R. v. Whittaker, 2015 ONCJ 664

ONTARIO COURT OF JUSTICE CITATION: R. v. Whittaker , 2015 ONCJ 664 DATE: 2015·November ·13 COURT FILE No.: Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — THOMAS WHITTAKER Defendant Before Justice E. B. MURRAY Heard on July 24, September 18 and October 2, 2015 Reasons for Judgment released on November 13, 2015 Ms. Jennifer Loft ............................................................................... counsel for the applicant Mr. Adam Weisberg ....................................................................... counsel for the respondent MURRAY, E. B.

J.: [ 1 ] Thomas Whitaker is charged with threatening Carolyn Mila with death on March 21, 2015. They are the separated parents of L., an 8 year old boy. [ 2 ] March 21, 2015 was the Friday at the end of the March break school vacation. On that day Mr. Whitaker and Ms. Mila had a heated argument—conducted by text and telephone conversation—about where L. would spend that night. The child was with Ms. Mila. Mr. Whitaker discovered that she was going to let the child have a sleepover with her parents. Mr. Whitaker was angry. He announced to Ms.

Mila that he intended to take the boy from his grandparents home that evening, whether she agreed or not . Ms. Mila objected strongly. [ 3 ] In the course of that argument, Mr. Whitaker made a threat to Ms. Mila. Ms. Mila’s evidence is that he threatened to kill and “bury” her, so that her body would never be found. She says that, given the history of abusive and controlling behaviour by Mr. Whitaker, she was terrified. She called police. Mr.

Whitaker acknowledges that he was angry that evening, but says that the only threat he made was to start legal action to obtain his rights as a parent, an action in which he assured her he would be successful. [ 4 ] At trial, conducted in the Integrated Domestic Violence Court, I heard evidence from Ms. Mila and from Mr. Whitaker, and received in evidence text messages between them as well as an audio tape of Ms. Mila’s 911 call. This is my decision. The Evidence

Background [ 5 ] Mr. Whitaker and Ms. Mila separated when L. was an infant. Ms. Mila says that L. has always lived primarily with her; Mr. Whitaker says that until three years ago, the child lived roughly 50% of the time with each of them. It is agreed, however, that since L. started school he has lived primarily with Ms. Mila in Toronto, and has spent most weekends with Mr. Whitaker, who lives in Stouffville with his partner, Sue Drummond. [ 6 ] At the time of the incident which is the subject of the charge, Mr. Whitaker and Ms. Mila had no agreement or court order dealing with L.’s

schedule or decision-making about the child. They agree that there have been periods since separation when they have been relatively successful dealing with each other as parents, but that, at least in the past two years, their relationship has been difficult. [ 7 ] Ms. Mila’s perspective is that Mr. Whitaker has been controlling and hypercritical of her parenting.

She says, for example, that he insisted on having L. live with him on all the weekend time, the “quality time”; she gave in because she couldn’t afford to go to court. (She explained that she knew that, as a person with a middle-class income, she would have to pay for a lawyer, while Mr. Whitaker, who has chosen to live a more relaxed lifestyle and has a minimum-wage income, would be eligible for Legal Aid and pay nothing.) Mr. Whitaker’s perspective is that the

schedule was agreed to by both parents and is in L.’s best interests . March 21, 2015 [ 8 ] There is no dispute about many of the fact related to the allegations. [ 9 ] Mr. Whitaker had had L. with him on March break vacation for the two years prior to 2015. In 2015 Ms. Mila asked to have the child with her for part of March break, starting Thursday March 20 th and continuing through the weekend. Mr. Whitaker agreed . [ 10 ] On Thursday March 20 th Mr. Whitaker returned with L. from Sue’s cottage where they had spent the first part of March break, taking him to Ms. Mila’s home. [ 11 ] On the Friday Mr.

