R. v. Watt Date:, 2015 BCPC 97

Citation: R. v. Watt Date: 20150427 2015 BCPC 0097 File No: 80812-2 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL STANLEY WATT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: R. Macgowan Counsel for the Defendant: L. A. Rankin Place of Hearing: Abbotsford , B.C. Date of Hearing: January 20, 21, 2015 Date of Judgment: April 27, 2015 Introduction

[ 1 ] The Accused Michael Stanley Watt is charged with the following two offences:

(1) Wilfully attempting to obstruct, pervert or defeat the course of justice by attempting to dissuade a person, by threats, bribes or other corrupt means, from giving evidence, contrary to section 139 (2) of the Criminal Code ; and

(2) Threatening to use violence against Gordon Campbell, without lawful authority and with intent to provoke a state of fear in a justice system participant, in order to impede him in the performance of his duties, contrary to

section 423.1(3) of the Criminal Code . [ 2 ] These offences are alleged to have been committed between December 12, 2013 and March 4, 2014, while the Accused was in custody at Fraser Regional Correctional Center in Maple Ridge, BC. At the time the Accused was awaiting the start of a preliminary inquiry on charges of robbery and unlawful confinement and had been denied bail. Gordon Campbell, the complainant in this matter, was also one of the complainants in the charges for which the Accused had been denied bail. [ 3 ] It is alleged that the Accused sent or was a party to the sending of a letter to Mr.

Campbell, the purpose of which was to threaten and intimidate Mr. Campbell into not testifying at the preliminary inquiry. The preliminary inquiry never took place. The Crown subsequently decided to proceed by direct indictment and on November 4, 2014, the Accused pled guilty to four counts, for which he was given a global sentence of six years jail, less a credit for two years of pre-sentence custody. [ 4 ] There is no direct evidence as to who sent the offending letter to Mr. Campbell. The Crown acknowledges that its case against the Accused is predominantly a circumstantial one.

The Accused did not testify at the trial of this matter, as is his right. At issue is whether or not the Crown has proven all of the elements of these offences beyond a reasonable doubt. [ 5 ] At the trial of this matter, the Crown called a total of six witnesses: two police officers, the complainant and his wife, the Assistant Deputy Warden of the institution where the Accused was held in custody during the alleged offence dates, and another individual who was also in custody at the same institution during the alleged offence dates. A number of relevant facts were admitted by counsel pursuant to

section 655 of the Criminal Code . Following is a

summary of the evidence heard at trial, a

summary of the applicable law and my reasons for deciding whether or not the Crown has proven the offences beyond a reasonable doubt.

Summary of Evidence [ 6 ] In the spring of 2013, the Accused was in a relationship with a woman named Michelle. She is the daughter of the Complainant Gordon and Marry Campbell and the mother of a child who was 16 years of age in 2013. In July of 2013, after the Accused and Michelle had ended their relationship, the Accused claimed that Michelle owed him $10,000.

On the evening of July 16, 2013, the Accused contacted Michelle by text message to her cell phone and told her that he wanted his money from her, adding that if it wasn’t paid, “I take it out on [your] parents”. [ 7 ] The Accused contacted the Complainant Gordon Campbell that evening to arrange to meet with him the following day at Mr. Campbell’s home under the false pretext of paying Mr. Campbell some money for camping equipment that the Accused had borrowed but never returned.

The following day, July 17, 2013, the Accused drove to the Campbells’ home in Mission, B.C., accompanied by a 25 year old man named Mealings, and by his new girlfriend. A fourth person, a 16 year old female, waited in the vehicle, while the other three persons entered the Campbell home. While inside the home, the Accused told the Campbells that their daughter owed $10,000 to the Hell’s Angels motorcycle gang, and that Mealings was a member of the Hell’s Angels. The Accused said that he had also been a member of the motorcycle gang. [ 8 ] The Campbells’ 16 year old granddaughter was also present at the time.

