R. v. Warkentin Date:, 2017 BCPC 394

Citation: R. v. Warkentin Date: 20171115 2017 BCPC 394 File No: 65403-2-KC Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. THEO PETER WARKENTIN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P.D. GULBRANSEN Counsel for the Crown: C. Bright Counsel for the Defendant: P. Derksen Place of Hearing: Chilliwack , B.C. Dates of Hearing: April 27-28, 2017; August 2, 2017; October 23, 2017 Date of Judgment: November 15, 2017

Introduction [ 1 ] Theo Warkentin is charged with assaulting D.M. (“Ms. M.”) in her home in Chilliwack, and with unlawfully confining her by trying to prevent her from leaving her house after the assault. Although she initially told the police that the defendant had both punched and choked her, she testified at trial that this did not happen. Ms. M. says that she cannot recall speaking to the police, but does remember what happened between her and the defendant. [ 2 ] She testified that, in a moment of jealous rage, caused by seeing pictures of other women on his cell phone, she suddenly jumped on Mr.

Warkentin while he was sleeping and assaulted him. He merely threw her forcefully off him and the bed. She ran out of the house. He pursued, because she would not return his phone. Mr. Warkentin testified and gave a similar account. [ 3 ] This conflict between Ms. M.’s statement to the police and her testimony led the Crown to apply to have the statement admitted into evidence as proof of the truth of its contents, pursuant to the principled exception to the hearsay rule. I granted the application. [ 4 ] The main issues in this decision are the credibility and reliability of Ms.

M.’s testimony as opposed to her statement given by the police; whether that statement and the evidence led to corroborate it are capable of proving the Crown’s case to the standard of beyond a reasonable doubt; and whether Warkentin’s testimony is capable of raising a reasonable doubt. Relevant Legal Issues [ 5 ] Mr. Warkentin testified, and therefore the principles I set out in R. v. W. D. apply. If I believe the defendant's evidence, I must acquit. If I do not believe the defendant's evidence, but it leaves me with a reasonable doubt, I must acquit.

If I reject the defendant's evidence, I must examine all the other evidence tendered in the case and can only convict if I am convinced that it proves the guilt of the defendant to the standard of beyond a reasonable doubt. [ 6 ] A judge must not treat assessment of the defendant's testimony as "a credibility contest." In the case at bar, I will have to assess the hearsay evidence adduced by the Crown and assess it in the context of Mr. Warkentin's testimony. The important point is that I must not determine the case solely on the basis of whether that hearsay evidence is more believable than Mr.

Warkentin's testimony. The focus must always be on the issue of whether, on all the evidence, the Crown has proven its case beyond a reasonable doubt. Circumstances [ 7 ] This incident occurred on the morning of August 22, 2016 at Ms. M.’s home in Chilliwack. She and the defendant had known each other for many years as friends. More recently, they become more intimate, although they were not living together in a marriage like relationship. They had an intimate relationship, but it was not exclusive. Mr. Warkentin had been staying at Ms. M.’s home on and off for a while. He owned his own home in Maple Ridge. Ms.

M. is 51. Mr. Warkentin is 48. [ 8 ] On the evening before, the defendant and Ms. M. had been at Hatzic Lake visiting some friends. They had both consumed alcohol, although there is some dispute about how much they had to drink. They returned home in the evening or early morning. Evidence of Third Parties [ 9 ] The witness, D.V., was visiting a friend who lived next door to the property on which Ms. M.’s home was located. This home is described as a coach or laneway house. It is in the rear of the property, behind the main house.

It was a beautiful morning and the witness and her friend had gone out in the backyard to enjoy it. [ 10 ] She recalls the time as being probably 9:00 or at least between 8:00 AM and 9:00 AM. She first recalls hearing "muffled shouting" coming from the coach house. She believed that the person shouting was a woman. She said she may also have heard a man’s muffled voice. She described the nature of the woman's shouting as the shouting of someone in distress. [ 11 ] She could not hear the words that the persons were saying to each other. The shouting went on for a few minutes at least, perhaps 10.

