R. v. M. R. A. Date:, 2017 BCPC 289

Citation: R. v. M. R. A. Date: 20170912 2017 BCPC 289 File No: 9157-1 Registry: Burns Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M. R. A. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. T. DOULIS Counsel for the Crown: L. Feinberg Counsel for the Defendant: J. McCarthy Place of Hearing: Burns Lake , B.C. Date of Hearing: March 29 and July 28, 2017 Date of Judgment: September 12, 2017 Introduction

[ 1 ] M.R.A. is before the court today charged under Information 9157-1 with the sole count of knowingly uttering a threat to L.H., to cause her death or bodily harm, contrary to s. 264.1(1) of the Criminal Code . [ 2 ] L.H. says that on June 28, 2016, while sitting in her closed vehicle parked outside the Thrift Store in Burns Lake, B.C., M.R.A. came up to her vehicle, hit the window, opened the door, called L.H. a whore and threatened to “fucking get” her and kill her. M.R.A. swung her hand and keys at L.H. in a menacing fashion.

L.H. says she had been the target of M.R.A.’s animus for some time as the result of L.H. having an intimate relationship with M.R.A.’s partner, A.T. [ 3 ] M.R.A.’s hostility and conduct frightened and embarrassed L.H. [ 4 ] M.R.A. denies L.H.’s allegations or harbouring hostility against her. Issues [ 5 ] The sole issue in this case is the credibility of the witnesses. Background Facts [ 6 ] M.R.A. and L.H. have both lived in Burns Lake, B.C., most of their lives and continue to do so.

They have known each other for many years. [ 7 ] M.R.A. is in a five year relationship with her partner, A.T. [ 8 ] L.H. lives on [omitted for publishing] in Burns Lake with her partner, D.O., and her nine year old daughter, Z.H. [ 9 ] In 2015, L.H. was the manager of the [omitted for publishing] in Burns Lake, B.C., at the same time as A.T. was an employee.

At this time, A.T. and M.R.A. had been in an intimate relationship for several years. [ 10 ] On January 22, 2015, A.T. was arrested and charged with assaulting and unlawfully confining M.R.A. as a result of an incident which occurred on January 10, 2015. [ 11 ] At some point after January 22, 2015, A.T. was arrested and taken into custody. On September 22, 2015, he appeared in Burns Lake Provincial Court before Judge Birnie.

On that day, A.T. entered into a Recognizance of Bail to a Judge (“the Recognizance”) on Information 8941-1-K, by which he was charged with assaulting and unlawfully confining M.R.A. on January 10, 2015. [ 12 ] Also on September 22, 2015, L.H. became A.T.’s surety on the Recognizance.

The surety was for $1,000, without deposit, and contained a number of conditions, including the following: Condition 3 required A.T. to live with L.H. and D.O. at their residence at [omitted for publishing], Burns Lake, B.C.; Condition 5 bound A.T. to a curfew by being inside his residence between 9:00 p.m. and 7:00 a.m., with some exceptions, one of which was that he had to be in L.H.’s immediate company; Condition 8 prohibited A.T. from having direct or indirect contact or communication with M.R.A.; and Condition 9 prohibited A.T. from attending at M.R.A.’s residence, school or workplace. [ 13 ] L.H. commenced an intimate relationship with A.T. and they relocated from the [omitted for publishing] residence to a trailer on the [omitted for publishing] Reserve in Burns Lake.

L.H. says she understood A.T.’s relationship with M.R.A. was over as a result of the criminal proceedings and no contact orders. L.H. testified: [A.T.] made sure I didn’t think he was still seeing M.R.A., of course ... Because then I would have to turn him in and he would go back to jail. I’m not going to pay a thousand dollars. [ 14 ] As his trial against M.R.A. approached, Mr. A.T. began violating the conditions of his bail by staying out late and having contact with M.R.A. On January 6, 2016, at 2:00 a.m.

L.H. called the police to report that A.T. had not returned home and was in breach of his curfew. [ 15 ] The RCMP investigated L.H.’s complaint and on January 11, 2016, arrested A.T. for breaching his Recognizance on January 6, 2016, by failing to comply with his curfew. [ 16 ] At some point, L.H. also became a complainant against A.T. and was required to attend court with respect to criminal charges against him for assault. [ 17 ] As a result of their respective relationships with A.T., L.H. and M.R.A.’s relationship became acrimonious. [ 18 ] On June 18, 2016, M.R.A. and L.H. became engaged in an altercation giving rise to these charges outside the Thrift Store on Third Avenue in Burns Lake, B.C.

