R. v. D.C.C. Date:, 2012 BCPC 353

Citation: R. v. D.C.C. Date: 20120529 2012 BCPC 0353 File No: 76721-1-K Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.C.C. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.D. SKILNICK Counsel for the Crown: J. Barbour Counsel for the Accused: D. Henderson Place of Hearing: Abbotsford , B.C. Date of Hearing: May 22, 23, 2012 Date of Judgment: May 29, 2012

[ 1 ] THE COURT : This is the matter of D.C.C. who is charged on Abbotsford Court File 76721-K1 that on or about the 1st day of December 2011, at or near Abbotsford, in the Province of British Columbia, he did knowingly utter a threat to D.K. to cause death or bodily harm to D.K., contrary to s. 264.1(1) of the Criminal Code . [ 2 ] Some of the elements of this offence are not in dispute; for example, the identity of D.C.C. as the person who had words with D.K. on the alleged offence date is not in dispute.

It is not in dispute that the alleged offence occurred in the early morning hours of December 1st, 2011, and that that took place in the City of Abbotsford, in the Province of British Columbia.

The issue is whether or not the Crown has proven beyond a reasonable doubt the actus reus and the mens rea of this offence; that is, that the accused uttered a threat to the complainant to cause her bodily harm and that he did so with the necessary intent to intimidate her or to instil fear in her. [ 3 ] This offence was changed by Parliament in I think 1994; it used to require a threat to cause death or serious bodily harm, and now the

section simply requires that it be a threat to cause bodily harm. [ 4 ] Four witnesses testified in this matter, and I will summarize their evidence very briefly. I am going to begin, though, with the evidence of the complainant and then the evidence of the accused because I will contrast that evidence, and then lastly refer to the independent evidence of the two police officers, even though that is somewhat out of order from the way the testimony was heard. [ 5 ] The complainant, D.K., testified that she met the accused and was in a brief relationship with him that ended in August of 2011.

The two of them, according to her, had lived together but only for about a month. Despite this, it was her evidence that the accused kept coming by her home. For some reason, she said this was often in the middle of the night when the accused was drunk. He left some clothes at her place. [ 6 ] She testified that on December 1st, 2011 he showed up at her place at about 3:00 in the morning. He rang her buzzer continually, and initially she had no intention of answering. My notes indicate, as Mr. Barbour had indicated, that she was sleeping at the time, but she said that he persisted to ring the buzzer.

She told him to go away but he said that he wanted his stuff. She testified he had left some clothes there, but when he did not come by and get them, she threw them out. There was one pair of white painter's pants at her place which someone had written very uncomplimentary things about the accused on the back of, and Mr. Henderson notes in his submission that this is evidence of some animus on the part of the complainant. The complainant's testimony was that in fact that had been written by a friend of hers. She was aware that something was written on them; I believe she testified she could not say what.

But in any event, she threw down the painter's pants to him from her apartment, and it was her evidence that she asked him to leave, but he did not leave. [ 7 ] In her words he "kept laying on the buzzer" and she said, "D.C.C., go away." He replied, and this was her evidence in chief, "I'm gonna have you beat up. I'm gonna have someone do you." She testified she felt threatened, interpreting the phrase "have someone do you" as meaning that he would have someone hurt her or have someone beat her up, so she called the police when she saw him getting his phone out and presumably making a phone call.

She described the accused as "very drunk"; she said that she felt threatened and scared. [ 8 ] Now, it is not clear whether he made both of these statements, the statements being, "I'm gonna have somebody beat you up." "I'm gonna have someone do you," but likely little turns on that because, as Mr Barbour pointed out, when assessing a threat, threats really are a matter of context.

In other words, it is one thing if someone uses the words, "I'm gonna have someone do you," if two people are discussing having a makeover or manicures or something along that line, but in the course of an angry argument, in the circumstances that this complainant describes, the phrase, "I'm gonna have someone do you," takes on a completely different meaning to a reasonable observer. [ 9 ] Now, the complainant was cross-examined about details in her evidence that were not included in her statement, and she testified that the statement may be less than perfect given that it was taken at 3:00 in the morning, that she had woken up from sleeping and because of some reluctance on her part to have the accused charged criminally.

It is also suggested that she may not recall some of the details because of a head injury that she had suffered. Much of what she said, especially about the accused's state of sobriety, is corroborated by police, and of course there were no other witnesses to whatever statements were made to her by the accused. [ 10 ] The accused testified, and his evidence was similar in some respects to that of the complainant but markedly different and diametrically opposed on other issues and other facts. He said that he and the complainant had a friendship, not a relationship.

