R. v. R.A.B. Date:, 2017 BCPC 113

Citation: R. v. R.A.B. Date: 20170406 2017 BCPC 113 File No: 44273-2-C Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.A.B. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. J. DOULIS Counsel for the Crown: Schroff, A; Gamble, T. Appearing on their own behalf: R. A. B. Place of Hearing: Prince George , B.C. Date of Hearing: September 7, 16, December 9, 2016; January 23 and April 3, 2017 Date of Judgment: April 6, 2017 INTRODUCTION

[ 1 ] By Information 44273-2-C, the accused, R.A.B., is charged with three counts of uttering threats to cause death or bodily harm contrary to s. 264.1(1) (

a) of the Criminal Code and one count of mischief under $5,000, contrary to s. 430(4) . The charges involve the accused’s mother, L.D.B., his brother, M.G.A.B., and former girlfriend, C.P. Counts 1 to 3 are alleged to have occurred between and including February 21 to 26, 2016, and Count 4 between February 21 and 23, 2016.

All offences are said to have occurred at L.D.B.’s residence at [omitted for publication], Prince George, B.C. [ 2 ] L.D.B. says the incidents giving rise to these charges were a culmination of the accused’s escalating hostility toward her which began shortly after he moved into her home on June 1, 2015. [ 3 ] I presided over the trial in Prince George Provincial Court on September 7, 16, December 9, 2016 and January 23 and April 3, 2017. The Crown called two witnesses, L.D.B. and M.G.A.B., and tendered into evidence three exhibits.

R.A.B. did not testify and called K.R. as the only witness for the defence. [ 4 ] As R.A.B. was self-represented, I ordered transcripts to assist him with preparing his defence. [ 5 ] The salient issues at trial a. Is the evidence of the Crown witnesses reliable and credible? b. Should the Court take an adverse inference from the Crown’s failure to call further witnesses? c. Has the Crown proven beyond a reasonable doubt the accused is guilty of uttering threats as charged in Counts 1, 2 and 3 of Information 44273-2-C? d.

Has the Crown proven beyond a reasonable doubt the accused is guilty of mischief as charged in Count 4 of Information 44273-2-C? BACKGROUND FACTS [ 6 ] L.D.B. is the mother of R.A.B., M.G.A.B. and T.H., all of whom are adults. L.D.B.’s husband and her children’s father, D.B., died on January 3, 2014. [ 7 ] In February 2016, L.D.B. was 66 years old. She is 5’3”, slightly built and frail. L.D.B. is also physically disabled with rheumatoid arthritis and as a result has difficulty walking and using her hands.

She is also hearing impaired. [ 8 ] On June 1, 2015, the accused, R.A.B. moved from Swift Current, Saskatchewan, to reside with L.D.B. in her home at [omitted for publication], Prince George, B.C. M.G.A.B. also lived in Prince George as did R.A.B.’s former girlfriend, C.P. [ 9 ] R.A.B. has been independent since adolescence and earned his livelihood as a commercial truck driver. On September 12, 2012, he injured his right leg in a work-related accident from which he has never recovered. R.A.B. is approximately 5’6” and slightly built.

He can hop for short distances on his good leg, but typically moves about with the aid of a crutch. [ 10 ] Because of his injury and subsequent medical complications, R.A.B. became incapable of performing physical work, which includes driving commercial vehicles. Consequently, he lost his only source of income and became homeless. In addition to his medical and financial woes, R.A.B. also has a history of substance abuse and distressed relationships.

On June 1, 2015, R.A.B. moved in with his mother because he had nowhere else to go. [ 11 ] R.A.B. became embroiled in a conflict with the Workers’ Compensation Board (“WCB”) with respect to his claim for benefits arising from his injury. He kept a metal file folder of WCB related documents which included medical reports from various physicians.

R.A.B. gave copies of those documents to his mother and brother for their information and safekeeping. [ 12 ] On June 1, 2015, when R.A.B. moved into his mother’s home, L.D.B. resided with her three foster children, a nine year old girl and two boys, ages ten and eleven, who were extremely disabled with cerebral palsy. Care aides came to L.D.B.’s home three times per day to help with the disabled boys. The aides came for one to two hours in the morning, an hour in the afternoon, and an hour in the evening.

K.R., M.G.A.B.’s 24 year old god-daughter, also assisted L.D.B. with some household chores. [ 13 ] R.A.B. and his mother had a troubled relationship. They perceived his past and present circumstances very differently. As a result of escalating incidents which occurred from Sunday, February 21 to Friday, February 26, 2016, L.D.B. asked the police remove R.A.B. from her home. She complained that as a result of R.A.B.’s violent and threatening behaviour, she no longer felt safe. Evidence of L.D.B. [ 14 ] When R.A.B. returned from Swift Current to live with L.D.B. on June 1, 2015, he was extremely angry.

Shortly after moving into her home, R.A.B. began berating L.D.B. for all manner of present and past shortcomings. Incrementally, R.A.B. seized control of L.D.B.’s household. He peppered L.D.B. with accusations and recriminations, blaming her for everything that was wrong in his life and for non-existent childhood traumas. He insisted L.D.B. confess to him and others what a terrible mother she had been. He demanded she acknowledge C.P.’s parents actually raised him, something L.D.B. says did not happen. [ 15 ] L.D.B. says R.A.B. was always angry and blamed her for making him angry.

