R. v. Egilson and Olson Date:, 2016 BCPC 82

Citation: R. v. Egilson and Olson Date: 20160224 2016 BCPC 0082 File No: 62995-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. TREVOR JOHN ROLAND EGILSON and JONATHON DAVID OLSON ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D.R. GARDNER Counsel for the Crown: H. Waldock Counsel for T. Egilson : P. Dutt Counsel for J. Olson : D. Donnelly

Place of Hearing: Chilliwack , B.C. Dates of Hearing: March 9, 26, 27, 31, April 1, June 4, 5,18, 19, August 13, 14, Dates of Hearing: October 29, 2015; February 9, 10, 2016 Date of Judgment: February 24, 2016 [ 1 ] THE COURT: Mr. Egilson and Mr. Olson are charged on a four-count indictment with extortion and unlawful confinement of Paul Edwards and Melissa Kennedy. The alleged offence date is September 13, 2014. [ 2 ] Paul Edwards was the primary witness for the Crown. He is 43 years old.

He works in the family business, Edwards and Company, a boat sales and repair company that was established in Chilliwack by his grandfather in 1931. He has been in a common-law relationship with Melissa Kennedy for approximately eight years. [ 3 ] He has been described by his father as a very good salesman; that is, when he is on his game. However, Paul Edwards has a longstanding addiction to cocaine. His habit has cost his parents roughly $100,000, which has been spent on stints in rehabilitation centres, legal fees, and loans they seemed to know that would probably never be repaid.

At times, he admitted that he has stolen from his parents in order to support his habit. [ 4 ] In the summer of 2014, he and Ms. Kennedy were living in a rented house on Wiltshire Avenue. The basement suite was occupied by a young lady named Tara. [ 5 ] He first met Mr. Egilson a few weeks before these events. When he first knew Mr. Egilson, Mr. Edwards said that "I really liked him a lot." They would go for drinks, they would get together at Mr. Egilson's place at Cultus Lake, and he has visited at the Edwards home as well. Mr.

Egilson also facilitated Edwards' purchase of drugs occasionally, allowing him to run a tab. He also offered to allow Mr. Egilson to store a firearm at his family's business to avoid detection from the police. [ 6 ] However, there was an altercation between the two of them the week before the alleged offence date. Mr. Edwards admits that he owed Mr. Egilson $200, which he failed to repay on time. Both Mr. Egilson and the co-accused, Mr. Olson, who Mr. Edwards knew by the nickname "Rider," attended at the Wiltshire residence to collect. This occurred on the Sunday before September 13. Initially Mr.

Edwards tried to make a joke about his inability to pay, but they were not laughing. At some point Edwards ran around to the front of the black Mustang that they were in. Egilson got out of the vehicle and punched Edwards once. Edwards says that it broke his orbital bone and his nose. When he was asked by Crown counsel where did he go after he was punched, he replied, "I don't recall." In response to the next question, "Did you get medical treatment for it," he paused and replied, "Oh, yes, I went to the hospital.

I went to the hospital and I had my nose set." A subsequent CAT scan revealed that the orbital bone was broken. Egilson was not charged in relation to that incident. [ 7 ] Mr. Edwards also told the court about someone named Earl, who was not called as a witness. He has known Earl for probably 15 years. Earl has also been in the throes of addiction for many years. In order to support his habit, Earl sold drugs. On one occasion, Earl was going to spend the night with his girlfriend, who, as I said, lived downstairs from Edwards. He asked Earl if he could use his phone for the purpose of selling drugs.

Earl provided him with the drugs, and Edwards had what he described as a good night, turning over $1,000 to $1200 worth of "product." Melissa Kennedy was involved in this, as she did the driving. At the time, Edwards was prohibited from driving. [ 8 ] Curiously, Kennedy and Edwards attended at Egilson's residence a few days after his face was busted up. They went there to buy drugs.

He expressed that he was confused as to why he was punched, and Egilson told him that it was not about the money, that it was all about rather he thought Edwards was coming at him. [ 9 ] During the same week, Edwards returned the rifle to Egilson. On the Friday night, he and Olson went out to sell drugs. They ended up at a different apartment in the same building that Egilson lived, where they ran into Earl. At that point, the two accused began pushing for Earl's phone, that being a drug line, which they believed to be profitable.

