R. v. R.J., 2023 BCPC 29

Citation: R. v. R.J. 2023 BCPC 29 Date: 20230213 File No: [omitted for publication] Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. R.J. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: T. Zanatta; M. Jang Counsel for the Defendant: W. Perrin Place of Hearing: Prince George , B.C. Date of Hearing: October 25, 2022 Date of Judgment: February 13, 2023

INTRODUCTION [ 1 ] R.J. is charged under Information [omitted for publication], that on February 28, 2022, at or near Vanderhoof and Prince George, in the Province of British Columbia, he did knowingly utter or convey a threat to P.K. to cause her death or bodily harm contrary to s. 264.1(1) (

a) of the Criminal Code and without lawful authority, confined P.K. contrary to s. 279(2) of the Criminal Code . At the time, R.J. and P.K. were intimate partners residing near Vanderhoof. The offences are alleged to have occurred while R.J. was driving P.K. in her vehicle from Vanderhoof to Prince George. They began to argue about R.J.’s erratic driving and P.K.’s commitment to their relationship. P.K. says that R.J. became angry and threatened to kill her and refused her request to be let out of the vehicle. BACKGROUND FACTS [ 2 ] R.J. is 44 years old.

In 2001, he obtained his Class 1 licence and now earns his living as a commercial truck driver. He grew up in Tumbler Ridge; however, lived in Kelowna and Prince George as an adult. [ 3 ] P.K. is 42 years old. She is the mother of two children, N.K. and K.K. I infer from the evidence that P.K.’s children are school- age adolescents and they ordinarily reside with her. [ 4 ] P.K. separated from her husband on February 14, 2021. [ 5 ] P.K. resides in [omitted for publication] on the outskirts of Vanderhoof, BC. It is a five- to ten-minute drive from this residence to the community of Vanderhoof, BC.

Vanderhoof is about a one-hour drive from Prince George, BC. [ 6 ] R.J. and P.K. entered into an intimate relationship in 2021. P.K. says they began seeing each other at the end of June 2021 and began cohabitating on August 1, 2021. R.J. says he has only known P.K. since August 2021. He says they formed a romantic relationship at the end of August 2021 and cohabitated from September 2021 to February 28, 2022. [ 7 ] Shortly after commencing his relationship with P.K., R.J. began working for [omitted for publication] Trucking as a commercial truck driver. R.J. had been living in a motorhome on his boss’ property.

At the time R.J. and P.K. began cohabitating, whenever that was, R.J. moved into P.K.’s residence in [omitted for publication] in Vanderhoof, BC. R.J. paid P.K. $600 per month to cover various expenses including his rent. [ 8 ] In early February 2022, R.J. lost his employment with [omitted for publication] Trucking as a result of an accident at work involving a snowstorm. He filed a claim for Employment Insurance, which, by the end of February 2022, had still not been approved. [ 9 ] The incident giving rise to the matter before the court occurred on February 28, 2022.

On that day, at about 3:30 p.m., R.J. and P.K. headed out together from their residence in P.K.’s car. R.J. was driving, as was their habit. I gather P.K. was in the front passenger seat. N.K. and K.K. remained behind. [ 10 ] R.J. had intended to drive into Vanderhoof to check the status of his EI claim and then to Costco in Prince George to return some lights that P.K. had suggested he return. R.J. also wanted to purchase cigarettes. P.K. says she typically accompanied R.J. on road trips.

R.J. says P.K. even accompanied him on some of his long hauls. [ 11 ] On February 28, 2022, R.J. had some issues he wanted to discuss with P.K. concerning their relationship. While they were enroute to Vanderhoof, R.J. began questioning P.K. why she had not posted any pictures or comments on her Facebook profile to indicate they were a couple. P.K. did not respond. As they reached the “Welcome to Vanderhoof” sign at the town limits, R.J. decided to forego his trip to the Vanderhoof EI office and head directly to Costco in Prince George.

He turned the vehicle around and headed to Prince George. [ 12 ] While enroute to Prince George, R.J. questioned P.K. about their relationship, but she failed to respond to his satisfaction. When they arrived in Prince George, R.J. went into Costco alone and P.K. reported to the police that R.J. refused to let her out of the vehicle and threatened to kill her. R.J. admits that he and P.K. began to argue but denies threatening or confining her. [ 13 ] I have set out below P.K. and R.J.’s respective versions of what occurred during the drive to Prince George on February 28, 2022.

P.K.’S VERSION OF EVENTS [ 14 ] On the afternoon of February 28, 2022, P.K. agreed to go with R.J. to Costco. R.J. drove as was typical. She describes their road trip in an unbroken narrative as follows: I asked him if I was going with him and he said whatever, so I got in the car. He pulled out and we headed for Vanderhoof. When we got to the Vanderhoof sign, he all of sudden decided he didn’t need to get cigarettes, so he whipped the car around and started heading back toward Prince George. He was driving erratically at that point. I asked him to just drop me off at home with the children.

