R. v. Tom, 2021 BCPC 366

Citation: R. v. Tom 2021 BCPC 366 Date: 20211026 File No: 80487-1 Registry: Fort St. James IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. COLIN JOHNNY TOM CORRIGENDUM TO THE ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. MALFAIR Counsel for the Crown: J. M. Schroeder Counsel for the Defendant: M. Reed appearing by videoconference Place of Hearing: Fort St. James , B.C. Date of Hearing: September 28 and 29, 2021 Date of Judgment: October 26, 2021

A Corrigendum was released by the Court on November 8, 2022. The corrections have been made to the text and theCorrigendum is appended to this document. [1] THE COURT: Mr. Tom is charged with uttering threats and assault with a weapon against his father, Peter Tom, at or near FortSt. James on January 17, 2021. He is also charged with possessing a weapon for a dangerous purpose in respect of a knife he is alleged tohave used to intimidate Peter Tom in the course of an assault. The bulk of the Crown's case rests on the evidence of the complainant,Peter Tom. Colin Tom testified in his defence.

Colin Tom does not really refute Peter Tom's evidence as he claims he was extremelyintoxicated at the time of the incident. The issues I must decide are: (1) was Colin Tom so intoxicated by alcohol that he lacked the requisite intent to threaten or assault Mr. Tom; and (2) has the Crown proven the elements of the three offences as charged beyond a reasonable doubt? [2] Peter Tom is Colin Tom's father. At the time of the offence, Colin Tom lived in Peter Tom's home in the Binche Reserve nearFort St. James, B.C.

Peter Tom testified that he is familiar with his son's behaviour and demeanour when he is intoxicated and that in thepast Colin Tom has become physically aggressive with him when in that state. He says when Colin Tom is intoxicated, he is arrogantand confrontational. [3] On January 17, 2021, Peter Tom came home for the evening at around 6:00 p.m. after having been out that afternoon. ColinTom and his mother, Peter Tom's recently separated spouse, had spent the day in the home drinking. Colin Tom was also smokingmarihuana before Peter Tom came home. When Peter Tom first arrived home, Colin Tom was in his room.

Peter Tom was caring for histwo-year-old granddaughter. [4] When he first encountered Colin Tom in the house, Colin Tom was intoxicated. Peter Tom described his son as "drunk-drunk"and his level of intoxication to be advanced. Peter Tom says Colin Tom was walking around the house blaring music from the phone inhis pocket which he often did when intoxicated. The loud music irritated Peter Tom in part because he was trying to get the two-year-oldto sleep. Colin Tom was trying to cook food. [5] Colin Tom’s father wanted him to eat and go sleep off the intoxication.

Peter Tom says he told his son a number of times to turndown the music. Colin Tom responded by either ignoring his father or getting arrogant and confrontational. Peter Tom described this astalking back and mumbling swear words like, "Fuck you," and "Shut up." Peter Tom attested to Colin Tom having often behaved thisway when intoxicated. [6] Peter Tom says that, at one point, he came out and his son was in the kitchen cooking pizza. His music was playing loudly.Colin Tom had the oven door open checking on the pizza with a knife in his hand. He was bent over into the oven, presumably checkingon the pizza.

The knife was an 11-inch large kitchen knife. Peter Tom was near the fridge standing around 10 feet away from his son.Peter Tom told his son to turn down the music. [7] Colin Tom turned his head and stared at his father with what Peter Tom described as a look of anger in his eyes. At the sametime, Colin Tom stabbed the cabinet face adjoining the oven with the knife. At trial, Peter Tom used gestures indicative of a stabfollowed by a dragging type of motion. Colin Tom stabbed the cabinet several times. While he was doing this, he looked at his father andsaid, "Let's do this.

Let's finish this." Peter Tom said he was very afraid and immediately stopped talking in an effort to de-escalate thesituation. Peter Tom retreated to his room and called the police. [8] Photos adduced in evidence show the knife used by Colin Tom was bent over at the tip which Peter Tom says was not bent priorto Colin Tom stabbing the cabinet. Photos of the cabinets show four to six cut marks on the cabinet face, two of which resemble slice ordrag marks.