When the granddaughter tried to leave the home, she was prevented from doing so by the Accused, who also took the child’s cell phone from her. The Accused also took Gordon Campbell’s cell phone from him. Mealings produced an imitation handgun that the Campbells believed to be a real firearm. When the imitation handgun was produced, the Accused told the Campbells that they could be shot. The Accused demanded money from the Campbells.

When no money was given, the Accused and his associates took Gordon Campbell’s wallet, as well as several items of personal property. [ 9 ] Marry Campbell was able to flee from the home and was able to call police from a neighbour’s home. Following a high speed chase, the Accused was apprehended and arrested. He was taken into custody and has remained in custody continuously since his arrest. From July 19, 2013 to September 5, 2013, he was held in custody at the North Fraser Pre-Trial Center.

On September 5, 2013 he was moved to the Fraser Regional Correctional Center, where he remained in custody until February 27, 2014, at which time he was moved to the Surrey Pre-Trial Service Center. [ 10 ] The Accused was charged with robbery, unlawful confinement, use of an imitation firearm in the commission of a robbery, dangerous driving and failing to stop for police. On November 28, 2013 the Accused elected to be tried in the Supreme Court of British Columbia for those offences. He requested a preliminary inquiry and one was scheduled for April 16, 17, 22, 23, 25, 28 and May 2, 2014.

Gordon and Marry Campbell were both subpoenaed as witnesses for the preliminary inquiry. [ 11 ] The Campbell family subsequently left Mission, B.C. and moved to a series of new residences in the area of BC known as the Kootenays. They filed a change of address form with the post office in order that their mail could be forwarded to them. They did not provide their daughter with their new address, and they did not give this address to any of the persons who were charged with offences against them.

On Wednesday, March 19, 2014, Marry Campbell and her granddaughter went to the post office in the community that they were living in. She picked up her mail, which included a letter that had been addressed to them at their former address in Mission, BC. The letter had a post-mark of March 4, 2014 and the return address gave the name and address of the sender as “Darcy Beads, 32670 Logan Ave., Mission, BC, V2V 6C7.”

[ 12 ] The Campbells testified that they do not know anyone with that name, or living at that address. Constable Christine Day of the Mission Detachment of the Royal Canadian Mounted Police testified that there is no such address, and the 32000 block of Logan Avenue in Mission is commercial property where a strip mall is located. The Constable’s efforts to locate anyone named Darcy Beads using various databases did not find anyone with that name. [ 13 ] Marry Campbell opened the letter while at the post office and read it.

She testified that the letter scared her, stating that it made her feel “very nauseous” and “very overwhelming.” Unfortunately, she showed the letter to her grand-daughter after the child demanded to see it, and the child started crying. [ 14 ] Marry Campbell contacted Mr. Macgowan, Crown Counsel both in this case and in the matter in which she and her husband had been subpoenaed as witnesses.

Constable Day was contacted and she interviewed the Campbells and ultimately took possession of the letter. [ 15 ] The letter reads, in part as follows (spelling and grammatical errors included): “To Gord, I would like to apologize to you for what you and your family went through in July. You should know your daughter paid to have your head smashed in last spring. We are sure you remember all the stitches you received… Be smart don’t go to court make yourselfs and family unavailable come time for court. Let it go and walk away and we will do the same. The one with the firearm realize’s wrong doing.

It’s at the point how were we are losing money so we have to take care of your intrests. We know that your smart enough to realize what we are capeable and what we will do. So do not make us visit. BE SMART think of your wife, granddaughter, and daughter. We will compensate you for the problems, causes to you and your family. BE SMART lets do this the easy way!

Let it go!” [ 16 ] Marry Campbell testified that in her mind, the reference to her husband having his head smashed in last spring was describing an incident that occurred during the previous Mother’s Day weekend, when her husband and daughter had went out to a party, and he returned home with a bad cut on his head that required stitches. Gordon Campbell testified that he did suffer a head injury, although he believed that it had occurred in early July.

