R. v. Gibbon Date:, 2015 BCPC 89

Citation: R. v. Gibbon Date: 20150420 2015 BCPC 0089 File No: 40073-C-4 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TRACY DEBORAH GIBBON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. W. CALLAN Counsel for the Crown: T. Bauman Counsel for the Defendant: F. Fatt Place of Hearing: Prince George , B.C. Date of Hearing: March 12 & 13, 2015 Date of Judgment: April 20, 2015 BACKGROUND

[ 1 ] At 9:40 AM on the morning of April 18, 2014, Cst. Johnston and Cst. Paul of the Prince George RCMP attended at [omitted for posting] to investigate a call that there had been a home invasion, robbery, and assault. They attended the property where they met Mr. D. W. and Ms. S. S., two of the occupants of this house who reported on the morning’s events. [ 2 ] As a result of the investigation by the police the Accused, Tracy Gibbon, was charged with offenses concerning being unlawfully in a dwelling house, robbery, assault causing bodily harm to Mr. W., uttering threats to Mr W. and his unlawful confinement.

The Crown advised the Court that the charge of robbery was not being pursued. [ 3 ] The Defence conceded that Ms. Gibbon was unlawfully in a dwelling house and that while her actions would lead to a conviction for assault there was not sufficient evidence to prove a charge of assault causing bodily harm against her. The Defence contended that Ms. Gibbon had not committed the offences of unlawful confinement or uttering threats either as a principal or a party. [ 4 ] The Crown argues the Court should view the events of the morning of April 18 as a whole transaction and that there is evidence to convict Ms.

Gibbon without trying to parse out Ms. Gibbon’s activities during the events that morning. [ 5 ] Defence counsel argues that the Crown argument is too technical. What the Court must look at is the reliability of the evidence against Ms. Gibbon. The Defence says the Court must carefully analyse the credibility of the witnesses, D. W. and S. S., who are both admitted users of crack cocaine. After such analysis, the Court would reach the conclusion that there is no tangible proof against Ms. Gibbon concerning the charges of unlawful confinement, assault causing bodily harm and uttering threats.

ISSUES [ 6 ] The questions for the Court to consider are as follows: 1. Credibility of the witnesses; 2. Whether the Crown has proven that Tracy Gibbon committed the offense of unlawful confinement of D. W.; 3. Whether Tracy Gibbon had uttered threats of death or bodily harm to D. W.; 4. Whether Tracy Gibbon had committed an assault causing bodily harm as against D. W. DISCUSSION The events of April 18, 2014 [ 7 ] At some point before 9:30 on the morning of April 18, Ms. Gibbon’s son, Kyle Stevens, her daughter, Cherrisse Labre, and Ms. Labre’s boyfriend Andrew Woodcock, knocked on the door of Mr.

W.’s residence at [omit]. When Mr. W. opened the front door, the trio said they wish to inspect the belongings Tracy Gibbon left behind in the house when she was evicted for failure to pay rent the previous February. (Mr. W. testified the arrears of rent is in the amount of $2,300.00.) [ 8 ] As Mr. W. opened the door to admit their entry, three more people who had been hiding behind a cedar bush just outside the front door (depicted in photo 18 Exhibit 1) forced their way into the home. These people, who Mr. W. did not know, have been described as follows:

a) a tall well-built Aboriginal man in his 20’s who was called Sam by the others;

b) a Caucasian male younger than Sam, but still large in stature;

c) an Aboriginal female in her twenties. [ 9 ] From the evidence I conclude the six people then split into two groups. Mr. Woodcock, Sam, and the other unknown male remained upstairs where they confined Mr. W. in the living room. [ 10 ] The other three people went to the downstairs bedroom of Ms. S. S. where Ms. Gibbon’s goods were being stored. They began removing Ms. Gibbon’s goods out of the house and into waiting trucks outside the residence. Credibility of Witnesses [ 11 ] The Crown’s two main witnesses are Mr. D. W. and Ms. S. S. The Defence argues that the Court should put little reliance on their testimony for three reasons.

