R. v. Heinze, 2018 BCPC 256

Citation: R. v. Heinze 2018 BCPC 256 Date: 20181018 File No: 98382-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. UWE PAUL HEINZE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. DOREY Counsel for the Crown: K.S. Fast Counsel for the Defendant: P.A. Riddell Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: June 13, 14, 29, 2018; July 30, 2018 Date of Judgment: October 18, 2018

Introduction [ 1 ] The accused, Uwe Paul Heinze (the “accused”), engaged the services of Tasha Oscar, a sex trade worker, the morning of July 17, 2017, at his home in Maple Ridge. An altercation ensued after Ms. Oscar performed her sexual services. It is undisputed by the parties that this altercation occurred in the context of a search for the accused’s missing car keys. [ 2 ] As a result of the events surrounding this altercation, the accused was summarily charged under Information No. 98382-1 with: Count 1: Assault of Ms. Oscar, contrary to

Section 266 of the Criminal Code . Count 2: Uttering a threat to cause death or bodily harm to Ms. Oscar, contrary to

Section 264.1 of the Criminal Code . Count 3: Unlawful confinement of Ms. Oscar, contrary to Section 279(2) of the Criminal Code . Count 4: Theft of a purse, the property of Ms. Oscar, contrary to

Section 334 (

b) of the Criminal Code . Facts [ 3 ] The Crown’s principal witness was Ms. Oscar. The Crown also called two other witnesses, Cst. Lindsay Taylor and Tracy Scott. The accused gave evidence on his own behalf and was the only defence witness. [ 4 ] Much of the factual evidence is undisputed. [ 5 ] The accused was 67 years of age at the material time. He was a fire fighter who retired in 1997 due to injuries sustained in a motor vehicle accident. He has ongoing health problems associated with this accident including depression, post-traumatic stress disorder (“PTSD”), and fibromyalgia.

He testified that these conditions can affect his memory and his demeanour. He explained that he can become easily flustered and agitated when he cannot find things. He smokes crack cocaine to mitigate some of the effects of his PTSD disorder and takes anti-psychotic medication to treat his anxiety. [ 6 ] Ms. Oscar was, at the material time, a 36 year old prostitute who lived in a tent in a homeless camp known as “Tent City” in downtown Maple Ridge. [ 7 ] Ms. Oscar is a drug addict. During her evidence in chief, Ms.

Oscar testified that she had accumulated a series of property and drug related convictions in the British Columbia Interior, to fuel a drug addiction with her last conviction being in February 2012. [ 8 ] In 2013, she moved to Maple Ridge where she completed a residential drug treatment program. For a few years, Ms. Oscar managed to stay “clean”, found employment, and had her own apartment. By 2016, she relapsed back to using heroin and fentanyl daily and became homeless. In May 2016, Ms. Oscar moved into the “Tent City” homeless camp. [ 9 ] Ms.

Oscar had provided sexual services to the accused on upwards of ten previous occasions at his home in Maple Ridge. On each of these occasions, the accused would pick-up Ms. Oscar and, following their encounter, drive her back to Tent City or the downtown area of Maple Ridge. On a few occasions, Ms. Oscar was invited to join the accused for a meal afterwards. [ 10 ] Ms. Oscar decided to seek methadone treatment for her addictions and made an appointment with a physician. This was an important appointment for Ms. Oscar as it was the first step towards recovery.

It was scheduled for July 17 th between 11:15 and 11:30 a.m. [ 11 ] Ms. Oscar had a heroin fix before she went to bed the evening of July 16 th , as she wanted to be in an active state of “withdrawal” so she could be properly assessed at the methadone clinic. [ 12 ] July 17 th was also Ms. Oscar’s birthday. She needed money and wanted to make some “quick cash” before her methadone appointment so she could “relax” after her appointment for the rest of the day. She made three telephone attempts to reach the accused to see if he was interested in her services.

