2014 MBPC 27, 2014 MBPC 27

CITE# 2014 MBPC 27 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) D. Gunn, C. Antila, Independent counsel for the Crown ) - and - ) ) David Obirek ) B. Bonney, T. Walker for the Defence ) ) ) Judgment delivered: June 18, 2014 Lee Ann Martin, P.J. Introduction [ 1 ] David Obirek (Obirek) stands charged with two counts of uttering threats contrary to

section 264.1(1) (

a) of the Criminal Code as a result of text messages he sent on August 23, 2011. There is no dispute that the text messages constitute a threat under s. 264.1(1) (a). The issue is whether in uttering those threats, Obirek intended for them to intimidate or be taken seriously. [ 2 ] To determine this issue, it is important to provide some context and background. Facts [ 3 ] Obirek is a 44 year old R.C.M.P. officer.

He has been in two significant relationships which are pertinent to the charges: one with Maria Obirek (“Maria”), his wife with whom he lived from 1996 – 2001 and had 3 children (the “Children”); and one with Amber Neale (“Amber”), his on-again off-again girlfriend from 2001 – 2010, with whom he had one child (the “Child”). [ 4 ] In the summer of 2010 Amber ended her relationship with Obirek and began another with Landon Durston (“Landon”) who she later married. Then in October, 2010, she obtained a protection order against Obirek which erroneously included the Child.

From that point forward, Obirek had no contact with either Amber or the Child. He did however receive communication from Amber when she initiated access and support discussions through a lawyer which came to a standstill in November, 2010, and when she sent a Christmas card to him from the Child in December, 2010. [ 5 ] It was from this point on that Amber advised Obirek’s family that she did not want any of them to have contact with the Child.

In her view, contact with Obirek’s family would be confusing to the Child given that Obirek was not part of the Child’s life. [ 6 ] Despite Amber’s position, Obirek continued to encourage his Children from his first marriage with Maria to call the Child. All of Obirek’s children had a close sibling relationship and he wanted to make sure that it was maintained.

This encouragement often took place through Maria with whom Obirek continued to have regular contact. [ 7 ] The nature of his contact with Maria was in regards to the parenting of their Children but also in regards to their own emotional and sexual relationship. Both Maria and Obirek described their relationship as ‘hot and cold’, ‘love and hate’. It is apparent from a review of some of their reciprocal text messages and the evidence before this Court that there was a significant amount of dysfunction in their relationship.

Exchanges of abusive and hateful words interspersed with intimate moments were not out of the ordinary. [ 8 ] Maria was aware of Obirek’s break-up with Amber and was prepared to facilitate the ongoing relationship between the Children and the Child by allowing them to call Amber and Landon’s house. She did not understand Amber’s decision to discontinue contact but felt that there was not much she could do about it. The first time she became aware that Amber did not want the Children calling the house was in March, 2011 when the Children called to talk to the Child.

It was on that occasion that Landon informed Maria of Amber’s wishes. It was also on that occasion that the Child, then only 3 years of age, told the Children that he had a new gun, that he had shot his daddy in the head with it, and that he had a new daddy and a new grandma. Maria passed this information on to Obirek. Since that day, the Children had no further contact with the Child. [ 9 ] It is against this backdrop that on August 23, 2011, Obirek texted Maria asking her to have the Children contact the Child to convey happy birthday wishes.

The entire text message exchange in chronological order follows: Obirek Fyi it is [the Child’s] 4 th birthday today.

Maria Yeah I remember. I sent Landon a text to wish.. a happy Birthday. Obirek Have the [Children] call him. He is a piece of shit and his days are numbered Obirek I have a few ppl working on taking him out until I can show him what a knockout looks like Maria She doesn’t want the [Children] to call. Obirek Of course not. Her days are numbered too And u fall for her shit. Maria What do you care that he is involved with her. You don’t need to stoop to her level. I don’t fall for any of her shit. If she doesn’t want the [Chidlren] to call not much I can do about it. Obirek She is a dirt bag.