Then, a door to the coach house opened, and a man and a woman came out. The witness’ ability to observe them was limited because she was looking over a relatively high fence. At best, she could see the person’s heads and shoulders. There is no question that the woman was Ms. M. and the man, Mr. Warkentin. (The witness did not know either of them.) [ 12 ] She said that the woman came out first, followed by the man. She said that the woman was crying and distraught.

The woman said, "I do not want to." After referring to her statement, the witness also recalled that the woman said, "Let me go." Then, the woman and man went back inside. The witness could not really see whether the man forcibly brought the woman back inside. [ 13 ] It was quiet inside the house for a few minutes, the witness said; then she saw the woman running out of the door. She was crying. She ran to the house at the front of the property and banged on the window. Someone in that house let her in. The man had also emerged through the door, but did not follow the woman to the main house.

The witness recalls the man saying: "I was not banging your daughter." She perceived the tone of the remark as being sarcastic. [ 14 ] Several RCMP officers arrived at about 8:30 AM. They arrested Mr. Warkentin without incident. The officers who dealt with him believed that he was intoxicated. [ 15 ] An ambulance arrived and Ms. M. was taken to the hospital. After Ms. M. was examined by a doctor, she was interviewed by Cst. Brittany George. The officer also took photographs of what appeared to be injuries to Ms.

M.’s face and neck. [ 16 ] The doctor said that he noted the following in his examination of the patient: (1) small contusions to the left side of her head;

(2) red abrasions within the hairline; (3) bruising and marks on the left orbit; (4) a number of abrasions around the anterior neck that seemed to extend from left across to right; (5) the patient complained of pain in her neck. [ 17 ] The doctor also gave the opinion that the injuries to the eye and neck probably occurred at the same time. He disagreed with the suggestion that the markings on the neck could have occurred a day or days before.

He also agreed that the markings that he saw on the patient's neck were consistent with what he termed "progressive asphyxiation." [ 18 ] He also said that the marks on the neck were not inconsistent with the marks being made by the back straps on a backpack, where a person had become entangled with them while being stuck on the ledge while climbing. However, he disagreed that the marks that he saw on the patient's neck could have occurred a day or more before the examination. [ 19 ] The photographs taken by Cst. George show that Ms.

M. had bruising directly above and below her right eye, as well as to the right side of her forehead, and linear bruising to the neck, particularly to the right side of the neck. Ms. M.’s Statement [ 20 ] Cst. George recorded the statement that she took from Ms. M., who gave the following account: She said that she and Mr. Warkentin had been drinking alcohol at their friends’ place in Hatzic Lake and that they continued drinking when they got home. She said that he drank considerably more than she did. She said that he went to bed, but kept on waking and searching for more liquor.

She reacted by hiding some liquor. Eventually, she said that she gave him some zopiclone, a drug she had been prescribed to help her sleep. [ 21 ] She said that she began looking through the contents of his cell phone, something she had never done before. On the phone, she found pictures and videos of him with other women with whom he appeared to have some relationship. Most disturbingly, she said she found pictures of the defendant with her 32-year-old daughter.

She inferred from those pictures that her daughter and the defendant had a sexual relationship. [ 22 ] She found these pictures of the defendant and her daughter particularly upsetting, because she said her daughter’s young son – Ms. M.'s grandson – had tragically died a few years before. She believes that her daughter was in some way responsible for the boy's death. In the statement, Ms.

M. said that the defendant and her daughter were both "animals." [ 23 ] She said that once she had found the photographs of her daughter and the defendant, she decided that she had had enough and wanted the defendant out of her house. She said that she did not wake him up, but quietly started removing his materials, probably mostly clothing, from the house and put them in his car. [ 24 ] Suddenly, the defendant began to attack her. Her first description of the assault began as follows: And then, at some point he just literally went in the [inaudible] and tried to kill me. Literally tried to kill me.

Like I was almost passing out. He was choking me so hard several times. And that is all. I tried to get away a couple of times. It did not work. [ 25 ] She further described the assault as including grabbing her hair, slamming her face, putting her in a chokehold, and strangling her with his whole weight on her throat. It felt like her throat was collapsing. She said that at times she felt like she was passing out. [ 26 ] She said she had known him for 15 years and he had never done anything like this before. She discussed her belief that the defendant and her daughter were in some sort of intimate relationship.

