R. v. Fallowfield Date:, 2016 BCPC 300

Citation: R. v. Fallowfield Date: 20160607 2016 BCPC 300 File No: 41463-2-KC Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOHN WILLIAM FALLOWFIELD ORAL REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. BRECKNELL Counsel for the Crown: A. Norlund Counsel for the Defendant: K. Jones Place of Hearing: Prince George , B.C. Date of Hearing: June 7, 2016 Date of Judgment: June 7, 2016 THE COURT: This is my decision on File Number 41463-2-KC, R. v. Fallowfield.

Introduction [ 1 ] The defendant, John Fallowfield, faces seven counts on Information 41463-2-KC, arising from events on February 24 and 25, 2015, including:

a) counts 1 and 5, uttering threats;

b) counts 6 and 7, disobeying a court order;

c) counts 2 and 3, criminal harassment; and

d) count 4, threatening conduct. [ 2 ] At the end of the trial Mr. Fallowfield acknowledged his guilt on counts 6 and 7. Evidence [ 3 ] During the trial, two voir dires were conducted resulting in the admission of additional evidence. Those voir dires were on:

a) prior discreditable conduct by Mr. Fallowfield towards Ms. S., the complainant, in which the court permitted most but not all of the evidence of such conduct; and

b) the reliability of Constable Plant's recollection of statements allegedly made by Mr. Fallowfield while being transported in the police vehicle to the detachment, which the court permitted to be included as admissible evidence. However, a voluntariness voir dire was not conducted. [ 4 ] With regard to the latter point of Constable Plant's interaction with Mr. Fallowfield, his evidence can be summarized as follows:

a) He was involved in Mr. Fallowfield’s arrest at his residence;

b) He transported Mr. Fallowfield to the detachment in his police vehicle -- a ten minute drive;

c) During the drive, Mr. Fallowfield commented in a sarcastic tone about his dealings with the RCMP at the time of the arrest.

d) Mr. Fallowfield also said words to the effect of: 1. He would not harm his ex; 2. He would "beat the shit" out of anyone seeing his ex; 3. He would "do whatever he had to do" if that person confronted him; and, 4. He believed that person was a cop. [ 5 ] Constable Plant said he made his notes of the conversation about one hour later, relying on his memory of what was said. [ 6 ] Mr. Fallowfield gave evidence in this voir dire .

He initially denied, he would say, the words attributed to him, but later in his evidence acknowledged that he could not even recall conversing with Constable Plant. [ 7 ] Constable MacNeill also gave evidence. She was the lead investigator on the file and she led the team that arrested Mr. Fallowfield. Constable MacNeill took a statement from Ms. S. at the time of the events, describing her demeanour as soft-spoken, frightened and genuinely concerned for her safety. [ 8 ] J.S. gave evidence. She is a 37 year old mother of three children that she shares with Mr. Fallowfield. Their ages are 19, 13 and 11.

She stated that there is much affection between the children and Mr. Fallowfield and he sees them regularly. [ 9 ] She said that she and Mr. Fallowfield had a very tumultuous long-term relationship which ended when they separated in December, 2013, a decision that she made and acted upon. [ 10 ] She described Mr. Fallowfield as having a bad temper and when he was angered, which was often, he would be verbally, emotionally and mentally abusive, but that it never extended to physical assaults. She described her life as "walking on eggshells". Often during his angry outbursts Mr.

Fallowfield would threaten to get his gun and cause harm to himself, or others. [ 11 ] After their separation in December 2013, Ms. S. and the children moved to her parents' residence for a period of time. She described that period to include Mr. Fallowfield making numerous telephone calls to the residence and generally "keeping an eye on me", to the point that she was scanning to see if he was close by whenever she was out in public. [ 12 ] In February of 2014 Ms. S. began dating again. When Mr. Fallowfield found out he became incensed. He told Ms.

S. that if he saw her with another man, "it's going to be bad for you". [ 13 ] In March of 2014 Ms. S. said she was at a restaurant with friends. Mr. Fallowfield arrived, walked up to the table, stared at her, shook his head, and then left without a word. [ 14 ] In May 2014, Mr. Fallowfield was supposed to take the children camping. In a conversation prior to the trip, Mr. Fallowfield became agitated and angry at Ms. S. and began to curse at her and call her names. He implored her to return to him and when that failed he demanded that she return his gun, which she refused.