He told her repeatedly she was “a stupid fucking bitch” who did not understand or remember anything. Over the months, R.A.B.’s behaviour progressively worsened. In the weeks leading up to the incidents subject of these charges, R.A.B. would come in the kitchen in the morning, angry and aggressive. He watched constantly for arrival of the care aide. When the aide arrived, R.A.B.’s abuse subsided and intensified again after he left. [ 16 ] L.D.B. says that on Sunday, February 21, 2016, after the care aide had left at 11 a.m., R.A.B. began yelling at her, telling her she was a liar, a phony and a horrible mother.

He was upset that L.D.B. did not seem to understand what was happening in relation to his WCB claim. He told her she was “a stupid fucking cunt . . . too stupid to understand.” He took the WCB documentation out of its metal

file folder and flung them at L.D.B. The papers landed on her and the kitchen floor. R.A.B. pounded the metal folder with his fists, denting it, and then flung it towards L.D.B. The folder fell on the floor without hitting her, but slid and rolled onto her shoe. When she tried to get up to leave, L.D.B. had to push the metal folder off her foot. R.A.B. then started screaming at her, “You’re kicking my file.” Because of her mobility impairment, L.D.B. was unable to manoeuvre the paper strewn floor and was forced to remain at the kitchen table. [ 17 ] R.A.B. telephoned M.G.A.B., railing and shaking with anger.

He screamed into the phone in L.D.B.’s presence: Get over here right now, I’m going to kill this fucking cunt . . . She’s nothing but a stupid bitch. [ 18 ] Alarmed by his brother’s outburst, M.G.A.B. immediately came to L.D.B.’s residence. He tried to calm R.A.B., who continued yelling and swearing. At some point, R.A.B. threw a lighter he had in his hand across the kitchen. It hit the microwave, breaking its glass window. [ 19 ] L.D.B. told R.A.B. they were no good for each other.

She asked him to get his own place and she would pay for it for a few months, but he refused to leave. [ 20 ] The following day, on Monday, February 22, 2016, L.D.B. tried to leave the house to evade R.A.B.’s anger. On his functional leg, R.A.B. took giant hops across the floor. He positioned himself within an inch of L.D.B.’s face, yelling and screaming at her, calling her a “fucking bitch”. This astonished L.D.B. because he had never before invaded her personal space in such a manner. She became angry and told him to get out of her face, which he did.

Still tense and angry, R.A.B. pointed his finger at her and said, “You are lucky I didn’t kill you.” At that time, L.D.B. did not believe he was going to kill her, but she did feel he was trying to intimidate her. [ 21 ] On Wednesday, February 24, 2016, L.D.B. again tried to avoid R.A.B. by leaving her home. R.A.B. hopped on his good leg across the room. He came up to L.D.B. and this time positioned his face so his forehead and nose were touching her forehead and nose. He yelled at her, saying she was a liar, a nothing, a nobody. He was angrier than he had been on Monday.

He said to her: “You are making me so angry . . . I’m going to kill you.” [ 22 ] L.D.B. responded “this is no good . . . I’m just going to go out and leave.” At that time, she did not believe R.A.B. intended to do more than threaten her. She remained as calm and quiet as possible hoping he would back off on his own accord. She felt that if she did not remain calm, R.A.B. would get angry and perhaps hit her with his crutch. She did not think he would go so far as to kill her.

Nevertheless, she felt threatened and did not know what to do. [ 23 ] On the morning of Thursday, February 25, 2016, R.A.B. woke up in a particularly foul mood. He avoided interacting with L.D.B. in the presence of the aide. When L.D.B. was preparing food at the kitchen sink for one of the foster boys, the aide left the room. R.A.B. came up to her, shaking. He leaned in close to her and very quietly in her right ear he said, “this isn’t over . . . you aren’t getting away with this anymore.” L.D.B. knew that as soon as the boys had left with the aide that she had get out of the house.

She testified: I thought it’s just going to be a horrible, all-day long him yelling and screaming at me and that sort of thing. And I was getting a little leery . . . because this was the third time in that week that I felt more threatened by him. And I thought I just need to leave. [ 24 ] As soon as the boys were on the bus, L.D.B. got her coat and purse and searched for her car keys. She tried to get out the front door before R.A.B. got to her, but was unable to do so because her deformed hands had difficulty with the stiff door.

Before she could leave, R.A.B. came up to her, placed his forehead and his nose against L.D.B.’s and began berating her. His voice was venomous, denouncing her as a phoney and said, “You disgust me. You are a nothing, a nobody. You're just a thing with tits and a cunt." [ 25 ] While saying these vile things, R.A.B. pushed L.D.B.’s head back and forth with his forehead and nose. He was sweating and shaking with anger; his eyes turned a pale ice-blue and moved rapidly back and forth. From his physical movements, L.D.B. thought R.A.B. was going to slam her in the head with his crutch or choke her.

She didn’t dare speak. She was shaking so badly she feared she would be unable to stand. She told R.A.B. she would go and leave him her vehicle. L.D.B. testified: . . .something in my brain was telling me, "be very careful, he's going to kill you. He is going to kill you if you make him even a tiny bit angrier. He's going to lose control.” I was absolutely sure -- certain if I made the wrong move he was going to kill me. [ 26 ] Finally R.A.B. backed off and L.D.B. managed to open the front door. As she was leaving, R.A.B. said to her, “You’re lucky I didn’t kill you. . .