Suffice it to say, I conclude from the state of the knife and the cabinets that Colin Tom used a significant amount of forcewhen applying the knife to the cabinet. [9] When police arrived, Mr. Colin Tom was located in his room and arrested. The officers saw beer cans in Colin Tom's room anda bong for ingesting drugs and they smelled burnt marihuana. Constable Luko [phonetic] detected a strong odour of liquor on ColinTom's breath and considered Mr. Tom to be under the influence of alcohol. [10] As Colin Tom testified in his own defence, the principles of R. v. W.(D.) apply.

However, it is not simply the case of whether ornot his evidence raises a reasonable doubt. Colin Tom does not really contest the facts as alleged by Crown. Rather, he claims to havebeen grossly intoxicated and have no memory of the event. As such, I must consider, even if I accept his evidence that he wasintoxicated, whether his level of intoxication was such that it negated the mens rea required for the offences as charged. [11] Even if I accept Mr. Colin Tom's evidence that he blacked out, a state of blackout does not automatically equate to lacking themens rea to commit an offence.

It merely equates to lacking the ability to form a memory of the offence, which is a different matter.Since Colin Tom himself cannot attest to his ability to form the requisite intent at the time, given he has no memory of it, believing hisevidence does not necessarily invite an acquittal. The question, therefore, remains whether or not the Crown has proven the requisitemens rea beyond a reasonable doubt. [12] A person is presumed to have intended the natural and probable consequences of their actions, R. v. Bernard, (SCC), [1988] 2 S.C.R.

Section 33.1 of the Criminal Code provides that self-induced intoxication rendering one incapable ofcontrolling their behaviour is not a defence to an offence involving an assault or interference or threat of interference by a person with thebodily integrity of another. Generally speaking, self-induced intoxication may negate the mens rea for specific intent offences, but notgeneral intent offences. Specific intent offences require the mind to focus on an objective further to the immediate one at hand whilegeneral intent offences require only a conscious doing of the prohibited act: (R. v. Bernard).

Uttering threats and possession of a weaponfor a dangerous purpose have been held to be specific intent offences while assault with a weapon is a general intent offence.

[ 13 ] No medical evidence was adduced in support of a defence of non-insane automatism to negate the mens rea required for the general intent assault offence. Rather, Mr. Tom argues that his stabbing of the cabinet could have been accidental, not intentional, given his level of intoxication. Mr. Tom says he smoked around six to seven marihuana cigarettes that day. He had purchased two 26-ounce bottles of vodka and a case of 15 beers when he started drinking that morning. His mother was over drinking with him. He remembers drinking around eight of the beers and one bottle of vodka.

The second bottle of vodka was also consumed, but Mr. Colin Tom admits he blacked out after drinking the first bottle so he could not say whether he or his mother drank the second bottle. He remembers drinking the first bottle, then waking up in police cells. [ 14 ] Regardless of whether or not Mr. Tom drank that second bottle, no information about Mr. Tom's ability to metabolize alcohol was adduced which makes it difficult to infer his ability to form the requisite mens rea solely from how much alcohol he drank or marihuana he smoked.

Many seasoned alcoholics can interact and present relatively normally despite having a very high blood alcohol concentration while novice drinkers may present as grossly intoxicated on much smaller quantities of alcohol. Factors such as body size and how much a person had to eat also plays a role. Mr. Tom is a large young man. [ 15 ] Quantity of consumption is only one factor to consider along with Mr. Tom's symptomology.

The symptomology observed by Peter Tom and Constable Luko do not support a finding that Colin Tom was so intoxicated by alcohol that he lacked the ability to form the specific intent to utter threats or possess a weapon for a dangerous purpose. [ 16 ] I also find Colin Tom was not so intoxicated that the court ought to speculate that his stabbing of the cabinets was the accidental product of drunken clumsiness.

In coming to that conclusion, I have considered the following reliable evidence: Constable Luko's opinion that Colin Tom appeared under the influence of alcohol, but not grossly intoxicated; the stabbing of the cabinets occurred at the same time as Colin Tom made the impugned threatening words in response to being admonished by the victim. This supports the inference that the action was intended to be a show of intimidation as opposed to inadvertent clumsiness. [ 17 ] The cabinets were stabbed four to six times in a compressed timeframe.