[ 15 ] Mr. Fallowfield eventually came over to her parents' residence where she was living at the time. He exchanged words with her father and then left. No access occurred on that weekend. Shortly after that incident Ms. S. commenced proceedings under the Family Law Act . [ 16 ] In early October 2014, Ms. S. was at a social function at a friend's home. Mr. Fallowfield arrived at the location, parked outside and began repeatedly calling Ms. S. on her phone. When she finally answered a call, Mr. Fallowfield told her that her boyfriend had better not be present at that residence or he would come into the residence.

Ms. S. told Mr. Fallowfield to leave or she would call the RCMP. He eventually left. [ 17 ] On October 3, 2014, Ms. S. was granted a protection order under the Family Law Act . The order prohibited Mr. Fallowfield from certain behaviours, including:

a) Having no contact with Ms. S., except in writing, and then only having to do with matters involving their children; and

b) Not attending at, entering, or being found within 50 feet of the residence, place of employment or school of Ms. S., except for picking up and dropping off the children, and then only at the end of the driveway. [ 18 ] That protection order expired on October 3, 2015. Mr. Fallowfield was present in court when the protection order was granted. [ 19 ] By late February of 2015, Ms. S. had purchased a mobile home and was in the process of making repairs and improvements to it prior to moving in.

She worked long into the evening of February 24th and remained at the mobile home overnight. [ 20 ] She was, by then, involved in a relationship with a RCMP member, Mr. B., who remained overnight, as well, but left for his shift early on in the morning hours. [ 21 ] Throughout the night Mr. Fallowfield called Ms. S.'s phone many times. She did not answer because her phone was off. When she awoke the next morning Ms. S. noticed the missed calls and soon after Mr. Fallowfield called again and she answered. [ 22 ] Mr.

Fallowfield immediately demanded to know who owned a certain pickup parked in the mobile home's driveway, and he was telling her that he wanted her to reconcile with him. When Ms. S. eventually looked out the front window, she saw Mr. Fallowfield's truck parked crossways on her driveway, a very short distance from the mobile home, and parked in such a way so as to prevent any other vehicle from leaving. [ 23 ] During their telephone conversation Ms. S. advised Mr. Fallowfield of her new relationship with an RCMP member, but not the person's identity. Mr.

Fallowfield became extremely angry, agitated, and began to yell and curse at her. His voice was loud, scary and intimidating, according to Ms. S. Mr. Fallowfield told her he did not care who she was with, but that he would hurt them. He then demanded she return his gun to him, something she said he often did during arguments. He also said that if he could not have her, he did not want to live anymore. [ 24 ] After the telephone call ended Mr. Fallowfield began texting Ms. S. He asked her to leave the residence and come out to talk to him. She refused and she said she would call the RCMP.

After a few more texts back and forth, lasting over a period of approximately 40 minutes, Mr. Fallowfield left. [ 25 ] In her evidence Ms. S. also said the following about her fears:

a) She did not give Mr. Fallowfield permission to contact her on February 24 or 25, 2015, and that when they did communicate, none of it was about the children.

b) She was frightened by Mr. Fallowfield's demeanor and tone of voice on the phone and by his presence so close to her new residence.

c) Even though they were separated for 14 months by February of 2015, Mr. Fallowfield would not let go and let her lead her life.

d) Mr. Fallowfield would often demand his gun and say things like, "If I can't have you, no-one can. I don't care if I go to jail".

e) Although he never struck her, she had seen him be violent with others and knows that he is capable of it. [ 26 ] Mr. Fallowfield did not give evidence in the trial, which is his right at law. The Law Criminal Code [ 27 ] The following provisions of the Criminal Code have application here: 127(1)(a) -- Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of (

b) an offence punishable on

summary conviction. 264(1) -- No person shall, without lawful authority and knowing that another person is harassed or reckless as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of (

a) repeatedly following from place to place the other person or anyone known to them; (

b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them; (

c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries onbusiness or happens to be; or (

d) engaging in threatening conduct directed at the other person or any member of their family.