You’re lucky I don’t choke you.” [ 27 ] When going down the ramp to the driveway, L.D.B. was shaking so badly she didn't know if she was going to make it. She said: All I could think of was, "No matter what you hear behind you, don't turn around. Don't look at him, just keep going or you're going to die." [ 28 ] With great difficulty, L.D.B. managed to get outside to the Sprinter van which contained a wheel chair lift used to transport the disabled boys. She left her own smaller minivan for R.A.B.

As she was struggling to close the heavy sliding door, she saw R.A.B. had followed her and had now positioned his upper torso inside the van. He said to her, “If I’m going to be accused of things, I’m going to make it happen.” L.D.B. was terrified. R.A.B. resumed yelling and swearing at her, saying: You are a stupid, fucking bitch. You have ruined my life . . . If you’re fucking going to accuse me then I’m going to kill C.P. I’m going to kill her mother. I’m going to kill her stepfather. . . I’m gonna go after them and I’m gonna be fast and nobody will even know that it was me.

[ 29 ] L.D.B. understood R.A.B. to be saying he intended to “take everyone out”, including her. Still swearing, he slammed the van door extremely hard. [ 30 ] L.D.B. was terrified and confused by R.A.B.’s threats. She had never accused him of any violence towards C.P. He had never spoken of killing them before. She didn’t know what he was talking about. She didn’t respond to his threats because experience has taught her it was futile. She said: I had learned over the period of time he was living with me, I’m better off just being quiet. And then he still . . . gets angry and it could go on for hours.

But as long as I . . . didn’t say anything, it didn’t seem quite as bad because . . . it doesn’t matter what I said . . . I’m wrong . . . or I didn’t get a chance to finish and he decides what I was going to say. So . . . I know I didn’t answer him. [ 31 ] L.D.B. was extremely frightened R.A.B. was going to get into the Sprinter van. All she wanted to do was to get away. [ 32 ] L.D.B. managed to lock the doors from the inside and pull out of the driveway, but was too overwrought to drive any distance.

Eventually she drove to the Canadian Tire parking lot where she sat for much of the day, not knowing what to do, trying to think what she could do. She stayed at that locale because it was some place where she did not usually go and some where she believed R.A.B. would not think to follow her. L.D.B. testified: I have worked with very troubled teenagers who . . . have extreme violence in their lives. I knew how … to deal with somebody and try to either de-escalate or get out of the situation so they can de-escalate. Nothing, absolutely nothing worked with R.A.B. Nothing.

And so it was better for me to remove myself, which I did. . . . I had already learned from past experience it wouldn’t matter what I tried. I could try to say something or in answer to a question he had, I would try to answer. I only would ever be allowed to get three or four words out and he would start screaming at me and decide in his own mind what it was I was going to answer. He never knew what I was going to answer. [ 33 ] R.A.B.’s aggression over the week of February 21 to 26, 2016, escalated and intensified.

He denigrated L.D.B.; he demanded she confess her shortcomings as a mother to C.P. and C.P.’s mother. R.A.B. was also estranged from his sister, T.H. In fact, he announced to his parents and brother “I don’t have a sister, she is dead to me.

The only reason I will show up at her funeral is to piss on her grave.” R.A.B. demanded L.D.B. call his sister and tell her she was a “fucking, lying bitch and that she destroyed his life and that she was never going to speak to her again,” and then she was to hang up the phone and not give her the chance to talk. [ 34 ] On Friday, February 26, 2016, M.G.A.B. and C.P. came to L.D.B.’s home at R.A.B.’s request. R.A.B. wanted them to explain to L.D.B. the contents of his WCB file and the medical opinions with respect to his injury.

When M.G.A.B. and C.P. arrived, L.D.B. told them it no longer mattered what was in the WCB documents, because she was terrified of R.A.B. Initially, L.D.B. did not believe R.A.B. would follow through with his threats to harm her. After the incident on Thursday, February 25, 2016, she realized the extent of her present danger. She believed that the next time R.A.B. lost his temper, she was dead, that he was going to kill her. She didn’t know what to do; only that it had to stop. She said to R.A.B. in cross-examination: . . . I have been in many difficult situations over the years, working with young people.

I have been able to defuse many, many things because of their problems. I have never, ever in my life felt threatened to any, even close to the degree that I felt threatened by you that morning and . . . I couldn't think straight. I didn't know what I was going to do but I knew you had to get out of my life at that point, or you were going to kill me. [ 35 ] Finally, on February 26, 2016, L.D.B. sought police assistance in dealing with R.A.B. She simply wanted the police to remove him from her home. L.D.B. explained: I was so traumatized … I was scared. I was so many things.

I just, I couldn’t go back because I had the children to worry about as well. [ 36 ] In order to get away from the accused, L.D.B. gave up her home, her job as a foster parent and living in Prince George. Evidence of M.G.A.B. [ 37 ] M.G.A.B. says he had a close relationship with his mother and an “okay” relationship with his brother. Up until February 18, 2016, M.G.A.B. thought that although there had been arguments, his mother and brother’s relationship was fine. On Thursday, February 18, 2016, M.G.A.B. met with R.A.B. and noted his health was at an all-time low. He wasn’t eating and coughing up blood.

R.A.B. complained of having arguments with his mother about his past and present circumstances. He was finding her very hard to deal with. M.G.A.B. told his brother words to the effect: You know I'm here to help; I'm just a phone call away. Phone me when she gets out of hand for you. [ 38 ] On Sunday, February 21, 2016, between 9:00 and 9:30 a.m., M.G.A.B. received a telephone call from a very agitated and frustrated R.A.B. He complained he was trying to get their mother to understand, but she was not listening and not understanding.