He testified that the injury occurred at a time when he had been drinking and he could not recall anything about the incident. [ 17 ] Gordon Campbell also testified that he was very concerned when he saw the letter. He was especially concerned for the safety of his wife and his granddaughter and he was afraid that the family might be visited by more unsavoury characters. [ 18 ] Constable Day sent the letter for fingerprint analysis. She obtained a copy of Marry Campbell’s finger prints in order that any of her prints found on the letter could be eliminated.

Subsequent fingerprint analysis located five unidentified prints on the letter. Two of the prints were identified as those of Terrence Eugene Willems. The other three prints were not identified. These prints were compared against those of the Accused as well as the two other persons who were co-accused with the Accused in the matter in which the Campbells had been subpoenaed to give evidence.

It is admitted as an agreed fact that none of the unidentified prints belong to the Accused or to either of his two co-accused on the other matter. [ 19 ] At the time that the letter was post-marked, the Accused was in custody at Fraser Regional Correctional Center (FRCC). Although that facility primarily houses persons who are serving sentences of less than two years in duration, it also houses some prisoners who are subject to detention orders under

section 515 of the Criminal Code . The Accused was one such prisoner at the time. He was admitted to the institution on October 19, 2013 and remained at that facility until February 27, 2014. For a time, from November 7, 2013 until November 26, 2013, Corey Mealings was also in custody at that location, but he was held in a different

section of the institution. According to the evidence of Deputy Warden Montee Dunbar, the Accused and Corey Mealings would have had no interaction with one another during the overlapping period that each of them was at FRCC. [ 20 ] Terrence Willems and the Accused were both at FRCC together during the period from December 12, 2013 to February 27, 2014. On the last mentioned date, the Accused was transferred to the Surrey Pre-Trial Remand Center, while Terrence Willems remained at FRCC until March 4, 2014, when he was released from custody. The two of them were in the same

section of FRCC in the living unit known as Unit 1C. There are 18 separate cells in the living unit that are on two different levels. During their common time at FRCC, the Accused was upstairs in cell 18 at one end of the hallway, while Mr. Willems was in cell 9, which is on the bottom floor at the opposite end of the row of cells. According to Deputy Warden Dunbar, the two inmates would have the opportunity to interact for several hours each day. They would also have access to pens, paper and envelopes.

Any mail sent out would be given a cursory screen for any sort of contraband inside, and the name of the addressee would be checked to determine if the sender was under any order of non- contact with that person. [ 21 ] Terrence Willems was subpoenaed to give evidence and he testified that he was at FRCC at the same time as the Accused. He said that he had seen the letter sent to the Campbells but was unaware of its contents because he has very limited reading skills. He testified that another inmate, not the Accused, told him to put the letter into an envelope.

At one point he said that it was his cellmate who told him to put the letter into the envelope, but he later said that he couldn’t recall who told him to do so. He denied writing or mailing the letter. He testified that he never had any discussion with the Accused about the letter. [ 22 ] Constable Day arranged for handwriting analysis on the letter and it was examined by Mr. Dan Purdy, who is the President of Forensic Document Examination Services Inc. By consent, a report Mr. Purdy prepared was attached to a second Agreed Statement of Facts that was entered into evidence at trial. In the report Mr.

Purdy was unable to either identify or eliminate the Accused as the person whose handwriting is on the letter.

Summary of the Applicable Law

Section 139 of the Criminal Code

[23]

Section 139 of the Criminal Code sets out the offence of obstruction of justice. Subsection (1) specifically identifies a numberof ways in which justice can be obstructed which concern the indemnification of sureties. Subsection (2), the

section that the Accused ischarged under, makes it an offence to wilfully attempt to “obstruct, pervert or defeat the course of justice” in any manner other than inthe ways described in subsection (1). Subsection (3) sets out some specific ways in which persons are deemed to wilfully attempt toobstruct, pervert or defeat the course of justice. These include dissuading or attempting to dissuade a person from giving evidence bybribery, threatening or other corrupt means. [24] The jurisprudence on this

section is clear that “the course of justice” includes criminal proceedings, whether existing orproposed; R. v. Spezzano (1977) (ON CA), 34 C.C.C. (2d) 87 (Ont. C.A.); Kalick v. R. (1920) (SCC), 61 S.C.R. 175. In this case, counsel properly concede that the letter sent to Mr. Campbell amounts to the wilful attempt, bysomeone, to dissuade Mr. Campbell, his wife and granddaughter, from giving evidence, by the use of threats or other corrupt means.