I have somebody who has been following him and will take him out at my command Maria What are you proving but kicking the shit out of him. That you are jealous, crazy, and stupid. Obirek I have a hit on him. He has no clue that he has been watched. I will kill anybody who fucks with me! Maria That’s real stupid of you. Obirek I’m ill anyway so I have nothing to lose. Maria How has he fucked with you? Are you jealous that he’s living the life you want? Obirek I have the life I want. He has brain washed my [Child]. One day soon u will read about it in the paper.

Maria So let’s completely fuck up your life forget about the kids you have a relationship with because your ill that’s the stupidest thing She brain washes him Obirek Guns a blazin mother fucker I’m takin people out All I want is my [Child] Maria There are other ways to get [the Child] back. The proper way Obirek As if. I will destroys lives and kill to get [the Child] back Maria At the expense of your other children Why can’t you go to court In the end you will have none of your children if you do this Obirek I’m 80,000 in dedt and have no money to survive I owe $22,000 on my car Maria Why?

How long have you had it Obirek I had to buy it out Maria After the 4 years. It was leased? Obirek Yes I bought it out and I owe $22,000 Maria Yeah but monthly payment shouldn’t be too much Obirek I pay $3,000 a month for everything Maria But you make more than 3,000 a month Obirek No I have no money for rent or food Maria You can’t possibly only make three grand a month with your salary Obirek Yes can’t pay food or rent Maria So then your going to do away with Landon and go to jail right Then no [Children] and [Child] Obirek At least I will have food.

I have eaten at a soup kitchen for 7 months Maria I’m sure you have enough women around that could feed you Obirek Fuck you Maria Yeah ok. Relax Obirek I look after myself Hopefully soon so I can sue your fat ass. Maria Now its my turn. Fuck you! Obirek Lmao Maria Can’t got to court to get your [Child] back but you want to sue me for what? Obirek You will all pay Maria So we are going to pay for all your mistakes. Including your children. And you say you love them.

Sure Obirek My biggest mistake ever was you Maria I have three beautiful children but too bad you are their father Obirek OK [ 10 ] The entire text message exchange took place over approximately one hour. There was no further mention of this exchange between Obirek and Maria after August 23, 2011. The two carried on as usual, including having intimate relations, until October 12, 2011. [ 11 ] Maria testified that she was concerned by the text message exchange. She took Obirek’s words to mean that he was going to harm Amber and Landon. The problem was she did not know what to do.

Her main concern was Obirek’s reaction and the potential

impact on his job and the Children if she made the texts public. As a first step, she showed the texts to Obirek’s mother. Several weeks later she consulted with a professional colleague. Yet she still took no steps to report the threats until October 12, 2011 when she texted Landon. The texts were as follows: Maria Hi Landon, sorry to bother you but I got some disturbing texts from David awhile back regarding you and Amber. Not sure what to make of them but I think you should see them because he could might be up to something given some resent events. If you would like to call me that would be great.

Maria Landon Want to give me a call? [ 12 ] Maria was unable to provide any clarification as to what ‘recent’ events she was referring. She did testify however that she read Landon the texts. [ 13 ] Landon testified that upon learning of the concerning nature of the texts he contacted the Winnipeg Police Service who eventually arrested Obirek. He also undertook protective measures to ensure his family’s safety. [ 14 ] The following is the text exchange between Landon and Maria on October 13, 2011, regarding Obirek’s pending arrest: Landon Hi maria, did WPS come see you? Maria Yes they just left Landon Ok.

They are coming to talk to me again. How did it go? Maria It went fine. I’m really nervous about what he will do when he finds I it was me who told you. Will he be going to jail tonight? Landon Yes likely. You did the right thing. He can’t get away with this stuff. I will help you any way I can, I mean it. Maria Thank you. I really scared, I can’t stop shaking. Will he lose him job. Does Amber know about all this? Landon Of us. Yes she does. I don’t know about his job but don’t worry about it. Stay strong. Call me or text me anytime. I will pray for you and all Maria Thank you so much. I will try not to worry.

