R. v. Berens, 2019 MBPC 75

CITATION: R. v. Berens , 2019 MBPC 75 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) K. Clayton ) ) for the Crown - and - ) ) ) Byron Berens ) ) A. Sansregret for the Accused ) ) ) Reasons for Decision ) Delivered: November 19, 2019 CORRIN, P.J. CHARGES [ 1 ] The accused is charged with the following offences: - Housebreak and enter commit arson (October 21, 2017)... s. 348(1) (

d) of the Criminal Code ; - Arson (October 21, 2017)... s. 433 (

a) of the Criminal Code ; - Utter threats (October 19, 2017)... s. 264.1(1) (

b) of the Criminal Code . THE EVIDENCE RESPECTING THE INCIDENTS [ 2 ] On October 19 th , 2017, the accused and the complainant, Damara Bluecoat, met accidentally on the street and spent some time together at the Marlborough Hotel. They had previously been partners and were the parents of a four-year-old daughter who resided with the complainant. After visiting and spending time together with the accused and his aunt, the accused walked the complainant back home to 575 Balmoral Avenue, a residence they had shared until they had broken up at some point earlier in the year. Ms.

Bluecoat elaborated that she had requested and received the only key she had given the accused at such time. Both parties agreed that they had discussed getting back together, something which the accused was particularly interested in doing. The complainant agreed on cross- examination that she may have left the accused with the impression that she wanted to reconcile and resume their relationship. She acknowledged telling Mr. Berens that she was going to “dump” her new live-in boyfriend within a day or two.

On cross-examination she claimed she had only related this to get him “off her back” as he was pestering her in this respect. The complainant told court that the accused had become angry during their conversation because of her new relationship. She testified that he had then threatened to set fire to her bed, a threat that the accused denied making. [ 3 ] The following afternoon, October 20 th , the accused communicated with the complainant by Facebook or iPhone texts. Ms. Bluecoat agreed to meet Mr. Berens in a public place, near the mailboxes at her apartment block. When they met, Ms.

Bluecoat, according to Mr. Berens, had again told him she wanted to get back together for their daughter’s sake. According to Mr. Berens she had then related that she was waiting for the new boyfriend to leave her residence, that his departure was imminent. [ 4 ] Later that evening, around 6:30 p.m., the complainant and her daughter left her apartment to spend the night with her new boyfriend. Some time after their departure the accused returned to the residence. It was his evidence that he had done so because he had not received a confirmatory text or phone call from Ms.

Bluecoat advising him that the new boyfriend was gone, something he claimed she had promised to do when they had met earlier. Mr. Berens related that Ms. Bluecoat’s failure to call or text him had made him concerned that the breakup had not gone well and he had gone over to make sure she and his daughter were all right. [ 5 ] According to Mr. Berens he had found the apartment dark and seemingly unoccupied and had then used a duplicate key he had secretly made just prior to giving back the key Ms. Bluecoat had previously given him to get into the apartment.

He denied forcing the locked door and damaging it and the doorframe to obtain entry. As previously mentioned, Ms. Bluecoat also testified that she had requested return of Mr. Beren’s apartment key when she had broken up with him earlier in the year. Mr. Berens claimed that he had entered the apartment solely because he feared that his daughter could be in danger inside. He went on to testify that once inside he had seen something on the kitchen table which he believed were drugs, that this had angered him. Court was told that he had then lashed out at a new TV in the living room and cut his hand.

He then related that he had gone to the complainant’s bedroom and looked for his clothes, because he wanted to remove them from Ms. Bluecoat’s apartment. Mr. Berens denied setting fire to a mattress in the

complainant’s bedroom prior to leaving the apartment. It was his evidence that he had, after collecting some of this clothes, locked thedoor with his key and departed without causing any more damage. [6] At approximately 1:30 a.m. on October 21st, Winnipeg Fire Paramedic Services (WFPS) attended the apartment in response toa fire report. Firefighters located a burning mattress in the complainant’s bedroom. Investigators confirmed that the fire had been causedby direct flame contact. The cause of the fire was reported to be incendiary as opposed to accidental.

