R. v. Berhane, 2020 ONCJ 574

CITATION: R. v. Berhane , 2020 ONCJ 574 DATE: February 7, 2020 Information No. 4821-998-17-75001761-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. DAWIT BERHANE C O U R T P R O C E E D I N G S BEFORE THE HONOURABLE MADAM JUSTICE S. O’CONNELL on February 7, 2020, at TORONTO, Ontario ********** APPEARANCES : C. Mullaly, Ms. Counsel for the Crown Dawit Berhane Unrepresented by Counsel O’CONNELL J. (Orally): THE COURT: All right, thank you. So this is my judgment in the trial of the criminal charge that Mr. Berhane was facing in this matter. Mr.

Berhane was charged on or about the 15 th day of April in 2017 with the charge of Uttering Death Threats, pursuant to s.264.1(1) of the Criminal Code , and more specifically was charged with on or about April 15 th , 2017 knowingly uttering a threat to Ms. Aregai his former wife to cause death or bodily harm to her, contrary to s.264.1(1) of The Criminal Code . This matter proceeded in the IDVC court as the family case also proceeded also in this court. The family law matter is resolved, but the criminal matter did not resolve and this proceeded to trial. This was a lengthy trial over the past year.

A number of trial dates were scheduled, partly as a result of the witnesses that needed to be called and summons that Mr. Berhane had requested, and also as a result of some adjournments that were granted to Mr. Berhane for him to find two witnesses that he was seeking for his defence, which I will address in more detail in this judgment. With respect to the issues of jurisdiction and identity, those are both conceded. It is not disputed that the alleged incident occurred in Toronto, and it is not disputed that Mr. Berhane was present during the alleged incident. It is the incident itself that is in dispute.

The Crown proceeded summarily, and by way of brief background with respect to the nature of the incident and the allegations leading to the charges against Mr. Berhane, I will summarize, but I will address in more detail through the course of the judgment.

On or about April 15 th , 2017 the allegations are that Ms. Aregai who is the former spouse of Mr. Berhane, after dropping the children of the relationship off at school, the two children at Brown Public School in Toronto, she saw that Mr. Berhane had been waiting in a car and he called her over to the car to discuss with her information regarding the name of the medical doctor for the children and medical information for the children, which he had been seeking from her and which there had been a dispute about. The parties were involved in family law issues at that time, and Ms.

Aregai had retained a family lawyer, and she did not wish to communicate with him or provide that information to him. The allegations are that the conversation or exchange between them became very heated, and that Mr. Berhane, in anger, threatened to chop her up into little pieces and cause bodily harm to her. As a result of that threat Ms. Aregai went back to her employment, and I will not get into all of the evidence at this point, but contacted the police and Mr. Berhane was subsequently charged on that day. With respect to the Crown witnesses, obviously Ms. Aregai the complainant was called to testify.

Her employer and manager at her place of employment, Ms. Jodie or Yodit Abraham, three police officers: Officer Witt (ph), Officer Kathelo, and Officer Palermo were called; as well the audio tape of the 911 call was heard on a number of occasions during the trial. I should point out that the 911 tape was listened to at the request of Mr. Berhane. He had raised a number of issues with respect to the 911 tape, As Mr. Berhane was self-represented throughout the trial, an order was made providing him with s.486 Counsel, who was Ms. Lydia Riva. Ms.

Riva was retained as s.486 Counsel, who are appointed by the Court to assist accused in cross-examining a complainant in criminal matters involving domestic violence, and Ms. Riva appointed and she conducted the cross-examination of Ms. Aregai on behalf of Mr. Berhane with his instructions. S he also agreed to stay and conduct the cross-examination of Ms. Abraham, Ms. Aregai’s employer. I should pointed out very briefly, and I will get into this in more detail as well, Mr. Berhane’s defence to this criminal charge. Mr. Berhane absolutely denies uttering any death threat.

It is his position that this was a false allegation made by the mother his former wife, motivated by her desire to ruin him or to cause harm to him; that she fabricated the allegations to obtain custody in the family law matters, and also that she works for a company that is involved in programs for domestic violence, and if I can understand this defence, and I will certainly flesh this out in more detail, that this company or work are involved with Toronto Police Services in providing

interpretation services for them, and that this program or this company somehow influenced the mother to make or fabricate these threats, and that in fact the 911 call, which we spent a great deal of time on in this criminal trial, was somehow tampered with or changed by unknown persons. I do want to say now, because Mr.