She believed that her daughter was responsible in some way for the death of her grandson. She referred to them in these terms: “The two of them are just animals as far as I am concerned. Just animals." [ 27 ] She insisted that she had never provoked Mr. Warkentin. She indicated that she was not angry, but that she just wanted him out. She did say, however, that she texted some of the women who were depicted in the photographs on Mr. Warkentin's phone. She said that she never really confronted Mr. Warkentin with her discovery of the photos because he was passed out. [ 28 ] Ms.

M. said that the assault went on for a while and that it probably happened a couple of hours before the police arrived. She reiterated how she believed that he was trying to kill her. She said that: “He was just literally bashing my head with his fist, with his elbows, smashing me and choking me, you know. There was not really a lot being said, I do not think.

I was begging and pleading and telling him like whatever I could, but I could not even really talk because he was choking me." [ 29 ] She further said that she got loose a couple of times, and the last time she got loose and just ran to the house in the front. She said, "I almost got there one other time, but he caught me.” When he caught her, she said that he pulled her upstairs and began pulling her hair and smashing her again and choking her. She also said that when she reached the other house, "…I just started screaming for help." [ 30 ] Cst. George said that she did not believe that Ms.

M. was intoxicated or significantly under the influence of alcohol. She did, however, smell of liquor. On the audio recording, Ms. M. speaks clearly and while she perhaps sounds a little distraught over recounting the assault, she otherwise sounds normal. For example, there was no slurring of words; there was very little unintelligible speech. The narrative was clear and coherent. Ms. M.’s Testimony [ 31 ] Ms. M.'s testimony differed substantially from her statement to the police. She said that both in Hatzic Lake, and when they returned home, they only had a few drinks each. She did recall looking through Mr.

Warkentin's phone and seeing pictures of him with

other women, including her adult daughter. She said that she did confront him with it, but then did not pursue the matter any further. She said that she would let him go to sleep, calm down and deal with it in the morning. [ 32 ] She said that she started to "pack up his stuff". She did want him to leave. She said that she did become more angry and, against her better judgment, attacked Mr. Warkentin while he was asleep in bed. She said she jumped on him and "started pounding on him." She also grabbed his telephone with the intention of showing him the reason for her anger.

She said that she both pounded on his chest with her fists and kicked him in the testicles. [ 33 ] She said that Mr. Warkentin grabbed her and threw her off the bed. She said she landed first on a side table and then on the floor. She got up and started running. She went out the door and ran to the house in the front of her home. She was still carrying Mr. Warkentin's phone. She had little recollection of what occurred after she reached the front house. She said that she believed that she threw Mr. Warkentin's phone down on the ground. [ 34 ] Ms.

M. said that she had little recollection of what happened after she was let into the house in the front of the property. She did not recall meeting the police; she did not recall getting into the ambulance or traveling to the hospital; she did not recall speaking to Cst. George or providing the audio recorded statement to him.

She did, however, recall speaking to a doctor, and as she said, she remembered: "… him talking to me about my injury, that, there was not an injury." She said that she did not remember what she said to the doctor. [ 35 ] I permitted the Crown to cross-examine this witness, pursuant to s. 9 (2) of the Canada Evidence Act . The cross-examination did not alter her assertion that she had no memory of speaking to the doctor or to the police officer. She said that she believed her memory loss came from her taking the sleeping pill – zopiclone.

She said in the past, she had experienced memory loss after taking it, and had learned that she had done some very irrational things while under its influence and which she did not remember doing. This includes saying things to people that she did not recall and buying things that she had no memory of ordering. Her doctor has since taken her off that medication. [ 36 ] She explained the apparent bruising to her neck as depicted in the photos by explaining that she suffered those bruises when she was coming down from rock climbing or mountain climbing at a place called the Needle in Coquitlam.

She said that she got stuck on a ledge, and that the backpack was hung up behind her, such that the front strap on the backpack rode up and had her almost suspended by her neck. That is, the markings on her neck were caused by a strap on the backpack, not by her being strangled. She said that she believed that the bruising to the orbit of her eye occurred when she fell onto the table after Mr. Warkentin threw her off the bed. Mr. Warkentin’s Testimony [ 37 ] Mr. Warkentin’s account of what happened is very similar to Ms. M.’s account in her testimony, with some variation on specific matters.