[ 12 ] First, Mr. W. and Ms. S. both testified they use crack cocaine. Mr. W., who will soon be 65 years old, said he used it sometimes but denied being addicted. Ms, S. said she was a crack user, but her use was rare due to lack of money. The Defence adduced evidence from both these witnesses to argue [omit] was a crack house. In other words, the place where people addicted to crack cocaine could buy and use cocaine and “hang out”. The Court heard evidence that Ms. Gibbon was a trafficker in crack cocaine. Mr. W. admitted that after Ms.

Gibbon was evicted from the house for not paying her rent, the downstairs bedroom was rented to a woman named P. S. Mr. W. admitted she too was dealer of crack cocaine. [ 13 ] The Defence argues that Mr. W. was, at the time, in such dire straits for money because of his crack addiction, he would rent his bedroom for $40.00 a night to people who wanted sex with prostitutes but wanted to save money on the motel room. While he rented his bedroom, Mr. W. would spend the night on the loveseat in the living room. The Defence summed up the lifestyle of Mr. W. and Ms.

S. as “what we have in this house are crack addicts acting like crack addicts.” [ 14 ] The second reason to discount the evidence of Ms. S. is the difference in detail between her statement to the police on the day of the incident and her more detailed testimony at the trial. [ 15 ] The Defence pointed out in cross-examination and argument that when Ms. S. gave her statement to the police after they arrived at the house, her interview was only seven minutes long. This statement is much less detailed than her testimony in Court which the Defence argues should therefore be considered unreliable.

The Defence urges the Court to infer that Ms. S.’s testimony has been embellished, or at least, become confused due to subsequent conversations she and Mr. W. had about the events. [ 16 ] The Defence also points out Ms. S. did not tell the police that she was afraid at that time. Further, her statement leaves out many details of what occurred that morning, things which the Defence states are important. [ 17 ] The third point the Defence raises is that the Court should focus on the evidence of Mr. D. K. Mr.

K.’s evidence does not support the Crown and, in fact, much of his evidence is contrary to that provided by Ms. S. Mr. K.’s testimony indicated he did not hear anything and he did not see anything untoward. [ 18 ] I have considered these arguments and this is what I conclude. First, I will address the evidence of Mr. K. He came to Court because he was subpoenaed. He testified he was aware something was wrong in the house and that Mr. W. looked beat up when he came downstairs. He saw that Mr.

W. was bleeding and had scratches and bruises on his face. [ 19 ] In answer to many of the questions asked him by the Crown, Mr. K. said he could not remember. When asked “what do you remember” in reference to Mr. W.’s torn and dishevelled clothing, Mr. K. said he was not sure. He stated he would not be able to recognize any of the people who had come into the house. He did not hear yelling or screaming. [ 20 ] I came to the conclusion from Mr. K.’s answers that he definitely did not wish to be in Court and he did not wish to be involved in this process at all.

I agree with the Crown that his manner and delivery of his evidence was that of someone who wanted to keep their head down. I do not find his evidence reliable except for a couple of points where he is corroborated by Ms. S. [ 21 ] I have considered the arguments made about Ms. S.’s evidence and, in particular, the detail in which she has given her evidence. Pressed in cross-examination why she did not take the time to give Cst. Johnston the kind of detail she testifies to now, she said she was told by Ms. Gibbon not to call cops.

She said she knows what happens to “rats”; that is people who do cooperate with the police. Ms. S. testified the basis for her fear was that Mr. W. had called the police about incidents in the house some 57 times previously to April 18 and “he still got beat up”. [ 22 ] I have to consider she testified she had seen Mr. W. beaten and bloody. She had watched a group of people come downstairs into her room and remove Ms. Gibbon’s belongings. They took Ms. S.’s belongings as well. When she protested, she was told “we are taking everything, you can find your shit later”!

I therefore infer that she did not want to be seen standing in the street talking to a police constable given what this group of people had done to Mr. W. I do not think Ms. S. is the first witness to provide additional information in Court over and above a pre-trial statement to the police or sworn testimony in an examination for discovery. That is not sufficient reason to discount her testimony. [ 23 ] No expert evidence was presented by the Defence that would help the Court to determine if crack addicts are dishonest by nature. I accept the arguments that Mr. W. and Ms.

