R. v. Andrews Date:, 2012 BCPC 69

Citation: R. v. Andrews Date: 20120314 2012 BCPC 0069 File No: 75464-1 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSEPH DANIEL ANDREWS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: L. Yip Counsel for the Defendant: M. LeHouillier Place of Hearing: New Westminster , B.C. Dates of Hearing: December 13 and 23, 2011 Date of Judgment: March 14, 2012 INTRODUCTION [ 1 ] The accused, Joseph Daniel Andrews (“Mr. Andrews”), faces a charge under Information 74564-1 that he uttered threats to cause death or bodily harm to the complainant, Rizal Jamer (“Mr. Jamer”), contrary to s. 264.1 (

a) of the Criminal Code . In particular, it is alleged that Mr. Andrews told Mr. Jamer more than once on the offence date that he was going to cut his throat. [ 2 ] The Crown’s theory is that the altercation between Mr. Andrews and Mr. Jamer began shortly before the SkyTrain car in which the two were travelling separately arrived at the 22 nd Street SkyTrain station in New Westminster, British Columbia. The time was around 11:00 p.m. on December 30, 2010. Mr. Andrews is alleged to have singled out Mr. Jamer, who was unknown to him, as a target for aggression for no apparent reason. The Crown argues that Mr.

Andrews first threatened to cut Mr. Jamer’s throat immediately after both alighted from the SkyTrain car; then again after both had boarded an idling bus; and then a third time, after Mr. Andrews had gotten off the bus but while he continued to shout imprecations at Mr. Jamer through the windows and closed doors of the bus. [ 3 ] The bus in question was the Number 100 service from the 22 nd Street station to the Marpole area where Mr. Jamer resides.

It was awaiting departure from its loading bay adjacent to the station and both the accused and the complainant boarded it separately after alighting from the SkyTrain. [ 4 ] It is common ground that the words, “I am going to cut your throat”, if proven to have been uttered by Mr. Andrews to Mr. Jamer as the Crown contends, are words that, in the circumstances, constitute a “threat to cause death or bodily harm” as contemplated by s.

264.1 (

a) of the Criminal Code . [ 5 ] Counsel for Mr. Andrews did not call defence evidence. The issue in this prosecution is whether—given the heterogeneous character of the Crown’s evidence on certain points, and the contradictions revealed within the witnesses’ own accounts, and between and among their individual accounts of relevant events—the Crown has proven the actus reus for the offence beyond a reasonable doubt. THE CROWN’S EVIDENCE [ 6 ] The complainant, Mr. Jamer, is an Asian male of unspecified extraction.

He works as a loss prevention officer for Shopper’s Drug Mart and Choices stores and has served in that capacity for about four years. As such he is an experienced witness, having given testimony on behalf of the Crown in a number of theft prosecutions. Mr. Jamer acknowledged that he has been involved in many theft investigations and understands the importance of maintaining truthful, accurate and complete notes.

He also confirmed that he appreciates the importance of giving truthful, accurate and complete accounts of his observations of allegedly criminal behaviour, both when making formal statements to police and then later when giving evidence in open court. [ 7 ] While he was the last Crown witness to be called to the stand, I shall structure these Reasons for Judgment mainly around the testimony of Mr. Jamer since he is the complainant and the Crown’s most important witness. As I have noted, three somewhat distinct threatening “transactions” involving Mr. Andrews as the aggressor figured in Mr. Jamer’s testimony.

I shall recount his evidence regarding each of the three alleged transactions, discuss all three on their own terms and then comment on how Mr. Jamer’s evidence about them fits, or not, within the context of the evidence given by the other two Crown witnesses. On the Platform [ 8 ] Mr. Jamer testified that, after having witnessed what appeared to be intimidation by Mr. Andrews of two Asian males on the SkyTrain car in which they all were riding, Mr. Andrews unaccountably turned his sights upon him. (Based on recognition, Mr.

Jamer identified the accused in the courtroom as the individual who had threatened him.) [ 9 ] His evidence was that, for no reason, as the train pulled into the 22 nd Street station and he (Mr. Jamer) was preparing to disembark, Mr. Andrews rushed up behind him. He testified that Mr. Andrews asked him in an aggressive tone whether he was getting off the train. This caused Mr. Jamer to look back and, he said, observe Mr. Andrews in what he believed to be an aggressive stance. Before Mr. Jamer was able to answer, Mr.

Andrews is said to have stated, rather ambiguously, “Let’s do it”. [ 10 ] Once both were on the platform, Mr. Jamer says, Mr. Andrews stated to him: “I am going to cut your throat”. While his evidence is somewhat unclear on the point, the burden of Mr. Jamer’s testimony is that he had turned back out of fear (based on Mr. Andrews’ actions before disembarking) and was looking at Mr. Andrews’ face when, on his account, those threatening words were uttered: see, especially, the Transcript for December 13, 2011 (“ Transcript No. 1 ”) at pp. 40, 52 and 54. [ 11 ] Mr.

Jamer’s response to the threat was, he said, to approach a SkyTrain official—Crown witness Colleen Asher (“Ms. Asher”) who was standing on the platform, not far from the train—and immediately report to her that he had been threatened. On Mr. Jamer’s account, Mr. Andrews approached Ms. Asher too and sought to portray himself to her in a benign light—that is, as someone who had not threatened Mr. Jamer and would not have any reason to do so. Mr. Jamer testified that, acting on Ms. Asher’s advice simply to cease communicating with Mr.

Andrews and get on with his business, he made his way down the stairs to the bus bays. He boarded his No. 100 bus, only to find that a few minutes later Mr. Andrews did the same. [ 12 ] I found it surprising that at no point in the course of giving his evidence-in-chief did Mr. Jamer make reference to a second passenger approaching Ms. Asher to report that Mr. Andrews had been harassing passengers on the train car in which they both had been travelling. One would expect that that kind of corroboration of the general tenor of Mr. Andrews’ contemporaneous actions would have been significant to Mr.

Jamer at the time he sought to persuade the SkyTrain official that he, too, had suffered intimidation at Mr. Andrews’ hands. One would also expect that that kind of corroborative evidence would lodge itself firmly in Mr. Jamer’s memory. In fact it did not figure at all in Mr. Jamer’s direct evidence and only came up for brief mention while he was under cross-examination: Transcript No. 1 at p. 52. [ 13 ] It will be recalled that it was Mr. Jamer’s evidence that he succeeded in placing distance between himself and Mr.

Andrews when, after the first throat-cutting threat, and on the SkyTrain official’s advice, he stopped communicating with Mr. Andrews and got on with the business of catching his bus. The separation was short-lived, however, he said. He testified that a few minutes after he had boarded his bus, Mr. Andrews followed suit: Transcript No. 1 at p. 41. But Mr. Jamer also gave evidence about the threats continuing on the way to the bus bay that contradicted that account.

During cross-examination on this topic, he said this: “Q … the only thing that harassed me is when he said he was going to cut my throat, because he kept repeating that from -- from the time when he -- when he approached me, when I got off the Sky Train at -- to the bus stop. Q He kept repeating that to you. A Yes. Q So -- A That's why one thing that harassed me.” Transcript No. 1 at p. 48 [ 14 ] This evidence was, in turn, contradicted by further testimony from Mr. Jamer that appeared to take back the reference to repeated threats to cut his throat having been uttered by Mr.

Andrews between the platform and the bus: Transcript No. 1 at p. 48.

[15] Interestingly, the evidence of Ms. Asher corroborates almost none of Mr. Jamer’s evidence regarding the relevant events on the platform and what followed in their wake. She was standing watch at the 22nd Street SkyTrain station, awaiting the arrival of the train. She was doing so because she had been advised by other SkyTrain officials that there was a passenger onboard causing trouble for otherriders. She immediately recognised Mr. Andrews when he alighted because he perfectly matched the description she had been given ofthe man she was deployed to watch for. Ms. Asher identified Mr.

Andrews, at trial, as that man. [16] Significantly, Ms. Asher was clear in her evidence that she could not recall witnessing any interaction between Mr. Andrews—the person she was assigned to watch for when the train came in—and any other person on the platform. While there was somereference in her written police statement to a “verbal altercation with an Asian male” that occurred when Mr. Andrews stepped off thetrain, Ms. Asher had no memory of such an altercation when she took the stand and, importantly, seeing the reference to it in herstatement did not revive any recollection of such an altercation.

Crown counsel for some reason did not seek to qualify and introduce thewritten police statement as an exhibit and evidence in its own right as “past recollection recorded” in accordance with the protocolestablished by cases such as R. v. Fliss, 2002 SCC 16 , [2002] 1 S.C.R. 535 and R. v. Richardson (2003), (ON CA), 174 O.A.C. 390, leave to appeal ref'd [2004] S.C.C.A. No. 330. Accordingly, the only admissible evidence received from Ms.Asher on the point is her testimony that she doesn’t remember witnessing any altercation between Mr. Andrews and another person as he(Mr.

Andrews) got off the train: Transcript No. 1 at pp. 8 and 9. [17] Neither did Ms. Asher give any evidence, either in chief or in cross-examination, of having had any conversation or interactionwith Mr. Jamer—of the kind that Mr. Jamer described in elaborate detail or, indeed, of any kind. On the Bus [18] It was Mr. Jamer’s direct evidence that when Mr. Andrews climbed onto the No. 100 bus—some minutes after he (Mr. Jamer)had done so—Mr. Andrews took his seat on the same bus near the front, next to an Asian woman and a Caucasian man. Mr. Jamer wasseated at the back of the bus.

He said that altogether there were only five or six people, including the driver, on the bus at that time. [19] Mr. Jamer went on to testify, in chief, that Mr. Andrews began to engage the Asian woman in a conversation that quickly becameagitated. This ultimately led the Caucasian male to intervene. The two began to argue and Mr. Jamer then chimed in, siding with theCaucasian male and urging Mr. Andrews to “just leave [the Caucasian male] alone”: Transcript No. 1 at p. 41. This, Mr. Jamer testified,caused Mr.

Andrews to accuse him of being a racist, to which he in turn responded “Okay, whatever man”: Transcript No. 1 at p. 42. On Mr. Jamer’s account given during his evidence-in-chief, the Caucasian male then complained to the bus driver. When that happened,Mr. Jamer said, Mr. Andrews left the bus immediately via the back doors, following which he pounded on the windows near where hewas sitting and began to make fresh threats. [20] I shall return to the threats allegedly made from outside the bus presently. [21] It is noteworthy that while on his account some unpleasantries were apparently uttered by Mr.

Andrews to him while both menwere onboard the No. 100 bus, Mr. Jamer made no mention during his evidence-in-chief of any threats to cut his throat having beenmade by Mr. Andrews during that phase of their dealings. However, his testimony in this important area changed when he came undercross-examination. There, these exchanges occurred: “Q Right. And in your statement, you don't have him threatening you in terms of saying I'm going to cut your throat, or any otherlanguage; is that correct? A Say that again, sir? Q In your statement. A Yeah.

Q You don't have this man threatening you in terms of saying ‘I'm going to cut your throat’ or anything like that while you're on thebus, would you agree with that? A No. Q You wouldn't? A No, but he did say that to me when he was on the bus. Q When he was on the bus. A Yes.” Transcript No. 1 at pp. 47-48 (emphasis added) “Q …Okay. And when he first said this to you, you were on the platform; is that correct? A Yes. Q Okay. And you're saying that then he said it again while the two of you were on the bus? A Yes. And then he said that to me, too, when he got off the bus, when he was --

Q Then he said it again when he got off the bus. A Yeah. Q Okay. And I'm saying to you that in your statement, you don't have him saying ‘I'm going to cut your throat’ to you on the bus, or after he gets off the bus. Would you agree with me or disagree with me? A That's some -- I want -- I cannot recall everything, but I know it's happened in between those time that when he was -- when he was in the bus, and when he got off. It did happen. Q Okay. You don't remember when it happened, but it happened at some point? A Yeah, some point.

But I remember him, like, he was like -- like when he said that before -- before he got off the bus, I remember him, like he started threatening me again .” Transcript No. 1 at pp. 48-49 (emphasis added) [ 22 ] As can be seen, not only is Mr. Jamer’s evidence regarding threats to cut his throat made to him by Mr. Andrews on the bus contradictory of his direct evidence; it is also contradictory of the statement that he (Mr. Jamer) gave to police. It was established in cross-examination that there was no reference anywhere in Mr.

Jamer’s statement, set down in writing with care and close in time to the subject events, to Mr. Andrews having threatened to cut his throat while the two men were seated on the bus. [ 23 ] Ms. Asher’s evidence regarding what happened on the bus was hazy, fragmentary and unclear. It was not at all helpful to the court in sorting out the differences between Mr. Jamer’s differing accounts of the events that unfolded during that phase. Ms. Asher testified that she followed Mr.

Andrews down to the No. 100 bus, boarded it, and spoke to its driver, asking him to delay leaving because transit police had been summoned to deal with a problem SkyTrain passenger who had boarded his bus (that is, Mr. Andrews). [ 24 ] Unlike Mr. Jamer—who said there were five to six people on the bus—Ms. Asher recalled the bus to have been half to two-thirds full: Transcript No. 1 at p. 20. [ 25 ] Ms. Asher did testify, in chief, that she witnessed Mr. Andrews “verbal[ly] assault” an Asian male on the bus.

The Asian male was someone with whom she did not recall having previously spoken or had dealings: Transcript No. 1 at pp. 11 and 13. She testified that she made the subject observation while she was on the bus but did so from a safe distance, without intervening, while she and the bus driver awaited the arrival of the transit police. However, beyond making a conclusory statement about a “verbal assault”, Ms. Asher gave no evidence of specific words that were uttered by Mr. Andrews. Neither did she give evidence capable of establishing that it was Mr.

Jamer to whom the offensive words were directed. [ 26 ] It is noteworthy that none of the detail from Mr. Jamer’s account regarding the Caucasian male with whom Mr. Andrews allegedly argued regarding a troubled interaction with an Asian female, or of Mr. Jamer’s suggestion that Mr. Andrews back off, or of Mr. Andrews’ accusation in response that Mr. Jamer was a racist, or of the Caucasian male’s reporting of Mr. Andrews’ bothersome conduct to the bus driver, figured anywhere in Ms. Asher’s testimony. Outside the Bus [ 27 ] It was Mr. Jamer’s evidence-in-chief that, when the Caucasian male on the bus reported Mr.

Andrews’ conduct to the bus driver and Mr. Andrews went outside through the back doors, Mr. Andrews took up a position outside the windows near where Mr. Jamer was sitting and from there continued his aggressive display. At that point, the story goes, he began repeating his threat that he would cut Mr. Jamer’s throat, multiple times, and as well pounded on the bus’s windows with a closed fist in a very angry and aggressive fashion.

Partway through these actions he attempted, unsuccessfully, to prise open the closed rear doors: Transcript No. 1 at pp. 42-43. [ 28 ] However, it was revealed during cross-examination that when he gave his statement to police regarding the subject incident, Mr. Jamer made no reference whatsoever to Mr. Andrews having said to him that he would cut his throat—once or multiple times—after he was outside the bus. “Q My question is about your statement. A Okay. Q You have in your statement, I'm going to suggest.

About halfway through, him saying "I'm going to cut your throat," and that is when he is on the Sky Train platform? A That's right. Q Correct. And that, I'm going to suggest to you, is the last time those words appear together in your statement. A That's right. Q Would you agree with that? A Yes.” Transcript No. 1 at p. 49 [ 29 ] That cross-examination also revealed that Mr. Jamer made no mention in his statement of Mr. Jamer having pounded on the

windows of the bus once he got back outside it. [ 30 ] Ms. Asher’s evidence-in-chief was only slightly corroborative of Mr. Jamer’s evidence-in-chief (but not of his evidence on cross- examination) regarding this third, threatening “transaction”. She testified that after he stepped off the bus, she saw Mr. Andrews “yelling something” and then she saw him “str[ike] the bus”. She could not recall what words he used specifically and could only say that the words appeared to be directed toward an “Asian male” with whom she could not recall having spoken previously: Transcript No. 1 at pp. 12-13.

Again, while there were references in her notes to the words used by Mr. Andrews as having been “threatening”, those notes were not able to revive a recollection in Ms. Asher to that effect. Because the notes were not sought to be introduced as evidence in their own right as past recollection recorded, there is no admissible evidence before the court regarding the character of the words uttered by Mr. Andrews when he was “yelling” at an Asian male who was still seated on the bus: Transcript No. 1 at p. 14. [ 31 ] A transit police officer, Cst. Paul Hobbs (“Cst.

Hobbs”), was the third witness to testify on behalf of the Crown at Mr. Andrews’ trial. Cst. Hobbs was dispatched to the 22 nd Street station in response to a report of an unruly passenger. However, he arrived too late to observe any of the subject “transactions” other than the one that occurred after Mr. Andrews had stepped off the bus. Of that, he could only say that he arrived to witness Mr. Andrews bang three times on the rear, passenger side of a bus idling in a loading bay at the SkyTrain station. He was “unable to hear what [Mr.

Andrews] was stating as [he was] a distance away, and as well other vehicles that were in there running” although it did appear to him to be “yelling”: Transcript No. 1 at p. 28 ff . Obviously, he also had no evidence to give as to whom, if anyone, was the target for the yelling. [ 32 ] Cst. Hobbs identified Mr. Andrews as the person he observed and arrested at scene. [ 33 ] Interestingly, during his evidence-in-chief Cst. Hobbs testified that he found Mr. Andrews to be in an advanced state of intoxication by alcohol .

He referred to numerous indicia in this regard, including a strong odour of alcohol emanating from Mr. Andrews’ breath as well as slurred speech and markedly compromised balance: Transcript No. 1 at pp. 29-30. During cross-examination the transit constable confirmed that he arrested Mr. Andrews for, among other offences, being in a state of intoxication in a public place, describing him as “stupefied drunk,” “simply too intoxicated to care for himself” and, on a scale of one to 10 gauging intoxication, “[e]ight and a half, nine”: Transcript No. 1 at pp. 33-34. [ 34 ] By contrast, while Mr.

Jamer referred more than once to a concern he had that Mr. Andrews might be “on something,” he did not ever characterise him as being falling-down drunk. Indeed, the subject of alcohol came up only once and in a somewhat incidental way. He commented during his direct evidence that he was not sure—given the peculiar behaviour he displayed of speaking unbidden to random strangers—whether Mr. Andrews was under the influence of drugs or alcohol: Transcript No. 1 at p. 40. It hardly seems possible that Mr. Jamer and Cst. Hobbs could have been speaking of the same man when giving their testimony. [ 35 ] Ms.

Asher made no references anywhere in her testimony to Mr. Andrews displaying any signs of intoxication by alcohol. EVALUATION OF THE CROWN EVIDENCE [ 36 ] As I mentioned early on in these reasons, I must consider all of the evidence tendered by the Crown in support of its case against Mr. Andrews and determine whether it persuades me, beyond a reasonable doubt, that he uttered threats to cause death or bodily harm to Mr. Jamer. The Crown’s case is advanced on the ground that the threats at issue took the form of utterances, made by Mr. Andrews, at three separate times within a small compass of time.

The utterances cited by the Crown in final argument were to the effect that he (Mr. Andrews) was going to cut Mr. Jamer’s throat: Transcript, December 23, 2011 (“ Transcript No. 2 ”) at p. 4. [ 37 ] Identification is satisfactorily proven. All Crown witnesses recognised Mr. Andrews and his counsel admits that he was the individual who was arrested at the scene by Cst. Hobbs. And, further, the evidence does establish that Mr. Andrews was behaving in an unruly and unmannerly way on the alleged offence date. But I will say, straightaway, that for all three of the “transactions” at issue—the threats to cut Mr.

Jamer’s throat that were allegedly made by Mr. Andrews on the platform, inside the bus and from outside the bus—the evidence is too heterogeneous and too lacking in consistency and reliability to support conviction of Mr. Andrews. [ 38 ] The problems begin with the evidence of Mr. Jamer—the complainant and the Crown’s most important witness. I have noted above that he is somewhat sophisticated in the ways of the law.

By reason of his occupation as a loss prevention officer at Shoppers Drug Mart and Choices stores he is an experienced Crown witness who appreciates and understands, more than most laypeople, the importance of taking care to be scrupulously accurate and complete, both when making formal statements to police about alleged criminal conduct and when giving evidence in that regard in open court. The occasion that brought Mr.

Jamer to court in these proceedings fell outside his professional responsibilities as a loss prevention officer and sometime Crown witness, but it is reasonable nevertheless to expect him to have applied the same diligence and care to this case as he would to any other in which he has been required to assist in the prosecution of an alleged shoplifter at Shoppers Drug Mart or Choices. [ 39 ] Mr. Jamer’s evidence fell short of the court’s reasonable expectations of him in a number of respects.

As I have explained, his testimony was internally inconsistent—that is, it changed in important ways from time to time in the telling. It was also externally inconsistent in important ways with the formal statement he gave to police shortly after the alleged threatening offences were said to have been committed by Mr. Andrews. The existence of those inconsistencies, and the defensive and evasive ways that Mr.

Jamer sought to deal with them under cross-examination, undermined my confidence in his ability to make trustworthy observations, record them in a complete and accurate police statement, retain them intact in his memory and then reliably recount them under oath at trial. [ 40 ] The credibility of Mr. Jamer’s evidence was further undercut by the conflicting evidence of the other Crown witnesses, most particularly Ms. Asher. There is no admissible evidence before the court that Ms. Asher saw the “altercation” on the platform between Mr. Andrews and Mr.

Jamer that is said to have been the occasion upon which the first alleged threat was uttered. This is so despite the fact that she was on the platform for the very purpose of identifying and containing Mr. Andrews —reportedly a problem passenger—and despite the fact that she recognised him instantly as he alighted from the SkyTrain car at the 22 nd Street station. Her antennae were fully up and functional and she was properly focused upon Mr. Andrews and what he might do. Yet, when she came to testify at trial she could not recall, and had no revivable memory of, any altercation between Mr.

Andrews and any other passenger.

[ 41 ] Neither did Ms. Asher give evidence of the interaction that Mr. Jamer described in such detail that he had with her following the first of the alleged threats—that is, the interaction in which he reported the threatening behaviour of Mr. Andrews to her and she urged him to cease speaking with Mr. Andrews and just get on with catching his bus. It was during that interaction, Mr. Jamer testified, that Mr. Andrews feigned a benign disposition. On Ms. Asher’s testimony, no such interaction occurred. [ 42 ] I cannot, in the face of such serious inconsistencies, find beyond a reasonable doubt that Mr.

Andrews threatened to cut Mr. Jamer’s throat as the two alighted from the SkyTrain car. [ 43 ] The best evidence of what Mr. Jamer experienced at the material times is found in the formal statement he gave to police shortly after the alleged events of December 30, 2010. That statement contains no references to any throat-cutting threats having been made by Mr. Andrews to him after an initial encounter on the platform. In particular, it contains no references to Mr. Andrews having told Mr. Jamer, either while both were on the bus, or afterward when he was standing outside the bus, that he (Mr.

Andrews) would cut his (Mr. Jamer’

s) throat. Yet on the stand Mr. Jamer gave forceful evidence that Mr. Andrews threatened him with throat cutting a second time while both men were on the bus and a third time, with multiple iterations, while Mr. Andrews stood outside the bus, pounding on its window. Surely, had they occurred, such important features of the dealings between the two men overall would have been in the forefront of Mr.

Jamer’s memory when he gave that police statement—a statement that he knew (as an experienced Crown witness) it was his duty to ensure was accurate and complete. [ 44 ] Neither of the other Crown witnesses were able to confirm the testimony Mr. Jamer gave, in contradiction of his police statement, that Mr. Andrews threatened to cut his throat on those two further occasions. Nor could Ms. Asher even confirm the general sequence of events on the bus that Mr. Jamer recounted—that is, the events involving the unidentified Asian female that Mr.

Andrews allegedly sought to converse with, and the Caucasian male who intervened and argued with Mr. Andrews and, ultimately, complained about his behaviour to the driver. Ms. Asher’s description of what happened on the bus differed from Mr. Jamer’s in many of its particulars, some central in importance and some less so. [ 45 ] It is impossible to reconcile the conflicting accounts of Mr. Andrews’ degree of intoxication by alcohol that emerged from the Crown witnesses in this case. If, as Cst. Hobbs testified, Mr.

Andrews’ state of impairment was so markedly advanced that he was “stupefied drunk” and “too intoxicated to care for himself,” then one would expect that his condition in this regard would have been strikingly memorable—as it was for Cst. Hobbs—and have come up for mention by Mr. Jamer and Ms. Asher. [ 46 ] It did not. [ 47 ] These, and the other anomalies in the Crown’s evidence to which I have referred, cause me to question the observational capabilities of those witnesses and their abilities reliably to retain accurate imprints of the relevant events in memory.

As well, given the general tendency of his viva voce evidence to portray Mr. Andrews in a more negative light than did the account of the same events captured in his police statement, I am concerned that Mr. Jamer was inclined to exaggerate on the witness stand in ways that tended to favour the Crown and I turn a sceptical eye upon his testimony at trial for that reason. [ 48 ] Plainly, given all of the foregoing, there is reason to question the reliability of the evidence of witnesses whose testimony is so widely divergent in so many areas.

One does not, of course, expect seamless integration of all of the testimony of all Crown witnesses in any case—that would raise different suspicions—but some threshold level of coherence and concordance must be met by the Crown’s case as a whole on the material facts in this and every prosecution. Here, I found that coherence and concordance to be lacking.

Again, while I have my suspicions, the evidence in the case at bar is too fragmented, heterogeneous and lacking in consistency on important details to permit the Crown to discharge its burden of proof in this criminal prosecution with respect to any of the three “transactions” in which threats were allegedly made by him against Mr. Jamer. DISPOSITION [ 49 ] For all of the foregoing reasons I acquit Mr. Andrews of the charge of uttering to Mr. Jamer threats to cause him death or bodily harm, contrary to the provisions of s. 264(1) (

a) of the Criminal Code . ______________________ T.S. Woods, P.C.J.