Berhane is self-represented, the Court was very mindful of that during this trial, and it was a lengthy trial as I indicated, lasting over a number of days: Where a party is self-represented, the Court must be mindful of the statement of principles on self-represented litigants and accused persons established by the Canadian Judicial Council and endorsed by the Supreme Court of Canada in Pintea v. Johns .

And in particular the Court must be mindful that access to justice for self-represented persons requires all aspects of the court process to be as much as possible open, transparent, clearly defined, simple, convenient and accommodating, and that judges and court administrators should do whatever is possible to provide a fair and impartial process and to prevent an unfair disadvantage to self- represented persons.

Judges should also ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons, and I was mindful of my duty in that regard, and attempted to explain the evidentiary burden on the Crown, the essential elements of the offence that Mr. Berhane was charged with, and to simplify rules of procedure and evidence, and to give ample opportunity to Mr. Berhane to call any witnesses in his defence and to determine whether he wished to testify in his own defence, explaining that to him as well. Mr. Berhane chose not to testify in his own defence.

Before I go to the

summary of the evidence, I will summarize the relevant law I have to apply in determining the issues in this trial. This charge is a Criminal Code offence, and as with all Criminal Code offences the onus is upon the Crown, on the totality of the evidence to prove beyond a reasonable doubt that the defendant is guilty of the offence charged. Mr. Berhane, like every person charged with a crime, is presumed to be innocent unless the Crown has proven

his guilt beyond a reasonable doubt. It is not enough for me to believe that he is probably or likely guilty; proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. The Supreme Court of Canada has commentated on the principle of proof beyond a reasonable doubt in several cases. In R. v.

Lifchus , Justice Cory of the Supreme Court of Canada stated, “The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt is inextricably linked to the presumption of innocence.” The jurors or the judge clearly understand the meaning of the term is of fundamental importance to our criminal justice system. It is one of the principal safeguards which seeks to ensure that no innocent person is convicted. Ordinarily even the most important decisions of a lifetime are based upon carefully calculated risks.

They are made on the assumption that certain events will in all likelihood take place, or that certain facts are in all probability true. Yet to invite jurors to apply to a criminal trial the standard of proof used for even the important decisions in life runs the risk of significantly reducing the standard to which the prosecution must be held. In R. v. Starr the Supreme Court of Canada stated that an effective way to define the reasonable doubt standard is to explain that it falls much closer to absolute certainty than proof beyond a balance of probabilities.

The central issue in this case is whether the Crown has proven beyond a reasonable doubt that Mr. Berhane knowingly uttered a threat to Ms. Aregai to cause death or bodily harm to her, contrary to s.264.1(1) of The Criminal Code . So before I summarize the evidence I am going to first of all summarize the essential elements of the offence or charge of Uttering Threats under s.264.1(1) .

I am going to summarize these briefly, but under the uttering threat to cause death or bodily harm in s.264.1(1) of The Criminal Code , the onus is on the Crown to prove beyond a reasonable doubt three essential elements of that offence. There are three elements that the Crown must prove beyond a reasonable doubt. Each essential element must be proven. First the Crown must prove beyond a reasonable doubt that Mr. Berhane made a threat. Second the Crown must prove beyond a reasonable doubt that the threat was to cause death or bodily harm to his former spouse Ms. Aregai.

And third the Crown must prove beyond a reasonable doubt that Mr. Berhane made the threat knowingly. The first element, did Mr. Berhane make a threat? The law is clear that a threat may be made by being spoken, written, or communicated in any way, and here the Crown is alleging that Mr. Berhane spoke these words to Ms. Aregai, “I am going to kill you, I am going to chop you into little pieces.” The second element of the offence, was the threat to cause death or bodily harm to Ms. Aregai?

And in that element of the defence the Crown must prove beyond a reasonable doubt whether the words used in the threat to cause death or bodily harm meet that second element. As a judge I have to consider the words used to utter the threat from the point of a reasonable person in similar circumstances. I have to consider and take into account the plain and ordinary meaning of the words, the circumstances in which were used, the manner in which the words were communicated, the person to whom the words were communicated, and the nature of any prior or existing relationship between the parties.