S. gave evidence to the Court that minimized their use of crack cocaine, however, that has not formed a basis to identify any glaring inconsistencies in the evidence of either witness. [ 24 ] Having found the witness testimony reliable, I accept as fact the following: 1. Ms. Gibbon’s belongings, and belongings of Mr. W. and Ms. S., were removed from the house. Mr. W. testified that some of his tools were missing. Ms. S. pointed out to the intruders that they were taking her belongings along with those of Ms. Gibbon; 2. Ms. Gibbon even demanded that Ms. S. remove her pants as Ms.

Gibbon claimed the pants were hers; 3. Sam had a walkie-talkie and was coordinating the loading of the trucks; the trucks were subsequently piled high to the roof with the goods from downstairs; 4. Cherrisse Labre was carrying out a function as a timekeeper. At one point she told the other intruders that they only had ten minutes left until the police might arrive; 5. Mr. Woodcock had a Taser that he used on Mr. W. Mr. W. testified no current was delivered when Mr. Woodcock fired the weapon at him; 6.

Sam and the unknown male spent most of their time standing guard at the front door and the sliding door into the backyard;

7. Mr. Woodcock administered three severe beatings on Mr. W. The first assault included a kick in Mr. W.’s chest as he sat on the chesterfield. This was followed by more blows to his head after Mr. W. was moved to the loveseat in the living room; 8. Mr. W. was hit in the head with a toy piano by Kyler Stevens; 9. Mr. W. was later punched in the head and face by Tracy Gibbon. The injuries suffered in these attacks are documented in the photo book at Exhibit 1, pages 38-44 and 57-59. Ms. S. and Mr. K. testified observing Mr. W.’s injuries after Ms. Gibbon and the others left the house; 10. Ms. Gibbon’s sent Mr.

W. to the bathroom to clean himself up because there was blood on his face. While in the bathroom, Mr. W. was attacked by someone who threw him into the bathtub and punched him several times. Mr. W. did not see who his assailant was as he was covered with the shower curtain. He recognized the gloves worn by his assaulter as being the same kind worn by Mr. Woodcock; 11. Ms. S. describes one group of people removing boxes from downstairs. Mr. W. saw through the living room window Mr. Woodcock, Ms. Labre, Mr. Stevens and the Aboriginal woman loading the pickup trucks with boxes. Ms.

S. also testified the goods taken from the house were loaded onto three waiting pickup trucks. The cabs of the trucks were loaded to the roof. [ 25 ] I conclude from these facts: 1. The home invasion was well planned from the ruse used to enter to the house to the use of walkie-talkies and pick-up trucks to haul Ms. Gibbon’s belongings away; 2. Mr. W. testified that Mr. Woodcock, Sam and the unknown male kept him upstairs. I infer that they were positioned at the doors to control entry to the house and prevent Mr. W. from leaving. It was also a method of intimidation; 3. Ms.

Gibbon attended the house approximately thirty minutes after the others entered the home. According to Mr. W. she banged on the door and said “let me in” and she was admitted into the house. Mr. W. heard this as he was sitting in the loveseat depicted in the picture at page 22 of Exhibit 1; 4. The assaults on Mr. W. were gratuitous. He did not resist the entry of the above described persons into his home. He was compliant with Mr. Woodcock`s instructions. Ms. Gibbon joins in and assaults Mr. W. when she arrives, punching him in the face and head. She punched him hard enough that she hurt her hand; 5.

I note that Ms. S. and Mr. K. were told to stay out of the way if they did not wish to be hurt. They remained seated downstairs and kept out of the way and were never assaulted. Mr. Gunter Dzuilball, another resident of the house, remained in the dining room during the whole episode. He has since died. There is no evidence of him being assaulted. Mr. W. only was beaten and guarded and not even permitted to get up and get a cigarette. Gunter was allowed to bring him a cigarette with Sam’s permission. Mr. W. was singled out for special consideration by Ms. Gibbon and Mr. Woodcock; 6. When Ms. Gibbon sent Mr.