Section 423.1 of the Criminal Code [25]

Section 423.1 (1) (

b) of the Criminal Code makes it an offence for anyone to engage in the conduct set out in subsection (2)with the intention of provoking a state of fear in a justice system participant in order to impede that person in the performance of his orher duties. The offending conduct as defined in subsection (2) includes threats of violence. The term “justice system participant” isdefined in

section 2 of the Code as including a prospective witness. [26] Counsel concede that sending the letter which was sent to Mr. Campbell would amount of an offence under

section 423.1 of theCode. The letter conveys a threat of violence against someone who was, at the time, a prospective witness in a criminal case. 3. Circumstantial Evidence [27] The Crown concedes that there is no direct evidence in this case which shows the Accused to be the author or the sender of theletter received by the Complainant. The Crown takes the position that the case against the Accused is circumstantial and that it can bereasonably inferred that the Accused caused the letter to be sent to the Complainant. In R. v. Griffin 2009 SCC 38 , [2009]S.C.J.

No. 38; 2009 SCC 28 , 244 C.C.C. (3d) 289, the Supreme Court of Canada considered how a trier of fact is to proceed incases where the Crown relies on circumstantial evidence to prove its case. The court stated, first and foremost, that in order to convict,the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference which can be drawn from the facts is that theaccused is guilty of the offence charged.

Charron J. stated: 33… The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must besatisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that theaccused is guilty… 34. There is no question that the instructions in the present case fulfilled this essential requirement.

The trial judge repeatedly madeclear to the jury that a guilty verdict can only be rendered if guilt is the sole rational inference to be drawn from the circumstantialevidence. [28] In defining the concept of “reasonable doubt”, the Supreme Court of Canada held, in R. v. Lifchus (SCC),[1997] 3 S.C.R. 320; 118 C.C.C. (3d) 1, that the following considerations apply: 1. The burden of proof rests on the Crown throughout the trial and never shifts to the accused. 2. A reasonable doubt is not a doubt based upon sympathy or prejudice. 3. A reasonable doubt must be based on reason and common sense. 4.

A reasonable doubt must be logically connected to the evidence or to the absence of evidence. 5. Proof beyond a reasonable doubt does not involve proof to an absolute certainty. It is not proof beyond any doubt. 6. A reasonable doubt is not an imaginary or frivolous doubt. 7. More is required than proof that the accused is probably guilty. If, at the end of the case, the trier of fact concludes only that theaccused is probably guilty, then the accused is entitled to an acquittal. [29] In R. v.

Griffin, supra, the court said that in a case where conviction depends on circumstantial evidence, a guilty verdict canonly be rendered if guilt is the sole rational inference to be drawn from that evidence. The corollary of this is that if there is anotherrational inference which can be drawn from the evidence which is inconsistent with an accused’s guilt, then that accused is entitled to anacquittal. The question then becomes what is a “rational inference”? [30] An inference is a conclusion that is logically and reasonably reached from facts proven in evidence.

An inference must not bebased on conjecture or speculation. There can be no inference unless there are objective facts from which to infer the facts which aresought to be established. Caswell v. Powell Duffryn Associated Collieries Ltd. [1940] A.C. 152 (H.L.); followed by the British ColumbiaCourt of Appeal in R. v. Kube (BC CA), [1946] 1 W.W.R. 161. Something which is rational is based on reason orlogic.

The elements of reason and logic form a part of the definition of an inference according to the authorities I have referred to.Accordingly, a rational inference is a conclusion which is logically and reasonably drawn from facts in evidence, and which is not drawnfrom conjecture or speculation.