(3) Every person who contravenes this

section is guilty of (

b) an offence punishable on

summary conviction.

(4) Where a person is convicted of an offence under this section, the court imposing the sentence on the person shall consider as anaggravating factor that, at the time the offence was committed, the person contravened (

a) the terms or conditions of an order made pursuant to

section 161 or a recognizance entered into pursuant to

section 810, 810.1 or810.2; or (

b) the terms or conditions of any other order or recognizance made or entered into under the common law or a provision of this or anyother Act of Parliament or of a province that is similar in effect to an order or recognizance referred to in paragraph (a). 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.

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

a) is guilty of (

b) an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. [28] Almost all the terms set out in those sections, such as "threat", "harassed", "threatening conduct", and "besetting and watching",are not defined in the Criminal Code, but have been extensively examined by the courts. Case Law [29] The Crown provided a voluminous case book, which included the following cases:

a) R. v. Scuby, 2004 BCCA 28

b) R. v. Ohenhen, (2005) (ON CA), 200 CCC (3rd) 309 (ONCA)

c) R. v. Sanchez, 2012 BCCA 469

d) R. v. Fujimori, 2005 BCPC 110

e) R. v. Vrabie, (1995) 27 WCB (2nd) 554 (Man.P.C.)

f) R. v. Belcher, (1998) 37 WCB (2nd) 198 (Ont.C.J.)

g) R. v. Eltom, 2010 ONSC 4001

h) R. v. Katzenback, 2011 ABCA 318

i) R. v. Katzenback, 2007 Carswell Alberta 2577

j) R. v. George, 2002 YKCA 2

k) R. v. Lamontagne, (QC CA), [1998] A.Q. No. 2545 (Que.C.A.)

l) R. v. Kosikar, (1999) (ON CA), 138 CCC (3rd) 217 (ONCA)

m) R. v. O'Connor, 2008 ONCA 206

n) R. v. McRae, 2013 SCC 68

o) R. v. Coppola, 2007 ONCJ 184 [30] Given the thoroughness and breadth of the Crown's casebook, defence counsel had little need to supply any cases on pointbecause the cases just described cover off most of the areas of dispute between the Crown and defence. Submissions The Crown [31] The Crown provided detailed written submissions on various points including:

a) Elements of the offence of criminal harassment including the two approaches discussed by the British Columbia Court of Appeal inScuby.

b) The meaning of repeated communication as described in Ohenhen [phonetic], as being more than once, but as few as two occasions,depending on the nature and intent of the communication. As described in Sanchez, multiple telephone calls, even if unanswered, canamount to repeated communication.

c) The meaning of besetting and watching as described in Eltom, with watching being a passive and continuing observation, whilebesetting involves a more positive, active role by the accused, an example of besetting being hemming in, surrounding or harassing acomplainant as described in Fujimori and discussed from a dictionary perspective in Vrabie.

d) The meaning of threatening conduct as it pertains both to words uttered and by actions engaged in by an accused, as discussed inGeorge, Lamontagne and Kosikar. A threat need not be to cause specific bodily harm to a specific person with knowledge of the threatmade against them. A threat must meet both the subjective, i.e., is the complainant fearful, and the objective, i.e., is the fear of harmreasonable in all the circumstances to a reasonable person, tests in order to be made out.

A threat will also have to be made by theaccused with the intent that it be taken seriously and not in jest. [32] Based on the review of the case law, the Crown's submissions with regard to the evidence in this case can be summarized asfollows:

a) The past discreditable conduct of Mr. Fallowfield laid the foundation for the reasonableness of Ms. S.'s behaviors and fears on thedate specified in the information.

b) Mr. Fallowfield's actions on February 24 and 25, 2015, by telephoning, texting, parking in front of the driveway, the language heused and the tone and temperament of the language, make out the factors required for repeated communication, besetting or watchingand threatening conduct.