Whitaker spoke to L. on the telephone. The child put the conversation on speakerphone, so Ms. Mila overheard what was said. Mr. Whitaker asked L. what he had been doing, and what was planned. L. told him that he was going to spend the evening with his maternal grandparents. [ 12 ] Mr. Whitaker acknowledged that this made him angry. He testified that he had been willing to cut his holiday short if L. was going to be with Ms. Mila, but resented doing so if she was “just going to pawn him off on her parents”. [ 13 ] Mr. Whitaker asked L. to put his mother of the phone. Ms.

Mila testified that she knew, “where it was leading—another controlling, manipulative, threatening moment”.” She didn’t talk with him. [ 14 ] Mr. Whitaker then called Ms. Mila’s mother, Alicia. He advised her that he would be picking L. up from her that evening after dinner. Alicia called Ms. Mila; Ms. Mila understood from their conversation that Mr. Whitaker had assured Alicia that Ms. Mila approved this change of plan. Ms. Mila was upset, seeing this as yet another example of Mr. Whitaker pushing her around. [ 15 ] While Ms. Mila was on the phone with her mother, she received a text from Mr. Whitaker.

The text advised that he intended to pick L. up from Alicia at about 8:30 or 9 p.m., and would return him to Ms. Mila the next day at an unspecified time. Ms. Mila replied by text: “ No you are not…you had better back off ”. Mr. Whitaker responded: “ Excuse me?” [ 16 ] This exchange was followed by further texting and two telephone conversations [1] between Ms. Mila and Mr. Whitaker. The parties differed as to the sequence of text and phone conversation. Given the fact that there is an 11-minute gap between Mr.

Whitaker’s texted reply above and the next text, I accept his evidence that the phone conversations came first. [ 17 ] Ms. Mila and Mr. Whitaker disagree as to what was said in the phone conversation. • Ms. Mila testified that she pleaded with Mr. Whitaker to calm down, asking why he was so upset over a sleepover. Ms. Mila says that Mr. Whitaker was furious, insisting that he would get L. from her mother. Her evidence is that Mr. Whitaker threatened: “If you fucking try to stop me I’ll fucking kill you and bury you so no one fucking finds you”.

She says that he called her, among other things, a “gold-digging bitch”. Ms. Mila said that Mr. Whitaker had threatened her life in the past, and that this threat frightened her, that she knew that he was capable of hurting her. Ms. Mila says she was “shaken up and crying hysterically”, and that L. was crying too. She hung up. • Mr. Whitaker testified that the telephone conversation was heated, that he and Ms. Mila were both yelling at each other. He adamantly denied threatening Ms. Mila with death or any physical harm. He testified that he has never made such threats to her.

His evidence is that his only threat was to initiate legal action against her with respect to L.. Mr. Whitaker acknowledges that he may have said something like “I’ll bury you in court” in this conversation, but insists that he never used the word “kill”. Mr. Whitaker says that in the course of the conversation, Ms. Mila made what was for her a frequent charge against him—that he does not pay child support. Mr. Whitaker acknowledged that, in that context, had called Ms. Mila “a gold-digging bitch” and may have called her a “whore”. [ 18 ] After the phone conversation ended, Mr. Whitaker sent Ms.

Mila another text: “ I’ll be picking him up tonight from your mother. If you try to pull something, you’ll regret it.” Ms. Mila did not reply. Her evidence is that she took this text to be a confirmation of the death threat. [ 19 ] Ms. Mila’s evidence is that at this point her fiancé Roberto Juarez returned home. He saw how upset she and L. were, and called Mr. Whitaker. Mr. Whitaker testified as to a conversation with Roberto. He understood from the conversation that Ms. Mila would not allow him to get L. that evening. [ 20 ] Mr. Whitaker texted Ms.