Landon 02/02 wins. We will all get through this together. The only one who should be uncomfortable is David. Landon If you do then he 01/02. Hi Maria. Just wanted to tell you again how proud I an of you for doing the right thing. Do not second guess yourself or get scared. I just got word David has been arrested. Please stay strong. Maria Thanks Landon. I hardly slept, I’m sick to my stomach. I really hope he gets help. [ 15 ] Interestingly, on that same day in the middle of her texts to Landon, Maria texted Obirek the following message: You don’t deserve someone like me in your life.

I don’t need someone like you in mine. From now on, I could give two shits about you. [ 16 ] Obirek testifed that he did not intend for his texts to Maria to be taken seriously. He was just venting given the lack of contact either he or his family had been able to have with the Child. [ 17 ] Obirek testified that when his and Amber’s relationship came to an end in 2010 he had no hopes of reconciling; he knew that the relationship was over.

It was not until early 2011 that he learned of Amber’s engagement to Landon, news that had little effect on him other than his hope that Landon would treat the Child with respect and be a good father to him. [ 18 ] He was however upset, sad and disheartened about Amber taking out a protection order and about his family’s inability to have contact with the Child. Since their break-up in the summer of 2010, Obirek felt that he and Amber had managed to maintain a cordial relationship which allowed him access to the Child.

After the protection order was served and he was contacted by Amber’s lawyer regarding access and support, he continued to believe an agreement could be reached allowing him access to the Child. When he heard nothing more from Amber’s lawyer after November 2010, he was confused, but took no further steps to try to remedy the situation. [ 19 ] Then in December, 2010, Obirek received a Christmas card from the Child which was obviously sent by Amber. In cross- examination, Obirek testified that he was happy to receive the card as he thought that he was being thought of by his son.

He denied finding it hurtful, even though he had admitted as much in his October 13, 2011 statement to the police. [ 20 ] Obirek testified in direct examination that he was sad and disheartened to learn in March, 2011 that Amber did not want the Children to have contact with the Child. He was also hurt and floored by the comments that the Child made about having a gun and shooting his daddy in the head. Obirek himself did not like guns and had never allowed the Child to play with them.

Further, he took the comments to mean that the Child had shot him in the head and that he had been removed from the Child’s life and replaced by Landon. In cross-examination, Obirek took a different position, denying that he felt he was being replaced and indicating that he was not going to jump to conclusions as he remained hopeful that he would regain access to the Child and that he could continue to parent him in the future. [ 21 ] As for his emotional state on August 23, 2011, Obirek testified: I was sad, very disheartened.

I hadn’t seen [the Child], now in several months; nine, 10 months. [The Child’s] fourth birthday was approaching on August 23, 2011. It would have been the first birthday that I never spent with [the Child]. I was there for birth, Amber and I lived together... [ 22 ] He denied that he was angry with either Amber or Landon for keeping him away from his son even though in his October 13, 2011 statement to the police he stated:

...I was mad because I didn’t like what Maria had told me. It’s the second time he’s had a conversation with my [Children] that didn’tseem to go over - - you know, very well. [23] As for his intentions in sending the texts to Maria, Obirek testified that he just wanted to encourage the Children to keep theChild in their minds by staying in contact. The threats were simply words of frustration and emotional upset. He did not mean anythingby them - it was just bravado and tough talk and venting.

