R. v. Watts Date:, 2017 BCPC 233

Citation: R. v. Watts Date: 20170627 2017 BCPC 233 File No: 37635-KC-2 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JASON COLIN WATTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: N. Bennet Counsel for the Defendant: B. Movassaghi Place of Hearing: Port Alberni , B.C. Date of Hearing: June 26, 2017 Date of Judgment: June 27, 2017

The Issues [1] Mr. Watts faces a six-count indictment. I presided at his preliminary inquiry on June 26, 2017. [2] Counts #2, #3 and #5 arise from threats alleged to have been uttered by Mr. Watts to Ms. Borgford. It is conceded that theevidence at the preliminary inquiry was sufficient to allow a jury to convict on those counts, and that Mr. Watts should be committed fortrial on those counts. [3] Count #1 alleges that Mr. Watts used a weapon in the course of assaulting Ms. Georgina Borgford “… between the 1st day of August, 2013 and the 31st day of October, 2013 …”: Criminal Code,

section 267(a). The Crown seeks leave to amend that count toallege that the assault occurred between January 1, 2012 and December 31, 2014. [4] Count # 4 alleges that Mr. Watts harassed Ms. Borgford, and that his conduct on September 27, 2017 caused her to fear for hersafety: Criminal Code,

section 264. The issue is whether there is any evidence upon which a jury, properly instructed, could convict onthat count. [5] Count # 6 alleges that Mr. Watts uttered to Ms. Borgford a threat to kill Ms. Borgford’s dog: Criminal Code,

section 264.1(1). Mr. Watts asserts that the dog was a family asset (Family Law Act SBC 2011, c 25, sections 81 - 84). The issue is whether Mr. Watts’asserted property interest in the dog would preclude a conviction on this count. Count #1: The Date of the Offence [6] Ms. Borgford and Mr. Watts cohabited in an intimate relationship from 1994 to 2016. During her evidence at the preliminaryinquiry, Ms. Borgford described an incident during which Mr. Watts threw a pot of mashed potatoes at her. The pot struck her on thethighs, leaving significant bruises.

She said that she thought the incident occurred about 3 years ago, but it might have been 4 or 5 yearsago, “… somewhere in there …”.

She thought that the incident occurred in late winter or early spring, but “… I’m honestly not sure …”. [7] The indictment alleges that the offence occurred between August 1 and October 31, 2013. [8] Section 581(3) of the Criminal Code provides: A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information withrespect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence orinsufficiency of details does not vitiate the count.

Were I not bound by authority, I would conclude that an indictment which alleges a single incident, said to have occurred somewhere in a3-year span of time, fails “… to give to the accused reasonable information with respect to the act or omission to be proved against himand to identify the transaction referred to …”, and that I should refuse the Crown’s application for leave to amend for that reason: R. v.WCW [2000] MJ No. 327. However, I cannot reconcile the reasoning in R. v. WCW with the judgment of the British Columbia Court ofAppeal in M(DR) v.

British Columbia (Attorney-General) (BC CA), [1988] BCJ No. 2042; 31 BCLR (2d) 137; 45CCC (3d) 185. I respectfully agree with Justice Southin’s observation that the result of M(DR) is unpalatable, but I am bound to followit. For that reason, I am obliged, with great reluctance, to allow the amendment sought in this case. [9] Ms. Borgford’s evidence at the preliminary inquiry, if accepted by a jury, would be sufficient to support a conviction on thiscount, as amended. Count #3: Harassment [10] Ms. Borgford said that Mr.

Watts sent her many harassing messages, accusing her of infidelity and causing her to believe that hewas stalking her as she went about her daily business. [11] Section 264(1) of the Criminal Code provides: No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person isharassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear fortheir safety or the safety of anyone known to them. Ms. Borgford’s evidence, if accepted by a jury, would be sufficient to establish that Mr.

Watts engaged in conduct of the kind describedin subsection 2 for an extended period of time prior to the end of October, 2016. [12] The culminating event in the relationship between Mr. Watts and Ms. Borgford occurred in the latter part of October, 2016,when Ms. Borgford heard Mr. Watts speaking on the telephone late one evening. He told the person at the other end of the line that heintended to get a chainsaw and cut off Ms. Borgford’s head. Ms. Borgford said that, until she heard that, she had resisted the suggestionsof friends and family that she report Mr.

Watts’ behaviour to the police, but that the reference to the chain saw convinced her that herfriends and family might be right, and that the matter had escalated to the point where police involvement might be prudent. She saidthat, before the mention of the chain saw, she was never afraid for her safety, but that, after she heard the mention of the chain saw, “Ibecame frightened to some degree”. [13] The indictment alleges that Mr. Watts committed

an act “… on or about September 27, 2016 …” which caused Ms. Borgford tofear for her safety. Ms. Borgford’s evidence is that the act which caused her to fear for her safety occurred in the last week of October,2016.

[14] Mr. Bennet submits that Mr. Watts may be committed for trial on this count, despite the disparity between the date alleged inthe indictment and the date established by the evidence. He relies upon R. v. B(G) (SCC), [1990] 2 SCR 30. Idisagree. In R. v. B(G), the trial judge refused leave to amend an information to conform to the evidence in relation to the date of theoffence.

The Supreme Court of Canada held that the trial judge erred in refusing the amendment because section 601(4.1) of theCriminal Code (and the common-law jurisprudence which preceded it) provide that a discrepancy between the date alleged in anindictment and the date established by the evidence is not a material factor on an application to amend. Of course, I accept that principle,as I am bound to do. However, it has no application here, because there is before me no application to amend this count of theindictment. [15] The indictment in this case alleges that Mr.

Watts did something on September 27, 2016 which caused Ms. Borgford to fear forher safety. Ms. Borgford said that the first event which caused her to fear for her safety was the telephone call about the chain saw,which occurred in the last week of October. She said that Mr. Borgford engaged in harassing behaviour during September, but that it didnot cause her to fear him. [16] In the circumstances described, a jury, properly instructed, could not convict Mr. Watts of the offence alleged in the indictment. Count #6: The Threat to the Dog [17] Ms. Borgford said that she purchased the dog, fed it and cared for it.

She regards the dog as hers. [18] Mr. Watts says that: a. the dog was a family asset, as defined in the Family Law Act; b. in consequence, he had a property interest in the dog; and c. for that reason, he cannot be convicted of threatening to kill it. [19] Without expressing any final opinion on the point, it seems to me that Mr. Watts’ submission depends on the proposition that aspouse has a proprietary interest in family assets throughout the relationship, before any triggering event has occurred. Komori v. Malins[1996] BCJ No. 1921 would appear to contradict that proposition. [20] In my opinion, Mr.

Watts’ argument in relation to this count fails for a more fundamental reason.

Section 264.1(

c) of theCriminal Code provides that it is an offence to utter a threat to kill “… an animal or bird that is the property of any person …”. Assuming, without deciding, that there is an implicit exception to

section 264.1(

c) in relation to animals which are the sole property ofthe accused, no such exception could possibly be implied in relation to animals jointly owned by the accused and another person. Itcannot be imagined that Parliament intended to authorize the wilful destruction of property held jointly. Disposition [21] Count #1 will be amended by deleting the words “… between the 1st day of August, 2013 and the 31st day of October, 2013 …”, and substituting the words “… between the 1st day of January, 2012 and the 31st day of December, 2014 …”. [22] Mr. Watts will be committed for trial on counts 1, 2, 3, 5 and 6. [23] Mr.

Watts will be discharged on count #4. June 27, 2017 ________________________ T. Gouge, PCJ