Mila again, saying that he understood from Roberto that L. would not be made available to him that

evening. Mr. Whitaker advised in the text: ” If he is not there, l will be contacting a lawyer and investigate my options as I consider this restricting access”. After a few minutes, Ms. Mila texted : “Your threats on my life over the phone have scared everyone including your girlfriend’s family. If you insist on continuing the threats the police will be called. My mom and dad are aware not to open the door to you under any circumstances. And if you knock on the door they will call the cops .” Mr. Whitaker replied: ” OK. Good luck”. [ 21 ] Ms.

Mila testified that although she was scared, she hesitated to call the police, because she knew the call would change their relationship as parents and L.’s relationship with his father. She pondered the situation, and after about half an hour texted Mr. Whitaker one last time, saying “I feel afraid from your threats. You leave me no choice but to call the police to feel protected from you. No one restricted your access or was going to. L. was with me this weekend and cried to you to stop this but you leave me no choice this has gone on too long and too far”. [ 22 ] Ms.

Mila was cross-examined vigorously as to her evidence about the threat from Mr. Whitaker. The 911 call [ 23 ] Defence counsel led evidence of Ms. Mila’s lengthy 911 call to police that day. In that call, Ms. Mila explains the background to their dispute, and says that Mr. Whitaker was threatening “to go over there and break the door down”. [ 24 ] When asked by the operator what Mr. Whitaker’s threats were, Ms. Mila relates that Mr.

Whitaker said that “I’m a fucking bitch…If I don’t do what he says he’s going to fucking bury me…and he’ll take every action against me possible” . [ 25 ] Later in the call the operator asks whether Mr. Whitaker has made other threats, and Ms. Mila replies that he has called her a “fucking bitch” and “a gold digger”. The operator replies that although this is not civil, it is not illegal to call people these names. Ms. Mila then cries “No—he said he was going to bury me, and he’ll fucking kill me—that to me is enough”. Police interview at home [ 26 ] Defence counsel questioned Ms.

Mila about what she told the police officer who came to her home directly after this incident, reading to her notes in which the officer notes that she reported that Mr. Whitaker had threatened “I’ll take every legal action against you, you fucking gold- digging bitch. I’m going to fucking kill you and I’m going to bury you”. Ms. Mila acknowledged that this statement was “along the lines of” what Mr. Whitaker said to her, adding that she was “really nervous” and scared when interviewed. Taped interview at station [ 27 ] Ms.

Mila testified that she was more collected by the time she was interviewed at the station on March 21 st . She agreed that she told the officers that Mr. Whitaker said: “and if you fucking cause me any problems I’m going to fucking kill you. I’m going to fucking bury you, you fucking bitch”. Ms. Mila went on to explain to the officers: “That’s exactly what he said but really loud. Then he also went on to say that he will take every legal action possible against me”. [ 28 ] Defence counsel pressed Ms. Mila to concede that it was possible that Mr.

Whitaker had threatened her with legal action, but not physical harm. Ms. Mila acknowledged that she did not remember the specific words of Mr. Whitaker’s threat, but said that she was sure that he threatened to kill her and to bury her so that no one could find her. She allowed as to the possibility that Mr. Whitaker had also threatened legal action, adding that perhaps he had talked about a lawsuit simply to “cover himself” after he had threatened her with death. The law [ 29 ] S. 264. 1 of the Criminal Code provides as follows. 264.1

(1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (

a) to cause death or bodily harm to any person; (

b) to burn, destroy or damage real or personal property; or (

c) to kill, poison or injure an animal or bird that is the property of any person.

[ 30 ] The offence of threatening death has two elements, both of which must be proved by the Crown beyond a reasonable doubt. [2] 1. Would the words spoken or written—viewed objectively and in the context of the circumstances—convey a threat of death or serious bodily harm to a reasonable person? In making this determination, the court may consider the complainant’s past experience with the defendant. 2. Did the defendant intend the words spoken or written to be taken as a threat of death or serious bodily harm; did he intend by these words to intimidate?

Intent can be inferred from the circumstances where there is no direct evidence of intent. [ 31 ] Given that Mr. Whitaker testified, I have assessed the evidence in accordance with the principles in R. v. W.D., (1991) 1.