At that time, Olson took the phone from Earl, apparently promising to reimburse him later. They then took the phone to Egilson's residence at Cultus Lake. The plan was to use the phone to accept calls and make sales. [ 10 ] Olson and Edwards then drove to somewhere in the Fraser Valley to pick up more drugs to sell. During that time period, Edwards admits to using a considerable amount of cocaine. That cocaine had been fronted by Egilson, causing Edwards to rack up a debt of $200. He was supposed to go to work that Saturday morning, but he did not attend.

When asked what he was doing that Saturday morning, his one-word response was, "Drugs." [ 11 ] They ended up back at Edwards' residence and there was some discussion about Egilson and Olson wanting to rent the premises, as Tara had left a week or so beforehand. After Edwards was able to get some sleep, Melissa came to pick him up in the early afternoon to take him to work. However, on the way to work, they ran out of gas. Melissa walked to work, and Edwards walked back home. She got some gas, picked Edwards up again, and they went to work until the 4:00 p.m. closing time. [ 12 ] They returned to the residence.

Egilson, Edwards and Kennedy stayed there while Olson went downtown to drum up some business. [ 13 ] At some point, Egilson and Kennedy left. While they were gone, Edwards received a call from Earl, who was told he would not be getting the phone back anytime soon. When Earl suggested that he turn off the phone, Edwards urged him not to. After the others returned, Edwards told them about the call from Earl.

Egilson was apparently upset that he had not been informed earlier and said to Edwards, "You should have told him if he turns off the phone, I'll cut his f'ing hands off." Edwards then corrected himself in the witness

stand and said, "No, actually, he said I would do that." Edwards reiterated that the phone was then turned off in any event. [ 14 ] Edwards testified that he thought he was in "cahoots" with Earl and was working against him. Olson grabbed Edwards' cell phone and saw a text which Edwards says was from Earl, who was looking for a phone number. This is where, according to Edwards, things took a turn for the worse. Olson began checking the text messages and numbers on Edwards' phone and became increasingly angry.

He then punched Edwards in the head and told him to have a seat in the "answer chair." He was asked a series of questions. He was asked if he wanted "beats or pepper." He chose pepper and says that he was told to stand up, pull open his shorts, and he was pepper-sprayed in the genitals by Olson. He says that he was then taken to the back deck beneath the balcony, but could not recall if he was pepper-sprayed again prior to Melissa returning. He describes Trevor as trying to establish whether or not Edwards was being truthful.

Olson appeared to have his mind made up. [ 15 ] Edwards also testified that he was then told to drive to his parents' to get the $200 they were owed. He asked that Melissa do the driving, but was told that he can drive and she could stay with them. Edwards says they never made a direct threat to her well-being, but says that they said they were keeping her there to make sure that he came back. [ 16 ] He was asked further about what happened before he left for his parents' place. He said there was a threat about going to the river and not coming back.

He says that he was struck with a metal spatula on the forehead, and also told to drop his shorts. Then he was struck across his rear end. [ 17 ] He then drove to his parents' place, arriving late Saturday night. He told them that he needed money, which he says is a song they have heard before from their addict son. They initially opposed the idea, but relented. They only had $110 cash, and gave that to him. While he was there, he went to the refrigerator and took some yogurt to ease his pain from his private area. Eventually he told her that the money was needed to pay a drug debt.

His mother said she was going to call the police, but he begged her not to. [ 18 ] When he returned to his residence, he gave them the money, but says the accused, in their words, were quite disappointed they did not get all of it. He saw Egilson take out a big knife and cut off a piece of the wooden poles holding up the balcony, then began to whittle it. He ended up with a wooden skewer and threatened to put it in Edwards' eye. They then began asking him questions. He could not recall exactly what the questions were, but they were about the phone.

Edwards further testified that he was pepper-sprayed three more times. [ 19 ] At some point, Egilson wanted to drive up to Cultus Lake to retrieve something. They were there for about 45 minutes. While there, they retrieved a guitar case as well, which Edwards assumed was the same one that contained the rifle he had been asked to store. On the witness stand, Edwards says that he left something out, that there had been discussions while Olson was on the phone about someone buying the phone. He said that is where the number "6,000" was discussed.

He said Olson, who he referred to continuously as "Rider" on the witness stand, figured that Edwards now owed him $6,000. [ 20 ] He also says they wanted him to retrieve a gun from the upstairs safe in his residence. He had difficulty remembering the combination number and says that Egilson punched him, as he thought Edwards was stalling.