At which point he said no, he needed to talk to me. And I said no please let me out we can talk when we get back. He was adamant, no, I wasn’t allowed to get out of the car. He didn’t stop; he drove past where we lived. When we got to about I recall VIP Auction, after Sob Lake Road, he started going off about my Facebook and about how my ex-husband was still listed as my husband on there and he was very aggressive in what he was saying. When I tried to explain it, he had been driving so erratically my phone flew out of hand and into the back seat so I didn’t access it.

At which point he had asked me what I would have done if I had seen something like that on his Facebook, and I said I didn’t know. He then started to go off, talking about beating me and telling me he wanted to kill me and leave me on the side of the road.

He went off about wanting to crash the car, while he was driving erratically. Over and over he told me that I was a liar, and he called me names, that I can’t even repeat. I begged him to let me out. And he told me no, over and over and over again. I was crying a lot. He kept talking about, you know, wanting to beat me. He told me my children were idiots. And they needed to be beaten, and then my family. I . . . I seriously felt like he would have beaten me and left me, cause he never wanted me really around my kids. I was constantly away from them. As he continued to drive erratically.

He would come up behind vehicles and have to slam on the brakes because he was going so fast. There was a few times I thought he was gonna actually run into a few vehicles. I kept crying looking out the window, as he was yelling and screaming at me. I was hoping that someone would see that I was in distress, but nobody did. When we came to what I call potato flats, I had it go through my head the thought of how he had been driving so fast not that long ago while I was in the car and the car . . . being in the impound, and I lost my car for a week and I then I had to pay to get it out.

I had it in my head that this was not an okay situation and I needed to get out and I needed to run. And I was . . . sobbing uncontrollably. He got to Costco and he demanded that I get out and come in with him. I . . . was too upset to go in, I told him no, and that he could go in on his own, because he had purchased them on his own. And so he left me in the car, at that point. When . . .

I felt that he was safely out of sight, I noted his keys were on the driver’s seat and I needed to got out of the car as fast I could, so I got out of the car and I went into the back seat and I grabbed my phone, then I went around to the driver’s side where I grabbed the keys and I took the house key off his key ring and I ran to the Husky. And I was continuing to cry uncontrollably. One of the attendants got me water. Some nice individual by the name of Daniel came and stood with me.

I fumbled to call my sister and he stayed with me until my sister could get me. [ 15 ] P.K. testified that the “entire time” she told R.J. to “just pull over, just let me out at the side of the road”, but he would not do so. She described “potato flats” as a long stretch of road between McBride Timber Road and Telachick Road. P.K. acknowledged there was no “safe place” such as a gas station along potato flats that R.J. could have let her out of the vehicle. [ 16 ] P.K. could not drive away while R.J. was in Costco because he had the keys to the vehicle.

P.K. had a second set of keys, but had left them with her son in Vanderhoof. She said she removed the house key from R.J.’s key ring that was left in the car so he could not return to her residence where her children had been left. [ 17 ] P.K. has a number of sisters who reside in Prince George. They came to P.K.’s aid. They called the police and pursuant to the officer’s advice, blocked R.J.’s number from P.K.’s phone. The police called P.K.’s father to go and pick up N. and K. who were at P.K.’s residence in Vanderhoof. [ 18 ] Constable Kepke was dispatched to the complaint.

He met with P.K. less than one-half hour after receiving the complaint. Constable Kepke describes P.K. as “distraught, crying, and had a hard time speaking”. She provided an audio-recorded statement. [ 19 ] P.K. says that R.J. had never threatened her before; however, there was an incident a few weeks prior which caused her to begin to “question things”. P.K. and R.J. had been at the transfer station in Vanderhoof.

P.K. testified: [R.J.] was yelling and going off about my kids and about me, and it was enough one of the attendants that was there came and talked to me and said if he was like that ever again, he would not be welcome back there. R.J.’S VERSION OF EVENTS [ 20 ] R.J. was troubled about P.K.’s commitment to their relationship. He wanted to pursue the relationship with P.K., but he believed the evidence indicated she did not want to pursue the relationship with him. Specifically, R.J. was concerned about: a.

P.K. had not given him a card on Valentine’s Day (February 14, 2022), or even acknowledged Valentine’s Day at all; b. Despite the fact that February 14, 2022 was the one-year anniversary of P.K.’s separation from her ex-husband, she had not served him with divorce papers; and c. P.K. had removed from her Facebook account all evidence indicating that she and R.J. were a couple. [ 21 ] When they left their residence in the afternoon of February 28, 2022, R.J. intended to speak to P.K. about his concerns. He did so while they were in transit. R.J. testified: a.

P.K. did not respond to his concerns about her Facebook page. She denied deleting any photographs indicating they were in a relationship, then “clammed up” and “basically didn’t say anything”; and b. She had not served her ex-husband with divorce papers because she could not afford to do so and the reason she could not afford to do so was because she had paid $400 to a veterinarian to treat a stray cat that had lived under her bathtub for four years. [ 22 ] R.J. says that he and P.K. began arguing and calling each other names. He called her a bitch; she called him an asshole.

They argued back and forth all the way to Prince George. He was hurt and frustrated, but not angry. Neither of them was yelling, but P.K. was crying, sometimes uncontrollably, but not for the entire trip.