They were uttered in a moment of venting to someone to whom he felt he couldvent – a confidant who he trusted and who was on the same page. He thought that he could speak about a topic that was hurtful to himand blow off steam and have the conversation go no further than that. In his view, Maria’s texts in reply confirmed his thought thatwhatever he said was to remain between the two of them and that nothing was to be taken by it. He also saw them as trying to calm andreassure him. He never intended the texts to be taken seriously or to be sent to Amber or Landon. The Law [24] S. 264.1(

a) provides: 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; [25] The elements of the offence of uttering threats are: (

i) the utterance or conveyance of a threat to cause death or bodily harm (the actus reus); and (ii) an intention to threaten, that is, an intention that the threats be taken seriously or intimidate (the fault element or mens rea). (See: R.v. McCraw, (SCC), [1991] 3 S.C.R. 72; R. v. Clemente, (SCC), [1994] 2 S.C.R. 758; R. v. O’Brien,2013 SCC 2; R. v. McRae, 2013 SCC 68) [26] As stated in McRae, supra: 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")... 13 Thus the legal question of whether the accused uttered a threat of death or bodily harm turns solely on the meaning that areasonable person would attach to the words viewed in the circumstances in which they were uttered or conveyed. The Crown need notprove that the intended recipient of the threat was made aware of it, or if aware of it, that he or she was intimidated by it or took itseriously: Clemente, at p. 763; O'Brien, at para. 13; R. v.

LeBlanc, (SCC), [1989] 1 S.C.R. 1583 (confirming the trialjudge's instruction that it was not necessary that "the person threatened be ever aware that the threat was made": (1988), (NB CA), 90 N.B.R. (2d) 63 (C.A.), at para. 13).... 14 The reasonable person standard must be applied in light of the particular circumstances of a case. As the Court of Appeal forOntario explained in R. v. Batista, 2008 ONCA 804, 62 C.R. (6th) 376: o An ordinary reasonable person considering an alleged threat objectively would be one informed of all the circumstances relevant tohis or her determination.

The characteristics of a reasonable person were considered by the Supreme Court of Canada in R. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484 (S.C.C), in the context of the test for bias. In that case, L'Heureux-Dubé and McLachlinJJ., at para. 36, described such a person as a: ▪ reasonable, informed, practical and realistic person who considers the matter in some detail....The person postulated is not a "verysensitive or scrupulous" person, but rather a right-minded person familiar with the circumstances of the case. o Similarly, in R. v.

Collins, (SCC), [1987] 1 S.C.R. 265 (S.C.C.), at p. 282, in the context of the test for bringing theadministration of justice into disrepute, Lamer J. for the majority describes a reasonable person as "dispassionate and fully apprised ofthe circumstances of the case": see also R. v.

Burlingham, (SCC), [1995] 2 S.C.R. 206 (S.C.C), at para. 71. o It follows that a reasonable person considering whether the impugned words amount to a threat at law is one who is objective, fully-informed, right-minded, dispassionate, practical and realistic. [Emphasis added; paras. 23-24.] [27] As for the fault element, it is subjective. As noted by the Manitoba Court of Appeal in R. v.

Noble, 2010 MBCA 60, paragraph8: The trial judge must be convinced beyond all reasonable doubt that the accused committed the offence “knowingly.” Therefore, becauseof the inclusion of the word “knowingly,” the mens rea carries a subjective intent component. It is not enough to merely utter the wordswhich constitute the threat. The accused must utter the words with the intent that the threat be taken seriously or to intimidate. It doesnot matter whether the accused meant to carry out the threat.

As a result, the trial judge must be satisfied that the accused meant that thewords uttered would be taken seriously or would intimidate... [28] The intent of an accused in uttering threats can be inferred from all of the circumstances including the words used, the contextin which they were spoken, and the person to whom they were directed and how the words were perceived by those hearing them. (SeeNoble, paragraph 9; McRae, paragraphs 19 - 23). That said, when an accused leads evidence in his defence, his evidence must beevaluated in accordance with the principles enunciated in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742.

Analysis [ 29 ] R. v. W.(D.) sets out a three pronged test which is as follows: 1. If I believe the evidence of the accused, I must acquit; 2. If I do not believe the testimony of the accused, but am left in reasonable doubt by it, I must acquit; and 3.

