R. v. Andrews Date:, 2012 BCPC 326

Citation: R. v. Andrews Date: 20120622 2012 BCPC 0326 File No: 55462-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. AARON MICHAEL ANDREWS EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: F. Gordon Counsel for the Defendant: R. Mansoori-Dara Place of Hearing: North Vancouver , B.C. Date of Judgment: June 22, 2012

[ 1 ] THE COURT: Mr. Andrews is before the court charged with one count of harassment contrary to s. 264 of the Code . The timeframe of the allegations is between July 25th, 2010, and August 2nd, 2010. [ 2 ] The complainant is his mother. The alleged harassment consists of two voice messages left on the complainant's answering machine in the two weeks leading up to August 2nd, and one attendance at his parents' home on that date. The accused was arrested at the home the day he attended there. A recording of those calls was entered in evidence as Exhibit 1 and Exhibit 1A is the transcript of those calls.

The complainant was not certain of the exact date each call was received. In each call Mr. Andrews uses a different voice and accent, his tone is somewhat unusual and his mother said it was characteristic of his speech when he is agitated. [ 3 ] In the first call he talks about a car and that he believed he had transferred ownership of that car to his parents when he was intoxicated. There was a suggestion that they wrote a letter telling someone to keep him on drugs. He then goes on to say, "I also wanted to ask you if you still got my jerrycan, uh, I'm going to need it. I don't know if you're going away.

You didn't tell me the last time I talked to you." [ 4 ] The second call was directed to "Derek". Mr. Andrews is asking if he is going to get paid. He talks about how social assistance gave his rent money directly to his landlord and that now he has no money. [ 5 ] The attendance at the home occurred in the early afternoon. The complainant became aware her son was around because she heard music "blasting" from the driveway. In direct she said she went to look and Mr. Andrews was there washing his car.

In cross- examination she adopted her statement that he was sitting in his car with the windows down when she first saw him. She said it was a bit later that he was washing it. His parents were storing the car because he was no longer allowed to drive for medical reasons. She asked him to leave but he ignored her. His mother then decided to call the non-emergency number for the RCMP.

Shortly after Corporal Ariega arrived and took the accused into custody under the Mental Health Act . [ 6 ] On the face of these allegations the Crown would not be in a position to ask the court to find that they had proven the elements of harassment beyond a reasonable doubt. Rather they asked the court to consider the contextual evidence and say, taking that into account, the offence is made out. The contextual evidence is that Mr. Andrews has been diagnosed as having Asperger's Syndrome and paranoid schizophrenia. His mother said his behaviours include becoming agitated and acting out.

As to how this impacted them she said in the past he had thrown things, started fires, and made threats. She described that when he was around 11 to 13 she would find evidence of small fires in their yard and once found his bed on fire as a result of an experiment he was conducting using the powder from caps for a cap gun. He was taken into care at age 13 but would return to the home on occasion and sometimes they would find evidence of fires in the yard. She agreed that in the months before August 2nd his mental state had been deteriorating. [ 7 ] Mr. Andrews was not permitted to attend the family home.

The family had an arrangement where he could speak to his mother on the phone on Thursdays. However, he would often call outside the permitted time. He was often abusive or difficult on the phone and his mother would simply tell him she would no longer speak to him and hang up. She would also meet him from time to time in a public place to give him grocery cards. [ 8 ] She was particular concerned about the message in which he asked if they have his jerrycan, which was immediately followed by an inquiry about them going away.

She told the court about an incident in 2007 when the family had been away on holiday and came home to find Mr. Andrews in their home. He had broken in and was intoxicated. He had the oven and all the stove elements on high and had tried to turn the furnace on "full blast." He had laid out extension cords throughout the house and a work light was lying on the carpet plugged in but not turned on. It appeared to his parents that he was attempting to cause a fire. A psychiatrist later confirmed this inference as valid and it was only then that they contacted the police. [ 9 ] His mother went on to say that Mr.