When pressed on examination in chief, he said this must have happened prior to driving to his parents' place, because his face did not look too bad when he went there. [ 21 ] He also testified that on the return trip from Cultus Lake, both accused rode motorcycles, while Melissa drove the car, with Edwards in the front passenger seat. He says they debated on taking off at that point, but he did not trust her get-away skills, adding that both those guys were experienced cyclists and it would have been just pointless. [ 22 ] Once they got back to the house, the accused wanted their $6,000.

When he told them he did not have the $6,000, they told him to go to his folks. He told them they do not carry $6,000, he doubted they would take a cheque, and the banks are closed on Sunday. When he told them it was pointless, they told him to just get it. [ 23 ] Olson then decided to give him a haircut in the garage, which has been depicted in one of the photographs entered as an exhibit. It is obviously a very bad haircut. He asked them if he could get some sleep, because if he went back to his parents' while he was mentally and physically exhausted, they would never give him any more money.

He testified, "I wasn't of sound mind at this point, so -- and I thanked them again that they let me get some sleep at probably three o'clock, 3:00 a.m." [ 24 ] At around 5:30 a.m., he was told to come back downstairs, and then something was said, according to Edwards, and to this day he says he cannot remember what was said, but there was a discussion, he says, "I don't know what about," and then he was allowed to go back to bed again.

He then returned to his room, slept some more until 8:00 a.m., when he was woken up by Olson and told to get up and "get his goddamn money." [ 25 ] Sometime after he got up, there was a knock at the door, around 8:30 a.m., which turned out to be his mother. He says she noted the injury to his face, but he wanted her out of harm's way. He told her that he had given them the money, but she quickly figured out that they were still there.

He tried to get her to leave. [ 26 ] During the luncheon break that day, Edwards spoke to Crown counsel, and when he resumed the witness stand, he added that at one point his leg had been burned across the leg by a propane torch, which he described as a minor burn. [ 27 ] But back to that Sunday morning, Edwards claims that after he returned to bed to get some more sleep, he woke up around 11:00 a.m., but could not remember if Melissa woke him up or he did on his own doing. After taking a shower, he ate something for breakfast. Then around 11:30 a.m., there was a knock on the door. Edwards answered.

It was the police, saying there had been a complaint about a wild party. Edwards said he could not understand why they were there, but then he added, "I didn't put the connection together." He was asked, however, if anyone else was there, but while saying there was no one here, he indicated with a movement of his head that someone was downstairs, as he apparently thought the two accused were still there. Apparently he had forgotten that Egilson and Olson had driven away in Melissa's car, but he claims he simply forgot that.

He had seen them leave in her car, in his words, "I didn't put two and two together." He also testified that he and Melissa reported the car stolen and they were paid out by ICBC.

[ 28 ] Shortly after the police arrival, Mr. Edwards was arrested under the Mental Health Act. [ 29 ] Melissa Kennedy was also called as a witness for the prosecution. She can properly be described as a reluctant witness. She said she merely skimmed her statement prior to testifying. When asked how long she had been with Paul Edwards, she replied, "Too long." She described him as constantly using drugs, as being unreliable, that he manipulated and lied to her, and she intended to separate from him.

When asked how often he uses drugs, she answered, "When doesn't he?" [ 30 ] She had not been on the witness stand very long when asked when she met Mr. Egilson. She asked, "Am I going to be wasting my time sitting here with all these like questions? Like not to be rude or anything, but I really don't want to be here, and it's wasting my time, and I should be at work, because I have an old man." Mr. Waldock then asked her, "You don't want to be here?" She answered, "No, I really don't want to be here." She then added, "I just don't want to keep freaking getting arrested to come in here.

It is what it is." When prodded by the court about Earl's phone, she replied, sarcastically, "It's a phone." Mr. Waldock then asked, "What is it used for?" She replied, "Phoning." [ 31 ] She went on to say some positive things about the accused. She describes Egilson as a good guy, who was nice to them, someone they had met for dinners. He also protected women from violence. When asked to describe their interrogation of Paul, she said they did nothing wrong to her, and described them as "total gentlemen." When asked to describe any violence done to Paul, she said she was not really paying attention.

However, she did go so far as to say, "Yeah, there might have been something in Trevor's hand, I can't recall. Something -- it could have been a knife or something, I'm not really sure. Everything's kind of a blur." [ 32 ] Mr. Waldock has presented the court with a very thorough and helpful written argument. He acknowledges that Ms. Kennedy was less than forthcoming, but he also argues that although there were imperfections in the evidence of Mr. Edwards, he noted that he had to go to his parents' to get money to pay drug debts.