4. Motive [31] The fact that a person has a motive to commit a criminal offence is insufficient in and of itself to prove that the personcommitted the offence. The Supreme Court of Canada, in R. v. Lewis (SCC), [1979] 2 S.C.R. 821, stated that evidence ofmotive is merely one piece of circumstantial evidence. Its importance depends upon the facts of each case. Motive is not a necessaryelement of an offence, but as circumstantial evidence, it may be used as a means as part of a circumstantial case to prove the identity ofthe person who committed an offence. 5. Parties to Offence [32] Under

section 21 of the Criminal Code, a person is a party to an offence if the person actually commits the offence, or if he orshe does or omits to do anything for the purpose of aiding any person to commit the offence, or if he or she abets any person incommitting the offence. Passive acquiescence to the commission of the offence is not enough on which to rest criminal liability.

Aidingin the commission of the offence requires that an accused must either intentionally do something or intentionally omit to do somethingthat either assists in the commission of the offence, or hinders the prevention of the offence. [33] Abetting an offence means doing something to encourage the commission of the offence, or to instigate, promote or procure theoffence to the committed. Analysis [34] The issue in this case is whether or not the Crown has proven beyond a reasonable doubt that the Accused either (

a) wrote theletter to the Campbells and caused it to be sent; or (

b) was a party to sending the letter in that he aided or abetted another person tocommit the offence. Aside from this issue, each counsel concedes that all of the other elements of the offences have been proven beyonda reasonable doubt. Specifically, there is no doubt that the letter was sent to the Campbells within the dates set out on the information,and that from the contents of the letter, it is clearly a wilful attempt to obstruct justice by attempting to dissuade the Campbells fromgiving evidence by threatening them.

It is also clear that the letter contains an attempt to provoke fear in the Campbells, who were to bewitnesses in a criminal trial, by threatening violence against them. [35] The Crown argues that from the circumstantial evidence presented, the only rational inference which can be drawn is that theAccused either wrote the letter or was a party to the offence by providing the information contained in the letter to the person who wroteit, and by directing that the letter be sent or at least encouraging the letter to be sent.

I am satisfied that there is ample reasonable doubtabout whether the Accused wrote the letter. The lack of the Accused’s fingerprints on the letter, coupled with the presence of otherpersons’ fingerprints, as well as the opinion of Mr.

Purdy that the handwriting may possibly be that of someone other than the Accusedraises a reasonable doubt as to whether it was the Accused who actually wrote the letter. [36] If the circumstantial evidence reasonably supports the inference that the Accused was a party to the sending of the letter byproviding the information contained in it to the writer and by encouraging the letter to be sent, then it may be sufficient to rest aconviction upon, provided that it is the only rational inference to be drawn from the evidence.

If there is any other rational inference thatcan be drawn from the evidence that is inconsistent with the guilt of the Accused, then he is entitled to an acquittal. [37] The Crown argues, firstly, that the evidence is consistent with the guilt of the Accused as a party to the offence. The Crownstates that this wall of circumstantial evidence is made up of the following bricks: 1. The presence of Mr. Willems thumbprint and Mr. Willems’ testimony establishes that the letter was in existence at a time when theAccused was at FRCC. 2.

Steps were taken to have a person unconnected with the Campbells handle the letter. 3. The Accused was the principal offender involved in the commission of the offence about which the Campbells were to give testimony. 4. None of the other persons who were co-accused in the July offence were present at FRCC when the letter was at FRCC. 5. The letter discourages the Campbells from going “to court” at a time when the only matter bringing them to a court was the offencecommitted by the Accused. 6. The letter was addressed to the Campbells’ former home in Mission, BC.

The Accused knew that address, but was not told that theCampbells had moved to the interior of BC. The Campbells’ daughter was aware of the move, so if she was the instigator of athreatening letter of this nature, she would have known the correct address to send it to. 7. The reference to what the Campbells had “went through in July” is clearly a reference to the offence they were scheduled to testifyabout. 8. The reference in the letter to Mr. Campbell’s head injury is something that they testified that they did not discuss publicly.