On the third try, the accused answered her call. [ 13 ] During the telephone call, Ms. Oscar told the accused it was her birthday, that she could use some money and a ride, and she asked the accused if he would pick her up. He agreed to pick-up Ms. Oscar right away and take her back to his place. This telephone exchange took place about 10:00 am. [ 14 ] On the drive to the accused’s home, Ms. Oscar mentioned her methadone appointment and asked him if he would drive her there afterwards. He agreed. They arrived at the accused’s home at approximately 10:30 a.m. [ 15 ] The only thing Ms.

Oscar brought with her that day was a large purse containing most of her belongings, including her wallet, and two cellular telephones (both of which were inoperable as they had each run out of airtime minutes). [ 16 ] The accused resides on a three acre parcel of property in a rural part of Maple Ridge. The house is situated at the top of a long curved driveway at about the mid-point of the property.

On the west side of the property is a ravine and a forested area. [ 17 ] A metal chain-link fence surrounds the front and back of the residential portion of the property. [ 18 ] There is a long canvas covered chain link “electric gate” that opens and closes remotely with a key fob. The purpose of the gate is for the accused to maintain security and privacy in his home. At one end of the electric gate is a smaller “pedestrian” gate for egress when the main gate is closed. The electric gate is situated approximately ten walking strides from the entrance to the house.

[ 19 ] When the pair arrived at the accused’s home, the electric gate was open. The accused parked his vehicle in the driveway near the front door to his house. [ 20 ] Upon entering the house, the accused had in his hand a key ring containing several keys, with coloured key tabs, including the key to his vehicle. While the accused’s general practice was to leave his key chain on one of his kitchen counters, he testified that trust was a big issue for him, and as a result, he would sometimes put his keys in places that are “rather unusual”. [ 21 ] By the time they arrived at the house, Ms.

Oscar was already feeling some of the effects of the heroin withdrawal. She was weak, light headed, and experiencing hot and cold “sweats”. [ 22 ] Ms. Oscar testified that after they entered the house, she went to use the bathroom and the accused went into the kitchen. She did not see where the accused put his keys but assumed they were placed on a kitchen counter. After she finished in the bathroom, she met the accused in his bedroom. She testified that the accused was already undressed and in bed.

He was smoking crack cocaine through the tube of his glass pipe as she was undressing and he continued to do so briefly during their sexual activity. Ms. Oscar’s account of these events is denied by the accused. [ 23 ] The accused testified that after entering the house, he closed the electric gate using the key fob which was hanging from a hook by the front door. He then put the fob in his pants pocket. They met in the kitchen and over a cup of coffee, they had a brief discussion about window cleaning work he wanted Ms. Oscar to do that day. The discussion then migrated towards Ms.

Oscar’s sexual services and they agreed on a price. Ms. Oscar then left to use the bathroom and then met the accused in the living room, which is where they had their sexual encounter. [ 24 ] It is the accused’s evidence that Ms. Oscar spent an unusually long time (i.e. upwards of 25 minutes) in the bathroom, during which time he drank his coffee and waited. He formed the view that Ms. Oscar was consuming drugs as she appeared to be lethargic, drowsy, and “high” after she emerged from the bathroom. [ 25 ] The sexual encounter lasted between 20 and 30 minutes. According to Ms.

Oscar, the accused wanted her to stay with him a little longer but she needed to leave to get to her methadone appointment on time. Up until the end of the sexual activity she described, the accused’s demeanour was “laid-back” and “fairly relaxed”. [ 26 ] Ms. Oscar testified that after she performed her sexual services, she reminded the accused it was her birthday and she hoped he might pay her a little more. The accused paid her $80. She got dressed quickly and went out to the accused’s vehicle to wait for him.

She sat in the passenger seat and had a cigarette while she waited for the accused to get dressed and come outside. [ 27 ] In the meantime, the accused was becoming “steamed” because Ms. Oscar had pressured him to leave quickly and because he could not find his car keys. He vocalized his frustration with profanities over the missing keys. [ 28 ] When he did come outside, the accused was partially dressed and visibly agitated. He demanded to know what she had done with his keys. She told him she did not know where they were.