He said he stayed with her at her request, and that a week before this incident he saw the complainant in a pub and they had an argument. The complainant told him that she had given his things to her new boyfriend, and at the end of that he told her to shut up. [ 11 ] On December 1 he said he went to the complainant's home at the odd hour of 3:00 in the morning because he could not sleep. He was locked out of his place, and apparently Mayfair Street was on the way to where he was going and that when he drove past the complainant's home, he saw a light on in her apartment.

He testified that he decided to ring her buzzer and ask for his things. It is curious that he would do this when he testified that he had been told that his things had been given away. In any event, he testified that she did not answer her buzzer so he persisted in ringing it. Again, why he did so at 3:00 in the morning was not satisfactorily explained, but the accused denied ever making any threatening comments to the complainant. He admits that his painter's pants were thrown down to him and it was his evidence that he simply got in his car and left.

He admits that he took out his telephone but said that he was calling his girlfriend to see if she was now awake and would let him back into the house.

Again, he denies that there was any sort of confrontation, or threatening remarks. [ 12 ] He did admit in cross-examination that he had been drinking, and when he was asked in cross-examination about the wisdom of going to confront the complainant about getting his clothes back after he had been drinking, his response was, "Well, I didn't think about that." [ 13 ] Independent evidence is offered from two police officers who testified mainly about the demeanour of the parties. Neither of these police officers witnessed any threats. They showed up in response to a 911 complaint of a threat. Cst.

Toews testified that he

found the accused sitting in his car, and it was his evidence in chief that he noticed a strong smell of liquor coming from the vehicle; he concluded that the smell was coming off of the accused. He later described this as an overpowering smell and he testified in chief that the accused was quite intoxicated but cooperative. Certainly the officers had enough concern about the accused's state of sobriety to the extent that they determined that he should not be driving.

One of the officers I believe felt the hood of the car to determine if it had been recently driven, and the accused was given a 24-hour driving prohibition under s. 215 of the Motor Vehicle Act , so the officers were certainly concerned that this was not somebody who should be getting in his car and driving away. [ 14 ] Conversely, Cst. Toews testified that he had no concerns about the complainant's state of sobriety; he described her as being quite normal. He said that she was not particularly distressed at the time. [ 15 ] The other officer was Cst.

Julia Gerbrandt who testified that she dealt with the complainant more than with the accused, and she took a statement from the complainant. She described the complainant as sober, and she said the complainant had told her that she was afraid, but again, Cst.

Gerbrandt said she did not appear so particularly. [ 16 ] So it is against the background of this evidence that I have to apply the law, and the first thing that I always remind myself in a criminal trial is that this is not a matter of pitting one side against the other, it is not a test of which side I believe, but the issue is whether or not the Crown has proven the offence beyond a reasonable doubt. The law requires that I am to consider the total body of the evidence viewed as a whole and determine whether the Crown has proven each of the essential elements of the offence beyond a reasonable doubt.

The burden of proof never shifts to the accused; it always rests with the Crown to prove each element of the offence beyond a reasonable doubt. [ 17 ] Now, I always like to remind myself what a reasonable doubt is as well, because a reasonable doubt is not based upon sympathy or prejudice, but rather it is based on reason and common sense.

It must be logically connected to the evidence, or the absence of evidence, and it does not involve proof to an absolute certainty, nor is it proof beyond any doubt, nor is it any imaginary or frivolous doubt, but more is required than proof that the accused is probably guilty. [ 18 ] In a case like this where credibility is important, I also have to remember that the rule of reasonable doubt applies to the issue of credibility and that the accused is entitled to an acquittal in a case like this either if I accept his evidence that no threat was made by him, or if I do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. [ 19 ] Counsel have referred in submissions to the case of R. v.

W.(D.) , and that case instructs me that firstly if I believe the evidence of the accused which affords a defence, then I must acquit him of this charge. Secondly, if I do not believe the testimony of the accused but I am left in reasonable doubt by it, I must acquit. And thirdly, even if I am not left in a reasonable doubt by the evidence of the accused, I have to consider whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt of the evidence of the guilt of the accused. [ 20 ] I always like to mention a case from the Court of Appeal, R. v. C.W.H. in which Mr.

Justice Wood, as he then was, said, "If, after careful consideration of all of the evidence you are unable to decide who to believe, then you must acquit." It is also an error to use any disbelief of the accused's testimony as positive evidence of guilt where there is no evidence independently to support the offence. [ 21 ] Now, the next thing that I have to consider here is, what is a threat, because that is, of course, at the root of what the Crown must prove.

And I go back to a case called Clemente , it was a Supreme Court of Canada decision that defined a threat, and more particularly, defined what intent the Crown must prove, and the court in that case said that s. 264.1 is aimed at preventing threats that may be: . . . a serious threat to kill or cause bodily harm to someone that are uttered with the intent to intimidate or instil fear. Conversely, such a threat uttered with the intent to intimidate or cause fear must have been uttered with intent that it be taken seriously.