He admits to having consumed what appears to be a considerable amount of alcohol – at one point in his testimony, he said he had consumed about 15 cocktails over that previous evening and early morning. [ 38 ] He agreed that the consumption of alcohol in that amount would have some effect on the quality of his memory. But, the main point he made in his testimony was that what occurred between him and Ms. M. was very brief – perhaps 15 seconds in duration – and that at no time did he punch or choke her, or prevent her from leaving her home.

That is, it was a relatively simple transaction, of brief duration, and therefore, easy to recall. [ 39 ] Mr. Warkentin said that after they had returned to Ms. M.’s house that she had gone to bed about 2:00 AM. He did not go to bed until about 4:00 AM. During that time, he was texting various people on his phone, probably various women that he kept in communication with. He believes that after he went to bed, Ms.

M. began looking into the various contents of his phone, discovering that he had been communicating with other women, and also discovering some photos or videos of him and her 32-year-old daughter. [ 40 ] He said that after he had gone to sleep, Ms. M. woke him up. She was extremely angry. He said that she grabbed him by his testicles and started to yell. She threw his phone at him. He believes that she was angry about the texts that she had seen on his phone. However, he said that she calmed down quickly.

He realized that he had been “caught out” blatantly communicating with women with whom he also had intimate relationships. [ 41 ] He said that he took a sleeping pill for which he had his own prescription, also zopiclone. The next thing that he remembered was waking up to Ms. M. on top of him, hitting him on his chest and arm and shouting at him to get out. He said that he tossed her off the bed onto the floor. En route, she hit a table. She grabbed his phone and ran out. He pursued her. She ran to the house in the front of the yard, but dropped the phone. He picked it up and went back inside.

That was the last he saw of her. He returned to the coach house and was later arrested by the police. [ 42 ] He said that he had become concerned that Ms. M. had texted the various women that he had texted. She may have also have texted other persons from his phone. He initially said that he could not recall saying: “I was not banging your daughter.” However, in cross-examination, he agreed that he may have said it. [ 43 ] On cross-examination, he made it clear that he never punched Ms. M. in the head or face; he never hit her with his elbows; he did not pull her hair; and he did not choke her.

The only force he ever used was to defend himself from her jumping on him and punching him while he was in bed. Analysis [ 44 ] Neither party can be expected to have completely clear memories of what happened. They had both been drinking, Mr. Warkentin probably more than Ms. M. They had both had relatively little sleep before Ms. M. ran out the door. On either of the accounts given by Ms. M., this was an emotionally charged event, because she found out that Mr. Warkentin was probably having a sexual relationship with her adult daughter.

The strong emotional effect of that discovery may also affect her ability to recall in detail what happened. As well, they had both consumed sleeping pills.

[ 45 ] The key to assessing the three versions of events that have been presented to the court is an examination of the independent evidence. That is, both Mr. Warkentin and Ms. M. in their testimony said that she only left her house one time, with Mr. Warkentin chasing her to get his phone back. And, they both said this occurred in the context of a very brief confrontation, where Mr. Warkentin threw Ms. M. off the bed. [ 46 ] The independent evidence from the witness in the neighbor’s backyard contradicts this version significantly. She could hear a woman shouting inside the house, apparently in distress.

This went on for at least a few minutes, not seconds. She saw the woman (Ms. M.) come out of the house twice. On the first occasion, the woman was upset, very loud, and saying, “I do not want to” and “let me go”. Nonetheless, she ended up going back inside the house. Then, a significant time later – that is minutes at least, not seconds – the woman emerged again. This time she was crying. As she ran to the house in front, the man said, “I was not banging your daughter.” [ 47 ] While both Ms. M. and the defendant are adamant that she only left the house once, it is unlikely that they are correct.

The witness did not know either of them; was sober and was keen to observe what happened, because she was concerned about the nature of the interaction between man and woman. [ 48 ] That is, there was a reason for her to watch and remember what happened. She was also close by, and while she could not observe either party fully, she could see their heads and shoulders as she looked over the fence. That is, she had a clear view, and there was nothing interfering with her ability to hear what was said.