M.R.A.’s Evidence [ 19 ] M.R.A. has lived in Burns Lake, B.C., most of her life. She admits to having a troubled history arising from her addictions to drugs and alcohol. [ 20 ] In 2016, M.R.A. worked at the [omitted for publishing], which I understand to be the [omitted for publishing]. The [omitted for

publishing] is located beside [omitted for publishing], across the highway from the [omitted for publishing]. [ 21 ] M.R.A. described her relationship with A.T. as rocky, one marred by periods of alcohol abuse. Nevertheless, they never separated and their relationship is “fine now.” [ 22 ] M.R.A. said her relationship with A.T. was ongoing when L.H. was A.T.’s surety in 2015-2016. M.R.A. testified: I didn’t know they started fooling around with each other. He was playing both of us. [ 23 ] M.R.A. learned of L.H. and A.T.’s affair in December 2015. At that time she was trying to deal with her own alcoholism.

She says she wasn’t upset at L.H.; she didn’t care about L.H.; she just wanted peace in her life. [ 24 ] M.R.A. recalls encountering L.H. outside the Courthouse in the spring of 2016 when A.T. was in court with respect to one or more of his matters. M.R.A. was standing outside the courthouse with A.T.’s aunt, B.T. M.R.A. saw L.H. outside the court house before court commenced. The only thing she said to L.H. was: “What are you doing here?” [ 25 ] While M.R.A. and B.T. were standing outside the courthouse, one of M.R.A.’s co-workers was across the street outside the [omitted for publishing] building.

The co-worker asked M.R.A. if she was returning during the lunch break. M.R.A. hollered to the co- worker she should just lock up the office. [ 26 ] M.R.A. denied yelling at or threatening L.H. at this time. June 28, 2016 Incident: M.R.A.’s Version [ 27 ] M.R.A. says on June 28, 2016, she was at her [omitted for publishing] job, working. She had to deliver some photographs to the [omitted for publishing] for salvaging.

On her return to [omitted for publishing], while on the sidewalk, L.H. drove by and “fingered her” and said some swear words or “whatever.” M.R.A. didn’t remember seeing anyone else in L.H.’s vehicle because she “wasn’t paying attention.” M.R.A. also claims that L.H. and her sister were frequently harassing her at her workplace. [ 28 ] L.H. parked by M.R.A.’s workplace, outside the [omitted for publishing]. M.R.A. walked over to where L.H. was parked and tapped on the window. She told L.H. to leave her alone. L.H. sneered and swore at M.R.A.; L.H. said she wasn’t scared of her.

M.R.A. opened the door and pointed at L.H. and said, “Fucking leave me alone.” M.R.A. wasn’t angry, she just was fed up with L.H.’s harassing behaviour and wanted to be left alone. At the time, M.R.A. was wearing a sundress. She had her office keys on a long strap. If her keys flew forward when M.R.A. pointed at L.H., this was not her intention. [ 29 ] M.R.A. denied telling L.H. that she wanted to kill her.

She said, “No, mam, I would never say anything like that, when I was on the job or otherwise.” [ 30 ] In cross-examination, M.R.A. admitted to her criminal record and to a conviction in 2013 for uttering threats. M.R.A. explained the conviction arose from an incident which occurred when she was a very bad alcoholic. L.H.’s Evidence [ 31 ] Although L.H. has known M.R.A. for over ten years, it was not until L.H. began an intimate relationship with A.T. that M.R.A. began to hate her. [ 32 ] L.H. crossed paths with M.R.A. when attending at court for one or more of A.T.’s matters.

M.R.A. glared at and made denigrating and threatening remarks to L.H., such as “fuck you” and “I’m going to get you, you fucking bitch.” [ 33 ] L.H. received troubling text messages from A.T.’s phone at a time when A.T. was in jail. She believes the messages were from M.R.A., because one begins, “this is M., bitch” and another told her karma was going to get her. [ 34 ] L.H. also received threatening messages sent from M.R.A.’s phone number which L.H. reported to the police. [ 35 ] From these text communications, L.H. concluded that M.R.A. believed she stole A.T. from her.