M.G.A.B. understood R.A.B. was frustrated at his inability to get L.D.B. to understand his WCB claim, what he had gone through, what he was facing and feeling. [ 39 ] R.A.B. hung up and M.G.A.B. did not react to the call at that time. He did not wish to involve himself in his mother and brother’s issue if his presence was neither needed nor wanted. He assumed if he was wrong in this assumption, he would receive another call, which is exactly what happened. [ 40 ] R.A.B. called M.G.A.B. again between 2:00 and 2:30 p.m. This time he was in a rage.

He again complained L.D.B. was not listening, not understanding and not believing him. He said:

M., I just . . . can't handle this anymore . . . The stupid cunt is not listening to me. You need to come over here and explain things to her . . . She's just not listening and . . . I'm getting so mad, I just want to reach out . . . and choke her now and . . . just end this. [ 41 ] R.A.B. was yelling so loudly that it appeared to M.G.A.B. that family members in the vicinity of the telephone could hear what R.A.B. was saying.

M.G.A.B. did not discuss the substance of this telephone call with others present, nor did they question him about it. [ 42 ] M.G.A.B. was shocked at the intensity of his brother’s rage and went to L.D.B.’s house between 3:00 and 3:30 p.m. When he arrived at his mother’s home, M.G.A.B. sat in his vehicle with its doors and windows closed in the driveway. M.G.A.B. could hear R.A.B. screaming inside the house. He remained in his vehicle for a minute or so trying to figure out what was going on. [ 43 ] M.G.A.B. walked into his mother’s kitchen and saw her sitting at the table.

He described her as all hunched over and pulled into herself. She held her arms close to her chest and stared down at the table like someone would curl up to deflect blows of some kind. This is not the way she ordinarily sat, notwithstanding her disability. [ 44 ] M.G.A.B. saw the WCB documents strewn about the kitchen floor. This surprised him because R.A.B. was ordinarily very careful with these records. R.A.B. was enraged and screaming. Suddenly he realized M.G.A.B.’s presence.

He looked at M.G.A.B. “eye to eye”; he pointed with his arm out with his index and middle finger extended and said: I'm glad . . . it's a good thing that you're here. You need to make . . . the stupid cunt understand what is going on. I keep trying to explain it to her. She doesn't understand. She doesn't believe me. [ 45 ] M.G.A.B. describes R.A.B. as standing rigid; his muscles taunt; his face red and his eyes a piercing pale blue. R.A.B. punctuated every statement or every portion thereof with his arm and hand gestures, pointing his extended index and the middle finger toward L.D.B.

Although the cadence of his speech changed, the volume remained consistently loud and the tone intense. It was as though he were addressing a crowd or congregation in a ministerial fashion. M.G.A.B. said he could see people walking by the house slowing down and staring at the house. [ 46 ] R.A.B. looked at M.G.A.B. and gestured to the WCB documents on the floor and said: I had been trying to explain this to her to make her understand. She just . . . says it's all lies, that it's all bullshit; that I don't know what I'm talking about; that I'm lying.

You need to make her understand or I'm just going to just get so mad . . . that I'm just going . . . to kill her. and later: You need to get this through her head. I’m so frustrated . . . I just want to choke her … I just want to kill her.” [ 47 ] M.G.A.B. was shocked at what he was seeing and hearing. He had seen his brother mad before, but never in a rage of such intensity. Initially stunned, M.G.A.B. soon became afraid for his mother. He could tell she was scared by the way she was sitting and not responding.

M.G.A.B. said, “Her tension was through the roof.” R.A.B.’s rage continued for two or more hours before he began to calm down. He picked up the WCB documents from the floor and put them on the table beside L.D.B. and then complained she was not even looking at them. [ 48 ] After L.D.B. calmed down, M.G.A.B. told him he would help him find a hotel or motel for a few days. R.A.B.’s rage rekindled. He said he was not going anywhere because he knew that if left his mother’s house for too long, he would not be allowed to return.

R.A.B. collected his WCB documents from the table where he had placed them and threw them in the trash can. [ 49 ] M.G.A.B. testified R.A.B.’s overly aggressive demeanour on February 21, 2016, went on for three to four hours before he appeared to black out for about ten seconds. M.G.A.B. testified that on that afternoon he believed R.A.B.’s threats to kill L.D.B. were meant to be taken seriously. He testified: With that . . . level of intensity that I was seeing and with that amount of rage, his facial expression . . . I was convinced that he could follow through.

He was more than capable. [ 50 ] M.G.A.B. left his mother’s house around 6:30 p.m., about the time the care aides were scheduled to arrive. He returned the following day, Monday, February 22, 2016, with C.P. They spent much of the day doing what R.A.B. had requested, which was to review the WCB documents with L.D.B. to try and make her understand R.A.B.’s medical issues. [ 51 ] On the afternoon of Tuesday, February 23, 2016, M.G.A.B. again came to L.D.B.’s house at her request. She was in the kitchen feeding one of the foster boys. R.A.B. was in a rage, yelling and gesturing to L.D.B.

He called her a “stupid bitch” and complained that she was supposed to explain things to C.P., but could not get it right. [ 52 ] R.A.B. ranted that no one was listening to him, no one was understanding him, and no one was believing him. He picked up his lighter and threw it with such force that when it hit L.D.B.’s microwave, its glass shattered and fell onto the floor.