Theincident occurred at a time when their daughter was the Accused’s girlfriend and therefore the Accused is a member of a very small poolof people who would have known about the incident. 9. The suggestion in the letter that Mr. Campbell should think about his wife and daughter suggests that it originated from someone likethe Accused who had knowledge of the makeup of the Campbell family. 10. There is no evidence that anyone else who had access to this letter had a motive to send it, whereas the Accused clearly had a strongmotive to intimidate the Campbells not to testify at the preliminary inquiry. 11.

A person who can be positively identified as being in possession of the letter was living on the same unit at the Accused at the time

that the letter was handled. [ 38 ] The Crown argues that there is no rational inference that can be drawn from the evidence which is inconsistent with the Accused’s involvement as a party to the offence.

Specifically, the Crown says, it is implausible that a third party would send this letter without, at the very least, the imparting of knowledge from the Accused about the offence and the address of the Campbells and the encouragement of the Accused, if not the direction to do so. [ 39 ] On behalf of the Accused, his counsel argues that the circumstantial evidence falls short of proving the guilt of the Accused beyond a reasonable doubt and suspicion of the Accused’s involvement isn’t enough to found a conviction on.

He argues that the basis of reasonable doubt can be found from the fact that there is no evidence proving that the Accused either wrote the letter or even handled the paper on which it is written. He argues that presence in the institution at the time the letter was in existence is not enough to found liability for commission of the offence because presence at the scene of an offence does not, by itself make one a party to the offence.

As counsel correctly states, “probably guilty isn’t good enough.” [ 40 ] In my view, the circumstantial evidence is strong enough to support the inference that it was the Accused who provided the writer of the letter with the information contained in the letter. The circumstantial evidence is such that there would be no other person in the institution when the letter was handled who would have all of the knowledge about the offence and about the Campbells to compose the letter.

To conclude otherwise would be to engage in speculation about the existence of a scenario not supported by the evidence. [ 41 ] Is the only rational inference to be drawn from this evidence that the letter was sent with the encouragement of the Accused? Counsel for the Accused argues that it is not.

In submissions, when asked to suggest some other rational inference which could be drawn from the evidence, other than that the letter was sent with the knowledge and encouragement of the Accused, counsel suggested that perhaps the letter was sent by another prisoner at FRCC that was aware of the facts in the letter, but who composed and sent the letter without the Accused’s knowledge or approval. The suggestion is that this was done as a favour to the Accused by another inmate. [ 42 ] In response to this suggestion, Crown counsel says that the drawing of such an inference is not reasonable.

Any doubt based on such a hypothesis would not be a reasonable doubt because it would be unconnected to and unsupported by the evidence, and it would be an imaginary doubt, something which, according to the Supreme Court of Canada in R. v. Lifchus , cannot form the basis of a reasonable doubt. [ 43 ] I agree with the Crown that in order for the hypothesis posed on behalf of the Accused to have occurred, a number of remarkable coincidences would have to be present.

Firstly, there would have to be some other inmate at FRCC to whom the Accused spoke about the circumstances of the offence for which he was awaiting trial, when that offence occurred, the name and address of the Campbells, the makeup of their family, the presence of another person who used some sort of firearm in that offence, and the circumstances of another incident in which Mr. Campbell injured his head. That person, without any encouragement from the Accused, would have had to take it upon himself to write a letter to the Campbells in which an apology and a threat are concurrently made to the Campbell family.

The likelihood of such an occurrence would torture the definition of reasonable doubt in my view. On the evidence before the court, such a possibility is not reasonably possible or rational. I agree with the Crown that a doubt based on this or any similar possibility would be an imaginary doubt and may not form the basis of a reasonable doubt. [ 44 ] I find that the sole rational inference to be drawn from the evidence is that the letter sent to the Campbells was composed with information provided by the Accused and that it was sent with the encouragement of the Accused.

I am unable to conceive of any other rational inference to be drawn from the evidence. Accordingly I am satisfied beyond a reasonable doubt that the Crown has proven all of the elements of both of the offences set out on the information. I therefore find the Accused guilty on both counts. Dated at the City of Abbotsford, in the Province of British Columbia, this 27 th day of April, 2015. ____________________________________________ The Honourable Judge K. D. Skilnick