M.R.A. called her a “home wrecker” and accused L.H. of trying to hurt her and destroy her life. [ 36 ] L.H. said that after A.T. went to jail in January 2016, and L.H. moved out of the trailer on the reserve, M.R.A. told her daily to kill herself. L.H. complained to the police about M.R.A.’s conduct. [ 37 ] L.H. recounted an incident in the spring of 2016, while she and M.R.A. were at the Burns Lake courthouse for one or more of the criminal proceeding involving A.T.

M.R.A. saw L.H. in the waiting area inside the court house and said to her, “What the fuck are you doing here?” L.H. believed M.R.A.’s remarks could be heard by others in the waiting area, including police officers. L.H. responded to M.R.A., “It’s a public courthouse. I’m allowed to be here” and sat down. The Crown asked L.H. to go to the RCMP station during the lunch break to prepare a Victim Impact Statement. [ 38 ] Constable Goble, who was present in the waiting area, offered to walk L.H. to her car. L.H. declined the offer, saying, “It should be fine ... I'm not going to start anything.

I'm just going to go out to my car ...” [ 39 ] When she tried walking to her car, M.R.A. and her companions blocked her path so L.H. walked on the grass to avoid them. M.R.A. said “fuck you” to L.H. and then shouted at her, “I am going to get you, you fucking bitch.” [ 40 ] M.R.A.’s hostility frightened L.H.

[ 41 ] L.H. said that she had tried to show M.R.A. kindness. She did not think it fair that M.R.A. should be hurt or think badly about herself for being hurt by A.T., who lied to both of them. The June 26, 2016 Incident: L.H.’s Version [ 42 ] On June 28, 2016, L.H. was with her daughter Z.H., age 8, and Z.H.’s two friends, A.C. and J.R., ages 10 and 11 respectfully. She had planned to take them to the beach. L.H. drove down Third Avenue and stopped at the [omitted for publishing] so the girls could shop for an hour before it closed.

While the girls were inside the [omitted for publishing] shopping, A.C. began squabbling with Z.H. over a shirt they both wanted to buy. L.H. became annoyed, left the [omitted for publishing] and went back to her vehicle. She sat in the driver’s seat and sent a text on her cell phone to J.R.’s grandmother, L.R. L.H. was upset at Z.H.’s misbehaviour and decided to drop A.C. and J.R. off with L.R. and take Z.H. home instead of going to the beach. [ 43 ] While texting, L.H. heard someone smack her window very hard. She looked up and was surprised to see M.R.A.

L.H. had not seen M.R.A. earlier day and was not expecting to see her then. [ 44 ] M.R.A. called L.H. a whore and yelled at her to get out of the car. L.H. told M.R.A. she had three kids with her who were in the [omitted for publishing], and she hadn’t done anything to her. L.H. told M.R.A. she wasn’t afraid of her and to leave her alone. This verbal exchange occurred while L.H. was sitting inside her vehicle, with the closed door and windows shut. [ 45 ] M.R.A. opened the driver side door, which was unlocked.

She stood one to two feet away from L.H., who told M.R.A. she wasn’t afraid of her, but M.R.A. needed to leave her alone. M.R.A. made backhand swinging motions with her right arm and hand as though she was going to hit L.H. in the face. At the time M.R.A. had her hand closed around some keys attached to a lanyard. While making these gestures, M.R.A. said to L.H. in a mocking tone, “Oh, you’re not afraid of me? You’re not afraid of me?” L.H. put her hand up to protect her face against M.R.A.’s hand.

L.H. flinched when M.R.A.’s hand came near her face. [ 46 ] M.R.A. started swinging her keys on the now extended lanyard toward L.H.’s face two or three times. She taunted L.H., saying, “Oh, you’re not afraid of me? You’re not afraid of me”. L.H. said, “No, I’m not, leave me alone. I haven’t done anything to you, M. Can you please leave me alone?” M.R.A. yelled, “You haven’t done anything? You haven’t done anything? Fuck you, L.” [ 47 ] M.R.A.’s keys hit L.H.’s arm, but never made contact with her face. M.R.A. stopped swinging the keys towards L.H.’s face.