When he threw the lighter, R.A.B. was about ten feet from the microwave. [ 53 ] The tension persisted, and about an hour later, when the care aide was due to arrive, R.A.B. began cleaning up the broken glass from the microwave and floor. [ 54 ] M.G.A.B. also acknowledged having been present at L.D.B.’s home on Wednesday, February 24, 2016, when L.D.B. admitted to have been arguing with R.A.B. for the past 20 years. In M.G.A.B.’s view his mother’s words seemed scripted. Evidence of K.R. [ 55 ] K.R. is M.G.A.B.’s god-daughter. She is 24 years old and lives in Prince George. She has known M.G.A.B. since she was five

years old and R.A.B. for the past three years. M.G.A.B. is also K.R.’s employer. K.R. was not present during the incidents giving rise to the charges before the court; however, R.A.B. called her as a character witness. [ 56 ] Although K.R. had been involved with the B. family for years, she had never heard L.D.B. or M.G.A.B. mention R.A.B. She learned of his existence from R.A.B.’s nephew. [ 57 ] K.R. was aware of R.A.B.’s frustration with respect to his WCB claim. She also saw that when R.A.B. tried to show his mother this documentation, she pushed it away or ignored it.

She testified that L.D.B. was negative and argumentative towards R.A.B. Their household was tense and hostile. K.R. tried to be supportive of R.A.B. and things “mellowed out.” K.R. has never seen R.A.B. threaten anyone or scream at anyone or throw anything. [ 58 ] In K.R.’s experience, M.G.A.B. is unfailingly supportive of his mother and “bends over backwards” for her. When she has challenged him in this regard he denies this is the case.

Evidence of Good Character [ 59 ] Evidence of an accused’s good character is relevant to support the accused’s credibility as a witness and to support an inference that the accused is unlikely to have committed the offence charged. R.A.B. did not testify at trial, so he seeks to use the evidence of his good character as elicited from K.R. to show it is unlikely he would have committed the offences charged. The Crown called no further extrinsic evidence in reply to rebut the defence’s evidence of R.A.B.’s good character.

Reliability of the evidence of the Crown Witnesses [ 60 ] L.D.B. has a hearing impairment in her left ear which is not responsive to hearing aids. She has difficulty hearing people who are whispering or speaking softly. She says she can hear people speaking in a regular level of voice if the acoustics are reasonable. As the acoustics in the court room were poor, L.D.B. had difficulty hearing the Crown when she spoke in a regular voice. [ 61 ] I note that L.D.B. was able to hear if the speaker talked loudly. I also note that L.D.B. did not appear to misinterpret what was being said.

If she did not hear clearly the question asked, she asked it be repeated. [ 62 ] R.A.B. argues that because of her hearing disability L.D.B.’s evidence as to what he said to her in the week of February 21 to 26, 2016, is unreliable. L.D.B., however, testified that when threatening her or C.P., R.A.B. was yelling or speaking while very close to her, and sometimes both. Her evidence as to the volume with which R.A.B. was speaking on February 21, 2016, is corroborated by M.G.A.B. [ 63 ] R.A.B. argues that M.G.A.B.’s evidence is not reliable because of his unquestioning loyalty to his mother.

This concern seems to overlook the fact that on February 18, 2016, M.G.A.B. invited his brother to call him if he was having difficulty dealing with their mother. Is the evidence of the Crown witnesses reliable and credible? [ 64 ] In a criminal trial, a judge can accept some, all or none of a witnesses’ evidence. R.A.B. says I should not believe the evidence of L.D.B. and M.G.A.B.

He argues L.D.B. is motivated to fabricate the incidents giving rise to the charges out of deep seated animosity and that M.G.A.B. slavishly accepts his mother’s version of events regardless of their accuracy. [ 65 ] R.A.B. points out his mother’s animus is apparent from her statement to the police in which she told them he was different from birth. L.D.B. made a number of derogatory comments about R.A.B. unrelated to the incidents charged based on unsubstantiated hearsay or supposition.

For example, L.D.B. told the police that R.A.B. stalks people, that he was abusive to the children of his former partner, that he seized control of his sister’s household and tried to kill her and that he would not care if the police shot him. R.A.B. points to these allegations as evidence of his mother’s bad faith and “a lifetime of intent”.

She sought to depict R.A.B. as dangerous, abusive, irrational and intrusive. [ 66 ] R.A.B. also points out that although the Crown alleges his aggressive behaviour continued throughout the week of February 21, 2016, none of the complainants made any effort to collect and preserve evidence of these events beyond their own recollection.

R.A.B. also points out the Crown did not call any witnesses who may have corroborated L.D.B. and M.G.A.B.’s evidence, including those people who may have heard his telephone call to M.G.A.B. on the afternoon of February 21, 2016, or those who walked by the Bennett residence later that afternoon. Findings on Credibility [ 67 ] In assessing the credibility of L.D.B. and M.G.A.B.’s respective testimony, I have taken into consideration the following factors: (

a) the plausibility of their evidence; (

b) any independent supporting or contradicting evidence; (

c) the external consistency of the evidence; (

d) the internal consistency of the evidence, (

e) the “balance” of the evidence, meaning the witnesses apparent willingness to be fair and forthright. Taking these factors into account, I find as follows: a. Plausibility. I find L.D.B. and M.G.A.B.’s evidence plausible. By February 2016, R.A.B. was suffering physically, financially and emotionally with no reprieve in sight. He was estranged from his sister, children and intimate partners; he was in chronic pain from an enduring injury and unable to use prescription pain killers because of his prior addictions.