W. to the bathroom to clean his face it was to make him look more presentable in case the police came to the door. [ 26 ] I conclude the beatings of Mr. W. were part of the strategy of intimidation. Mr. W. had called the police before as Ms. S. had testified. Mr. W. was beaten so he would be too scared to call the police. To underline the point, Mr. W. was specifically told by Ms. Gibbon not to call the police. [ 27 ] Mr. W. was so shaken he testified he did not know who called the police, but the testimony from Ms. S. is that that he went to a neighbor’s home and called the police from there. [ 28 ] Mr.

W. testified his injuries from the beatings were:

a) broken and knocked out teeth;

b) fractured sternum and fractured ribs;

c) cuts bruises and scratches. THE LAW [ 29 ] Now I turn my mind to the law concerning these offences. The Criminal Code of Canada provides: 21. [1] Everyone is a party to the offence who (

a) actually commits a crime;

(

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it. [30] The case of Regina v Cook, 2015 BCSC 301, the decision of the Honourable Madame Justice Fitzpatrick dealt with the issue ofparties. [31] Her Ladyship writes at paragraph 137: As noted in the above quote the application of 21 (1),in respect of a joint attack by the accused [resulting in a murder in that case] wasdiscussed by Madame Justice Ryan in R. v Rojas 2006 BCCA 193 , 2006 BC CA 193 at paras 40 – 71, aff”d on other grounds2008 SCC 56.

Ryan J.A. emphasized that section 21(1) represents various potential routes to conviction and that those routes should bedelineated where the accused role is “unambiguous”: para. 46. However she further stated: [46] The difficulty is that there are many occasions where the basis of liability cannot be separate because either the parties themselveshave not behaved in that way or their roles in the crime are not clearly defined. 138 The Court makes clear the obvious comment that mere presence is not sufficient to ground a conviction: R v Rojas at paras 68-69. Nor can

section 21 be applied when the participation by the accused as opposed to the degree of participation is what is ambiguous: [50] It is important to note here that in what is being discussed is ambiguity relating to the role of each accused played in the crime notwhether the accused participated at all. [140] Ryan J.A. addressed the basis on which the accused may be co-perpetrators as actual committers of an offense under section 21(1)(

a) of the Criminal Code even though each has not performed every act which constitutes the actus reus ( i.e. the stabbing) of theoffense: para 23. Ryan J.A. further stated: [24] The conclusion is logical when two people rob a bank with a gun, only one person can carry and point the weapon, and it may bemore convenient for a second, not occupied with a weapon to scoop up the cash. The robbers have not individually performed all theelements of the offense yet both of committed the crime in the sense they are co- perpetrators.

There is no need in such a case to turn toaccessory accessorial principles to determine guilt. So also with an attack by two or more on two (or more) victims - an attacker maystrike only one victim while the other strikes the second or they may all strike both. The attackers are all actual committers. Again thereis no need to resort to accessorial principles to find a basis for conviction [25] Where two persons commit a crime as co-perpetrators it may be the case they have agreed to do so before embarking on theendeavor. For purposes of liability under section 21(1) (

a) of the Code however, agreement to carry a common purpose is not necessary.The question is whether there is an indication of common participation not a common purpose. [27] In such a case the Crown need only prove that the individuals engage in whatever action they took with the requisite intent. [32] Her Ladyship writes further: [141] Wedge J., in R. v. Haevischer, summarizes the law as follows: [672] it follows that in the circumstances where there is participation in a common criminal design with the requisite intent and jointachievement of that, design, all were present at the crime committed as co-perpetrators under

section 21 [1] [a] without proof that eachaccused actually struck the blow or fired the shots that killed the victim.

ANALYSIS [ 33 ] From the evidence I conclude there were two objectives in the home invasion. The first was the removal of Ms. Gibbon’s personal effects and other goods from the house. The other objective was the intimidation and assault on Mr. W. Unlawful confinement [ 34 ] Mr. W. could not leave his house due to the guards at the front and back doors of his home. He was not even allowed to leave the loveseat where he had been ordered to sit by Mr. Woodcock. When he wanted a cigarette, he was not allowed to get up to get one.