Still yelling, M.R.A. called L.H. a whore, threatened to “fucking kill” her and “get her one day.” [ 48 ] This incident lasted for approximately five minutes. During this entire time, L.H. was sitting in the driver’s seat of her vehicle and M.R.A. was standing within two feet of the open driver’s side door. The incident ended with M.R.A. leaving as suddenly as she had appeared. [ 49 ] Just as M.R.A. left, L.H. saw Z.H., J.R. and A.C. standing in the open doorway of the [omitted for publishing] watching these events unfold.

The girls started walking towards L.H.’s car, but L.H. told them to get back inside the [omitted for publishing] because she did not know where M.R.A. went or if she was going to return. [ 50 ] L.H. called L.R. to come down and take the girls. L.H. also called her boyfriend, D.O., and the police. [ 51 ] L.H. is fairly certain she did not swear at M.R.A. during this altercation, but concedes she may have because she does have “a trucker’s mouth”. L.H. denied absolutely “flipping L.H. the bird” or “fingering her” earlier that day. [ 52 ] L.H. says M.R.A. was wearing a dark T-shirt and dark jeans.

She was wearing her sunglasses on her head as a type of hair band. During this altercation M.R.A. carried her keys on a lanyard in her right hand and in her left, a black leather purse and an Overwaitea grocery bag containing some belongings. [ 53 ] L.H. said that as a result of this interaction she felt scared, anxious, bullied, and intimidated. She was also embarrassed and concerned because she had three girls with her who were watching this scene from inside the [omitted for publishing]. L.H. said: “I’m 34 years old ...

She’s more than that ... who wants a brawl outside of the [omitted for publishing]?” [ 54 ] L.H. also said she took M.R.A.’s threats to kill her seriously because she had said it to her in the past. She did not necessarily believe that M.R.A. would kill her, but did believe she would actually really hurt her. [ 55 ] L.H. adamantly denied the suggestion that M.R.A. was only pointing her finger at her and asking to be left alone. Evidence of Constable Goble [ 56 ] Constable Deborah Goble is a member of the RCMP, Burns Lake detachment.

At 2:20 a.m. on January 6, 2016, the RCMP received a call from L.H. reporting that A.T. had not returned home as required by the terms of his bail. Constable Goble and Constable Phillips investigated the complaint.

They went to L.H.’s residence and confirmed that A.T. was in fact not in the residence as required by his recognizance of bail. [ 57 ] Constable Goble went to L.H.’s home on January 11, 2016, at 2:00 p.m., and arrested A.T. for failing to comply with his curfew on January 6, 2016. [ 58 ] Constable Goble understood that as of January 11, 2016, L.H. and A.T. were living together as a couple. [ 59 ] Constable Goble was present in the courthouse approximately two to three weeks prior to June 28, 2016, with respect to one or more of A.T.’s matters.

She was sitting in the lobby area of the courthouse near the double glass door entrance. Constable Goble heard yelling from outside in front of the courthouse. She walked to the glass doors and observed M.R.A. yelling. At the time, M.R.A. was standing on the cement pad at the top of the walkway up to the court house doors.

[60] Constable Goble went outside and confirmed it was M.R.A. yelling although she could not distinguish her words. WhenConstable Goble went outside M.R.A. stopped yelling and walked into the parking lot area. M.R.A.’s yelling went on for under fiveseconds. [61] Constable Goble was not asked in cross-examination if she observed M.R.A.’s co-worker standing across the street or if itappeared that M.R.A. was yelling at this person. [62] Constable Goble observed L.H. standing outside, looking shaken.

Constable Goble asked L.H. if she was okay, and L.H. saidshe was. [63] Constable Goble saw M.R.A. leave the parking lot area and did not see M.R.A. interact with L.H. that day. [64] Constable Goble does not recall offering to escort L.H. outside of the courthouse nor did she walk her to the courthouse door. She did not recall opening the court house door for L.H. or observe L.H. leave the court house. [65] Constable Goble also attended the [omitted for publishing] at 3:50 p.m. on June 28, 2016. She came to back up Constable St.Pierre who had responded to L.H.’s complaint.