The sheer number of contacts weighs against the hypothesis that this damage was accidental and favours a finding that the action was intentional. I accept Colin Tom was looking at his father with anger in his eyes when he spoke the words and stabbed the cabinets, suggesting he was attempting to intimidate his father and not acting drunkenly randomly without purpose. [ 18 ] Both Peter Tom and Constable Luko saw Colin Tom walk and move around normally and did not observe any issues with balance or clumsiness despite both being in a position to observe Colin Tom's movements for a reasonable period of time.

Constable Luko observed Colin Tom's speech to be clear and not slurred. Colin Tom was able to bake a pizza, remove it from the oven, place it on the counter, and cut it without incident. This undertaking required some degree of physical and mental ability to carry out. [ 19 ] Peter Tom and Constable Luko's interactions with Colin Tom were rational. At no time did he present as confused or disoriented, notwithstanding he was hostile towards his father. Prior to the threats being made, Colin Tom swore at or talked back to his father in response to Peter Tom telling him to turn down his music.

He similarly uttered the impugned words in response to being told to turn down his music. While unjustified, Colin Tom's verbal outburst of anger were rationally tied to a provoking act, being told to turn down his music which he clearly did not want to do. His words were not mere random utterings. [ 20 ] I note Colin Tom had the necessary wits to avoid being confrontational with the police officer and made no threatening words or gestures in his presence, despite being at the same level of intoxication as he was when he confronted his father.

When read his Charter rights and given the police warning by Constable Luko, Colin Tom appeared to understand the questions being asked of him and answered appropriately. He made brief exculpatory statements about the incident in response to being told he was under arrest. He was capable of exercising his right to access counsel. His interactions with Constable Luko were consistent with possessing an operating rational mind. [ 21 ] Having rejected the defence argument with respect to Mr. Tom's level of intoxication, I must still decide whether or not the Crown has proven its case beyond a reasonable doubt.

There was inconsistency between Peter Tom's statement to police and his trial evidence with respect to the words said by Colin Tom. Peter Tom told police his son said, "Let's do this. I'll finish you." At trial, he recalled his son said, "Let's do this. Let's finish this right now." I do not consider the discrepancy in his evidence in this regard to make Peter Tom's recollection of the threat so unreliable as to raise a reasonable doubt.

When cross-examined on this discrepancy, Peter Tom said he considers either threat, "I'll finish you," or, "Let's finish this," to effectively mean the same thing and that the words made him feel afraid. [ 22 ] Regardless of whether Colin Tom said, "I'll finish you," or, "Let's finish this," I accept Peter Tom's evidence that Colin Tom said, "Let's do this," as an invitation to fight and referred to the word "finish" in the context of that proposed fight.

For the purpose of my findings, I have attributed the more ambiguous words Peter Tom attested to at trial, being, "Let's finish this," to Colin Tom that evening. [ 23 ] Colin Tom suggests his words could refer to eating the pizza, not challenging his father to a fight. I am satisfied beyond a reasonable doubt that, in considering all of the circumstances and context in which the words were spoken, they were intended to be taken seriously as a threat.

They were not uttered in response to an inquiry about pizza, but in response to being told to turn down his music, which request Colin Tom had already responded to with hostility on multiple occasions that evening. I accept Colin Tom's father was capable of recognizing his son's facial expression as being one of anger when the words were spoken. Colin Tom was stabbing the cabinets with a knife when speaking,

an act of aggression, not an invitation to share a meal. [ 24 ] Colin Tom said, "Let's do this," meaning he was inviting Peter Tom to fight. Colin Tom's reference to the word "finish" suggested the fight would have some finality resulting in one party suffering death or grievous bodily harm. Given he was holding a knife at the time and Peter Tom was unarmed, the implication is that it would be Peter Tom who would lose that fight. [ 25 ] I find the words constituted a threat to cause death or bodily harm and were intended to be taken seriously. Mr. Tom did not advance towards Peter Tom with the knife.

From a distance of around 10 feet apart, he looked Mr. Tom in the eye, said, "Let's do this. Let's finish this," all while stabbing a knife into the cabinets.