The accused told her to wait outside while he went back into the house to look for the keys. [ 29 ] Ms. Oscar exited the vehicle and waited near the front door of the house for the accused to return. The accused came to the door, uttered profanities, and demanded she come inside to help look for the keys. This was followed by his telling her to go back outside and wait for him. He did this a few times. [ 30 ] He knew he had a spare set of keys which he kept in a safe inside the house but chose not to use them to drive Ms. Oscar to her appointment.

Instead, the accused continued his search for the missing keys. [ 31 ] During this search, the accused formed the view that Ms. Oscar had taken his keys because they were nowhere in sight. He accused her of taking them, which Ms. Oscar repeatedly denied. [ 32 ] Ms. Oscar became worried that she would miss her appointment with the added delay. She knew that without the keys the accused could not drive her to her appointment. [ 33 ] She also became increasingly concerned about the change in the accused’s behaviour as he continued the search for his keys. His voice was loud and he was using profanities. Ms.

Oscar had not observed such behaviour by the accused before. [ 34 ] At one point, Ms. Oscar decided to step inside the house and stood in the front foyer. The accused was looking all over the place for his keys. She then emptied out the contents of her purse onto a desk to demonstrate that she did not have his keys. [ 35 ] They then engaged in a heated verbal exchange, the upshot of which the accused refused to have a look at Ms. Oscar’s belongings and purse to satisfy himself that she did not have his keys. According to Ms. Oscar, the accused was “livid”.

His voice was loud and he was using “curse words” directed towards Ms. Oscar. [ 36 ] To the accused, Ms. Oscar was not going anywhere until he had secured the missing keys. He then expressed words to the effect that if she had his keys he was “going to beat the shit out of her” with his baseball bat. The accused denies uttering such words to Ms. Oscar. [ 37 ] Ms. Oscar testified that after the accused made the remarks about the baseball bat, he left to see if the keys were in his vehicle. Ms.

Oscar followed him outside and stood near the front of the house while the accused searched his vehicle. [ 38 ] The accused did not find the keys. He went back into the house and left the front door open. Ms. Oscar then heard the sound of the electric motor hum and saw the gate start to shake and begin closing. It took a long time to close and then stopped with about a two foot opening.

[39] At this point, Ms. Oscar made the decision to leave and decided to climb over top of the pedestrian gate to make her exit. Shefirst attempted to shove her purse underneath the gate, but it became stuck between the gate and the ground. [40] She climbed up onto the centre bar and stood on one leg with the other leg over the top of the gate. She was almost over whenthe accused grabbed her by the back of her shirt, and “yanked” her to the ground. She landed flat on her back with her feet facing thegate. The accused stood over her on her left side and kicked her leg. [41] Ms.

Oscar sat up and reached over to retrieve her purse. She testified that the accused then pulled her up off the ground andtried to grab her purse. They struggled over the purse, during which the accused punched Ms. Oscar in the back of her head with a closedfist. She let go of the purse and the accused took it and started to run towards the house. [42] Ms. Oscar caught up to the accused just before he reached the door. There was another struggle, during which the accusedshoved her against the wall of the house. He then entered the house, closed the front door, and locked it. [43] The accused denies Ms.

Oscar’s account of these events. He testified that he told her to “get down” from the gate as he wasconcerned she may hurt herself. He also admitted that he may have “patted her on the back” to brace her from falling. However, shelost her footing and “slid” down the gate. It is also his evidence that Ms. Oscar was the aggressor having kicked him “in the chops” asshe slid down, and by punching him twice on the left side of his head during the first struggle over her purse. [44] What is undisputed from the testimony of the parties is that there were two struggles involving Ms. Oscar’s purse: one strugglewhile Ms.

Oscar was on the ground in front of the electric gate, and the other occurred as the accused was returning to the house after hehad taken the purse away from her. [45] The accused told Ms. Oscar that all he wanted to do was have a look in her purse for the keys (which he suspected were insideher purse but, as he later found out, were not). [46] Ms. Oscar retrieved her wallet which had fallen onto the ground during the two struggles. She also found the remote controlkey fob which had fallen out of the accused’s pocket.