S.C.R. 742: • First, if you believe the evidence of the accused, obviously you must acquit. • Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. • Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 32 ] I note that the order of this analysis is not meant to be a lock-step format, provided that the fundamental principle is respected, and that the entirety of the evidence should be considered when a determination is made [3] .

Argument of counsel [ 33 ] Defence counsel submits that his client’s evidence should be accepted. Counsel says that Mr. Whitaker was clear in his evidence and unshaken in cross-examination. He says that Mr. Whitaker conceded points not to his advantage -- that he as well as Ms. Mila was angry in the telephone conversation, that he had perhaps acted unwisely that day, and that on one occasion in the past he had behaved inappropriately with a former boyfriend of Ms. Mila. [ 34 ] Even if I do not accept Mr.

Whitaker’s evidence in its entirety, defence counsel submits further that there is a reasonable doubt as to whether his client threatened the complainant with death. He points to what he describes as “evolving” and internally inconsistent statements from Ms. Mila to police and to this court about the alleged threat. He submits that her evidence in court about past threats, abuse, and controlling behaviour is vague and unreliable, and not consistent with statements made to 911 or the police at the time of investigation. He suggests that Ms.

Mila was in a highly emotional state that day and may have misunderstood Mr. Whitaker’s words, or, alternatively, that she is lying to obtain an advantage in current litigation with respect to L.. [ 35 ] The Crown concedes that there were minor inconsistencies in Ms. Mila’s evidence which she says are explained by the passage of time, but submits that Ms. Mila was clear and consistent in her evidence that in their telephone conversation of March 21, 2015 Mr. Whitaker threatened to kill her. The Crown argues that it is not surprising that Ms.

Mila was more detailed in her statements about the threat in her conversation with investigating officers than in her conversation with the 911 operator—911 is an emergency service, not a facility for in-depth investigation. Counsel argues that Ms. Mila’s evidence about the threat is consistent with other evidence about a controlling and psychologically abusive pattern of behavior displayed by Mr. Whitaker in the past and with Mr. Whitaker’s own admission as to “off the chart” behaviour when his wishes as to a minor scheduling issue for L. were thwarted by Ms. Mila. Analysis [ 36 ] Did Mr. Whitaker threaten Ms.

Mila with death on March 21, 2015? If so, did he intend the threat to be taken seriously, in order to intimidate Ms. Mila? [ 37 ] The text messages from Mr. Whitaker in themselves do not convey a death threat, so it is the evidence about the telephone conversation(

s) that is critical. [ 38 ] I do not accept Mr. Whitaker’s evidence in its entirety. Even by his own evidence, Mr. Whitaker has demonstrated a lengthy history of aggressively attempting to control Ms. Ms. Mila’s behavior as regards L. when the child is residing with he. For example, he acknowledged refusing to return the child to her on occasion unless Ms. Mila paid for his gas costs. The incident which sparked the argument on March 21 st is a good example of this behavior. Mr. Whitaker felt it was his right to dictate what Ms.

Mila did with L. on the time the child was scheduled to be in her care, and felt justified in announcing that he was going to remove the child against her wishes— not because of any issue related to the child’s safety, but because he didn’t want the child to spend an evening with his grandparents. [ 39 ] It is possible that Mr. Whitaker did make a death threat against Ms. Mila that day. Even on his own evidence (from the text and viva voce ) he was yelling, threatening her that he would “bury” her in court. In his text he warned Ms. Mila that if she blocked his plan to seize L. that “you’ll regret it”. When Ms.

Mila texted back “your threats on my life over the phone have scared everybody” and that she felt compelled to contact police, Mr. Whitaker did not quickly reply, assuring her that he meant no threats of physical harm. [ 40 ] Having said that, and taking into account the evidence as a whole, I am not persuaded beyond a reasonable doubt that Mr. Whitaker made a threat of death on March 21 st . I do not believe that Ms. Mila has intentionally misrepresented what was said by Mr.