[26] In order to be found guilty of an offence under s. 267(a), Mr. Tom must carry, use, or threaten to use a weapon in committing anassault. Pursuant to s. 2 of the Criminal Code, a weapon includes anything used for the purpose of threatening or intimidating anyperson. I am satisfied that the Crown has proven the essential elements of assault with a weapon beyond a reasonable doubt. The words,"Let's do this. Let's finish this," are a challenge to have a physical confrontation with an element of finality.

In that context, stabbing anddragging the knife along the cabinets 10 feet away from Peter Tom while angrily staring at him was an action intended to intimidatePeter Tom. Colin Tom thus threatened to apply force to Peter Tom in circumstances where he had the ability to carry out the threat andused the knife to intimidate. I find Colin Tom guilty on Count 2. [27] With respect to Count 1, uttering threats, this is a unique situation where the assault with a weapon can only be made out ifaccompanied by a threat. Colin Tom did not swing, lunge, or even point the knife at his father. He stabbed the cabinets.

In the absence ofa threat, that action could have only supported a conviction for criminal mischief. It is not a case where a completed assault occurredaccompanied by an independent threat. In this case, it is the threat that completed the assault and elevated a mischief to an assault with aweapon. Conversely, the words, "Let's do this. Let's finish this," on their own are more of an invitation to fight rather than a threat tocause death or grievous bodily harm. It is the presence of the knife which inform their more threatening character. Similar situationsarose in R. v. W.R.G. [2004] O.J. No. 399, and R. v.

Lowe (NSCA), [1994] NSJ No 36. [28] In my view, in the circumstances of this case, the elements of the offence of the assault with a weapon duplicate the offence ofuttering threats. The elements of the greater offence are established by the use of a knife while uttering fighting words. The elements ofthe lesser offence are established by uttering fighting words while hold a knife. There are no distinct or additional elements to the lesseroffence of uttering threats.

Similarly, the possession of the knife for a dangerous purpose has the same elements as the assault with aweapon. [29] It is not a case where Colin Tom was packing the knife in advance of the confrontation with his father with a dangerous purposein mind. He was already holding the knife for a legitimate purpose of cooking when he opportunistically used it to intimidate Peter Tom.His purpose was only dangerous as contemplated in s. 88 of the Criminal Code, to the extent that in that moment, his purpose was tointimidate Peter Tom in the course of an assault.

The same or substantially same elements make up the s. 88 count as does the s. 267(a)count. A similar case arose in R. v. Briscoe, (BC CA), [1992] B.C.J. No. 2083, where the B.C. Court of Appeal found as. 88 count to be Kienapple'd by a s. 267 count in circumstances where the accused knocked on the victim's door and pointed a gun athim. [30] In short, the same act of Colin Tom grounds each of the three charges against him and there are no distinctive or additionalelements relevant to each charge to warrant separate convictions.

All three arise from substantially the same action and intent.Accordingly, convictions ought to only register against him for the most serious offence, Count 2, for which I find Colin Tom guilty.Counts 1 and 3 are judicially stayed under the Kienapple principle. [31] So, Mr. Tom, I find you guilty on Count 2. Counts 1 and 3 are judicially stayed. (REASONS FOR JUDGMENT CONCLUDED) CORRIGENDUM - Released November 8, 2022 In the Oral Reasons for Judgement dated October 26, 2021, the following changes have been made: [1] Paragraph 11 should read: Even if I accept Mr.

Colin Tom's evidence that he blacked out, a state of blackout does not automatically equate to lacking the mens reato commit an offence. It merely equates to lacking the ability to form a memory of the offence, which is a different matter. Since ColinTom himself cannot attest to his ability to form the requisite intent at the time, given he has no memory of it, believing his evidence doesnot necessarily invite an acquittal.

The question, therefore, remains whether or not the Crown has proven the requisite mens rea beyond areasonable doubt. [2] Paragraph 25 should read: I find the words constituted a threat to cause death or bodily harm and were intended to be taken seriously. Mr. Tom did not advancetowards Peter Tom with the knife. From a distance of around 10 feet apart, he looked Mr. Tom in the eye, said, "Let's do this. Let's finishthis," all while stabbing a knife into the cabinets. _____________________________ The Honourable Judge C. Malfair Provincial Court of British Columbia