She opened the electric gate, kept the key fob, and fled. [47] She ran down the long driveway and hailed a motorist on the street within approximately five minutes. The motorist drove Ms.Oscar into town and she dropped the key fob off at the RCMP Detachment between 12:00 and 12:30 p.m. She then returned to Tent Cityas she had, at this point, missed her methadone appointment. [48] Ms. Oscar used Tracy Scott’s (a resident of Tent City) cellular telephone to contact the police. Ms. Scott observed that Ms.Oscar looked unwell, was crying, and was visibly upset. [49] Ms. Oscar met with Cst.

Taylor at approximately 5:00 p.m. [50] Later that evening, when the police attended at the accused’s property, Ms. Oscar’s purse was found on a ledge outside the frontdoor of the house. [51] In the course of a search incidental to arrest, a blackened glass pipe was removed from the accused’s pant pocket. Credibility [52] This case brings squarely into play the Court’s assessment of witness credibility in determining whether the Crown has provenits case beyond a reasonable doubt that the accused committed some, none, or all of the charges. [53] Where credibility is in issue, the principles enunciated in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 (see also: R.v. C.W.H. (1991), (BC CA), 3 B.C.A.C. 205, at pp 9-10), are engaged, and accordingly the analysis should proceed asfollows: a. If the judge believes the evidence of the accused, the judge must acquit. b. If after a consideration of all of the evidence the judge is unable to decide whether to believe the accused or the complainant,the judge must acquit. c. If the judge does not believe the testimony of the accused but is left in reasonable doubt by it, the judge must acquit. d.

Even if the judge is not left in doubt by the evidence of the accused, the judge must determine whether, on the basis of theevidence, he or she is convinced beyond a reasonable doubt by that evidence of the accused's guilt. [54] In analyzing the evidence, the key question is whether on the whole of the evidence, I am left with a reasonable doubt about theguilt of the accused.

Throughout this analysis, I bear in mind that the burden of proof is always on the Crown and that the accusedremains innocent of the charges until proven guilty beyond a reasonable doubt. [55] I have considered these factors throughout my assessment of witness testimony in relation to each of the four charges before thisCourt. [56] The task of assessing witness credibility can be a difficult one and involves the assessment of the trustworthiness and reliabilityof a witness’ testimony based upon the examination of various factors. Dillon J. in Bradshaw v.

Stenner, 2010 BCSC 1398; aff’d 2012BCCA 296 provides a helpful discussion of some the considerations used to assess witness credibility and reliability. At para. 186,Dillon J. states: Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witness and the

accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), (SCC), 59 S.C.R. 452, 50D.L.R. 560 (S.C.C.)).

The art of assessment involves examination of various factors such as the ability and opportunity to observeevents, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness' evidenceharmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and thedemeanour of a witness generally (Wallace v. Davis (1926), 31 O.W.N. 202 (Ont.H.C.); Farnya v.

Chorny, (BC CA),[1952] 2 D.L.R. 354 (B.C.C.A.) [Farnya]; R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484 at para. 128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as awhole and shown to be in existence at the time (Farnya at para. 356). [57] Although Bradshaw is a civil case, these considerations are of general application and apply to the assessment of credibility incriminal cases: See, for example, R. v. Clayton, [2016] B.C.J. No. 2417 (S.C.), at paras. 61-63. [58] The accused submits that Ms.

Oscar is untrustworthy and her testimony should not be believed in view of her criminal record. He testified that she took his tenant’s rent cheques from his home during a prior encounter, and for this reason he did not trust her. I didnot find this evidence to be credible. [59] According to the accused, Ms. Oscar was using drugs at his residence. He testified that Ms. Oscar showed him three smallpackages of drugs in the palm of her hand as they drove up to his place and claimed she appeared to be under the influence of drugs aftershe emerged from his bathroom. [60] During cross-examination, Ms.

Oscar denied using drugs at the accused’s home for the very reason that she wanted to be in anactive state of withdrawal at her methadone appointment. Ms. Oscar’s denial finds support in Cst. Taylor’s testimony that Ms. Oscar didnot appear to be under the influence of any substances when he interviewed her and that she was feeling ill. Cst. Taylor also testified thatMs. Oscar was “upset” but “fairly collected for what she was describing” and was “articulate”. [61] I accept Ms.