R.A.B. was engaged in a four year struggle with the WCB for benefits as a result of losing his physical well-being and livelihood at work. He had been independent since adolescence, now at age 38, he was unable to work, had no income and was financially dependent on his mother. In essence, R.A.B.’s life had become a perfect storm of distress with his unresolved WCB claim at its epicentre. L.D.B. was unable or unwilling to accept or understand his perspective. It is entirely plausible that in such circumstances, R.A.B. lashed out against the mother he found unsympathetic and unsupportive.

b. Independent supporting or contradicting evidence. The Crown has put into evidence photographs of the damaged microwave. K.R. confirmed that in the last two weeks when R.A.B. lived with his mother, their home was fraught with tension and negativity. Sheconfirmed R.A.B. was frustrated and troubled by his WCB claim and that his mother was argumentative and uncaring. c. External consistency. L.D.B. substantially corroborates M.G.A.B.’s evidence and vice versa. There is no evidence whichcontradicts their version of events. R.A.B.’s behaviour during the week of February 21 to 26, 2016, was aberrant.

M.G.A.B. describedR.A.B. as having a temper, but could be talked down. For this reason, R.A.B. took some time on the afternoon of February 21, 2016,trying to assess the scenario unfolding at his mother’s residence. One point of divergence between L.D.B. and M.G.A.B. relates to the date of the microwave incident. L.D.B. testified the damage to themicrowave occurred on February 21, 2016, and M.G.A.B. testified it occurred on February 23, 2016. Still, their evidence that R.A.B.caused the damage is unequivocal. d. Internal Consistency.

I find both L.D.B. and M.G.A.B.’s evidence internally consistent and reasonably consistent between whatthey said on direct and cross examination. M.G.A.B. initially stated in direct examination he thought his mother and brother’srelationship was fine up until February 21, 2016, but agreed in cross examination that R.A.B. had complained to him both on and beforeFebruary 18, 2016 that they argued and he was having a hard time dealing with her. e. Balance: L.D.B.

With respect to L.D.B.’s statements on collateral matters to the police, I note that she made no effort to repeatthese allegations in her direct examination. When questioned about these statements in cross-examination, L.D.B. explained that whenshe went to the police she was traumatized and was trying to figure out what had happened to him and in some cases, just babbling. Ihave no way to assess the veracity of L.D.B.’s statements to the police which were collateral to the matters before the court.

I also note L.D.B.’s subsequent behaviour is consistent with her evidence that she was terrified R.A.B. would carry through with histhreats of violence. Even though she had lived in Prince George for years and had just moved into the house at [omitted for publication],L.D.B. left her home, her job and Prince George after the events giving rise to the charges before the court. I accept that L.D.B. was frustrated and argumentative with R.A.B. as he was with her. I accept that L.D.B. harboured negative viewswith respect to R.A.B.’s past and present circumstances.

I find by late February 2016, their home environment was laden with tensionand hostility. Nevertheless, I accept L.D.B.’s evidence that R.A.B. threatened her and C.P. in the manner she described. I also accepther evidence she observed R.A.B. throw his lighter at her microwave and breaking its window. Balance: M.G.A.B. I found M.G.A.B. to be a fair and forthright witness. His decision to wait for a further call before going over toL.D.B.’s house on February 21, 2016, indicates his reluctance to enter into the fray.

M.G.A.B. believed that as long as R.A.B. hadsomeone who he thought was listening and believing what he was saying, he would be okay. M.G.A.B.’s conduct once he arrived at hismother’s house was thoughtful, patient and careful. Although M.G.A.B.’s loyalty rested with his mother, he nevertheless tried to quellthe conflict between her and his brother. M.G.A.B. struck me as someone who wished R.A.B. and L.D.B. would just get along. Conclusion on reliability and credibility of the Crown Witnesses [68] In sum, I find L.D.B. and M.G.A.B. reliable and credible witnesses.

I accept their evidence with respect to the incidents givingrise to the charges before the court. Should the Court take an adverse inference from the Crown’s failure to call other witnesses? [69] R. v. Joliet, 2000 SCC 29 , is the leading authority when adverse inferences may be drawn. Justice Binnie articulatedthe following principles: 1. The Crown is under no obligation to call a witness it considers unnecessary to the prosecution’s case (at para. 14). 2. Generally, witnesses should be called by the party that wants their evidence (at para. 15).

An exception to this would be if a witnesswas not called for an improper motive, such as a desire to hide exculpatory evidence (at para. 16) . . . 3. The “adverse inference” principle is derived from ordinary logic and experience and is not intended to punish a party who exercisesits right not to call the witness by imposing an “adverse inference” which a trial judge, in possession of the explanation for the decision,considers to be wholly unjustified (at para. 24). 4. There is a stronger basis for an adverse inference if the evidence in question can only be accessed through one party (at para. 27). 5.

The exact nature of the adverse inference must be precisely stated. There are many reasons for not calling available witnesses and, atmost, it may be that the only inference is that the evidence would not have been helpful, not that it was adverse (at para. 28). Cited in R. v. Locke, 2015 MBCA 75, at para. 17. [70] The evidence before me is that none of the care aides were present when the incidents giving rise to the offence unfolded sothere is no reason for the Crown to call them as witnesses.

