R. v. W.T. Date:, 2014 BCPC 337

Citation: R. v. W.T. Date: 20141028 2014 BCPC 0337 File No: 81243-3KC Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. W.T. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.D. SKILNICK Counsel for the Crown: K. Jansen Counsel for the Accused: G. Dykstra Place of Hearing: Abbotsford , B.C. Date of Hearing: October 28, 2014 Date of Judgment: October 28, 2014 [ 1 ] THE COURT : W.T. is charged in Abbotsford court file 81243-KC3, that on or about the 20th day of June, 2014, at or near

Abbotsford, in the Province of British Columbia, he did utter a threat to S.B. to cause death or bodily harm to her or to her children, contrary to s. 264.1(1) of the Criminal Code . That

section reads that: Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (

a) to cause death or bodily harm to any person. Then there are other subsections but they are not applicable to the fact pattern before me. [ 2 ] The elements of this offence, a number of them are not in dispute. It is not in issue that on June 20th of 2014, W.T. and S.B. were present at S.B.'s residence for the exchange of their children in a visit for some parenting time. What is in issue, of course, is whether or not the Crown has proven beyond a reasonable doubt that W.T. uttered a threat to S.B. to cause death or bodily harm.

A threat is defined as an expressed present determination or intent to injure, to cause death or injury, presently or in the future to another person. The Criminal Code says that when the court is considering whether the accused's words are, in fact, a threat, they are to be viewed objectively in the context of or circumstances in which they were spoken.

The test as to whether or not they constitute a threat is would the words spoken under the circumstances or context in which they were expressed convey a threat of death or serious bodily harm for a reasonable person. [ 3 ] I will comment subsequently on the issue about whether or not the words have been proven to have been spoken but I will say that the words alleged to have to been spoken certainly, in my view, would meet the definition of a threat under the Criminal Code .

I appreciate that the testimony of the complainant that she did not state verbatim what it was that the words exactly were, but her evidence was that they were to the effect of, "You need to listen to what I'm going to say. I want the kids. You are to send an e-mail by the following Friday agreeing to that or," and she said, "I would regret it," meaning "I would regret it." She said that he told her that if he "couldn't have the kids then nobody would" and she made the statement that he told her that he was Lebanese and "Lebanese don't go to the grave alone".

She asked what he meant and it is her evidence that he told her that he instructed her to listen to what he was saying, "If I can't have the kids then nobody will." He repeated the statement about his being Lebanese and again repeated that if he "couldn't have the kids then nobody would". [ 4 ] W.T. denies saying those words but I can say that if I am satisfied that the words had been uttered beyond a reasonable doubt, if at the end of the day that I am satisfied, then certainly those are words under these circumstances in the case of parents who are in the midst of very contentious Family Court proceedings, that it would be reasonable for the recipient of those threats to, as the case law says, feel that the words conveyed a threat of death or serious bodily harm. [ 5 ] Those are the elements of the offence.

There is no issue about who the individuals involved were. There is no issue that all of this took place on June 20th in Abbotsford, B.C. The issue is, in fact, whether or not the Crown has proven beyond a reasonable doubt whether the words were indeed spoken by W.T. [ 6 ] I do not intend to go over all of the parties' evidence because much of the evidence concerned the background of the family dispute that the parties are involved in. Suffice to say that it is less than amicable.

The parties have two children, a daughter, M.T., who is five will be turning six this coming January, and a son, A.T., who was born in July of 2010, so he would have just turned four this past summer. [ 7 ] The children were born in Lebanon but, according to the evidence of S.B., they have dual citizenship by virtue of having a mother who is a Canadian citizen. The children came to Canada in November of 2010. They have been here since then.