Andrews knew of some surgery she was scheduled to have in September of 2010, and that he had told her he hoped she would die during that surgery. She said he talked about her and his father dying on a weekly basis as he wanted to inherit their house. She said that her son had not been violent with her for some time and when he had been it had consisted of hitting her while they were in a car. He had repeatedly asked if there were guns in the family home in the months before these allegations. [ 10 ] Corporal Ariega testified that he attended and arrested Mr. Andrews under the Mental Health Act .

He said the accused was sitting quietly in his car reading when he located him. He did not remember any noise. Mr. Andrews was calm and cooperative with the officer, although he seemed "out of it" and did not show any emotion, did not appear to want to answer some questions about what he was doing there and appeared confused about why the police had been called. There was an admission of fact that there was a jerrycan at this parents' home. [ 11 ] The Crown argues that the court should not parse each incident, but should view the three contacts in the context of the relationship as a whole.

They point out that unless the accused asks the court to find he is not criminally responsible by reason of mental disorder he is assumed to appreciate the nature and consequences of his acts. [ 12 ] I agree that viewed on an objective basis the inference could be drawn that the accused knew he was harassing his mother or was reckless as to his conduct harassing his mother and that he would cause her to be afraid by calling her and asking about a jerrycan, which was of no apparent utility for him since he was not able to drive, and connecting that to their upcoming holiday away.

The other telephone call I infer to be of the same nature as many of the calls they would receive from their son on an ongoing basis. The attendance in the driveway was annoying and a trespass, but otherwise benign. [ 13 ] Mr. and Mrs. Andrews and their family are in a dreadful position and I have great sympathy for how difficult it must be for them to manage any kind of relationship with their son. They are also deserving of great respect for the patience and understanding they have for him. On the one hand they want to care for him and connect with him to ensure he is safe. He is very ill and they love him.

On the other hand the nature of his illness is such that they are at risk of being harmed. They are right to be concerned that he might act out against them.

[ 14 ] It is not unusual for people with mental health issues such as that faced by Mr. Andrews to suffer delusions that those close to them are evil and a danger and act out with tragic consequences based on those delusions. Mr. Andrews repeatedly evidences a desire for his parents to die and around the time of the alleged harassment had been repeatedly questioning them about firearms.

He has a history of fascination with fire as an adolescent and the incident in 2009 when he was found in the home was bizarre and clearly cause for alarm. [ 15 ] I find the Crown has proven beyond a reasonable doubt that his mother's fear was reasonable. At the end of the day I must also be satisfied that the Crown has proven beyond a reasonable doubt that Mr. Andrews subjectively knew or was reckless as to whether his conduct was harassing his mother. See R. v. Scuby , 2004 BCCA 28 . [ 16 ] In my view the Crown has not met its burden with respect to this issue.

My understanding of the evidence is the family had been attempting to set and enforce boundaries about the accused calling them except as permitted at certain times. They were not entirely successful and continued to take calls from him. There was no evidence that they communicated to their son that they were going to treat any further telephone calls from him outside of the designated times as harassment, nor is there any evidence that they told him that any further attendances on their property would be treated by them as trespass or as a criminal matter. [ 17 ] I must consider that although Mr.

Andrews is very high functioning for someone with Asperger's Syndrome and that his mental state is not at issue, he is nonetheless someone for whom clear boundaries must be drawn. I am simply not satisfied to the standard required that he would have appreciated that his conduct had crossed the line beyond what his family could accept and deal with.

His arrest and prosecution for the matter before the court has now drawn a clear line which he will cross at his peril. [ 18 ] I am also not satisfied that the one telephone call in which he made a veiled suggestion with respect to starting a fire is not sufficient to be considered "repeatedly" within the meaning of the section, given that the other telephone call and attendance to sit in the car in the driveway were not something that his family had previously treated as harassment of a criminal nature. [ 19 ] For the purposes of pursuing criminal charges in the future, Mr.

Andrews' family should not permit the accused to telephone them except under clearly defined circumstances and should also communicate to him that he is not permitted to attend on their property and that any further unauthorized telephone calls or attendances will be considered by them to be harassment. Then they must attempt to live by their own standard, which may well be a heartbreaking endeavour. [ 20 ] I find the accused not guilty. However, I am exercising my discretion and will impose a common law peace bond. (REASONS FOR JUDGMENT CONCLUDED)