Her Majesty the Queen - v. -, 2012 SKPC 75

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 075 Date: June 27, 2012 Information: 37291271 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Clinton John Nelson Appearing: Barbara Herder For the Crown Kearney Healy For the Accused JUDGMENT P.S. KOLENICK , J BACKGROUND [ 1 ] The accused is charged that, on or about November 9, 2011, he knowingly uttered a threat to cause death to the complainant, contrary to s. 264.1(1) (

a) of the Criminal Code .

[ 2 ] We had initially adjourned this matter for argument because there had been some apparent potential range of the dates when this matter had allegedly occurred in the evidence for the Crown. However, when we convened for argument, Defence conceded that proof of the actual date of the occurrence was not material for present purposes. Regardless, the credibility of the complainant as it related to various aspects of the alleged circumstances including the date when it had occurred remained a live issue. There had been no evidence called for the Defence.

As such, the accused had not testified. [ 3 ] Therefore the following issue arose: Is the evidence for the Crown sufficiently credible and reliable to prove beyond a reasonable doubt the accused had uttered the death threat as alleged? EVIDENCE FOR THE CROWN Constable Dan Zimmerman [ 4 ] The officer confirmed that he is a member of the Saskatoon Police Service. On November 10, 2011, he had responded to a dispatch with his partner, in a marked police vehicle and attended at the scene. He spoke to the complainant and took a police statement from her.

She claimed that the accused had made a death threat and was frightened he might follow through. The accused was also present at the scene, but the officer’s partner had dealt with him. The accused was identified in court. [ 5 ] In cross-examination the officer indicated that it had been the accused who had contacted the police rather than the complainant. The reason for that call was to confirm that his laptop had been stolen by someone present at the time. As a result of the officer’s intervention the accused was able to get it back. Caroline McLeod - The Complainant [ 6 ] The complainant is 41 years old.

She had been residing at 615 Avenue H South for roughly eight months. She had known the accused for many years and had been in a serious relationship with him on two occasions, but not any longer. [ 7 ] At the time of this alleged matter, they were both residing at this location, as were other family members of the complainant. Apparently he lived upstairs and she had resided downstairs. [ 8 ] As matters unfolded, the parties were both operating their laptops and she had initiated the exchange. She had texted him about his former girlfriend. He replied his wish to continue in that relationship.

She responded that was up to him. She could hear the accused swear from where he was upstairs. He said words to the effect “if you bother me about my girlfriend I might have to kill you.” [ 9 ] She could see the accused through an air vent upstairs while he uttered the threat. He was angry. She was afraid he might strike her as he had done before. She called her brother who came over in support. The police had also attended but she had not called them. [ 10 ] In cross-examination the complainant was shown the statement which she had prepared for the police on November 10, 2011.

She agreed it claimed the matter had occurred on November 9, 2011, rather than some prior date as much as a week earlier as she had suggested in her testimony. Regardless, he had threatened to hurt or kill her.

[11] She agreed as well that she had not made any complaints to the police regarding the alleged matter in the interval of timebefore the police had attended. The reason for that attendance was the accused wanting her uncle charged for the alleged theft of hislaptop. Initially, her evidence was that she did not want him charged with theft. [12] When the accused had made the alleged threats she could see him somewhat through the air vents opening to the living room,but not his face. [13] She had not made any notes at the time from which she could refresh her memory.

Despite the passage of many months to thedate of trial the accused had indeed uttered the death threat as alleged. [14] In re-examination she confirmed the accused had the laptop back in his possession when she eventually did speak to thepolice. Regardless, she was not particularly concerned whether or not her uncle was charged with the theft. ANALYSIS Is the evidence for the Crown sufficiently credible and reliable to prove beyond a reasonable doubt the accused had uttered the deaththreat as alleged? [15] I had occasion to consider the appropriate legal principles on this subject in R. v.

Janzen (P.J.) (2006), 2006 SKPC 30, 281 Sask. R. 98, and noted the following, starting at para. 18: [18] Specifically, s. 264.1(1)(

a) of the Criminal Code provides as follows: 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; ... [19] Obviously every case will depend on its particular circumstances. In R. v. Jaeb (C.) (2000), (SK PC), 197Sask. R. 296 (Sask. Prov. Ct.), I had dealt with a series of alleged threats made to different complainants. In general, the judgment statedas follows, at para. 25: [25] In R. v. Clemente (V.F.), (SCC), [1994] 2 S.C.R. 758; 168 N.R. 310; 95 Man. R. (2d) 161; 70 W.A.C. 161; 91C.C.C. (3d) 1, the court had occasion to consider and interpret the wording of s. 264.1(1) of the Criminal Code.

In that regard, Cory J.,stated the following at page four: Under the present section, the actus reus of the offence is the uttering of threats of death or serious bodily harm. The mens rea is thatthe words be spoken or written as a threat to cause death or serious bodily harm; that is, they were meant to intimidate or to be takenseriously.

To determine if a reasonable person would consider that the words were uttered as a threat the court must regard them objectively; andreview them in light of the circumstances in which they were uttered, the manner in which they were spoken, and the person to whomthey were addressed. Obviously, words spoken in jest or in such a manner that they could not be taken seriously could not lead a reasonable person to

conclude that the words conveyed a threat. CONCLUSION [ 16 ] It is alleged by the complainant that the accused had stated words to the effect that if she didn’t stop bothering him about his girlfriend he might have to kill her. She was adamant that the accused had made that nature of comment and resisted any suggestion to the contrary in thorough, careful cross-examination. [ 17 ] Despite that assertion, however, the Court has concerns that her description of events may not be as credible as one might hope.

The parties had some past history as a couple and were residing at different levels of the residence when this alleged matter occurred. She had raised the issue of the former girlfriend. Perhaps she was frustrated and angry when he confirmed in answer to her text his intention to continue dating his new girlfriend. [ 18 ] Likewise, it was apparent the accused had been the one who had contacted the police rather than the complainant. He had done so to complain that her uncle was holding the accused’s laptop over an alleged debt and wanted it returned to him.

The complainant gave conflicting testimony as to whether the risk of her uncle in those circumstances being charged with theft was a concern to her. That different expression of opinion also undermined the relative worth of her evidence. [ 19 ] As well, one should not be left to speculate as to when this alleged matter occurred, at least to the extent that it reflects on the reliability of the complainant’s description of events. Her statement to the police suggested it occurred the previous day but her testimony indicated it may have been as long as a week previously.

If she had any nature of extended opportunity and chose not to contact the police in a more timely manner to raise the alarm of the alleged death threats, that too, undermined the value of her evidence. [ 20 ] All in all, the evidence for the Crown is not sufficiently credible and reliable to prove the constituent elements of the offence beyond a reasonable doubt. As such, the accused is not guilty of the allegation of uttering death threats, contrary to s. 264.1(1) (

a) of the Criminal Code . __________________________ P.S. Kolenick, J