The Crown's theory is that the two defendants owed money to someone and became increasingly desperate to pay it. It is an inference, it is argued, from the evidence that the court is invited to draw. [ 33 ] The Crown also argued that things got out of hand when the phone used for the drug line was viewed as a meal ticket that was being cut off, causing the two accused to become very upset. Things escalated when they discovered the phone was simply not working, and they suspected Edwards of colluding with Earl.

They then searched his phone and found a text message to Earl which caused them to conclude that the phone was unprofitable. By that time, their anger increased. [ 34 ] They then saw Edwards and his family as a source of cash, the Crown argues. They gave him a terrible haircut, and then it is alleged that they burned him with a blow torch, which the Crown argues the effect of which has been downplayed by the complainant. Later they demanded money from his safe. When he appears to be stalling, he gets punched in the face.

Afterwards, Edwards appears at his parents' home where he appears to be bloodied and beaten. [ 35 ] The Crown concedes that Ms. Melissa Kennedy was hostile to the Crown, as she describes them as total gentlemen, but argues that her minimization still confirms the elements of the offence. Ms. Kennedy admits she asked Mrs. Edwards for $6,000 for her car because she was trying to get her to leave. [ 36 ] Mr. Waldock argues that Edwards was not shaken on cross-examination, as he admits to lying to his girlfriend and to his parents. He also described himself as a much better customer than a dealer.

Edwards also admitted to occasionally suffering from psychosis. [ 37 ] The Crown further argues that the only reason they allowed Edwards to leave was because they were left alone in the house with Melissa. [ 38 ] The Crown acknowledges that the charge of forcible confinement against Melissa is more problematic, but reminds the court of how she was required to drive to Cultus Lake, and there was discussion from Paul about fleeing. It is argued that the offence under s. 346 is that she was unlawfully confined just by reason of violence inflicted on her boyfriend. [ 39 ] I acknowledge that this is a very brief

summary of the Crown's final submissions. I have reviewed and carefully considered the written argument that the Crown provided the court. [ 40 ] Mr. Donnelly has argued on behalf of his client, Mr. Olson, that the Crown has made an admirable effort to stitch together what happened during this 60-hour cocaine-induced bender by Paul Edwards, but, it was submitted, there is a qualitative difference between theory and facts and the Crown's theory is full of holes.

As to the submission that the defendants were fearful of the ramifications of a $6,000 debt, he urges the court to reject that argument, because clearly, on the evidence, they still had all of the product to return. Mr. Donnelly also notes that Edwards knew that he had weapons and drugs inside his house, and did not want the police to enter. Noting that Mr.

Edwards was initially detained under the Mental Health Act , it is submitted that this reflects the irrational thought and irrational behaviour of Edwards, and his story simply does not hold together. [ 41 ] Counsel reminded the court that this case turns on the credibility of Paul Edwards, and although the Crown argues his evidence is convoluted and nuanced, the fact that he does not waiver while giving his evidence does not make his version correct. It was further suggested that every time Edwards was taken away from his previous written statement, he became confused. [ 42 ] Mr.

Donnelly also argues that in considering whether there is a reasonable doubt, it may be Melissa Kennedy is simply telling the truth. She did not see Edwards being pepper-sprayed. More importantly, she never did say that she was extorted or unlawfully confined. She describes Edwards as being irresponsible and someone who occasionally acts as a drug dealer.

She also said that he was manipulative and untrustworthy. [ 43 ] The court was referred to an exchange in cross-examination which occurred on June 19th, 2015 where Edwards was asked, "In order to get the money from your parents, you don't go up to your mom and dad and say look, I need to get high, can you give me some money, do you?" Answer, "Correct." Question, "It's pretty clear that they are wilfully blind to it; they don't want to focus in on your drug habit and try and just support you in what you do well in life?" Answer, "Fair. That's fair." It has also been argued that this

reflects how masterful Edwards is at lying his way in and out of situations. Mr. Donnelly also reminds the court that Paul Edwards' habit has cost his parents $100,000 for various expenses, which they knew would never be repaid. It was also submitted that if Edwards was able to stick to his written statement, he would be able to convince the court, noting that he continually asked counsel if that was in his statement. [ 44 ] Mr.

Donnelly also submits that no blood was found on the so-called answer chair, and even though blood was found in the premises, it was not even tested and we do not know how long it has been there. He further argued that although conceding that something went on that night, it is not clear from the evidence because the two main Crown witnesses have given contradictory evidence. Furthermore, if Edwards was, as he says, scared for his life, he somehow drives alone to his parents, with no thought or effort to go to the police, and if Melissa remained behind, there is an additional reason to go to the police.