In my view the Crown was not required to try and track down people whomay have heard noise emanating from the B. residence on the afternoon of February 21, 2016. Even if the Crown could have identifiedand interviewed these people, it would be unlikely they could identify who or what was making the noise. In other words, their evidencewould not have been helpful. [71] Similarly, the Crown was under no obligation to call witnesses who may have heard R.A.B. yelling into M.G.A.B.’s phoneearlier that day.

The telephone was not on speakerphone and there is no obligation for the Crown to call as a witness anyone other thanL.D.B. and M.G.A.B.

[72] In Locke, Hamilton J.A. states at para. 19: Therefore, as long as the Crown has provided proper disclosure to the defence, it is under no obligation to call a witness or tenderphysical evidence it considers unnecessary to the prosecution’s case. Furthermore, the Crown has wide discretion to call witnesses orevidence.

The effect of a failure to call evidence may impact adversely on the Crown’s case and its ability to prove its case beyond areasonable doubt, but does not call for an adverse inference. [73] I also reject R.A.B.’s argument that L.D.B. or M.G.A.B. ought to have audio or video recorded their interactions during theweek of February 21 to 26, 2016.

This is not something family members ordinarily do when arguing amongst themselves. [74] In conclusion, I take no adverse inference from the Crown’s decision not to call any further witnesses or for the absence of anyrecording of R.A.B.’s interactions with L.D.B. and M.G.A.B. APPLICABLE LAW Onus and Standard of Proof [75] Every person charged with a criminal offence in Canada is presumed to be innocent until the Crown has proven their guiltbeyond a reasonable doubt: s. 11(

d) Charter of Rights and Freedoms. This onus of proof never switches from the Crown to the accused. In assessing whether the Crown has proven its case I must consider the whole of the evidence and only convict if satisfied the Crownhas established R.A.B.’s guilt beyond a reasonable doubt. In R. v. Lifchus, the Supreme Court of Canada indicated thatproof beyond a reasonable doubt “does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it an imaginaryor frivolous doubt.” In R. v.

Starr, 2000 SCC 40 , however, the Court pointed out that the burden of proof placed upon theCrown lies “much closer to absolute certainty than to a balance of probabilities.” [76] In R. v. W. (D), , the Supreme Court of Canada has provided the trial Courts with an analytical framework toassess reasonable doubt in the context of conflicting testimony in a criminal trial. In R. v. B. D., 2011 ONCA 51 and R. v. F.E.E., 2011ONCA 783 the Ontario Court of Appeal held the conflicting evidence may arise in the Crown’s case or come from a defencewitness other than the accused. (See: R. v.

Homeniuk, 2015 BCSC 1827 , para. 50 and R. v. McConnell, 2014 BCSC 973, para. 16). Recently, Professor David M. Paciocco, in his paper, Doubt about Doubt: Coping with R. v. W(

D) and CredibilityAssessment, recasts the W(

D) test as follows: a. the trial judge who believes evidence that is inconsistent with the guilt of the accused cannot convict the accused; b. even if the trial judge does not entirely believe evidence inconsistent with guilt, if left unsure whether that evidence is true there is areasonable doubt and an acquittal must follow; c. even where the trial judge entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not proveguilt; and d. even where the trial judge entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless theevidence that is given credit proves the accused guilty beyond a reasonable doubt.

Offence of Threatening [77] The offence of threatening is set out in s. 264.1 of the Criminal Code which states: 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; [78] The elements of the offence include: (1) the utterance or conveyance of a threat to cause death or serious bodily harm and, (2)an intent to threaten: R. v. McRae, 2013 SCC 68 . [79] In order to prove the wrongful act, the Crown must prove beyond a reasonable doubt that a reasonable person would considerthe words uttered by the accused a threat.

In McCrae, the court stated at para.16: . . . the prohibited act of the offence of uttering threats will be made out if 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. [80] At para. 11, the court states: 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. [81] In order to prove the criminal intent, the Crown must prove beyond a reasonable doubt the accused intended the impugnedwords uttered or conveyed to be taken seriously or to intimidate. The Supreme Court in McCrae states at para. 23: 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 betaken seriously.

It is not necessary to prove an intent that the words be conveyed to the subject of the threat. A subjective standard offault applies. However, in order to determine what was in the accused’s mind, a court will often have to draw reasonable inferences fromthe words and the circumstances, including how the words were perceived by those hearing them. [82] In McCrae, at para. 24, the Supreme Court makes it clear that threats of violence are inherently violent and not a means ofcommunicating future violence:

. . . [I]t is not necessary to prove that the threats were conveyed to their intended recipients (prohibited act) or that the accused intendedthe threats to be so conveyed (fault element). Further, it is not necessary to prove that anyone was actually intimidated by the threats(prohibited act) or that the accused specifically intended to intimidate anyone (fault element). The concept of the “closed circle” istherefore legally wrong. Threats are tools of intimidation and violence.