Constable Goble said that when she arrived L.H. was sitting in her vehicle, which waspointed south, directly in front of the [omitted for publishing]. Constable St. Pierre was sitting in her own vehicle, across the street fromthe [omitted for publishing]. Applicable Legislation and Case Law [66]

Section 264.1 – Uttering Threats 264.1(1) 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; ... [67] The elements of the offence include: (1) the utterance or conveyance of a threat to cause death or serious bodily harm and (2) anintent to threaten: R. v. McRae, 2013 SCC 68 . [68] In McCrae, the Supreme Court of Canada held the issue of whether the impugned words constitute a threat is to be decided onan objective standard. In order to prove the wrongful act, the Crown must prove beyond a reasonable doubt the impugned words wereones a reasonable person would consider a threat.

In McCrae, the court stated at para.16: 16. ... the prohibited act of the offence of uttering threats will be made out if a reasonable person fully aware of the circumstances inwhich the words were uttered or conveyed would have perceived them to be a threat of death or bodily harm. At para. 11, the court states: 11. The starting point of the analysis should always be the plain and ordinary meaning of the words uttered.

Where the words clearlyconstitute a threat and there is no reason to believe that they had a secondary or less obvious meaning, the analysis is complete. [69] The objective standard requires me to consider whether the impugned words, viewed objectively, in the context in which theywere spoken and having regard to the person to whom they were directed, would convey a threat of serious bodily harm to a reasonableperson. The issue turns on the meaning that a reasonable person would attach to the words viewed in the circumstances in which theywere uttered or conveyed (McRae at para. 13). Justice Weatherill in R. v.

Narwal, 2013 BCSC 230, at para. 16, set out some of thecircumstances relevant to the application of the objective test: [16] It is clear from the foregoing that the actus reus of the offence set out at s. 264.1 of the Code of uttering threats of death orserious bodily harm is to be analyzed objectively considering all of the circumstances in which the words were spoken, including: a. the actual words spoken; b. the circumstances in which the words were uttered; c. the manner in which they were spoken; d. the person to whom they were addressed and that person’s situation; and e. the speaker and that person’s situation [70] In order to prove the criminal intent, the Crown must prove beyond a reasonable doubt the accused intended the impugnedwords uttered or conveyed to be taken seriously or to intimidate.

The Supreme Court in McCrae states at para. 23: 23. To sum up, the fault element of the offence is made out if the accused intended the words uttered or conveyed to intimidate or tobe taken seriously. It is not necessary to prove an intent that the words be conveyed to the subject of the threat. A subjective standard offault applies.

However, in order to determine what was in the accused’s mind, a court will often have to draw reasonable inferences fromthe words and the circumstances, including how the words were perceived by those hearing them. [71] McCrae, at para. 24, the Supreme Court makes it clear that threats of violence are inherently violent and not a means ofcommunicating future violence:

24 ... Threats are tools of intimidation and violence. As such, in any circumstance where threats are spoken with the intent that theybe taken seriously, even to third parties, the elements of the offence will be made out. Also see R. v. Steele, 2014 SCC 61 , at para. 47. [72] In R. v. Ryback, , at paras. 30-35 (BCCA), leave to appeal to the Supreme Court refused [1996] S.C.C.A.

No.135 and R. v Lowry, (ONCA) at para. 3, the appellant courts considered the accused’s prior conduct relevant andadmissible with respect to the issue of whether the accused possessed the requisite criminal intent for the offence of criminal harassmentand whether the complainant took the threats seriously. Assessing Reasonable Doubt [73] In R. v. W. (D), , the Supreme Court of Canada provided the trial Courts with an analytical framework to assessreasonable doubt in the context of conflicting testimony in a criminal trial. Recently, Professor David M. Paciocco, in his paper, Doubtabout Doubt: Coping with R. v. W(

D) and Credibility Assessment, recasts the W(

D) test as follows: a. the trial judge who believes evidence that is inconsistent with the guilt of the accused cannot convict the accused; b. even if the trial judge does not entirely believe evidence inconsistent with guilt, if left unsure whether that evidence is true thereis a reasonable doubt and an acquittal must follow; c. even where the trial judge entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not proveguilt; and d. even where the trial judge entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless theevidence that is given credit proves the accused guilty beyond a reasonable doubt. [74] In W.(D) , Cory J. cautions trial judges that an accused’s evidence is not examined in isolation.

Reasonable doubt as to theaccused evidence must be determined “in the context of the evidence as a whole.” Assessing Credibility and Reliability [75] Although there are some points of agreement among the witnesses, there are also significant points of disagreement. It is tritelaw that a judge can accept some, all or none of a witnesses’ evidence. In order to evaluate the evidence, I must assess its credibility andreliability. In undertaking this assessment I have considered those factors set out in Judge Rounthwaite’s decision of R. v.