[23] R.J. said he was not satisfied with P.K.’s response to the questions he posed. He stated: I just wanted the truth. I wanted to know what was going on and where I stood in the relationship. . . . I felt hurt. I felt the more she didn’t answer my questions, the more I felt she didn’t care about me and I didn’t know why. I just simplywanted to know what was going on. . . .

I had no other intentions, I just wanted to know what was going on. [24] R.J. was hurt when he learned P.K. paid $400 to a veterinarian for a stray cat and did not think she had her priorities where theyshould be. [25] At about 4:30, R.J. and P.K. arrived at Costco in Prince George. R.J. asked P.K. to come into Costco with him and she refusedbecause of how she looked. R.J. took the keys to the vehicle and went into Costco to return the lights. P.K. remained in the vehicle.When he returned, P.K. was gone. He waited for P.K., but she did not return to the vehicle.

He was unable to reach her by telephone. [26] R.J. stayed in Prince George for five days. He did not want to return to Vanderhoof without the children’s mother. Finally, heaccepted that P.K. was not going to come back and he went to Vanderhoof and returned to their residence. While he was packing hisbelongings in his truck, the police came and arrested him for the offences before the court. [27] R.J. said he had driven from Vanderhoof to Prince George “normally. It was a normal drive”. He did not threaten P.K. and at notime did she ask him to stop the car and let her out.

R.J. testified that because he has a Class 1 licence, he is very cautious driver. He doesadmit, however, his licence was suspended twice since he obtained his Class 1 licence. He did not say when the suspensions occurred orwhy they occurred. ASSESSING CREDIBILITY [28] In this case, I heard from two Crown witnesses and one defence witness. As the trial judge, I must assess the reliability andcredibility of those witnesses. This is a highly contextual, fact-specific exercise. I can believe none, part, or all of a witness' evidence andmay attach different weight to different parts of a witness' evidence: R. v.

S. (R.D.), (SCC). As Justice Cory commentedin S. (R.D.), assessing the credibility of a witness is more of an “art than a science”. It is a task that can be particularly daunting where acourt must assess the credibility of two witnesses whose testimony is diametrically opposed. [29] Reliability and credibility are not the same. Reliability involves the accuracy of the witness’ testimony. It engages considerationof the witness’ ability to observe, recall and recount: R. v. H.C., 2009 ONCA 56 , at para. 41.

Credibility, on the other hand,concerns the witness’ veracity – to speak the truth as the witness believes it to be: R. v. Morrissey, (ON CA), at p.526. Simply put, credibility addresses whether a witness is lying, whereas reliability is about honest mistakes. [30] The most important test of credibility lies in the evidence itself. Assessing credibility engages a number of factors, including: (a)the plausibility of the witness’ evidence; (

b) any independent supporting or contradicting evidence; (

c) the external consistency of theevidence; (

d) the internal consistency of the evidence; (

e) the “balance” of the evidence, meaning the witness’ apparent willingness to befair and forthright without any personal motive or agenda; and to a lesser extent (f), the witness’ demeanour while testifying, meaning notso much what is said but how it is said. [31] It goes without saying that evidence that is not credible is not reliable; however, the corollary is not true: evidence that is crediblemay nevertheless be unreliable: H.C. at para. 41, citing R. v.

Morrissey, (ON CA). [32] I pause to note that appellate authorities discourage trial judges from considering demeanour evidence to be determinative orcentral to assessing credibility: R. v. J.T., 2019 BCCA 180, at para. 31; R. v. Graham, 2022 BCCA 252 , at para. 16, citing R. v.Sue, 2011 BCCA 91. Still, demeanour evidence is a factor that a trial judge is entitled to consider, provided it is not the exclusivedeterminant of their credibility assessment: R. v. Panchal, 2022 ONCA 309 , citing R. v. A.A., 2015 ONCA 558, at paras. 131-32.

ASSESSING REASONABLE DOUBT [33] The Crown has to prove all the essential elements of an offence charged beyond a reasonable doubt in order to obtain aconviction. In R. v. W.(D.), , the Supreme Court of Canada provided the trial courts with an analytical framework toassess reasonable doubt in the context of conflicting testimony in a criminal trial. In “Doubt about Doubt: Coping with R. v. W.(D.) andCredibility Assessment” (2017) 22 Can Crim L Rev 31 (WL), Professor David W. Paciocco (as he then was) recasts the W.(D.) test asfollows: a.

Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred; b. A trial judge who believes evidence that is inconsistent with the guilt of the accused cannot convict the accused; c. 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; d. Even where the trial judge entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not proveguilt; and

e. Even where the trial judge entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless the evidence that is given credit proves the accused’s guilty beyond a reasonable doubt. THE COMPLAINANT P.K. Assessing the reliability of P.K.’s evidence [ 34 ] There is no suggestion that P.K. was under any intoxicating substances at the time of the offences. There was some discussion of P.K. suffering some type of brain disorder. [ 35 ] In August 2021, P.K. suffered a seizure and then two days later blacked out while backing up a vehicle.