There was some discussion about returning to Lebanon and, again without ascribing any blame or fault in the relationship, the fact is that the children have never returned to Lebanon. [ 8 ] The parties' relationship subsequently deteriorated and family proceedings have now ensued. The parties were before Mr. Justice Truscott in the Supreme Court of British Columbia in, I understand, November of 2013. An order was made. That order was not tendered in evidence but I am told about a shared parenting time arrangement on a four-week rotating

schedule and some other conditions with respect to communication by e-mail and so forth. [ 9 ] I am told in the evidence that because of the tension in the relationship, the parties would exchange the children with little or no communication between the two of them. It was the evidence of S.B. that they would normally be about 30 feet apart from one another when the children were exchanged.

There would be text messages to tell one party that the other was coming and so it was not a healthy situation in terms of the communication between the parties. [ 10 ] There is a dispute in the evidence as to what took place at the exchange of the children on June the 20th.

It is the evidence of S.B. that when she took the children outside for the exchange, she remained standing in front of the garage and that normally the accused would not approach her but on this occasion he did, holding clothing in his hand, walked up in front of her about two to three feet away from her and said the words that I have summarized earlier. [ 11 ] W.T., in his evidence, denies that there was any incident whatsoever on the exchange. He said it was an exchange as usual. He pulled into the driveway, made a U-turn in the driveway such that the vehicle was facing out.

The children came to him, he put them in the car and left without the exchange that was described by the complainant. [ 12 ] The complainant testified that after having heard the words uttered to her, that she was somewhat in shock, was not sure what she was going to do about it. She did not call the police immediately. She said that she had a shift at work that she had to attend to. She said, "After he left, I had to be at work so I went to work." She testified that she was worried that she was going to be late. She had just started this job about a month ago and the exchange took place at about five o'clock.

She was supposed to be at work at 5:30 and so she said she went to work, calmed down, finished her shift, made some notes and called the police when she got home. It was her evidence that she did not call 9-1-1, that she called the main police number, the non-emergency number, and made arrangements for an officer to

take her statement later in the weekend. She testified in cross-examination that the reason that she did not call 9-1-1 immediately was that she had reason to believe that she was, as the Crown says, under a deadline that she had until the following Friday and then no harm would befall the children between then and the following Friday. [ 13 ] W.T. denies that this incident took place, as described by the complainant. Through his evidence, there is a motive to fabricate that is described. It is his evidence that under the order of Mr.

Justice Truscott, and as I say I have not seen the order but I do not think either party has disputed this, that there was to be a longer period of vacation happening that summer which was preceded by this incident and that, as a result of this incident and the police involvement, further court orders were obtained, the vacation was cancelled and, in fact, there has been no parenting time since this incident. [ 14 ] It is against that background, those two versions that I have to determine whether or not the Crown has proved the case beyond a reasonable doubt.

This is not a case which, unfortunately, and I say unfortunately for both parties, allows itself for much by way of corroboration. Corroboration is not required at law. This is not a case where, to convict, I have to find some corroborative or confirmatory evidence but I just simply say that it would be easier to decide if, for example, there had been a witness, there had been a recording or there had been some other confirmatory evidence. This is not a case where the court has been shown where either of the principal witnesses have been shown to have changed their evidence in any fashion.

The complainant gave a statement to police that weekend and I appreciate that there are semantic issues but I cannot point to any glaring error where I can say that the complainant has changed what she told the police on that occasion. Similarly, there has been no suggestion that the accused has changed his evidence in any fashion. I was not told of any statement that he gave to police and whether he did or not.

My point simply is that this is not a case where there is an "aha" moment which shows that either party has been untruthful in the evidence they have given to the court. [ 15 ] It is the position of the defence counsel that the case has not been proven beyond a reasonable doubt, that the complainant has a motive to fabricate, that being, to frustrate the court order for the vacation and to get an advantage in the Family Court proceedings. Mr.

Dykstra also says that I should be suspicious that a person who was in the position of believing that the lives of their children were in danger would wait to call police, as opposed to the actions of the complainant that I have discussed. Mr.

Dykstra also said that there were other reasons to question the complainant's integrity and he went over those in his submissions. [ 16 ] The Crown points out that the failure to call police immediately and to call the 9-1-1 emergency number is somewhat understandable under the circumstances because the complainant had the reason to believe that the children were not in any immediate danger, that they would be safe at least until the following Friday.

