for a defence under s. 34(1) and, based on the factors considered, under s. 34(2). At the time that the Accused was physicallyresponding, he was doing so as part and parcel of having significantly lost his temper and self-control and was reacting in a mannerbeyond what would be considered to be a proportionate response. [41] Therefore, with respect to Count 1 of committing assault, I find the Accused guilty on that particular charge.

ANALYSIS WITH RESPECT TO UTTERING THREATS [42] The decision on this particular charge is in my mind more challenging. Again I have to consider the full context of theexchange between the Complainant and the Accused. The circumstances were highly untoward on the part of each of them.

However,when I take into account the statements that were made by the Accused to the Complainant, I am satisfied that Crown has provencertainly the actus reus of the offence and that the words meet the test that a reasonable person fully aware of the circumstances in whichthe words were uttered or conveyed would have perceived them to be a threat of death or bodily harm. [43] In that regard I am of the view that the comments and in particular the third comment was really a threat of retaliation andvengeance.

Whereas the first two may have fallen more within the category of a testosterone-fuelled exchange of insults, the thirdutterance certainly went far beyond that and by its very nature fell within the context of uttering a threat to cause death or bodily harm ascontemplated by s. 264.1(1) of the Criminal Code. [44] The second part of the analysis, then, must be whether or not the mens rea has been made out by Crown. In that regard I notethat the test is whether or not the accused intended the words uttered or conveyed to intimidate or to be taken seriously.

I accept Crown'ssuggestion that the clear reason for the use of the language by the Accused, although made in a moment of high anger, was to have theannoying Complainant leave the scene immediately. In that regard it is not necessary for the Crown to prove an intent that the words beconveyed to the subject of the threat or that the accused intended to carry out the threat. [45] Crown has met the subjective standard of fault that applies here as set out in R. v.

McRae, namely the court will often have todraw reasonable inferences from the words and the circumstances, including how the words were perceived by those hearing them. Inthis regard I am satisfied that the mens rea element has been made out. Accordingly, I am convicting Mr. Sherwood of uttering a threatto the Complainant to cause death or bodily harm contrary to s. 264.1(1) of the Criminal Code. (REASONS CONCLUDED)