She gave a statement to the police within a short time of the incident occurring. [ 49 ] Next, the doctor’s evidence contradicts Ms. M.’s testimony about how the injuries happened. In particular, he was of the opinion that the marks on the neck likely occurred at the same time as the bruise to the eye socket. This contradicts Ms. M.’s account that it occurred during a mishap on a hiking trip. [ 50 ] Although she testified that she had taken a sleeping pill about two hours before seeing the doctor and the police officer, neither witness observed Ms.

M. to be apparently under the influence of such a drug, for example, by being sleepy. [ 51 ] Ms. M. said that her description in her statement of the extended assault by Mr. Warkentin was not true. She could not offer any explanation as to why she said these things, because she could not remember saying them. But, that statement quite accurately reflects the independent evidence introduced by the Crown. That is, she said that she pleaded with the defendant to stop beating her. The witness in the neighbor’s yard heard what could only have been Ms.

M. shouting in a manner which made the witness believe that the woman was in distress. Ms. M. said that she tried to get away, but that the defendant stopped her and forced her back into the house. The witness in the neighbor’s yard saw Ms. M. emerge from the house saying she did not want to, and asking the man to stop. The witness saw Ms. M. go back in the house, only to return shortly afterwards, this time in great distress, running to the house in front. [ 52 ] Ms. M. described the defendant as punching her in the head and face; hitting her with his elbows and choking her.

There was a bruise to her left eye socket and on her forehead. She had marks on her neck, which are consistent with someone choking her. The doctor believed that the bruising on the neck occurred at the same time that the bruise to the eye socket occurred. This version of events, as given in her statement, is coherent and consistent with objective extrinsic evidence. It is improbable in the extreme that the statement given by Ms. M. to the police was a concoction or false statement. [ 53 ] It is Ms. M.’s testimony in court, which is improbable.

She insisted that she only left the house on one occasion, after being thrown to the floor by the defendant. But, the weight of the evidence clearly points to her being outside of the house at least twice. On both occasions, she was apparently trying to escape from Mr. Warkentin. When one looks at the photographs the bruising on her right eye looks as if someone punched her there. The claim that the injury must have been caused when she hit a table beside the bed, is not credible. [ 54 ] In

summary, a rhetorical question is in order. How could someone who was supposedly under the influence of a drug, which causes her to lose her memory and to do things she otherwise would not do, make a statement describing an assault which so accurately fits in with all the circumstances? [ 55 ] I draw no inference from Ms. M. saying that she does not remember making the statement. This may well be true. But, the inescapable inference that must be drawn from the statement given to the police is that at the time, she accurately remembered what had happened to her. [ 56 ] I therefore find that Ms.

M.’s testimony is not credible. Assessment of Defendant’s Testimony [ 57 ] The assessment of Mr. Warkentin’s testimony requires a different approach. He is not required to explain anything. He is not required to explain inconsistencies or improbabilities in Ms. M.’s testimony. He is not required to explain the markings on her throat or the bruising to her face and head. He is not required to explain why she would make the statement that she did to the police. He cannot be held to a higher standard of recollection or consistency than is Ms. M. in her statement. [ 58 ] The evidence is very strong that Ms.

M. left the house twice and was unwillingly brought back in the first time. The evidence is also very strong that Ms. M. was very upset and very loudly protesting going back into the house on the first occasion, and in distress as she ran out the second time. Mr. Warkentin’s insistence that Ms. M. was merely running away from him with his phone, for no apparent reason, is not believable. [ 59 ] Second, Mr. Warkentin’s statement that the whole transaction between him and Ms. M. took perhaps 15 seconds before she left is also not credible.

The witness in the neighbor’s yard clearly heard some sort of verbal exchange between the two of them before anyone came out of the house. What she heard sounded like an argument. That continued after Ms. M. went back into the house until she left, running for help. It is not credible that what occurred between Mr. Warkentin and Ms. M. took only 15 seconds.