Her driver’s licence was suspended while a neurologist investigated her condition and ultimately ruled out epilepsy. I understand that on March 15, 2022, P.K. underwent an anterior discectomy and fusion on a number of her damaged discs in her cervical spine. Prior to this neurosurgery, P.K. was in pain and had limited use of her hands. She does not believe her condition had any impact on her memory. All restrictions on her driver’s licence had been lifted by February 28, 2022.

While P.K.’s licence was suspended or restricted, R.J. drove her about. [ 36 ] The evidence before me does not support a finding or inference that P.K.’s ability to accurately recall the events about which she testified was impaired because of her medical condition. Assessing the credibility of P.K.’s evidence

a) the plausibility of P.K.’s evidence [ 37 ] There is nothing implausible about P.K.’s version of events. The evidence suggests even before February 28, 2022, P.K. and R.J.’s relationship was beginning to fray, if not unravel. She says that enroute to Prince George on February 28, 2022, near Brookside rest area, P.K. complained to R.J. about his erratic driving and that morphed into an argument. R.J. began questioning P.K.’s commitment to their relationship. She says R.J.: was angry; called her names; told her she was a liar; threatened to beat her; threatened to kill her.

While driving fast and erratically, R.J. threatened to crash the car. By the time they reached potato flats, P.K. was sobbing uncontrollably. She said, “I had it in my head that this was not an okay situation and I needed to get out and I needed to run”. [ 38 ] It was winter, P.K. was wearing a sweater and jeans, but no winter jacket. She acknowledges it might have been dangerous for R.J. to have left her on the side of the road. Still, I do not find it implausible that P.K. asked to be let out of a vehicle when remaining inside with R.J. had become far more dangerous than the elements outside.

b) independent supporting or contradicting evidence [ 39 ] P.K.’s version of events are corroborated to some extent by R.J. He acknowledges he was driving, he was questioning her about her commitment to their relationship and he was hurt and frustrated by both her answers and her silences. He acknowledges P.K. was crying uncontrollably, to the point that he could not always understand what she was trying to say. [ 40 ] R.J. admits to calling P.K. names. He also says P.K. called him names, which she denies.

In his direct examination, R.J. testified he was unhappy with the answers he was getting from P.K. and that he “just wanted the truth”. In my view, this corroborates P.K.’s evidence that he repeatedly told her she was a liar.

c) the external consistency of P.K.’s evidence [ 41 ] P.K. gave an out-of-court statement to Constable Kepke on February 28, 2022, not long after she had left the vehicle at Costco. In her evidence at trial, P.K. testified that she had asked R.J. to drop her off at home with the children, but he refused to do so, saying he needed to talk to her. In her statement to the police, P.K. told Constable Kepke that she had asked R.J. to let her out of the car while they were between Cluculz Lake and Bednesti.

She had not mentioned to the police that she had asked R.J. to drop her off at home shortly after R.J. had turned around at the Vanderhoof sign and headed toward Prince George. P.K. acknowledged that when she made her statement, she was aware she was speaking to a police officer about criminal allegations and she knew it was important to tell the truth about what happened and to provide all the details.

She said she did not tell the officer about this first request to be let out of the vehicle because she was “under distress” and it was not one of the things she thought pertinent at the time. [ 42 ] P.K. also said that she and R.J. started to argue around Brookside rest area, which is near Cluculz Lake. Driving the speed limit, Brookside is a 40-minute drive west of Prince George. Vanderhoof is a one-hour drive west of Prince George. P.K.’s residence is a five- to 10-minute drive east of Vanderhoof.

This evidence indicates that P.K. and R.J. did not start arguing until they were well past the turn off to CJ’s Trailer Park, where they lived. [ 43 ] In my view, there is nothing untoward with P.K. focusing her request to be let out of the car while between Cluculz Lake and Bednesti when she was in significant emotional distress. This second request was urgent; the first was not.

The first request was consistent with P.K.’s desire not to continue with him on this road trip; the second request was consistent with her conviction she “needed to get out” of the car and she “needed to run”. [ 44 ] I find P.K.’s version of events is consistent with her actions in abandoning her vehicle in the Costco parking lot and her children in Vanderhoof and seeking the protection of her family and the police.

d) the internal consistency of P.K.’s evidence [ 45 ] I note P.K.’s description of her conversation with R.J. about being let out of the car at her home in her direct examination was supplemented by additional information provided in her cross-examination. In her direct examination, P.K. said: He was driving erratically at that point. I asked him to just drop me off at home with the children. At which point he said no, he needed

to talk to me. And I said no please let me out we can talk when we get back. He was adamant, no, I wasn’t allowed to get out of the car. He didn’t stop, he drove past where we lived. [ 46 ] In her cross-examination when asked what she and R.J. talked about when he refused to let her out at her home, P.K. said, “That is when he said he needed me to return the lights. I said no you don’t, and he said yes, I do”. P.K. went on to testify: Q.

Earlier in your evidence, when first told the court about asking to be let out at your home, the first time you asked to be let out, you told the court that R.J. said no, he need to talk to you? A. Yes. Q. You just recently told the court that R.J. said no, he needed you to return the items in Costco? A. He said both of those things. Q. The argument didn’t start at this point? A. No. Q. Did you ask R.J. what he needed to talk to you about? A. I sat silent for a bit.