In addition, Edwards testified that at one point he debated speeding, to attract the attention of the police, but that simply does not make any sense. [ 45 ] Mr. Donnelly also urged the court to reject the theory that the phone had a value of $6,000. If the phone was compromised, how difficult could it be to buy another phone? The court was reminded that when he went to his parents' place, he only wanted $200, and if Edwards wants the court to believe that his parents were unable to get him out of this situation, at the very least, going to the police would be plan B. [ 46 ] In his submissions, Mr.

Dutt, on behalf of Mr. Egilson, argued that the court should also not be asked to infer that there was somehow an urgency on the part of the two accused to come up with $6,000, as they had not sold any of the so-called product, and it is not as though they had consumed it all themselves. In any event, they would not need Earl's phone to sell drugs. [ 47 ] He also urged the court to be skeptical of Mr. Edwards' version. Just because he has made damaging admissions, that does not enhance his credibility.

He also points to the evidence of Melissa Kennedy, who testified that Paul Edwards manipulates people to get what he wants. It is further submitted that although Mr. Edwards admitted selling drugs himself, he tried to distance himself from Earl's phone. She also testified that her phone was never taken; she found it a week later. Furthermore, the court should be mindful that Mr. Edwards was on a cocaine-induced bender and was sleep-deprived throughout these events, and he is now being asked to recollect a time when he was in a drug-induced state of mind. [ 48 ] I will return to the Crown's argument briefly.

On page 12 of his written submissions, Mr. Waldock acknowledges that Melissa Kennedy displayed anger towards Mr. Edwards and that she resisted the prosecution's efforts to elicit her testimony, as well as slanting her evidence in favour of the defendants.

The Crown argues, and I quote, "Therefore, to the extent that it exonerates them, it should be treated with suspicion," and I am paraphrasing here, and to the extent that it supports the Crown's theory, it should be believed. [ 49 ] Although clearly a court can accept all, some or none of the evidence given by a witness, I am unable to agree with the proposition that I should simply accept the parts of her evidence which assist the prosecution.

I have not lost sight of the fact that Melissa Kennedy was called as a witness by the Crown. [ 50 ] The test for a conviction in criminal proceedings is proof beyond a reasonable doubt. In this case, I am troubled by several aspects of the Crown's case. First of all, Paul Edwards' version of the events in question is not supported by his common-law spouse, Melissa Kennedy. Furthermore, this case involves accusations of unlawful confinement. However, Edwards is allowed to leave the situation and drive to his parents' residence to ultimately collect $110.

Then after he arrives there, he begs (his word, not mine) his mother not to call the police. He is also allowed, on his version, by the two accused to go to his upstairs bedroom and sleep for several hours. Also, he did not sound very convincing when, while driving alone, he said he was hoping he might be pulled over for speeding, thus attracting the attention of the police. That begs the question why did he not simply call 9-1-1, or in the alternative, drive to the RCMP detachment? The police have highly-trained units to deal with these types of situations, and they have guns.

I do not wish to minimize the injuries to Mr. Edwards; however, I am unable to conclude exactly how they happened. [ 51 ] Is there reasonable doubt in this case? As is often said in jury trials, there is no magic in that phrase. It is simply a doubt for which there is a reason. Recently I came across an

article in the Globe and Mail where they profiled Mr. Justice Horkins of the Ontario High Court of Justice, an experienced and highly respected judge who is presently providing over the Ghomeshi case in Toronto.

One of his judgements was quoted (unfortunately they did not get the case name) where he had this to say about reasonable doubt: At the end of a properly conducted criminal trial where the evidence has been put in at its highest level by skilled counsel, such as this trial, it is very often impossible to confidently declare that the truth has clearly been discovered and the allegations resolved one way or the other. This is one of those trials. I am afraid that I am left in a state of great uncertainty as to where the truth lies in this case, and this is a classic form of reasonable doubt.

When one considers the grave consequences of being wrongfully convicted on an offence such as this, one can understand why nothing less than proof beyond a reasonable doubt can be accepted as the foundation of a criminal conviction. [ 52 ] I have carefully listened to and reviewed the evidence in this case, as well as the submissions of counsel. I am, of course, mindful of the test set out by the Supreme Court of Canada in R. v.

W.D. , and I have concluded that there is a reasonable doubt on all counts of the indictment. [ 53 ] Accordingly, I find both accused not guilty of all four charges. (REASONS FOR JUDGMENT CONCLUDED)