As such, in any circumstance where threats are spoken with theintent that they be taken seriously, even to third parties, the elements of the offence will be made out. [83] In R. v. Steele, 2014 SCC 61 , the Supreme Court reaffirms McCrae at para. 47: In other words, the act of threatening harm can itself be

an act of violence even if the threats are not conveyed to their intended recipientsor are not intended to be so conveyed, so long as they are intended to be taken seriously. The Offence of Mischief [84]

Section 430 of the Criminal Code defines the offence of mischief which states: Mischief 430. (1) every one commits mischief who wilfully (

a) destroys or damages property; (

b) renders property dangerous, useless, inoperative or ineffective; (

c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or (

d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property. [85] What constitutes wilfulness for the purposes of s. 430 is defined in s. 429(1): 429(1) Everyone who causes the occurrence of an event by doing

an act … knowing that the act … will probably cause the occurrenceof the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to have causedthe occurrence of the event. [86] The wrongful act of mischief to property pursuant to s. 430(1)(

a) of the Code (the wilful destruction or damage to property) iscomplete when one damages property. It is an offence of general intent: R. v. Toma 2000 BCCA 494 . The criminal intentrequires proof an intentional or reckless causing of the wrongful act. Has the Crown proven beyond a reasonable doubt the accused is guilty of uttering threats as charged in Counts 1, 2 and 3 ofInformation 44273-2-C? [87] I find that on February 21, 22, 24 and 25, 2016, the accused, R.A.B., uttered words that he would kill L.D.B. or C.P. or herparents.

These words were said loudly and accompanied by obscenities, denunciations and recriminations.

They were also accompaniedby R.A.B.’s physical acts of aggression, including: a. throwing his WCB documentation at L.D.B.; b. throwing his metal file folder at L.D.B.; c. throwing his lighter at L.D.B.’s microwave with sufficient force to break its glass; d. positioning himself so his nose and forehead touched those of L.D.B.’s; e. pushing L.D.B.’s head back and forth with his nose and forehead; f. handling his crutch in a threatening manner; g. preventing L.D.B. from being able to leave the house when she wanted to; h. following L.D.B. to the Sprinter van and positioning himself so she could not close the door. [88] These threats and acts of physical aggression were committed against a disabled older woman ill-equipped to defend herself andlikely timed to ensure they would not be witnessed by third parties. [89] In my view, the meaning that a reasonable person would attach to the impugned words viewed in the circumstances in whichthey were uttered or conveyed constituted a threat.

The words “kill” and “choke” connotes a threat of violence and there is no indicationthat there is a secondary or less obvious benign meaning in reviewing the context in which they were uttered. [90] Having regard to the evidence as a whole I find R.A.B. intended L.D.B. to be intimidated by his threatening words or that heintended the words be taken seriously. I also find R.A.B. intended M.G.A.B. to take his threats against L.D.B. seriously.

Although it isunnecessary for the Crown to prove the recipient of a threat actually feels intimidated or takes it seriously, the evidence indicates this isexactly what happened. L.D.B. testified she was intimated and terrified by R.A.B.’s threatening words and I accept that to be the case. M.G.A.B.’s reaction to R.A.B.’s threats to kill L.D.B. was one of alarm. He abandoned his plans and guests and went immediately toL.D.B.’s home to address the situation. [91] K.R.’s evidence of R.A.B.’s good character is not inconsistent with his guilt. K.R. was not present during the events giving rise

to the charges. K.R. admits that during the offence dates the tension and conflict in L.D.B.’s household was overwhelming. L.D.B. and M.G.A.B. agree R.A.B.’s behaviour during the week of February 21 to 26, 2016, was anomalous. Where they may have argued in the past, by February 21, 2016, R.A.B. had escalated his communications to and about L.D.B. to the point where he was threatening her in a criminal manner. [ 92 ] I find the Crown has proven beyond a reasonable doubt that R.A.B. uttered threats as charged in Counts 1, 2 and 3 of Information 44273-2-C.

Has the Crown proven beyond a reasonable doubt the accused is guilty of mischief as charged in Count 4 of Information 44273-2-C? [ 93 ] By Count 4, R.A.B. is also charged with mischief with respect to L.D.B.’s microwave. [ 94 ] In this case, the evidence shows that while in a rage, R.A.B. threw his lighter towards kitchen counter with such force that when it hit the microwave, its front glass plate shattered.

On or near the counter at the time were other kitchen appliances. [ 95 ] I accept K.R. has never seen R.A.B. throw things in anger, however she was not present during the incident giving rise to Count 4 and her evidence is not determinative of the issue. [ 96 ] I find R.A.B. did throw his lighter as L.D.B. and M.G.A.B. described and did so intentionally and recklessly . When the lighter hit L.D.B.’s microwave it broke the glass. It is entirely predictable that in throwing a lighter with sufficient force in a kitchen it is likely to hit and damage something.

Accordingly, I find the Crown has proven Count 4 beyond a reasonable doubt.

Disposition R.A.B. [ 97 ] As to the charge in Count 1 of Information 44273-2-C, that from February 21 to 26, 2016, inclusive at or Prince George, B.C., you did knowingly utter or convey a threat to L.D.B., to cause her death or bodily harm, I find you guilty. [ 98 ] As to the charge in Count 2 of Information 44273-2-C, that from February 21 to 26, 2016, inclusive at or Prince George, B.C., you did knowingly utter or convey a threat to M.G.A.B., to cause death or bodily harm to L.D.B., I find you guilty. [ 99 ] As to the charge in Count 3 of Information 44273-2-C, that from February 21 to 26, 2016, inclusive at or Prince George, B.C., you did knowingly utter or convey a threat to L.D.B., to cause death or bodily harm to C.P., I find you guilty. [ 100 ] As to the charge in Count 4 of Information 44273-2-C, that from February 21 to 23, 2016, inclusive at or Prince George, B.C., you committed mischief in relation to property, the value of which does not exceed $5,000, by wilfully damaging a microwave, the property of L.D.B., I find you guilty. __________________________ The HonouR.A.B.le Judge J.

Doulis Provincial Court Judge Province of British Columbia