Crown also points out that the motive to fabricate ascribed to the complainant is too elaborate a plan for the court to seriously consider that this is something that the complainant would do.

Crown also asks that I should be suspicious about the evidence of the accused noting that in portions of his evidence, he did give long, non- responsive answers to very simply questions, suggesting that there was some intention on the part of the accused to be deceptive. [ 17 ] It is against this background that I have to decide not which side I think is telling the truth, not which side is more likely but whether or not the Crown has proven the case beyond a reasonable doubt.

In criminal cases, I have to keep in mind that the test in a criminal trial is not which side I believe but whether the Crown has proven the offence beyond a reasonable doubt. [ 18 ] The Supreme Court of Canada in a case called MacKenzie said: 'The two versions cannot be simply pitted against one another in isolation , rather all of the other evidence must also be considered.' I keep in mind that I must not examine the facts separately and in isolation with reference to the criminal standard.

Rather, I must consider whether, on the total body of evidence, viewed as a whole, the Crown has proven each essential element of the offence beyond a reasonable doubt. [ 19 ] Both counsel referred to the Supreme Court of Canada's decision in R. v. W.D. That is a case where the court gave directions to trial courts on what standard has to be followed when there is conflicting evidence. The court said: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 20 ] I just want to comment very briefly on what a reasonable doubt is because I think that is important in instructing myself in this matter as well. The Supreme Court of Canada in a case called R. v. Lifchus said that a reasonable doubt that the burden of proof, of course, rests on the Crown throughout the trial it never shifts to an accused.

A reasonable doubt is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It has to be logically connected to the evidence or to the absence of evidence. It does not involve proof to an absolute certainty nor is it proof beyond any imaginary or frivolous doubt but more is required than simply by concluding that the accused is probably guilty. [ 21 ] I would add to that that a reasonable doubt obviously cannot be based on any stereotype. There was some suggestion by Mr.

Dykstra that the use of the word "Lebanese" in the threat was part of a fabrication on the part of the complainant to raise perhaps in the minds of the police officers a prejudice that people might associate with persons from the Middle East region or the nation of Lebanon. Crown certainly has not asked the court to make any such inference and certainly it should be made clear here that there is no such inference that follows from that remark. [ 22 ] At the end of the day, therefore, I have to apply the test in R. v. W.D. and I simply say this.

Rather than going through an analysis of the portions of the accused's evidence that I accept and the portions that I do not accept and the portions that are left in doubt, in my view, this is a case where at the end of the day, and largely because of the absence of confirmatory or corroborative evidence and largely because this is a case where there is nothing inherently obvious from the evidence of either witness that they are not being

truthful with the court, that it is not a case where I can say beyond a reasonable doubt that one side is the absolute truth and the other side is not being truthful, it is not a case where I can say what each side is saying might not be true and I say that without expressing any preferences to which side that I think is more credible and I want to be cautious to do that because I am mindful of the fact that the parties are involved in Family Court proceedings. [ 23 ] If this was a case where I could clearly say that I reject the evidence of the accused beyond a reasonable doubt, then I think it would be appropriate for me to make those remarks.

However, given that this is a case where the parties are involved in Family Court litigation, I do not believe that it would be fair for me to put my thumb on the scale by making any adverse finding against either party that would give either side an advantage in the family dispute.

The fact is that on the evidence heard, at the end of the day, it is certainly a reasonable possibility that events unfolded as the complainant has testified but it is also a reasonable possibility that events may have unfolded as the accused has testified and because of that, at the end of the day, I cannot be satisfied that the Crown has met the burden of proof of proving the offence beyond a reasonable doubt. [ 24 ] Under those circumstances, W.T. is entitled to an acquittal and I, therefore, acquit him of the count that he is charged with, Count 1 on the Information 81243-KC3. K.D.

SKILNICK Provincial Court Judge