Even if I am not left in doubt by the evidence of the accused, I must still ask myself whether I am convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which I do accept. [ 30 ] Though this three-part test is not the only manner of assessing the credibility of an accused, it is an extremely helpful map to ensure that the correct burden and standard of proof are applied in a credibility case. What is essential, however, as pointed out by the Supreme Court of Canada in R. v. C.L.Y.,

(2008) S.C.C. 2, is that triers of fact need to understand that a verdict should not be based on a choice between the accused’s and the Crown’s evidence, but on whether based on the whole of the evidence they are left with a reasonable doubt as to the accused’s guilt. [ 31 ] When I consider these legal principles in the context of the evidence before me I find that Obirek’s evidence as to his subjective intention in uttering threats on August 23, 2011 is neither believable nor does it raise a reasonable doubt. [ 32 ] Obirek’s evidence was fraught with difficulties as is apparent in the recitation of the evidence.

Though he was generally consistent as to the chronology of events, he was often evasive and inconsistent regarding his emotions and intentions. In cross- examination, his answers were frequently unresponsive to the questions posed. At times, it appeared as though he anticipated where Crown counsel’s questions would ultimately lead and carefully tried to avoid being lead there.

This was particularly apparent in his refusal to admit what his August 23, 2011 texts could have been taken to mean, an odd reaction given his admission that the texts could constitute criminal threats. [ 33 ] Further, his evidence as to his emotional state presented as somewhat sterile. For the most part he remained calm and almost disengaged choosing descriptors such as disheartened, sad, upset and frustrated.

The calm demeanour and understated emotions appear to be consistent with his seemingly complacent reaction to the entire situation with Amber and the Child as well as with his presentation to the police during his October 13, 2011 statement.

And yet, this outward presentation of calm is at great odds with the very angry tone of his August 23, 2011 texts as well as his outward display of emotion on at least five occasions during trial where he teared up when speaking about the situation with the Child, an indication that even after two and a half years, the emotions are still there. [ 34 ] I do accept that Obirek felt that he could talk to Maria about the Child and that he felt that she was of a similar mindset as to the entire situation. It is undisputed that the two had known each other for close to 20 years and had three children together.

It is also undisputed that the two seemed to share quite a bit of detail about their own personal lives. Maria’s own evidence about her relationship with Obirek was that it was less to do with the Children than each other. Given the continuing nature of their relationship it is believable that Obirek felt a certain amount of trust in Maria. The nature of his texts to her demonstrates this – the Obirek who authored the texts to Maria is a different Obirek who presented in Court and who presented to the police on October 13, 2011. In his texts to Maria, Obirek bears all. He is not polite.

He is not calm and measured. [ 35 ] Though Maria rejected Obirek’s description of her as the benevolent stepmother, painting more of a picture of tolerance and distance, there is no evidence that Maria ever expressed her true feelings to Obirek about the Child.

Further, she had previously communicated with him about the March 2011 conversation with the Child and Landon which could have been interpreted by Obirek as Maria sympathizing with the entire situation. [ 36 ] That said, it is difficult to believe that Obirek actually felt that Maria was onside with him during the August 23, 2011 text exchange or that he could have felt that she was trying to calm or reassure him. Though her first responses to him appear to brush off his comments as mere stupidity, her tone later changes and she appears to try to talk him out of his stated intentions.

She asks what he is trying to prove by ‘kicking the shit out of’ and doing ‘away with Landon’ and going ‘to jail’ as a result. I do note that the exchange disintegrates into their usual abusive and dysfunctional banter but not once does either of them refer to any of the comments as being a joke or simple frustration either at the time or anytime thereafter. [ 37 ] I have considered Maria’s evidence that she did indeed take Obirek’s comments seriously. [ 38 ] As a first comment, I did have some concerns with Maria’s evidence in general. Maria presented as very guarded and evasive.