The fire investigator reported (seeExhibit 1) that, “The most probable cause of the fire was direct flame contact to combustibles on top of the mattress.” The investigatorstressed that “No chemical, natural or mechanical sources of ignition” had been found “in the area of (the fire’

s) origin,” that no“smoking material” or electrical sources had been found either. [7] A Winnipeg Police Service Forensic Report, exhibit 2 in these proceedings, found the suite’s only exterior door to have been“bodily forced, causing the door to split.” Blood drops were found in the kitchen, on the floor and countertop between the stove and sink.An RCMP lab DNA analysis confirmed that the blood belonged to Byron Berens. W.(D.) [8] An accused person cannot be convicted of a crime unless and until the offence is proved against him or her beyond areasonable doubt.

The onus of proof is always on the prosecution to prove the case. The application of this principle in cases such as thisone, where the accused testified, leads the court to the principles articulated in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742.In W.(D.), at p. 758, the Supreme Court of Canada provided guidance to trial courts on how a trier of fact should give effect to thepresumption of innocence. First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [9] The W.(D.) analysis requires that a trial judge stay focused on the central issues, that being whether the Crown has proved thecase beyond a reasonable doubt. “The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact isleft with a reasonable doubt about the guilt of the accused...” (R. v.

Vuradin, 2013 SCC 38 , [2013] 2 S.C.R. 639 at para. 21). Itis trite but true that a trial judge is not permitted to simply compare the evidence of the witnesses and choose the version that he or sheprefers. [10] At the first and second stage of the W.(D.) analysis, the court must consider all the evidence, and may find that other evidence,i.e. the testimony of other witnesses, including the complainant, makes the accused’s evidence unreliable and/or unbelievable. This doesnot mean that the court is choosing between the Crown’s evidence and that of the accused.

On the contrary, it simply ensures that theaccused’s evidence is not being assessed in isolation, but in the context of all the other evidence in the case. [11] The Manitoba Court of Appeal in R. v. Menow, 2013 MBCA 72, at para. 21, has also followed the 2007 decision of the OntarioCourt of Appeal in R. v. Hoohing, 2007 ONCA 577, in which Feldman J.A. stated (at para. 15): A jury does not consider an accused’s version of events in isolation as if the Crown had led no evidence.

When the jury is applying thefirst two prongs of the three-pronged test in W.(D.), they are deciding whether they accept the accused’s version of events or whether itleaves them with a reasonable doubt. Clearly they can only do that by assessing the accused’s evidence and the other evidence thatfavours the accused in the context of all the evidence...

The evidence of any witness, including an accused, may be believable standingon its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witness’s evidence,that evidence may no longer be believable, or, in the case of an accused, may no longer raise a reasonable doubt. [12] A trier of fact, even if he or she completely rejects the accused’s evidence cannot simply assume that the Crown’s version ofevents must be true.

A judge or jury must still carefully assess all the prosecution evidence and determine whether same persuades thembeyond a reasonable doubt that the accused is guilty. [13] Judge David Paciocco, a former professor of evidence law at the University of Ottawa, in an

article appearing in the February2017 edition of the Canadian Criminal Law Review (22 Can. Crim. L. Rev. 31) entitled Doubt about Doubt: Coping with R. v. W.(D.)and Credibility Assessment had the following to say about the application of the three rules in W.(D.): The W.(D.) framework is intended to assist criminal fact-finders in properly applying the reasonable doubt concept to issues ofcredibility. Its three rules, designed to instruct criminal fact-finders on what to do when they believe evidence, disbelieve it entirely, orare unsure whether to believe it, are imperfect.

Still, its underlying principles are indispensable in any situation where, in a criminal trial,the accuracy of testimony inconsistent with the guilty of the accused is at issue. Those principles must therefore be understood, andrespected.

They provide: 1) Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred; 2) A criminal fact-finder that believes evidence that is inconsistent with the guilt of the accused cannot convict the accused; 3) Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder cannot decide whether thatevidence is true, there is a reasonable doubt and an acquittal must follow; 4) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not proveguilt; and

5) Even where the fact-finder 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. Of importance, those principles permit the conviction of the accused, even in the face of exculpatory testimony, where the reasoned andconsidered evidence that is given credit proves the accused guilty beyond a reasonable doubt. Frequent reaffirmation in credibility cases of these principles can reduce the tendency to make intuitively appealing but improperdeterminations.