Parent, 2000BCPC 11, at para. 5. [76] In order to assess the reliability of a witness’s evidence, I must assess his or her ability to perceive, recall and communicate theevidence. [77] In order to assess the credibility of each witness, I have taken into consideration the following factors: (

a) the internalconsistency with other parts of the witness's evidence given at trial; (

b) the consistency of the witness’s account over time; (

c) theexternal consistency of the evidence with that of other credible witnesses; (

d) any independent physical or documentary evidence; (

e) theinherent plausibility of the evidence; (

f) the ”balance” of the evidence, meaning the witness’s apparent willingness to be fair andforthright. Reliability [78] The incident giving rise to the charge before the Court occurred on June 28, 2016, over a year before the trial. It occurred atapproximately 3 o’clock in the afternoon when M.R.A. was working and L.H. was shopping with her young daughter and her twofriends. The complainant and the accused were present and sober.

I find they both had the capacity to accurately relate their evidence inthat they had the ability and opportunity to observe, the ability to remember; and the ability to communicate the details of theirtestimony. [79] Constable Goble’s evidence as to her involvement in the investigation of the matter before the court was not contested. I findher evidence with respect to what had happened at the courthouse involving L.H. and M.R.A. in the spring of 2016 less reliable. Constable Goble was not investigating an offence and there is no mention of her having taken any notes to which she could refer.

Herrecollection of this event, although helpful, was not unassailable. Credibility of M.R.A. [80] Applying the factors cited above, I make the following findings with respect to M.R.A.’s evidence at trial: a. Internal consistency: M.R.A.’s evidence at trial was at times inconsistent. Specifically: i. M.R.A. admitted to having been convicted in 2013 for the offence of uttering threats to cause someone death or bodily harm. Inher cross examination she said that she would not threaten to kill L.H., because she would “never say anything like that, when ... on thejob or otherwise.” ii.

M.R.A. testified that L.H. swore at her and fingered her while driving, but then could not recall whether L.H. had any others inthe vehicle with her because she “wasn’t paying attention.” b. Consistency over time: The Crown adduced no prior out-of-court statement by M.R.A., therefore this factor is not in play. c. External consistency: M.R.A.’s evidence at trial is consistent with L.H.’s on a number of points, including the following:

i. M.R.A. was in a relationship with A.T.; ii. In 2015 A.T. was charged with assaulting M.R.A. and placed on bail conditions prohibiting him from having contact with M.R.A.; iii. L.H. was A.T.’s surety in 2015 and 2016 while he was on bail; iv. L.H. and A.T. began an intimate relationship while he was on bail and L.H. was his surety; v. M.R.A. learned of L.H. and A.T.’s relationship; vi. A.T. played both L.H. and M.R.A.; vii. M.R.A. and L.H.’s relationship with each other became acrimonious; viii. M.R.A. and L.H. interacted briefly at the court house in the spring of 2016 when A.T. was at court; ix.

M.R.A. encountered L.H. sitting alone in the driver’s seat of her closed vehicle on the afternoon of June 28, 2016 which L.H. parked outside the [omitted for publishing]; x. M.R.A. hit the window of L.H.’s vehicle and they exchanged words; xi. M.R.A. opened the driver’s side door to L.H.’s vehicle; xii. M.R.A. was holding keys in her hand attached to a lanyard; xiii. L.H. told M.R.A. she was not afraid of her; xiv. M.R.A. made a gesture toward L.H.; and xv. M.R.A. and L.H.’s interaction was not amicable. c.

External inconsistency: M.R.A.’s evidence was inconsistent with that of L.H.’s with respect to the following: i. which of them was hostile towards the other; ii. whether M.R.A. threatened L.H. at the courthouse when A.T. was being sentenced in early June 2016; iii. whether L.H. saw, swore at and “fingered” (also referred to as flipping her the bird) M.R.A. while driving to the [omitted for publishing] on the afternoon of June 28, 2016 immediately prior to the incident giving rise to these charges; iv. what M.R.A. said to L.H. when she interacted with her on June 28, 2016; v. what gestures M.R.A. made toward L.H. on June 28, 2016; and vi. what M.R.A. was wearing on June 28, 2016, although identity was not in issue so it is unclear to me why M.R.A.’s apparel was of import. d.