On occasion she looked for guidance from Crown counsel during cross-examination and asked why certain questions were being asked of her. [ 39 ] She would often testify that she could not remember yet when challenged, ended up providing more fulsome evidence, or testifying as to her ‘exact words’ during a conversation some three years ago.

I also found her inability to remember what she meant when she told Landon there had been ‘some events’ which might mean Obirek could be up to something, to be particularly troublesome given her delay in reporting the texts. [ 40 ] There were also the multiple occasions Maria denied events occurring until evidence to the contrary was presented to her.

This was the case for example regarding continued intimate relations with Obirek and her text to him on October 13, 2011 telling him that he did not deserve someone like her in his life and that she “could give two shits about” him. [ 41 ] That said, her stated reaction to Obirek’s texts on August 23, 2011 is consistent with the tone of her texts on that day.

It is also consistent with the subsequent steps she took to seek advice from two different people. [ 42 ] I have considered Maria’s evidence as to why she waited close to seven weeks before alerting Landon to the texts, as well as the ambiguous tone of that October 12, 2011 text to him. Given the nature of the texts, and having known Obirek for close to twenty years,

one would expect her to have reported the texts immediately if she truly took them seriously. Her reasons for not doing so were selfishones – she was worried about the potential consequences to Obirek’s job, the Children and herself. This selfishness and almost cold-heartedness is consistent with her presentation in Court – a woman who was obviously still interested in Obirek and prepared to passherself off as cooperative and understanding in regards to the Child with no real feelings in that regard.

This is her same presentation toLandon in her October 12, 2011 text – understated and caring – while beneath that appearance was a good deal of vindictiveness asevidenced in her October 13, 2011 text to Obirek.

That vindictiveness does not however negate her reaction to the August 23, 2011 texts. [43] Finally, I have considered that Maria and Obirek’s relationship continued on as usual after the August 23, 2011 text exchange,but in the end, not much turns on that as the texts were not directed at Maria and there is no evidence that she was afraid for her ownlife. [44] As for Landon, it was quite clear that he did take the texts seriously once he was apprised of them.

He called the police andtook protective measures. [45] I am cognizant that the recipient’s reaction to an accused’s words is relevant only to the extent that it assists in understandingthe accused’s intention in speaking the words. In this case however, they are important as they indicate unusual behaviour from Obirek. In this regard, this case is different from the O’Brien case, where the evidence was that the accused spoke in a threatening manner all thetime. This was not the evidence in regards to Obirek.

Though it is clear that Obirek let his guard down with Maria and engaged inreciprocal abusive language, there is no evidence that he regularly engaged in threatening language. In fact, Maria’s evidence was thatalthough Obirek might have said some ‘things’ before, it was not of this caliber. [46] The texts themselves also indicate more than just a frustrated or angry outburst. In this regard, they are different from the threats uttered in R. v. Payne-Binder (1991), (YK CA), 7 C.R. (4th) 308 (Yuk.Terr.C.A.). Here, the texts are detailedand lengthy. They speak of actions taken to have Amber and Landon killed.

They are unprecipitated and unabated. The tone of threatsnever softens and not once is there an apology or an indication of underlying emotion or frustration such that his words should not betaken at face value, not even the next day or anytime thereafter. And while Obirek may have thought that his words would go no furtherthan Maria, these were words that must have been weighed when he was composing them. During the course of one hour, Obirek hadtime between each text to consider what he was writing. He had the option of deleting words or not pushing the send button.

While it istrue that the threats were uttered in the context of a very frustrating situation, they are such that they indicate a clear intention to be takenseriously. [47] Considering the evidence as a whole, I find that the Crown has proven beyond a reasonable doubt that Obirek intended for histhreats to be taken seriously. As a result, I find Obirek guilty of the two counts of uttering threats. “Original Signed by:” Lee Ann Martin, P.J.