CIRCUMSTANTIAL EVIDENCE [14] It is also necessary, because this is a circumstantial case where the Crown invites the Court to make certain inferences, toremember the instructions provided in R. v. Villaroman, (2016) 1 S.C.R. at paragraphs 35, 36, 37 and 38: (iv) Whether the Inference Must Be Based on “Proven Facts” [35] At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rationalconclusions based on inferences drawn from proven facts”: see R. v.

McIver, (ON CA), [1965] 2 O.R. 475 (C.A.), at p.479, aff’d without discussion of this point (SCC), [1966] S.C.R. 254. However, that view is no longer accepted. Inassessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370 , 361 B.C.A.C. 301, at para. 10; R. v. Bui,2014 ONCA 614 , 14 C.R. (7th) 149, at para. 28.

Requiring proven facts to support explanations other than guilt wrongly putsan obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by consideringall of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

Ifthere are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. [36] I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by themere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason andcommon sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in theevidence may result in inferences other than guilt.

But those inferences must be reasonable given the evidence and the absence ofevidence, assessed logically, and in light of human experience and common sense. [37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonablepossibilities” which are inconsistent with guilt: R. v. Comba, (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, perMiddleton J.A., aff’d (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28 , 335 B.C.A.C. 11, at para. 20; R.v. Mitchell, [2008] QCA 394 (AustLII), at para. 35.

I agree with the appellant that the Crown thus may need to negative these reasonablepossibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might beconsistent with the innocence of the accused”: R. v. Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories”or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not onspeculation. [38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw.

But the basic question is whetherthe circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference otherthan that the accused is guilty. W.(D.) ANALYSIS [15] The evidence provided to the Court by the accused certainly supported a mischief charge. Mr. Berens confirmed that he haddeliberately struck the television set and broken the screen. [16] The Crown agreed with Defence that the accused should only be convicted of forcible entry and not break and enter if theaccused’s version of events was accepted by the Court.

However, he argued that the evidence supported a conviction for break and entrywhether the predicate indictable offence was arson or mischief. Defence took the position that the accused was “unshaken” in his denialof the arson and utter threats charges and should accordingly be acquitted of these charges. [17] The Defence argued that the accused’s denial of the alleged bed burning threat should be believed as it would make no sensethat the complainant would personally meet with him again the following day if he had uttered such a dire threat.

Defence also arguedthat it also made no sense that the accused would have resorted to making such a threat because the parties were in the course of aconciliatory discussion respecting the resumption of their relationship at such time. Defence reminded the Court that both parties had provided virtually the same evidence respecting their congenial October 19th meeting and conversation except for this single allegationmade by the complainant. Defence implied that Mr.

Berens would also have to have been very reckless to make sure a threat and thenaudaciously act on it because to do so would clearly pinpoint him as the number one suspect respecting the break in/arson offences.Defence more or less suggested, albeit perhaps more by implication than direct accusation, that the complainant had opportunisticallyconfabulated the bed burning threat in order to throw suspicion on the accused, that she had done so because she fervently believed thathe had started the fire because she hadn’t confirmed her break up with her new boyfriend.

Finally, Defence reminded the Court that thecomplainant’s trial testimony differed from her statement to police investigators, that her statement indicated that the accused had textedthe threat to burn her bed, not uttered such threat in direct conversation while walking her home from the Marlborough Hotel. [18] The Crown argued that the accused’s guilt was the only reasonable inference with respect to the arson charge and urged theCourt to rely on the complainant’s threat allegation.