Independent Evidence: Constable Goble provided the following independent evidence: i she saw and heard M.R.A. yelling outside the courtroom at the time of A.T.’s sentencing, but she did not hear what M.R.A. was saying; ii. she saw L.H. after observing M.R.A. yelling. L.H. looked shaken and Constable Goble asked L.H. if she was okay; iii. she was on duty when L.H. rendered A.T. because he was not complying with his curfew; iv. A.T. was charged with offences relating to both M.R.A. and L.H.

Exhibit 1 is A.T.’s Recognizance of Bail with respect to the charges against M.R.A.; and v. she attended at the scene on June 28, 2016, and noted that L.H. was sitting in her vehicle which was parked outside the [omitted for publishing] facing south. e. Plausibility: M.R.A. testified she was not angry at L.H. - not at the time when she learned in December 2015 that L.H. and A.T. were “fooling around with each other” and not on June 28, 2016. M.R.A. said she approached L.H. on June 28, 2016, because she was fed up with L.H. harassing her.

I find M.R.A.’s version of events on June 28, 2016, implausible on the following basis: i. First, I do not believe L.H., “fingered” and swore at M.R.A. on June 28, 2016. L.H. was 34 years old. She was busy driving her young daughter and her two friends shopping and then to the beach. M.R.A. does not mention what street she and L.H. were on when this incident supposedly occurred. L.H. was parked not in front of M.R.A.’s workplace on [omitted for publishing], but on Third Avenue.

I find it implausible that any sober mature woman in L.H.’s circumstances would shout obscenities at and make obscene gestures to a woman she happened to pass on the street just because there was some issue between them;

ii. Second, I am of the view that it was M.R.A. who harboured ill-will toward L.H., and not vice versa . M.R.A. considered herself to be in a relationship with A.T. even when he was subject to a recognizance of bail prohibiting him from having contact with her. L.H., however, appears to have distanced herself from A.T. when she learned he had lied to both her and M.R.A. In fact, L.H. rendered A.T. for breaching his curfew; iii. Third, I find it implausible that if M.R.A.’s only desire was to be left alone, that she would take time out of her work day to confront L.H. in the manner M.R.A. described; and iv.

I also find it implausible the only thing M.R.A. said to L.H. on June 28, 2016, was “fucking leave me alone.” (

f) Balance: M.R.A. accused L.H. of harassing her at work. Beyond this bald assertion, M.R.A. provided no details or particulars of this harassment. Similarly, she claimed L.H. swore at her while driving by on June 28, 2016, and when again when M.R.A. confronted her in the car. M.R.A. was unable to repeat what L.H. said beyond not being afraid of her. M.R.A.’s evidence amounted to a vague allegation that L.H. was swearing at her and saying “other stuff.” [ 81 ] For the reasons set out above, I did not find M.R.A. to be a credible witness.

Credibility of L.H. [ 82 ] I make the following findings with respect to L.H.’s evidence at trial: a. Internal consistency: L.H.’s evidence at trial was reasonably internally consistent. L.H.’s sometimes used different words or phrases to describe the same events, but the meaning generally remained the same. For example she often used the term “scared” and “afraid” interchangeably. Although she did not know the exact words M.R.A. uttered to her on June 28, 2016, L.H. was certain M.R.A. said to her that she was going to kill her and hurt her. b.

Consistency over time: There is no suggestion that L.H.’s version of the events which transpired on June 28, 2016, changed over time. c. External consistency: L.H.’s evidence at trial is consistent with M.R.A.'s on those points referred to above. L.H.’s evidence that M.R.A. threatened her in front of the court house earlier in 2016 is corroborated to some extent by Constable Goble’s account that she saw and heard M.R.A. yelling and saw that L.H. appeared shaken and asked if she was okay. d. External inconsistency : L.H.’s evidence was inconsistent with that of M.R.A. as set out above.

L.H.’s evidence about what occurred in the court house in 2016 was inconsistent with Constable Goble with respect to the following: their interaction in the waiting room of the court house. Specifically, Constable Goble did not recall offering to escort L.H. to her vehicle. I do not necessarily prefer Constable Goble’s evidence over that of L.H.’s. Constable Goble was trying to recall an incidental interaction with a witness while waiting for court. She was not investigating an offence at the time. She had no duty to record these events.