c) Utilizing the tests in Scuby, based on Ms. S.'s evidence, she was subjectively harassed and was fearful. When her evidence of whatoccurred is examined in light of the analysis set out in Sanchez, O'Connor, and Coppola, her fears were objectively reasonable.

d) Mr. Fallowfield repeatedly engaged in legally prohibited conduct knowing that it would make Ms. S. fearful of him and his possibleactions. He did so either intentionally or was at least reckless regarding the results of his actions towards her.

e) The words uttered by Mr. Fallowfield to first Ms. S. and later Constable Plant were meant by Mr. Fallowfield to be taken seriously bythose receiving the communication and were meant to state an intention to cause bodily harm to Ms. S.'s new male friend, an RCMPmember, Mr. B.

f) It is acknowledged that there may be some reliability issues concerning Constable Plant's recollections, given he did not make notesof Mr. Fallowfield's utterances until some hours later.

g) Mr. Fallowfield was clearly in breach of the protection order granted on October 3, 2014, when on February 24 and 25, 2015, hetexted Ms. S. repeatedly on matters unrelated to their children and he was present and in close proximity to where she was staying.

The Defence [ 33 ] Defence counsel's submissions can be summarized as follows:

a) Mr. Fallowfield concedes he breached the protection order and hence, counts 6 and 7 are made out.

b) There is no doubt that Mr. Fallowfield and Ms. S.'s long relationship was fraught with difficulty, but there was never any physical violence and, as such, the court must consider how reasonable Ms. S.'s fears were, in light of the threats.

c) At the time of the protection order there were no fears expressed by Ms. S. of physical harm coming to her.

d) Uttering threats requires that the words be spoken with intent, that they be taken seriously to cause bodily harm and that they will be acted upon.

e) At the time of his arrest Mr. Fallowfield was clearly upset, angry and rude, having been taken out of his home, partially clad. So anything he may have said in the minutes following cannot be found to be intended to be taken seriously.

f) Constable Plant's recollection of exactly what Mr. Fallowfield said must be considered carefully, given the time lag before his notes were made.

g) Any threatening words made towards Ms. S. cannot objectively be found to be made in a manner to be taken seriously, since he had uttered similar words many times in the past and did not act on them.

h) Although Mr. Fallowfield's actions were annoying, the Crown has not proven beyond a reasonable doubt, either on a subjective or objective basis, that Ms. S. reasonably feared for her safety or for the safety of anyone else known to her. Discussion Counts 6 and 7 [ 34 ] Given defence counsel's submissions and admissions, Mr. Fallowfield is guilty on counts 6 and 7; a finding of fact, in support of these convictions, are that Mr. Fallowfield texted Ms. S. on matters not related to their children. There is no finding of fact that Mr. Fallowfield was within 50 feet of Ms. S.'s residence because, (

a) Ms. S.'s estimate of distance was not verified or confirmed independently and, (

b) there is no evidence that on February 25, 2015, that the place that Ms. S. was in was indeed her residence at the time, rather she was making repairs and renovations so that it could become her residence. Count 5 [ 35 ] In light of Constable Plant's admission that his noting down of what Mr. Fallowfield said was delayed, there are some issues surrounding the accuracy of the notes and Constable Plant's recollections. In addition, there is no evidence that Mr. Fallowfield knew who he might be directing his comments toward. He did not name Mr. B. and the only information he had about Ms.

S.'s new friend came from her telling him it was an RCMP member. [ 36 ] Finally, given the circumstances of his arrest and his treatment by the RCMP, Mr. Fallowfield was angry and agitated. His utterance could have been nothing more than that of a blowhard, letting off steam, in circumstances very close in time to his earlier confrontation and dealings with the police and his much earlier confrontation with Ms. S. [ 37 ] In light of all of that, the Crown has not proven beyond a reasonable doubt the charge in count number 5, and Mr. Fallowfield will be found not guilty.

Count 1 [ 38 ] For many years, before and after the separation, Mr. Fallowfield treated Ms. S. in an extremely disrespectful and aggressive manner. His words were intended to and resulted in causing Ms. S. emotional and mental distress. On many occasions he demanded access to his firearm, saying he would harm himself and others. However, despite those words, he never followed up on them with action. He never physically assaulted Ms. S. or anyone else close to her. [ 39 ] On February 25, 2015, in a telephone conversation with Ms. S., Mr.