Oscar’s evidence and do not believe this aspect of the accused’s testimony. [62] I find that the accused sought to bolster his own credibility by undermining Ms. Oscar’s character in making these accusations. [63] Ms. Oscar, on the other hand, gave her testimony in a matter of fact way. She was neither evasive nor defensive in hertestimony. I also found that she was quite candid when discussing her personal circumstances that led to her criminal record. [64] She described the accused in her testimony as an “all around decent guy”, and someone whom she felt “comfortable with”.

Incross-examination she agreed that the accused had never been abusive and was respectful. He was, in her parlance, a “good date”. Herevidence was that the accused’s behaviour was out of character on the day of the offences and she did not go out of her way to cast theaccused in a bad light in describing his behaviour. [65] Overall, I found Ms. Oscar to be a more reliable and credible witness than the accused. [66] I now address the evidence in relation to the four charges and certain key factual areas in dispute.

Uttering a Threat [67] Count 2 of the Information alleges that the accused uttered a threat to cause death or bodily harm to Ms. Oscar.

Section 264.1 ofthe Criminal Code states in part: 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. [68] The elements of the offence include: (1) the utterance or conveyance of a threat to cause death or bodily harm; and (2) an intentto threaten: R. v. McCraw, (SCC), [1991] 3 S.C.R. 72; R. v. Clemente, [1994] 2. S.C.R. 758, and R. v. O’Brien, 2013SCC 2. [69] The actus reus element is the uttering of a threat of death or bodily harm. This element “… will be made out if a reasonableperson, fully aware of the circumstances in which the words were uttered or conveyed would have perceived them to be a threat of deathor bodily harm”: R. v.

McCrae, [2013] SCC 68 at para. 16. [70] The fault element or mens rea is proven if “… it is shown that threatening words uttered or conveyed were meant to intimidateor be taken seriously’”: R. v. McCrae, supra, citing R. v. Clemente, at para 17. [71] The Supreme Court held in McCrae, that a subjective fault standard applies. The fault element is disjunctive: it can beestablished by showing either that the accused intended the words uttered or conveyed to intimidate or intended that the words be takenseriously (at para. 18). As stated, what matters is what the accused actually intended.

What the accused did intend is usually inferredfrom the totality of the circumstances (at para. 19). In summarizing the fault element, the Supreme Court held (at para. 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 to betaken 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 circumstances, including how the words were perceived by those hearing them. [emphasis added] [72] Ms. Oscar testified that after she had emptied out and returned the contents of her purse, the accused came into the foyer area bythe front door where she was standing. He pointed to a “plain wooden” baseball bat near the front door. The accused, “… threatened me

then with a baseball bat, pretty much saying that if I had his keys he was going to beat the shit out of me with the bat”, adding that “he was on a rampage now” and that the tone of his voice was “loud and convincing”. Ms. Oscar further testified that she had noticed the baseball bat by the front door on previous visits to his home. [ 73 ] Ms. Oscar tried to calm the accused by telling him, “…that there would be no reason for me to take his keys because I needed to be at my appointment and this was only making me late.

And in the condition I was in with going through withdrawals, I didn’t want it to take any longer than us finishing our business and just leaving…” [ 74 ] Ms. Oscar reported this threat to the police in her statement, but omitted the fact of having seen the baseball bat. She explained in re-direct, that she was a “jumble of emotion” when she gave her statement to police adding that her “main concern was me being pulled down and - hit at that point, more than the baseball bat”. [ 75 ] I accept Ms.

Oscar’s explanation in her testimony and find that it is a credible explanation for her omission of this factual detail to the police. [ 76 ] In her testimony, Cst. Taylor did not recall seeing a baseball bat at the accused’s residence during the search of the premises. However, Cst. Taylor also testified that she was not particularly looking for a bat while at the accused’s home as Ms. Oscar negated to mention the presence of a bat or that it had been referenced while making the threat. [ 77 ] During cross-examination, Ms.