And then I asked what he needed to talk to me about. [ 47 ] In my view, P.K. added this detail in response to the defence counsel’s question and it does not impair P.K.’s credibility. This issue resurfaced again when P.K. and R.J. arrived at Costco: Q. When you got to Costco, he told you needed to go with him because the purchase was on your membership? A. Yes. Q. And you told him that he should be able to return the items using his phone? A.

I said he could return the items because he purchased them himself. [ 48 ] I note that in her direct examination, P.K. described the incident giving rise to the offences charged in a continuous narrative. The Crown Counsel asked very few clarifying questions. There is nothing untoward about P.K. providing further details of the incident when asked to do so in cross-examination.

e) the “balance” of P.K.’s evidence [ 49 ] P.K. was clearly not prepared to defend R.J., but neither did she exhibit any undue animus toward him. She admitted that although they had disagreements in the past, before the offence date, R.J. had never threatened her and had never become physical with her. [ 50 ] I found that P.K. was willing to concede a number of points put to her in cross-examination, but was steadfast on others. For example, she agreed with defence counsel’s suggestions that: a. R.J. had accused her of not caring about him and using him; b.

R.J. asked her why she had not done anything for him on Valentine’s Day; c. R.J. asked her why she had not served her ex-husband with divorce papers; d. R.J. asked her why she deleted photographs of them as a couple from her Facebook page, but P.K. denied having done so because she had never posted any photographs in the first place; e. R.J. called her names, but P.K. denied calling R.J. names because she “doesn’t do that”; f. R.J. and P.K.’s argument became “pretty emotional”; g.

It was possible that R.J. did not hear her first request to be let out of the vehicle but she didn’t think it was possible that R.J. did not hear her requests made when they were between Cluculz Lake and Bednesti. Although at times she was sobbing uncontrollably, P.K. says she had repeated this request “over and over”. She was “pretty positive” she was “fairly clear about being let out of the vehicle” and there was never a falter in those requests; and h. In her “heighten state of emotion” P.K. did not remember clearly what words were exchanged in the vehicle and she did not “speak about it”.

She shared only what she did remember; and i. R.J. had not threatened her when they arrived at Costco.

f) P.K.’s demeanour at trial [ 51 ] There is nothing about P.K.’s demeanour at trial which detracts from her credibility.

g) P.K.’s motive to lie

[52] As the Crown’s key witness, I must consider whether P.K. has an interest in the outcome of the proceedings because it may havean impact on her credibility. In Laboucan, Justice Charron stated at para. 11: [11] The fact that a witness has an interest in the outcome of the proceedings is, as a matter of common sense, a relevant factor, amongothers, to take into account when assessing the credibility of the witness’s testimony. A trier of fact, however, should not place undueweight on the status of a person in the proceedings as a factor going to credibility.

For example, it would be improper to base a finding ofcredibility regarding a parent’s or a spouse’s testimony solely on the basis of the witness’s relationship to the complainant or to theaccused. Regard should be given to all relevant factors in assessing credibility. [53] R.J. bears no burden to prove P.K. or any Crown witness has a motive to lie. Recently, in R. v. B.T.D., 2022 ONCA 732 ,L.B. Roberts J.A. for the Ontario Court of Appeal explained the approach courts must take when assessing motive: [82] As this court recently instructed in R. v.

G.B., 2021 ONCA 675, at para. 18, “trial judges must approach an apparent lack of motiveto fabricate with great caution when assessing the credibility of a complainant.” This caution arises out of the well-established distinctionbetween an absence of evidence of a motive to fabricate on the one hand, and, on the other hand, a proven absence of a motive tofabricate.

While the proven absence of motive might give affirmative weight to a witness’s testimony in a trial judge’s credibilityassessment, the absence of any evidence of a motive to fabricate is a neutral factor and cannot be used to enhance a witness’s credibility.This is because the fact that a complainant has no apparent motive to fabricate does not mean that a complainant has no motive tofabricate. Reasoning from the apparent absence of a motive to fabricate undermines the presumption of innocence by reversing theburden of proof and fails to recognize that motives to mislead can be hidden. See: R. v.

Gerrard, 2022 SCC 13, 468 D.L.R. (4th) 389, atparas. 4-5, R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, at para. 44; R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, atparas. 22-23; R. v. S.H., 2020 ONCA 34, at para. 11; R. v. A.S., 2020 ONCA 229, at para. 59. [Emphasis in original.] [54] The evidence suggests that R.J. and P.K.’s relationship was troubled before the offence date. Nevertheless, it fell short ofsupporting an inference that P.K. fabricated allegations against R.J. in order to end their relationship. The defence also suggested P.K.had an ulterior motive to lie.