And here the Crown is alleging that the words should be taken in their plain and ordinary meaning. The Crown is alleging that Mr. Berhane said, “I am going to kill you and chop you up into little pieces.” The circumstances, the Crown is alleging, were not a joke, they were not made in jest. The circumstances, the Crown is alleging, is that Mr. Berhane and his former spouse were going through a very difficult and acrimonious separation; that Mr. Berhane was angry and upset about what he perceived as information that was not forthcoming from Ms. Aregai, and that Mr.

Berhane communicated this threat in a threatening manner designed to intimidate Ms. Aregai. That is what the Crown is alleging, and they want the Court to find this beyond a reasonable doubt. The third essential element of the offence is, did Mr. Berhane make the threat knowingly? And in order for the Crown to prove that element beyond a reasonable doubt the Crown must prove that Mr. Berhane knew when making the threat that this would cause Ms. Aregai to feel intimidated and to take the offence seriously, that it was a serious threat, and that Mr. Berhane knew that she would feel

afraid or intimidated, or take the threat seriously; that Mr. Berhane’s mind or his mental state at the time knew that it was meant to be intimidating. So those are the three essential elements of the offence that the Crown must prove beyond a reasonable doubt. I am going to now summarize the evidence that I heard in this trial. The first element, that Mr. Berhane made the threat. As I indicated, Ms. Aregai testified in this trial and was cross-examined vigorously by the 486 Counsel, Ms. Riva. Ms.

Aregai testified that as she was coming back from dropping her children off at school on the morning of April 15 th , 2017 she saw that Mr. Berhane was parked in a car close to where she was walking after dropping the children off at school, and he motioned her to come over. They engaged in a discussion that became heated, and that Mr. Berhane said, when she refused to give him the medical information with respect to the children that he was requesting, she testified that Mr.

Berhane got “really upset,” and I quote from her testimony at the trial, after she refused to give him that information he was sitting in his car, she was standing outside of the car. After she refused to give the information she testified, “That is when he got really upset and he said, ‘Give it to me now, you don’t listen, you refuse to answer my questions, stop acting like such a bitch, but don’t make me get out of this car.

I will spit at you, I will chop you, I will kill you, I will chop you into pieces.’ And then he just got out, like he rolled his windows and he was getting a bit more aggressive.” At several points in her testimony Ms. Aregai repeated the allegation of the threat. It was consistent and it did not change. At another point in her testimony she again reiterated that he threatened to get out of the car, “Don’t make me get out of this car, I will chop you into pieces and I will kill you.” The evidence is very clear that the first essential element of the charge, the threat, was made. Ms.

Aregai was cross-examined extensively with regard to that threat and in my view in listening to her evidence carefully she never resiled from the threat that was made. Her evidence on that point was very consistent, and not shaken in cross-examination. The second element of the threat, whether or not the words were used to cause death or bodily harm, and as I indicated earlier how the Crown must prove each essential element beyond a reasonable doubt, as a judge I must take the plain and ordinary meaning of the words to assess whether the words used were to cause death or bodily harm.

It is clear that the plain and ordinary meaning of the words “I will chop you into pieces and I will kill you” means death, and I accept that “I will chop you into pieces and I will kill you” are plain and ordinarily to mean to cause death or bodily harm. Further, the plain and ordinary meaning of those words I find were uttered in anger. All of the circumstances surrounding how the incident unfolded clearly demonstrated that it was not meant to be a joke. The parties were engaged in, as I indicated, a very high conflictual dispute in the family matters. Mr. Berhane was angry Ms.

Aregai also testified that during this time and throughout their separation Mr. Berhane was angry, and certainly at the time of the incident she described his tone to be angry, she described his tone to be shouting. The evidence was clear on that, and she also testified that he called her a bitch or a whore and he used these words interchangeably. So I find that in the context of the words used and in the plain and ordinary meaning of the words, the manner in which they were uttered were to cause death. The third element of the offence, whether Mr. Berhane knew that the words he uttered were u ttered to cause Ms.