Oscar acknowledged that the accused’s behaviour was “completely unusual” on this occasion. [ 78 ] When questioned by defence counsel, she testified that the accused’s threat made her fearful, but not “fearful enough” to leave at that point because she did not have “the energy to walk down the hill” due to the withdrawal symptoms she was experiencing. [ 79 ] Ms. Oscar also re-confirmed during cross-examination that the electric gate was open when the accused uttered the threat regarding the baseball bat. [ 80 ] The accused denied uttering any such threat to Ms. Oscar.

He testified there is an armoire in the foyer to the left of the front door, which is the area Ms. Oscar described where she saw the baseball bat. He denied even having a baseball bat. However, during cross-examination he admitted that he did own a “Mickey Mantle” replica bat, but emphasized that he had not seen it in years. [ 81 ] I do not accept the accused’s testimony on this issue. I found his answers to questions in cross-examination about the bat to be evasive. [ 82 ] I prefer the evidence of Ms. Oscar. She gave her evidence in a clear, matter of fact manner. Ms.

Oscar’s testimony about the threat is also consistent with her earlier testimony regarding the progression of change in the accused’s behaviour from being a “nice” and “relaxed guy” to being agitated and then livid about his missing keys. [ 83 ] I find on the evidence that the accused made the impugned statement about the baseball bat to Ms. Oscar. I also find that he was angry and upset about his missing keys from his tone of voice, his choice of words, and his demeanour. However, I also find that in the context of the search for the keys, the statement to Ms.

Oscar about beating her with the baseball bat was a flippant expression of his frustration at the situation rather than the conveyance of an intention to cause bodily harm to Ms. Oscar. Indeed, Ms.

Oscar did not believe the accused planned to act on his threat having admitted during cross-examination that that she did not believe the “threat” was “serious enough” that the accused would “hurt her”, especially when she knew she did not take the keys and after having just emptied her purse to prove to the accused she did not have them. [ 84 ] In sum, on application of the principles enunciated in W.D. , I find that there is a reasonable doubt raised on a consideration of the totality of the evidence on this issue.

Accordingly, I do not find that the words used by the accused were intended to intimidate or harm Ms. Oscar, nor were the words intended by the accused to be taken seriously. The Crown has not proven the accused had the requisite mens rea, and therefore, I direct an acquittal of the accused on Count 2 of the Information. Unlawful Confinement [ 85 ] Count 3 of the Information alleges that the accused unlawfully confined Ms. Oscar.

The offence of unlawful confinement is found in Section 279(2) of the Criminal Code which states that everyone commits an offence, “who, without lawful authority, confines, imprisons, or forcibly seizes another person …” [ 86 ] Crown counsel has brought to my attention a number of authorities which have considered the charge of unlawful confinement. Most of the cases discussed involve the commission of a serious offence against the person, including first degree murder, during or in the course of an unlawful confinement. [ 87 ] The case of R. v. Niedermier, 2005 BCCA 15 , provides a succinct

summary of the essential elements of the offence of unlawful confinement following a review of the jurisprudence. Niedermier is cited in R. v. Doyle, 2013 BCSC 1887 , at para. 145 , and in R. v. M.S., 2014 ONSC 5157 , at paras. 92-93 , which are two cases referred to me by the Crown. Niedermier is also cited by Joyce J. in R. v. B.A.R., 2010 BCSC 1806 , at paras. 50-53 , a decision referred to me by Defence counsel. [ 88 ] At paras. 44-48, of the Niedermier decision, Rowles J.A. held: [44] What constitutes unlawful confinement was considered in R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont.

C.A.) , leave to appeal to the Supreme Court of Canada refused [1985] 1 S.C.R. viii. In that case, Cory J.A., as he then was, approved the following definition of unlawful confinement, at 473: ... physical restraint, contrary to the wishes of the person restrained, but to which the victim submits unwillingly, thereby depriving the person of his or her liberty to move from one place to another, is required in order to constitute forcible or unlawful confinement. Such

confinement need not be by way of physical application of bindings. [89] Justice Rowles goes on to cite LeBel J.A., as he then was, in R. v. Tremblay (1997), (QC CA), 117 C.C.C.(3d) 86 (Que. C.A.), wherein he held that the mens rea is the intention to confine, which may be inferred from all of the accused’sactions. The actus reus was held to consist of three elements: 1) a confinement; 2) the confinement is without lawful authority; and 3) alack of consent by the complainant to the confinement. [90] The confinement must last for a significant period of time. In R. v.