Specifically, the defence points to P.K.’s Victim Impact Statement in which she asked for $4,000 toreimburse her for expenses she paid to release her vehicle from the impound and for the insurance on R.J.’s vehicle “and other things”. Ido not regard this as a motive for P.K. to fabricate the allegations that R.J. threatened and unlawfully confined her. [55]

Section 722 of the Criminal Code provides that if an accused is convicted, for the purpose of determining the sentence to beimposed on an offender, the court shall consider any statement of a victim of the offence describing the harm done to, or loss suffered by,the victim arising from the commission of the offence. Typically, the court asks a complainant to complete a Victim Impact Statement inForm 34, which is a statutory form referenced in s. 722(4) of the Criminal Code. The form invites the declarant to set out the emotional,physical and economic impact of an offence.

Specifically, it states: Economic impact Describe how the offence has affected you financially. For example, think of • the value of any property that was lost or damaged and the cost of repairs or replacement; • any financial loss due to missed time from work; • the cost of any medical expenses, therapy or counselling; • any costs or losses that are not covered by insurance.

Please note that this is not an application for compensation or restitution. [56] I do not infer from the fact P.K. completed the Victim Impact Statement form as she did as confirmation she had an economicmotive to fabricate allegations against R.J. I am mindful that by February 28, 2022, R.J. had fallen on hard times. He had lost his job with[omitted for publication] and he was not yet in receipt of his Employment Insurance. While in Prince George, he had to sleep in P.K.’scar until he ran out of money to feed himself. The evidence indicates that R.J. was broke.

FINDINGS ON P.K.’S CREDIBILITY [57] I find P.K. a credible witness upon whose evidence I can reasonably rely with respect to the substantive elements of the offencesfor which R.J. is charged. OTHER CROWN WITNESS(ES) Constable Kepke [58] There is no suggestion by the Crown or the defence or the evidence that Constable Kepke was not a reliable and credible witness. THE ACCUSED R.J.

Assessing the reliability of R.J.’s evidence [59] There is no suggestion that R.J. was under the influence of any intoxicating substances at the time of the alleged offences or thathe suffered from any disability that might impact the reliability of his evidence. Assessing the credibility of R.J.’s evidence

a) the plausibility of R.J.’s evidence [60] R.J. says that during the trip to Prince George on the afternoon of February 28, 2022, he and P.K. argued. He denies theargument was emotional, despite his counsel having elicited from P.K. in cross-examination on more than one occasion that theirargument was emotional. R.J. admits there was some name calling and P.K. was crying, but maintains there was no altercation, noconfrontation, no yelling, no threats, no erratic driving. [61] When they arrived in Prince George, R.J. parked the car in the Costco parking lot.

P.K. did not want to accompany him intoCostco because she was crying. It was cold and getting dark and P.K. was without a winter jacket. R.J. went into Costco and took the carkeys with him. He left P.K. alone without any means of operating the vehicle or even turning on the lights and heating system. Heoffered no explanation as to why he did so. [62] R.J. says he was shocked when he returned to the vehicle in the Costco parking lot to find P.K. gone. After ten minutes he textedher, but when P.K. did not reply, R.J. became concerned for her whereabouts.

He waited for two hours for her return, albeit in vain.There is no evidence that during this waiting period, R.J. tried reaching out to anyone to try and find out what became of P.K. He doesnot go back into Costco or the Husky or other stores searching for P.K. He does not contact P.K.’s children in Vanderhoof, or P.K.’sfather or sisters or friends. He does not contact the police and report P.K. missing. [63] Instead, R.J. contacted Telus and arranged to have his cell phone, which was under P.K.’s “family plan”, transferred into hisname.

He does not suggest that in doing so it increased his chances of locating P.K. R.J. then testified he slept in P.K.’s car for five daysin the Walmart parking lot, “thinking that after things calmed down” she would contact him, but that never happened. R.J. offers noexplanation as to why he thought P.K. might need five days to calm down after what he describes as a fairly benign argument. Morespecifically, there is no evidence to suggest that P.K. was someone who became easily distraught and took a long time to regulate heremotions.

b) independent supporting or contradicting evidence [64] R.J.’s evidence he did not threaten or unlawfully confine P.K. is supported by his lack of criminal record and P.K.’s admissionthere had been no history of R.J. threatening or physically abusing her. Having said that, courts recognize that many offenders convictedof domestic violence offences have no criminal record and a reputation of being both a good family and community person: R. v.

Bates, (ONCA), para. 38. [65] It is also worthy of mention that Constable Kepke was not aware of any complaints from anyone else of R.J.’s driving orbehaviour on February 28, 2022. [66] Some of R.J.’s evidence is otherwise problematic. For example, R.J. testified that because he is a commercial truck driver with aClass 1 licence, he is a cautious driver. This is contradicted by the fact that he has twice lost his Class 1 licence. It was also contradictedby P.K.’s uncontested evidence that not long before the February 28, 2022 incident, her vehicle had been impounded because R.J. hadbeen driving it too fast.

c) the external consistency of R.J.’s evidence [67] If R.J. made any out-of-court statement with respect to the alleged offences, the court was not made aware of it.

d) the internal consistency of R.J.’s evidence [68] In his direct evidence, R.J. describes his interactions with P.K. on the offence date as a non-emotional argument. When Crowncounsel asked in cross-examination if he got into the car knowing he was going to confront P.K. with his relationship concerns, R.J.replied, “Yes”, then went on to say: I didn’t know it was going to be a confrontation. I simply just only wanted to know what was going on. I didn’t want a blowout like it did. That was not my intention at all. [69] When asked to describe a “blowout”, R.J. said he meant an argument.