Fallowfield uttered words to the effect that he did not care who she was with and he would hurt them, and he again demanded his gun. As described by Ms. S., the tenor and demeanor of Mr. Fallowfield was such that he was intending his words to be taken seriously and that it caused her to be fearful for the safety of herself and her yet unidentified friend, Mr. B. Although Mr.

Fallowfield did not yet know the name, the threat still resonated with her. [ 40 ] Based on the evidence presented by the Crown in this matter and looking at the totality of the evidence and the case law surrounding the issue of uttering threats, the Crown has not proven count 1 beyond a reasonable doubt. Counts 2, 3 and 4 [ 41 ] The Crown relies on the actions of Mr. Fallowfield during the evening of February 24 and the morning of February 25, 2015, as evidence to support the charges in counts 2, 3 and 4. Those actions included, in

summary:

a) Repeated telephone calls which were unanswered;

b) A telephone call that was answered;

c) Text communications;

d) Telephone calls where he engaged Ms. S.;

e) Driving his truck to a location where he knew Ms. S. to be and using that truck to block the egress by any motor vehicle from the driveway;

f) Utilizing words of contempt towards Ms. S. in an intimidating and frightening manner. [ 42 ] Having reviewed all the admissible evidence of Mr. Fallowfield's conduct towards Ms. S. in the past and the evidence of his actions on February 24 and 25, 2015, the following are found to be facts:

a) Mr. Fallowfield repeatedly communicated with Ms. S. in circumstances where he knew, first, Ms. S. did not wish such communication, and second, he was breaching an order of the court.

b) Mr. Fallowfield beset and watched the location Ms. S., in the words of the section, "happened to be".

c) Mr. Fallowfield engaged in conduct knowing that it would upset and agitate Ms. S. and he did so with the intent to intimidate and threaten her. [ 43 ] In light of those findings of fact and applying them to the law as described in the cases, particularly Scuby , the following can be concluded:

a) Mr. Fallowfield acted in the fashion described in s. 264(2), paragraphs b, c and d.

b) Ms. S. was harassed in the fashion she described in her evidence by Mr. Fallowfield's actions and words.

c) Mr. Fallowfield knew full well his actions would cause Ms. S. to be harassed, having employed those actions and tactics in the past and knowing that they were effective.

d) Ms. S. feared somewhat for her safety, but as much or more so for the safety of her new friend, Mr. B. [ 44 ] The final test in Scuby , is the fear reasonable in the circumstances, must be examined in two steps, subjectively and objectively. It was clear from observing her during her evidence that Ms. S. was adversely affected by Mr. Fallowfield's treatment of her, which culminated on February 24 and 25, 2015. Although it was an interaction of somewhat limited duration, the traumatic effect of it on her in light of her history with Mr.

Fallowfield shone through during her evidence. [ 45 ] Recalling the events several months later still caused her to exhibit before the court fear, agitation and residual mental and emotional trauma. Subjectively, her fears were reasonable. [ 46 ] Turning next to the objective reasonableness factor, the court must apply a broader and more robust test. Would an average or reasonable person, operating without pre-conceptions or bias, become fearful and hence harassed by Mr.

Fallowfield's actions on February 24 and 25, 2015? [ 47 ] The answer to that question, upon examining the case law and the evidence presented is yes; a reasonable person would have been made fearful and would have been harassed by Mr. Fallowfield's conduct, as described in the evidence and as set out in s. 264 of the Criminal Code . Therefore, Mr. Fallowfield is guilty of, (

a) harassment by communication, count 2; (

b) harassment by besetting and watching, count 3; and (

c) engaging in threatening conduct, count 4. [ 48 ] Mr. Fallowfield, please stand up. [ 49 ] Sir, on Information 41463-2-KC, I find you not guilty on counts 1 and 5. I find you guilty on counts 2, 3, 4, 6 and 7. You may be seated, sir. (REASONS FOR JUDGMENT CONCLUDED)