Whitaker to her on March 21, 2015, but there are a number of factors which lead me to question the reliability of her evidence on this point. [ 41 ] There is a difference between a witness who purposely misrepresents the facts of an incident and a witness who lacks reliability. A witness may lack reliability because he or she has problems with perception at the time of an incident, or problems with accurate recall of an incident, or problems clearly expressing what he/she saw and heard.

[ 42 ] I accept that Ms. Mila believed that Mr. Whitaker threatened her life in that conversation, and that she was genuinely frightened. Indeed, defence counsel conceded this point in submissions. I do not agree with defence counsel’s submission that a threat of death is logically inconsistent with a threat of legal action; there are a number of tragic stories of domestic violence perpetrated in the context of a legal action. I am left with a doubt, however, as to whether Ms. Mila accurately heard and remembered what Mr. Whitaker said during that argument. My reasons for that doubt are set out below. • Ms.

Mila was in a highly emotional state during the argument. Even before the threat was made, she was clearly incensed that Mr. Whitaker was again being, in her words, “controlling, manipulative, threatening” by dictating L.’s schedule, by lying to her mother, and by unilaterally announcing that he would pick the child up that night. Ms. Mila described herself as being “so upset” by the exchange, which she said was “traumatic” and “created chaos” in her home that night. • Ultimately, Ms. Mila agreed in cross-examination that she did not remember the exact words Mr.

Whitaker used when he threatened her—she just knew that she concluded after the conversation that Mr. Whitaker had threatened to kill her. In a case such as this, the “exact words” are important. • In her evidence, Ms. Mila appeared at times to blur the distinction between a threat of legal action and a threat of death. In cross- examination, defence counsel spent considerable time getting Ms. Mila to agree that in her 911 call and in the interviews with police at her home and at the station she had described a threat by Mr.

Whitaker to initiate legal action, and pressed her as to whether there was an inconsistency between what she told police and the threat she had described in court. Ms. Mila’s reply was; “Oh no, it’s the same. He is going to bury me….he is going to kill me. That’s all I hear as the victim.” [ 43 ] In my deliberations I took into account that seemingly innocuous or neutral words may be seen in a different light if a particular complainant has been physically threatened or assaulted by a former partner in the past. Ms. Mila testified that Mr.

Whitaker had previously physically threatened her or stalked her many times, but was unable to give persuasive examples of this behavior. [ 44 ] The examples which Ms. Mila did offer of what she considered to be prior threatening behaviour from Mr. Whitaker indicate to me is that Ms. Mila is so anxious about contact with Mr. Whitaker that she may sometimes put the worst possible

interpretation on actions or words from him that may be ambiguous. For example, Ms. Mila testified about an incident this past Christmas as an instance of Mr. Whitaker stalking her. She and Roberto were on a Caribbean vacation, and L. was staying with Mr. Whitaker. Ms. Mila had not told Mr. Whitaker where she was staying, but they had arranged that L. would Skype with her. She and the child had trouble making a connection. Email messages were exchanged to try to make contact. Ms. Mila testified that she was shocked when Roberto advised her that Mr.

Whitaker called their room, and hung up. (After this, L. successfully connected with her.) Ms. Mila came to the conclusion that Mr. Whitaker was trying to track her movements—she wasn’t sure how, but allowed that possibly he had just called many different hotels in the Dominican Republic trying to find her. Ms. Mila said that this incident made her fearful. She did not appear to consider other ways – such as, perhaps, information from L.—by which Mr. Whitaker might have learned the name of her resort. [ 45 ] It is clear to me that Mr. Whitaker wanted to bully and intimidate Ms.

Mila in their exchange on March 21, 2015, but I am not persuaded beyond a reasonable doubt that he did so by way of a death threat. I find Mr. Whitaker not guilty. Released: November 13, 2015 Signed: Justice E. B. Murray