R.J. claims that he and P.K. were arguing back and forthuntil they got to Prince George. Yet, he also says he was frustrated because P.K. “clammed up” and “didn’t say anything” when he askedher why there were no pictures of them on her Facebook profile. In cross-examination, R.J. agreed with the Crown that P.K. “clammedup and was silent” when he confronted her about her relationship status with him. [70] R.J. testified that P.K. was avoiding his questions and the more she did so, the more he felt she did not care about him.

Thisevidence suggests that their argument was one in which R.J. did most of the talking and P.K. did all of the crying.

e) the “balance” of R.J.’s evidence [71] At trial, R.J. tried to cast P.K. as someone who did not care about him or her children or her home. He testified that P.K. “didn’thave much of a relationship” with her children, who she only saw at mealtimes. He says that he and P.K. argued about the fact she didnot unpack her storage boxes, which “frustrated” him. They argued, but these arguments never got “emotional”. R.J. was obviously bitterthat P.K. cared more about her stray cat than securing a divorce from her ex-husband.

f) R.J.’s demeanour at trial

[72] There is nothing about R.J.’s demeanour at trial that detracted from his credibility.

g) R.J.’s motive to lie [73] There is no absolute rule prohibiting the trial judge from considering an accused’s motive to lie when assessing his credibility asa witness; however, there are inherent dangers in doing so. An accused is presumed innocent until proven guilty so considering hisinterest in the outcome of this trial is unhelpful. As Justice Charron states in R. v. Laboucan, 2010 SCC 12 (at para. 12): [12] The common sense proposition that a witness’s interest in the proceedings may have an impact on credibility also applies to anaccused person who testifies in his or her defence.

The fact that the witness is the accused, however, raises a specific concern. Theconcern arises from the fact that both innocent and guilty accused have an interest in not being convicted. Indeed, the innocent accusedhas a greater interest in securing an acquittal. Therefore, any assumption that an accused will lie to secure his or her acquittal flies in theface of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome. . . . FINDINGS ON R.J.’S CREDIBILITY [74] In R. v.

Graham, 2021 BCCA 163 , the Court of Appeal held at para. 15, “It is certainly appropriate to weigh theevidence of an accused person by considering whether it is logical and makes sense.” It strains credulity that R.J. would have spent fivenights sleeping in a car in the Walmart parking lot waiting and hoping P.K. would “calm down” after a somewhat benign argument, theworst of which was he calling her a bitch and she calling him an asshole. [75] I do not find R.J. a credible witness upon whose evidence I reasonably rely with respect to the substantive elements of theoffences for which he is charged.

LEGISLATIVE FRAMEWORK Count 1: uttering threats [76]

Section 264.1 of the Criminal Code states: Uttering threats 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; . . . [77] In R. v White, (NLPC), Judge Gorman canvassed the governing appellant authorities on the offence of utteringthreats. He then summarized (at para. 41) the elements of the offence created by s. 264.1(1)(

a) as follows (citations omitted): [41] . . . 1. the accused uttered or conveyed words, which assessed objectively, involve a threat to cause death or bodily harm to another person; 2. a threat constitutes a “declaration of hostile determination” . . . or a “denunciation to a person of ill to befall him; esp. a declaration ofhostile determination or of loss, pain, punishment or damage to be inflicted in retribution for or conditionally upon some course; amenace” . . . ; 3. whether a threat was uttered is to be determined by applying an objective test; 4. the words uttered must be considered within the context of the entire conversation or written document in which the words occurred,including to whom they were directed or addressed and that person’s evidence, if any.

The trial judge must ask himself or herselfwhether the questioned words would convey a serious threat to cause death or bodily harm to another person; 5. the mens rea element requires the application of a subjective test. What did the accused actually intend?

In determining “what was inthe accused's mind, a court will often have to draw reasonable inferences from the words and the circumstances, including how thewords were perceived by those hearing them” . . . ; 6. the accused must have intended for her or his threat to either be taken seriously or to intimidate (a disjunctive test), though the personthreatened does not have to be shown to have been intimidated or to have taken the words seriously; nor does the person threatened haveto hear the threat; nor does the accused have to intend to carry the threat out; or have it conveyed to the victim . . . ; 7. an intention to intimidate involves an attempt to cause fear or the occurrence of an event or action by resort to the use of “menacing,violent or frightening acts or language” . . . ; and 8. an intention to be taken seriously involves attempting to persuade the recipient of the threat that you intend to carry out the threatuttered . . .

Count 1: unlawful confinement [78] Section 279(2)(

a) of the Criminal Code sets out the offence of forcible confinement. That

section reads: Forcible confinement

(2) Everyone who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of: (

a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or (

b) an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. . . . [79] The elements of the offence of unlawful confinement were reviewed by the BC Court of Appeal in R. v. Sundman, 2021 BCCA53, at para. 153 (citations omitted): [153] At its core, the offence of unlawful confinement involves the intentional deprivation of another person’s liberty or the restrictionof that person’s movement in the absence of lawful authority and contrary to the person’s wishes.