Aregai to feel frightened or intimidated. In reviewing all of the evidence at trial, and particularly Ms. Aregai’s evidence, I do find that the evidence establishes that Mr. Berhane knew that the words used, the threat would cause Ms. Aregai to feel frightened and intimidated.

Ms. Aregai testified in very compelling testimony, not shaken by cross-examination, she was not expecting Mr. Berhane to be waiting in his car outside the school when she dropped the children off. She testified, “I was confused because he came out of nowhere and he was asking me for this information. I felt I was ambushed when I was heading to work after dropping the children off at school.” He had not made any arrangements to speak to her, and that she was just crossing the street to go to work.

She testified that after the threats were made she became very frightened, and rather than take public transit to work which she normally does, given that Mr. Berhane appeared, as she described, out of nowhere, unannounced, unexpected, demanding this information, in a relationship, at the time, that was very distant and conflicted, she did not feel safe taking the bus.

She called an Uber, according to her testimony, to take her to work, and her testimony was that she was very concerned that he would be following the Uber to her workplace, and that she talked to the Uber driver about this, and she ensured that the Uber driver drove her directly to work. I do want to say as well that during her testimony, which was not challenged or disputed in this trial, that Ms. Aregai stated repeatedly that before the threat was made Mr.

Berhane stated, “Don’t make me get out of this car.” She said that on a number of occasions, that preceded the threat, and she repeated it a number of times in her evidence. It was not challenged in cross- examination, and I find that those words uttered by Mr. Berhane, not disputed, suggest that Mr. Berhane knew this was meant to intimidate Ms. Aregai. He knew by saying, “Don’t make me get out of this car,” is designed to intimidate and certainly it did. Ms. Aregai decided not to take the public transit to work that day, she called an Uber to get to work as quickly as possible. We also have the evidence of Ms.

Abraham, Ms. Jodie Abraham, the manager and employer of Ms. Aregai. She testified that when Ms. Aregai arrived at work she was visibly upset, she was crying, she was shaking, and that she knew that she was upset. Ms. Abraham testified that initially Ms. Aregai did not tell her what was wrong, although she was aware that there were some issues with her ex- husband, but eventually she learned that Ms. Aregai had called the police and spoke to 911 about what had occurred on that day. And Ms. Abraham’s description of how frightened, upset and crying Ms.

Aregai looked when she arrived at work that morning shortly after the threat very much corroborated Ms. Aregai’s evidence of how afraid she was and how agitated she was after the threat. I find that Mr. Berhane knowingly uttered those words with the purpose to intimidate Ms. Aregai. In listening very closely to her evidence, in considering all of the circumstances, I will say there was also testimony and evidence that this was not the first time these threats were made, but it was the first time that Ms.

Aregai decided to call 911, and in cross-examination when asked she testified very forthrightly that she had talked to family members of Mr. Berhane, she talked to his brother and his sister, her former brother- and sister- in-law, with an attempt to have his family members speak to him and caution him about these kinds of threats to her. And when asked if she had ever said to his brother that she would call the police, which would not be good for Mr. Berhane, she said yes, she did do that, she was very clear about her testimony that that was to hopefully stop him from continuing this kind of behaviour.

I also want to point out that in determining whether or not Mr. Berhane is guilty of this offence, the Crown does not need to prove that Mr. Berhane was going to kill Ms. Aregai or was going to chop her into pieces, or that he had any intention to do so. That is not the requirement of this offence. The Crown only needs to prove beyond a reasonable doubt as to whether Mr. Berhane said those words, and whether he knowingly said those words to intimidate Ms. Aregai. I also have in addition to the evidence of both Ms. Aregai, and Ms. Abraham which corroborated Ms.

Aregai’s evidence and which was consisted and not shaken in cross-examination, I have the evidence of the three police officers who described being called that morning, and took detailed notes of the threat and corroborate consistently the description of the events that Ms. Aregai testified to. I will also say that Ms. Aregai did give evidence with respect to the context in which these threats were made, and she did describe, and there was evidence of a relationship, and a context where Ms. Aregai was already afraid of Mr. Berhane. She testified when asked, what if any difficulties you had with Mr.