He reminded the Court that the only evidence that was inconsistent with guiltrespecting the arson charge was that provided by the accused. He characterized same as being a self-serving attempt to evaderesponsibility and conviction in such respect. [19] The Court observes that no duplicate key was produced by the accused in support of his evidence. It also observes that his

evidence in such respect is essentially in itself an admission of mendacity of sorts, i.e. if he is telling the Court the truth he is alsoadmitting that he purposefully misled the complainant respecting the return of her keys,

an act which was both devious and highlydisreputable,

an act which reflects his willingness to bend the truth in pursuit of his own interest. [20] The Crown also reminded the Court that Mr. Berens’ assertion that he was not angry when he came to the complainant’sresidence was belied by both the circumstances of his visit as well as his admitted actions; that he had come over because he had notreceived the promised confirmation of the boyfriend’s departure and found the apartment vacant, a situation which could only haveconfirmed his worst suspicions, that Ms. Bluecoat and the boyfriend had gone somewhere together. The Crown reminded the Court thatthe arson was

an act calculated to financially, emotionally and psychologically injure Ms. Bluecoat, that the same could also be saidrespecting the damage Mr. Berens admitted with respect to the T.V. set, that it therefore made sense that the jealous and enragedaccused, who acknowledged visiting his former partner’s shared bedroom and checking out her closet that night, would continue hisrampage after seeing physical evidence of cohabitation. [21] The Court does not believe Mr. Berens’ exculpatory evidence.

It is simply too self-serving and does not possess an air of reality.Of course, it is possible that his seemingly convenient evidence could be true but the plausibility of the scenario he depicted is to say theleast, very far-fetched and highly suspect. For these reasons the Court is not of the view that the accused should be acquitted pursuant tothe first or second step of W.(D.). STEP 3 OF W.(D.) [22] That having been said, the Court cannot, even though it does not entirely believe the accused’s denial of the October 19th threat,convict with respect to such charge.

The Court’s rationale in such respect relates to its inability to decide whether Ms. Bluecoat’stestimony was true on this point. The Court concedes that Defence has made a cogent argument as to why I should acquit on this charge.Simply put, the Court is not able to say that the complainant’s evidence is so reliable and/or credible as to prove the accused guiltybeyond a reasonable doubt. The Court observes that the contradictory police statement was a major concern in such respect. [23] I now turn to the other charges.

The Crown does not have to negative every conjecture or speculation which might be consistentwith the innocence of the accused. It only has to negative reasonable possibilities. The line between plausible and speculativepossibilities can sometimes be very difficult to discern. In this case the Court views the circumstantial evidence to be strong because it isbased on a linkage of reasonable inferences that point ineluctably in only one direction, that the accused and not someone else committedthe arson. The accused had both motive and opportunity.

He was very angry and his anger was, almost certainly fueled by jealousy. Headmitted removing his belongings from the apartment, conduct that strongly suggests that he knew the complainant was not going toresume their relationship.

He acknowledged striking and breaking the glass front of the television and lacerating his hand in the process.The possibility of another person breaking into the residence and setting fire to the mattress shortly after the accused left the apartment isnext to nothing, an unlikely possibility that professional probability theorists would probably describe as virtually improbable. [24] Martin’s Criminal Code, referring to R. v.

Proudlock, (1979) (SCC), 1 S.C.R. 525, states that once “a primafacie case is made out using this presumption” (s. 348(2)(a)) “the accused need only raise a reasonable doubt, which he may do byadducing evidence of an explanation that may reasonably be true.” It goes on to state that “an explanation that is disbelieved does notconstitute” any evidence to the contrary “as it is no evidence. The evidence upon which the accused relies must at least raise a reasonabledoubt as to his guilt”.

Therefore, where there is credible evidence tending to negative the existence of the necessary intent the Crownmust, in such circumstance, prove the existence of the necessary intent beyond a reasonable doubt. [25] The accused conveniently testified that he employed a key to enter the residence and only entered the apartment to check on thewell-being of his child, not to cause damage. He went on to admit that he had caused damage to the television set. He denied causing thefire and told Court that he had conscientiously locked the door when he left.

The Court believes that the accused fabricated the duplicatekey story for the reason stated by the Crown, as an attempt to provide an exculpatory explanation for his forensically proven presence inthe apartment i.e. that it was not him who broke down the door and started the fire. For this and the other reasons I have alreadyprovided, I did not believe the accused’s version of events. I accordingly convict the accused of break and enter in reference to a dwellinghouse to commit arson, an indictable offence. I also convict the accused of arson. “Original signed by:” CORRIN, P.J.