Although unlawful confinement is acontinuing offence, it is an offence that is complete when the victim is restrained against his or her will. . . .The existence of an initialstate of liberty when a passenger voluntarily enters a vehicle may, as events unfold, turn into an unlawful confinement if the driverrefuses to stop to let the passenger out . . . [80] R. v. Sundman, 2021 BCCA 53, upheld on appeal to the Supreme Court of Canada in R. v.

Sundman, 2022 SCC 31 , atpara. 21, Jamal J. for the unanimous court states (citations omitted): [21] To establish unlawful or forcible confinement under s. 279(2) of the Criminal Code, the Crown must prove that (1) the accusedconfined another person; and (2) the confinement was unlawful . . . At its core, unlawful confinement involves a deprivation of aperson’s liberty . . . Unlawful confinement occurs if, for any significant time period, a person is coercively restrained or directed contraryto their wishes, so that they cannot move about according to their own inclination and desire . . .

The person need not be restricted to aparticular place or physically restrained . . . The restraint can be through violence, fear, intimidation or psychological or other means . . .The purpose of the confinement is not relevant . . . [81] Recently in R. v. Saleh, 2022 ONCA 735 , the Ontario Court of Appeal stated: [25] A complainant is unlawfully confined if, for any significant period, she is coercively restrained or directed contrary to her wishes sothat she cannot move about according to her own inclination and desire. In R. v.

Ally, 2022 ONCA 558, this Court expressed skepticismthat a “significant period” is a distinct essential element under s. 279(2) of the Criminal Code. Rather, it is “one aspect of a descriptionoften used to explain the confinement element of the actus reus of unlawful confinement”: at para. 96. Although unlawful confinementis a continuing offence, the offence is complete when the complainant is restrained against his or her will: R. v. Sundman, 2022 SCC 31,471 DLR (4th) 191, at para. 21; R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24.

ANALYSIS Elements of the offences: static [82] The static elements for any criminal offence are: (

a) identity in the sense that the person standing in the courtroom is the personwho is alleged to have committed the offence; (

b) jurisdiction of the court over the person accused; and (

c) the timing of the offence. Ifind the Crown has proven beyond a reasonable doubt that: (

a) R.J. is the person alleged to have committed the offences charged underCounts 1 and 2 of Information [omitted for publication]; (

b) the Provincial Court of British Columbia in Prince George, BC, hasjurisdiction over R.J.; and (

c) the incidents giving rise to the charges occurred on February 28, 2022. ISSUES Issue #1: Did R.J. threaten to cause P.K. death or bodily harm? [83] I believe P.K. that on the road trip between Vanderhoof and Prince George on February 28, 2022, R.J. threatened to kill her andbeat her and crash the car in which they were travelling. I have considered R.J.’s denials of culpability in the context of all of theevidence as a whole.

I do not find them believable and they do not raise a reasonable doubt that he uttered threats to P.K. in the mannershe described. [84] I am satisfied beyond a reasonable doubt that the Crown has proven all the elements of the offence of uttering a threat to P.K. tocause her death or bodily harm contrary to s. 264.1(1)(

a) of the Criminal Code. Specifically, I am satisfied Crown has proven beyond areasonable doubt that a reasonable person, in the circumstances in which R.J. uttered these words, would have perceived them to be athreat of death or serious bodily harm. I am also satisfied beyond a reasonable doubt that R.J. intended his words to intimidate or be takenseriously. The fact that P.K. was sobbing uncontrollably and repeatedly asking to be let out of the car by the side of the road in winter,far from any community, confirms that P.K. did indeed take R.J.’s words seriously.

Issue # 2: Did R.J. unlawfully confine P.K.? [85] I accept that on the road trip between Vanderhoof and Prince George on February 28, 2022, P.K. was alarmed at how R.J. wasdriving and what he was saying. I find P.K. repeatedly asked R.J. to pull over and let her out of the vehicle. I find he heard her pleas andrefused to stop and let her out of the vehicle. I have considered R.J.’s denials of culpability in the context of all of the evidence as awhole.

I do not find them believable and they do not raise a reasonable doubt that R.J., without lawful authority, confined P.K. in thevehicle from potato flats until they reached Costco in Prince George, contrary to s. 279(2) of the Criminal Code. [86] The fact that it might be too cold or too dangerous for P.K. to be left by the side of the road is not justification for refusing P.K.’srequests to stop the vehicle and let her out. R.J., thorough his words and actions, made remaining in the vehicle more frightening anddangerous to P.K. than the alternative.

DISPOSITION [ 87 ] I find R.J. guilty of Count 1, that he did knowingly utter or convey a threat to P.K. to cause her death or bodily harm contrary to s. 264.1(1) (

a) of the Criminal Code and of Count 2, that without lawful authority, R.J. confined P.K. contrary to s. 279(2) of the Criminal Code . _____________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia