R. v. Scarpino Date:, 2014 BCPC 62

Citation: R. v. Scarpino Date: 20140410 2014 BCPC 0062 File No: 75637 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DEAN MATTHEW SCARPINO REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: C. Hagen Counsel for the Defendant: C. Sutton

Place of Hearing: Nanaimo, B.C. Dates of Hearing: May 6, 2013, January 9, April 10, 2014 Date of Judgment: April 10, 2014 [1] Dean Scarpino (“the accused”) is charged with uttering threats to his father and step-mother, Francis and Joy Scarpino, duringthe period August 12 - 13, 2012. Joy Scarpino is now deceased. [2] The alleged threats were made during telephone calls, left as voice messages at the home of Francis and Joy Scarpino. Themessages are incoherent, abusive and grossly profane.

The contain words which, objectively construed, threaten physical violence toFrancis and Joy Scarpino. [3] The accused admits that he made the telephone calls, and left the messages, in question. His defence is that he made the callsin 2011, not (as alleged in the information) in 2012. Even if that were so, it would not constitute a defence to the charge. Section 601(2)of the Criminal Code empowers me to amend the information to conform to the evidence.

Section 601(4.1) provides that a “… variancebetween the indictment … and the evidence is not material with respect to … the time when the offence is alleged to have beencommitted …”. If I were persuaded, on a balance of probabilities, that the accused made the calls, and left the messages, in 2011, ratherthan 2012, I would simply amend the information accordingly and proceed to consider the other matters in issue. [4] The accused suffered a head injury in a motor vehicle accident in 2009 or 2010. He described the effect of his head injury inthe following terms: I couldn’t understand things.

You’d be talking, I couldn’t understand it and I’d - I would frustrate people, but I would -- I would getfrustrated myself trying to explain myself what was going on. And it was just -- it’s just been tough because my -- it’s just been toughand nobody wants to listen to me. And I’m -- it’s like -- it’s -- I felt like I was being more provoked. They’d get their two bits outand I couldn’t get mine out. And everybody seemed to understand, but it was frustrating because how could they understand it?

Theywouldn’t let me finish what I was -- I mean -- and I’m sure if they would have took the time to listen to me, I would --- I would’ve goteverything out that I tried -- was trying to say. The accused reports that his condition has been improving, with treatment, over time. [5] After hearing the evidence of the accused, I was concerned that he may lack the capacity to instruct counsel, and that, at thetime that he left the telephone messages, he may have been suffering from a mental disorder that rendered him incapable of appreciatingthe nature and quality of his actions or of knowing that they were wrong.

I therefore ordered an assessment of those questions under theauthority of

section 672.11 of the Criminal Code. After performing those assessments, Dr. Prior reported that the accused is fit to standtrial and capable of instructing counsel, and that, at the time he left the telephone messages, he was capable of appreciating the natureand quality of his actions and of knowing that they were wrong. I accept Dr. Prior’s assessment. [6] The substantive issue in this case is different from that addressed by Dr. Prior. The offence of uttering threats is one whichrequires proof of specific intent. The governing principles were stated by Romilly, J in R vs McRae 2010 BCSC 558; [2010] BCJ #725.

In order to prove the offence of uttering threats, the Crown must meet the standard of proof set out in the following passage from R vsBone (1993) (MB CA), 81 CCC (3d) 389 (quoted with approval by Romilly, J in R vs McRae): Although no express purpose is required for the offence of uttering a threat, the offence must be committed knowingly. Themere use of words which constitute a threat is not consequently enough. The accused must also intend the words to instill fear insomeone: see R. v. McCraw, (SCC), [1991] 3 S.C.R. 72 at p. 82. As was pointed out by Cory, J. in R. v.

McCraw (at p. 82), "[T]he determination as to whether there was such a subjectiveintent will often have to be based to a large extent upon a consideration of the words used by the accused." Nonetheless, a trier of factmust find the accused to have had the subjective intent, an intent which goes beyond the mere utterance of the words. Ms. Hagen referred me to R vs McRae [2013] SCC 68. I pause to note that, although the names are the same, the two McRae judgmentsmentioned emanate from two different provinces and are concerned with two different accused persons. Ms.

Hagen relied in particularon the following passage from paragraph 11 of the Supreme Court of Canada judgment: The starting point of the analysis should always be the plain and ordinary meaning of the words uttered. Where the words clearlyconstitute a threat and there is no reason to believe that they had a secondary or less obvious meaning, the analysis is complete. Judged by that standard, the words uttered by Mr. Scarpino clearly constituted a threat, and so the actus reus is clearly proven.

However,it is important to note that the passage quoted appears in the portion of the Supreme Court of Canada judgment in which the courtconsidered the evidence necessary to prove the actus reus. Later in the judgment, the court described the requisite mens rea in thefollowing terms:

The fault element here is subjective; what matters is what the accused actually intended. * * * To sum up, the fault element of the offence is made out if the accused intended the words uttered or conveyed to intimidate or to betaken seriously. It is not necessary to prove an intent that the words be conveyed to the subject of the threat. A subjective standard offault applies.

I discern no difference between the description of the requisite mens rea in the judgment of Romilly, J and the corresponding descriptionin the judgment of the Supreme Court of Canada. [7] The Crown carries the onus of proving each element of the offence beyond a reasonable doubt. Unless I am convinced, on theevidence, that the accused intended to instil fear in his parents, I must acquit him. I am not so convinced. The evidence given by theaccused demonstrates that there is little connection between the words which come out of his mouth and any rational thought process.

He is emotionally distressed and irrational. He has little, if any control over, or understanding of, what he says. While I am sure that hetelephoned his parents with the intention of expressing his anger toward them for real or imagined grievances from his childhood, Istrongly doubt that he intended to frighten them. For that reason, I cannot convict him of uttering threats. [8] That said, no one should have to put up with abusive communications of the kind sent by the accused to his parents.

Theappropriate remedy is a common-law peace bond: R vs White, ex parte Chohan (BC SC), [1969] 1 CCC 19; 64 WWR708; R vs Marshall [2003] OJ # 4317. Unlike a statutory peace bond, a common law peace bond is not limited to one year, and may befor any term which is justified by the evidence: R vs Musoni [2009] OJ #1611; (ON SC), 243 CCC (3d) 17 @paragraph 22 {affirmed @ 2009 ONCA 829; [2009] OJ #4935; 248 CCC (3d) 487; leave to appeal refused @ [2009] SCCA #534}. [9] Accordingly, there will be a recognizance in the amount of $500, without deposit or surety, for a term of 5 years, on thefollowing conditions.

The accused is: a. to keep the peace and be of good behavior and attend court when required to do so by the court; b. to report in person to a probation officer no later than 4:00 p.m. on Friday, April 11, 2014, and to report thereafter as directed bythe probation officer; c. to reside in a place approved by the probation officer, and not to change that place of residence without the permission of theprobation officer; d. to have no contact, directly or indirectly, with his father, Francis Scarpino; e. not to approach within 100 metres of any place of residence of Francis Scarpino, or within 10 metres of the person of FrancisScarpino.

April 10, 2014 ________________________________ T. Gouge, PCJ