Berhane’s behaviour, she testified that their communications should have been about him having a relationship with his children, “But it was not, it was always about me, so every time there was a conversation he would target his issues with me and about me trying to live my life, and not how it would impact the children.”

And she described previous incidents where Mr. Berhane would warn her if she ever brought a man to the house, and what he would do if she did that, and how all of their conversations were about her and not the children. So this context also corroborates the findings that I have made today. I also want to point out that when I found that the evidence of Ms. Jodie Abraham further corroborates the veracity, reliability and credibility of Ms. Aregai with respect to the threat, Ms. Abraham her employer testified very clearly that she was not a friend of Ms. Aregai.

She had only socialized with her once, when she had invited all of her staff over to her home for a work barbeque, as she invited every member of her staff on annual basis. She also testified that she did not know the details of her relationship with her former husband, she did not normally confide in her, that she just knew that there was something going on, and she was very clear in how upset and crying and afraid she was when she arrived at work that way, and when Ms. Aregai finally told her what Mr. Berhane said, Ms. Abraham testified that she said, she should call the police.

With respect to the police officers, as I indicated they testified that they received information. They interviewed Ms. Aregai, they took a statement, and their notes corroborate what occurred. So I have evidence of in my view independent and objective witnesses as well. Now with respect to Mr. Berhane’s defences, as I indicated Mr. Berhane chose not to testify on his own behalf. Given that he was self- represented I certainly gave Mr.

Berhane every opportunity to seek any legal advice that he wished to seek or to consider how he wished to proceed, and I also directed the Crown to ensure that the 911 tape was available. Mr. Berhane wanted the 911 tape to be played, and we listened to that on a number of occasions. Mr. Berhane wanted all three officers to be called, and I directed the Crown to do that for Mr. Berhane. Mr. Berhane also wanted the assistance of 486 Counsel to assist in his cross-examination of the employer, which I also directed the 486 Counsel to do in addition to cross-examining Ms. Aregai. If I understand Mr.

Berhane’s defences, or defence, it appears in Mr. Berhane’s cross- examination of the police officers, he was suggesting that Ms. Aregai was not afraid or was not intimidated by the threat because they called her to come downstairs to the lobby or outside of the building where she works to be interviewed, and rather than giving a statement in her building to them upstairs she came downstairs by herself without anyone and she met the police in the lobby, and therefore she could not have been afraid because she met the police in the lobby of her building rather than meeting them in her office, if I understood Mr.

Berhane’s defence. And although I listened carefully to that defence, at that time in my view it was a number of hours after the incident had occurred, alone, where she described seeing Mr. Berhane out of nowhere, waiting for her after she dropped the children off at school. There was no reason for Ms. Aregai to be afraid of Mr. Berhane at the time she called the police. They were waiting for her down in the lobby, and that she, at that point, went down and met with them in the lobby. And certainly the Crown does not need to prove that at that time she was afraid. Secondly Mr.

Berhane throughout the cross- examination of a number of witnesses has asked witnesses about the nature of the kind of work that Ms. Aregai is now doing, and the company that Ms. Aregai was working for at the time. At the time she was employed for approximately one year with a company that, if I understood it, provided

interpretation services for Toronto Police Services, and Mr. Berhane has submitted, or through cross-examination appeared to be suggesting that this company worked in issues involving domestic violence, or had domestic violence programs that they had created, and that this company and the managers or employers of the mother were somehow unduly influencing her, and encouraging her to fabricate these threats or to push her into calling the police. There was absolutely no evidence of that in this trial, if I understood Mr. Berhane’s theory. Mr. Berhane’s theory also involved the 911 tape.

When we listened to the 911 tape a number of times at Mr. Berhane’s request, it was Mr. Berhane’s submission to me that this 911 tape had been somehow tampered with, and the 911 tape that he had listened to that had been disclosed to him with his s.486 Counsel and her law clerk was different, and that this 911 tape had somehow been tampered with by persons unknown, and he wished to subpoena the 911 operator and another individual that he believed would know this.

I did grant Mr. Berhane a number of adjournments to allow him to find these witnesses. He did not find these witnesses, but at some point I had to no longer grant Mr. Berhane an adjournment, and we needed to conclude the trial given the delay. Having said that, out of an abundance of fairness for Mr. Berhane, what I told him is that given that this was his theory that the 911 tape was somehow tampered with, and he was not able to find these witnesses, I would not rely on the 911 tape in determining my decision in this criminal trial.