[ 60 ] One must ask, why would Ms. M. leave the house in distress and seeking help? It seems unlikely that she would be suddenly so terrified of Mr. Warkentin after she had initiated the violence by jumping into the bed and punching him and grabbing his testicles while expressing her outrage. Just throwing her off the bed to stop her from harming him, without making any threats or striking any blows, or doing anything other than seeking to get his phone back, would hardly inspire the kind of fear that motivated Ms. M. to run, apparently terrified, from the house. After all, Mr.

Warkentin said that he was not all that angry at Ms. M. for looking at his phone. Although, he was worried that she had texted nasty messages to people on that phone. That is hardly an attitude which would strike such fear into Ms. M.’s mind. [ 61 ] Thus, I find that Mr. Warkentin’s testimony about the interaction between him and Ms. M., which led her to leave the house and run for help, is not credible. I reject that evidence. Assessment of Other Evidence [ 62 ] Is the remainder of the evidence called in this case sufficient to prove the case against Mr.

Warkentin to the standard of beyond a reasonable doubt? [ 63 ] As I have already noted, there are significant circumstantial guarantees of trustworthiness of the recorded statement of Ms. M. The officer who asked the questions, did so carefully, without any significant leading questions, and essentially let her tell the officer what happened. The narrative contained in the statement is coherent and believable. The manner in which she narrates what happened is consistent with someone who had recently been assaulted.

What stands out, in particular, is her almost shocked reflection that she thought she was going to be killed. [ 64 ] As I have said in in my rulings regarding the admissibility of this statement, there is significant corroboration for Ms. M.’s narrative in the statement. The corroborating evidence relates directly to material facts, including the witness at the neighbour’s house hearing a disturbance in Ms. M.’s house, indicating a serious conflict; Ms.

M. leaving the home under some distress, apparently resisting attempts to get her back in the house; apparently going back reluctantly in the house; emerging from the house subsequently in some distress, apparently fleeing from Mr. Warkentin. As well, there is the bruising to the throat, and bruising on the eye socket and forehead, as well as some minor damage to her scalp. The statement itself was given within hours of the event occurring. Mr. M. did not appear to be under the influence of drugs, including alcohol. [ 65 ] However, I must also consider apparent weaknesses in the hearsay evidence.

Although it is, in my view, quite important that the witness was not asked any leading or overly detailed questions; that also meant that certain issues were left unexplored. Of course, there was no cross-examination at the time. Thus, as the prosecution has pointed out, Ms. M. did not give any explanation or description of why the conflict between the parties occurred? Ms. M. merely said that the defendant suddenly attacked her.

She also talked about how she was very upset by the discovery of the apparent sexual relationship between her adult daughter and the defendant, as well as finding pictures of the defendant with other women. She claims that she never discussed this with him. That seems unlikely. [ 66 ] As well, it is obvious in her statement to the police that Ms. M. was very upset about what she discovered concerning her daughter and the defendant.

In fact, she referred to them both as “animals.” That honest expression of disgust suggests that her anger could be the source for exaggeration, distortion, or even falsehoods about what happened. [ 67 ] In addition, it seems quite probable that Ms. M. did tell Mr. Warkentin about her disgust with the relationship between him and her daughter. That is supported by Mr. Warkentin saying to her as she left: “I was not banging your daughter.” It is likely there was an argument about this and that Ms. M. was the one who raised the subject. [ 68 ] Thus, Ms.

M. had a motive to lie or exaggerate, and her memory probably has gaps in it. However, in my view, the independent circumstantial evidence resolves any of the concerns I may have had on these issues. The overheard sounds of Ms. M. crying out in distress within her home; her loud pleading with Mr. Warkentin when she was first outside her home; her second exit from the home where she was clearly in fear for her safety, negate any suggestion that she was somehow “playacting” or overreacting to something inconsequential that happened inside the house.

One need only look at the pictures and conclude, independently from the doctor, that someone had tried to choke her, and had punched her in the eye and the head. Her description in the statement of how Mr. Warkentin assaulted her was, in that context, not an exaggeration or a lie. [ 69 ] I conclude therefore that the statement given by Ms. M. to the police and the evidence tendered to corroborate that statement prove beyond a reasonable doubt that Mr. Warkentin assaulted Ms. M., and unlawfully confined her. I find him guilty on both counts. The Honourable Judge P.D. Gulbransen Provincial Court of British Columbia