Another resident of the house, Gunther (who is now deceased) was allowed by his captors to bring him a cigarette. [ 35 ] Mr. W. was directed by Ms. Gibbon to go to the bathroom to clean himself up after she had hit in the face and head. [ 36 ] When Ms. Gibbon attends the property she takes control of Mr. W.’s movements, telling Mr. W. to go to the bathroom and clean himself up. This was so he would look presentable if he had to go to the door and meet the police. In other words, Ms. Gibbon took

part in the unlawful confinement of Mr. W. to the upstairs in the house. Uttering threats [ 37 ] Mr. W. testified that as he goes to the bathroom, Ms. Gibbon says, “don’t call the police, or I will kill you”. [ 38 ] On cross-examination, Mr. W. admits that maybe she did not say “or I will kill you” but that is how he understood the message. As he stated in cross-examination, “don’t call the police” carried an implied threat that could, at worst, mean winding up in the Fraser River. The effect of Ms. Gibbon’s words was to intimidate Mr. W. with a threat of more harm. [ 39 ] When he went into the bathroom on Ms.

Gibbon’s direction, Mr. W. was attacked and beaten again by Mr. Woodcock. After this assault, he hears talking outside the door to the bathroom. The plan is to tie the door shut and burn the house down. As there was no window in the bathroom, Mr. W. was afraid he would be burned alive. [ 40 ] Within the context of the home invasion and in the greater background of the drug activity in the house, I accept the Crown’s submission that the words “don’t call the cops” carries an implied threat. This was certainly Mr. W.’s understanding of the warning. This was part of the process to intimidate Mr.

W. from taking any action once Ms. Gibbons and the others had left the house. In reasons written by Mr. Justice Cromwell and Mr. Justice Karakatsanis: To sum up, the fault element of the offence is made out if the accused intended the words uttered or conveyed to intimidate or to be taken seriously. It is not necessary to prove an intent that the words be conveyed to the subject of 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 draw a reasonable inferences from the words and circumstances, including how the words were perceived by those hearing them.(R v McRae 2013 SCC 68 at para 23 ). Assault Causing Bodily Harm [ 41 ] I find the series of beatings inflicted on Mr. W. to be part of the intimidation process. I cannot discern on the facts who caused what injury to Mr. W.’s face and teeth but I accept from the evidence that he was injured and bleeding after the assaults by Mr. Woodcock and Ms. Gibbon.

I note Exhibit 1, photos 1-5 that show the blood on the bathroom fixtures and the torn shower curtain referred to in Mr. W.’s description of the assault. Mr. W.’s blood can also be seen on the photos at page 25 and 26 of Exhibit 1 which shows the blood stains on the sheepskin on the loveseat. CONCLUSION [ 42 ] From the evidence there is no dispute as to the date, location of the events, nor Ms. Gibbon’s identity an issue. [ 43 ] The invasion of Mr. W.’s home at [omit] was an ongoing transaction. It is not possible to separate different segments of activity. One of the purposes of Ms.

Gibbon and the other people who were unlawfully in Mr. W.’s home was to intimidate and inflict physical harm on Mr. W., so he would not call the police after they left the house. [ 44 ] To this end I accept that he was unlawfully confined and that Ms. Gibbon participated in this unlawful confinement. Ms. Gibbon’s assault on Mr. W. was one of five such assaults. I find Ms. Gibbon’s is a co-perpetrator in the assaults against Mr. W. along with Mr. Woodcock and Mr. Stevens. These assaults left physical injury that is not trivial or trifling, injuries for which she too is responsible. [ 45 ] I also find that Ms.

Gibbon uttered threats to Mr. W. not to call the police. There was the implied condition that Mr. W. understood that he would come to further harm if he did call the police. [ 46 ] Given the admission made by the Defence at the beginning of the trial, the Court finds Ms. Gibbon to be guilty of being unlawfully in the dwelling house. Given the admission of the Crown, I find Ms. Gibbon not guilty of the charge of robbery. [ 47 ] I find Tracy Gibbon to be guilty of unlawful confinement of D. W., guilty of assault causing bodily harm on Mr. W. and guilty of uttering threats to Mr. W.

___________________ R. W. Callan Provincial Court Judge Province Of British Columbia