So I have not relied on the 911 tape, I have completely disabused myself of anything in the 911 tape given that Mr. Berhane believes it was somehow tampered with, and I am not considering that evidence at all in determining the outcome of this trial, and that is what I indicated to Mr. Berhane, which is what I intend to do. But with respect to what appears to be some kind of conspiracy theory that the manager Ms. Abraham, or someone else in the organization influenced Ms. Aregai to call the police, there is no evidence of that at all. And secondly Ms.

Aregai in her own testimony, when she describes getting an Uber driver to come to work because she was so afraid of taking public transit, testified that she was thinking while coming to work in the Uber that she was going to call the police, at this point in the relationship, even before she spoke to her manager at work. And I would also point out that in cross-examination she admitted to telling Mr. Berhane’s brother that she contemplated calling the police, and was cautioning Mr. Berhane’s brother and sister to speak to Mr. Berhane about this behaviour so that she did not have to call the police. So Ms.

Aregai had already contemplated calling the police on her own. So there was no evidence of any tampering with the evidence of Ms. Aregai. Ms. Aregai was an articulate, direct and reliable witness. There was no evidence to refute her testimony. And she did not shy away from being cross-examined on not telling Mr. Berhane the medical information that he wanted. She repeatedly testified that he asked for it and she said no. Whether that was reasonable or not is not for this Court to decide, but she answered those questions forthrightly, and her evidence throughout her testimony was clear and consistent.

So in my view, in considering all of the evidence before me in this trial, the Crown has met its burden and prove beyond a reasonable doubt all three essential elements of the offence, and I do find that Mr. Berhane is guilty of knowingly uttering a threat to Ms. Aregai to cause death or bodily harm contrary to s.264.1(1) of The Criminal Code . I am satisfied beyond a reasonable doubt that the charge has been made out, and Mr. Berhane will be found guilty of that charge. Thank you. I am not in a position today to consider sentencing. I am not sure what the Crown’s position will be, and whether Mr.

Berhane wishes to seek Counsel before we conduct the sentencing hearing. And does the Crown have a position with respect to sentencing? MS. MULLALY: No, as of course you know Ms. Faria ph) was conducting... THE COURT: Yes,... MS. MULLALY: ...this trial. THE COURT: ...Ms. Faria conducted this trial. She is not here right now. MS. MULLALY: Right. THE COURT: So she probably would want to do the sentencing. MS. MULLALY: Yes, she wants to attend for the sentencing, and we wish to get a victim impact statement. THE COURT: Oh yes, of course.

MS. MULLALY: So Ms. Faria will be back in March. I know Your Honour’s next date is March 27 th , and then April 24 th , I think Ms. Faria will be there both those days. THE COURT: So which date would you prefer Mr. Berhane, March 27 th ? DAWIT BERHANE: What days are they again? MS. MULLALY: March 27 th or April 24 th . DAWIT BERHANE: April 24 th . MS. MULLALY: April 24 th ? DAWIT BERHANE: Yes. MS. MULLALY: All right. THE COURT: Okay. April 24 th , thank you. So the sentencing is adjourned to April 24 th , at 10:00 a.m. in this courtroom. Thank you very much. DAWIT BERHANE: Thank you.

THE COURT: And I thank you both. MS. MULLALY: Thank you. Just, you get a reminder slip sir? THE COURT: Yes. DAWIT BERHANE: Yes please. THE COURT: All right. And I am not sure of Victim Witness is in the courtroom, but are those steps being taken? MS. MULLALY: For the victim impact statement? THE COURT: I do not know if Ms. Aregai knew that I was delivering my judgment today,... MS. MULLALY: All right, well -- THE COURT: ...so I have asked the Barbara Schlifer worker to contact Victim Witness to ensure that she is... MS. MULLALY: Right. THE COURT: ...notified. MS. MULLALY: Okay. THE COURT: Yes, thank you. MS.

MULLALY: I - I would think that -- THE COURT: She should be notified. MS. MULLALY: Mr. Clerk is just pointing out there’s two Counts on the Information, so. THE COURT: Yes.