Section 264.1 is directed at words which cause fear or intimidation. No further action need be taken by an accused beyond [making] the threat itself. The meaning conveyed by the words is the important factor. Whether the accused had the intent to intimidate, or that his or her words were meant to be taken seriously will, absent an explanation by the accused, usually be determined by the words used, the context in which they were spoken, and the person to whom they were directed. It is not a necessary element of the offence that the intended victim be aware of the threat.

The actus reus of the offence is the uttering of threats of death or serious bodily harm. The mens rea is that the words were meant to intimidate or to be taken seriously.

Words spoken in jest or in such a manner that they could not be taken seriously could not lead a reasonable person to conclude that the words conveyed a threat. [ 22 ] Essentially what that boils down to is the burden of proof rests for the Crown to prove beyond a reasonable doubt that the accused uttered words that, viewed objectively in their context, would convey a threat of bodily harm to a reasonable person. [ 23 ] So it is against that background that I have to apply the law to these facts.

Now, using the W. (D.) analysis I begin by stating that I find that I am unable to accept the evidence of the accused for several reasons. Firstly, I am not satisfied that the evidence given by the accused are the recollections of a sober witness, and that they are inaccurate because of the degree to which the accused was intoxicated. And again, in that respect I harken back to the evidence of the police officers, their description of his condition, and the degree to which the accused was intoxicated and to which his good judgment was impaired.

This, I think, is confirmed both by independent evidence as well as the fact that the accused had no real explanation for his condition. [ 24 ] I am also troubled by the fact that his explanation does lack a ring of truth in several important areas in that it is unreasonable, I think, to just simply take it at face value that he went to the complainant's place at 3:00 a.m. to recover his property, firstly because of the time that he did so, secondly because it was his evidence that he had been told that that property was in fact no longer there. [ 25 ] It is also inconsistent with his actions of continuing to ring the buzzer after not getting an answer because again, a reasonable

person at that point having rang the buzzer for a period of time, just simply assumes that there is not going to be an answer and goes away.

Nor, under these circumstances, can it be said that his evidence is such that it raises a reasonable doubt. [ 26 ] In having rejected the accused's evidence, that leaves me in a position where I have the complainant's evidence left to consider, and I have to determine whether on that evidence and the evidence of the police officers that the Crown has proven the case beyond a reasonable doubt. [ 27 ] Now, there are some areas in which the evidence of the complainant accords with the accused's evidence in some of the important details.

It is clear that he persisted in ringing the buzzer, even after being told to go away, and it is not reasonable to conclude that the accused was acting calmly or rationally at 3:00 in the morning, or that having drank enough for the police officer to describe him as severely intoxicated to want to take him off the road, that the accused was using his best judgment in anything that he was saying or doing. I also accept the complainant's evidence that the words spoken to her within that context were meant to convey fear or intimidation to her.

As I say, this is not a case where the accused attributes some innocent meaning to the words, this is not a case where the context of the words spoken accounts for some innocent meaning. An argument was going on; the accused uttered the threat that he would have someone "do" the complainant, and followed up by taking out his cell phone.

It is reasonable under the circumstances that within the context of what is described by the complainant that the complainant would feel threatened, would feel intimidated under those circumstances. [ 28 ] The actus reus of the offence is the uttering of threats to do bodily harm, the mens rea is that the words were meant to intimidate or to be taken seriously, and I accept the evidence of the complainant that both of those elements were present, that the words spoken within those circumstances conveyed to her and to a reasonable observer that the accused meant to have someone do bodily harm to the complainant. [ 29 ] I also take into account the circumstances of the offence, the fact that the accused refused to leave, he continued to buzz repeatedly, he refused to leave after being told to do so, that he utters the threats and then takes out his cell phone as a means of reinforcing his intention that someone would be called to follow through on the threats that had been made. [ 30 ] So taking into account all of those factors, I am satisfied that the Crown has proven all of the elements of the offence; specifically, the Crown has proven beyond a reasonable doubt the identity of the accused, the date of the alleged offence, the territorial jurisdiction, the fact that the accused uttered words to D.K. that could reasonably meet the definition of a threat under the Criminal Code , and that the words were spoken in a context by the accused from which it is reasonable to conclude beyond a reasonable doubt that they were meant to intimidate or to instil fear in the complainant. [ 31 ] Being satisfied of all of those factors, I find that the Crown has proven all of the elements of the offence beyond a reasonable doubt and I find the accused guilty as charged. ________________________ K.D.

Skilnick Provincial Court Judge