In my view it is logical that an officer might offer to walk L.H. to her vehicle given L.H.’s earlier complaints to the police against M.R.A. e. Plausibility: I find L.H.’s version of events on June 28, 2016 plausible. L.H. was focussing on the three young girls she was ferrying about. Sober grownups do not conduct themselves in the manner M.R.A. suggests, particularly in the company of young children. Specifically, they do not shout obscenities and make obscene gestures from their car window to a passer-by. I accept L.H.’s evidence that this did not happen.

When asked at the outset of her cross-examination, L.H. responded that she drove straight down Third Avenue to the [omitted for publishing]. I understood M.R.A. worked across the court house next to the [omitted for publishing] on [omitted for publishing]. It is not apparent to me how L.H. could have passed M.R.A. in her vehicle to “finger” and shout obscenities to her. I also accept L.H.’s evidence that she was not about to engage in a school yard brawl with M.R.A. in front of the [omitted for publishing]. I do not find L.H. harboured any lingering animosity toward M.R.A. for A.T.’s infidelity.

L.H. clearly considered A.T. a liar and ended her relationship with him. At the time of trial L.H. was back living with D.O. L.H. was never confronted in cross-examination of M.R.A.’s allegation that L.H. and her sister harassed her at work. I am not prepared to accept as true this bald accusation without further evidence and particulars. (

f) Balance: L.H. tried to be fair to M.R.A. by levelling the blame at A.T. who lied to both of them. I was not left with the impression that L.H. was particularly thin-skinned. L.H. even admitted sometimes she had a trucker’s mouth. I do not believe she would have reacted in the manner she did if all M.R.A. said was “fucking, leave me alone.” Findings on Credibility [ 83 ] I have carefully considered the totality of the evidence before me at trial, although I will not refer to it all. I have also considered the submissions of counsel and the relevant legislation and jurisprudence. I find as follows: a.

M.R.A. has a history of animus toward L.H. as a result of L.H.’s relationship with A.T.; b. M.R.A. has made denigrating and threatening comments to L.H. in the past;

c. On June 28, 2016, M.R.A. and L.H. had no interaction prior to M.R.A. coming and banging on L.H.’s vehicle window while L.H. was parked outside the [omitted for publishing] . Specifically, L.H. did not utter obscenities at or make obscene gestures to M.R.A. when driving by her earlier that day; d. On June 28, 2016, L.H. was sitting in the driver’s side of her closed vehicle outside the [omitted for publishing] when M.R.A. unexpectedly confronted her; e. L.H. told M.R.A. she had three kids with her and asked M.R.A. to leave her alone; f. L.H. told M.R.A. she wasn’t afraid of her.

M.R.A. opened L.H.’s car door and made gestures towards L.H.’s face to suggest she was going to hit L.H. while taunting her, “so, you’re not afraid of me.” g. L.H. used her arms to try and protect her face from being hit; h. M.R.A. shouted obscenities at L.H. and said she would kill or seriously hurt L.H.; i. M.R.A. intended these words to intimidate L.H. or that she take them seriously; and j. L.H. was frightened and did take M.R.A.’s words seriously. Conclusion [ 84 ] I do not believe M.R.A.’s version of the events which transpired on June 28, 2016. Evidence which is not believed is not evidence.

There is no evidence in the case for the Crown or Defence which is inconsistent with M.R.A.’s guilt. I am satisfied on the evidence I do give credit the Crown has proven beyond a reasonable doubt that M.R.A. said words to L.H. on June 28, 2016, which constituted a threat to cause her death or serious bodily harm. I am also satisfied the Crown has proven beyond a reasonable doubt, that M.A. intended her words to be taken seriously or to intimidate.

In reaching this conclusion, I have considered the circumstances and the manner in which M.R.A. told L.H. she was going to kill and hurt her, L.H.’s situation at the time and M.R.A.’s history of animus toward L.H. Any reasonable person would consider M.R.A.’s words a threat and L.H. was in fact threatened by those words. [ 85 ] I find M.R.A. guilty of knowingly uttering a threat to L.H. on June 28, 2016, in Burns Lake, B.C., to cause L.H. death or bodily harm, contrary to

Section 264.1(1) of the Criminal Code . The Honourable Judge J. T. Doulis Provincial Court of British Columbia