Pritchard, 2008 SCC 59 , [2008] 3 S.C.R. 195, theissue was whether the accused could be found guilty of first degree murder on the basis that the killing was committed in the course ofan unlawful confinement. Following a review of the jurisprudence, Binnie J. held at para. 24: The authorities establish that if for any significant period of time Mrs. Skolos was coercively restrained or directed contrary to herwishes, so that she could not move about according to her own inclination and desire, there was unlawful confinement within s. 279(2):see Luxton, at p. 723; R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont.

C.A.), per Cory J.A., at p. 475; R. v. Tremblay (1997), (QC CA), 117 C.C.C. (3d) 86 (Que. C.A.), per LeBel J.A. (as he then was), at pp. 91-92; and R. v. Mullings, 2005 CarswellOnt3022 (S.C.J.), per Durno J., at para. 39. [emphasis added] [91] A “significant period” of confinement means something more than “de minimus” but can include brief periods of confinementso long as there was a clear restriction of the person’s movements: R. v. M.S., supra. At para. 95 of that decision, de Sousa J. held: A number of cases have dealt with the length of time of confinement required to make out the offence. See R. v.

Valauthan (1997), (ON CA), 117 C.C.C. (3d) 477, at para. 6 (Ont. C.A.) and R. v. Mullings, (Ont. S.C.) It is clear that theperiod of confinement, while unable to be definitively defined, must be “significant”, more than “de minimus” but that brief periods ofconfinement can still qualify as confinement so long as there was a clear restriction of the person’s movements. It is also possible thatthe existence of initial liberty can in the individual circumstances of a case develop into a state of forcible confinement (see R. v.Tremblay, supra). [92] In the case of R. v. E.B., [2006] O.J.

No. 1864, Watt J. (as he then was) considered the meaning of “confinement” and addressedthis issue at para. 119 as follows: 119. The prosecutor is not required to prove that the confinement of J.B. took place for the entire period specified in the count. What isrequired of the prosecution is proof that J.B. was fully restrained contrary to her wishes so that she could not move about from place toplace for some significant period within the time alleged in the count. See. R. v. Gratton, above, at p. 475 per Cory.

J.A. [emphasisadded] [93] Finally, the confinement must be independent of or apart from another offence such as assault. In other words, the physicalrestraint that constitutes an element of the assault cannot be used to find the independent offence of unlawful confinement. [94] The Defence relies on the case of R. v. B.A.R., supra, to support this principle.

At paras. 56-58, Joyce J. held: [56] In my view, the only acts that might be capable of being seen as acts of confinement sufficient to ground an independent offenceof unlawful confinement are the use of the rope in the truck that started the assault, and wrapping the rope around the complainant's neckas the final act of assault.

Pulling the complainant from the truck, pushing her to the ground, and dragging her back to the truck are allacts of violence, but they do not, in my opinion, amount to confinement of the complainant. [57] It is my opinion that the initial use of the rope as an instrument to be used in unwanted sexual activity which was brief and did notinvolve actually tying up the complainant falls short of the sort of confinement that s. 279(2) was intended to address.

Likewise,choking the complainant with the rope is clearly a violent act sufficient to ground an assault, but I am unable to view it as a confinementthat is other than the assault itself. I do not view it as sufficient to constitute a separate event of unlawful confinement. [58] Further, and in any event, I am not satisfied beyond a reasonable doubt that any of these acts relied upon by the Crown asconstituting the actus reus of unlawful confinement were accompanied by an intention on the part of the accused to confine thecomplainant in the sense of restraining her from moving from one place to another. Ms.

Oscar’s Evidence: [95] Ms. Oscar testified in chief that after the accused made the statement about hitting her with the baseball bat, he went outside tosearch for his keys in his vehicle. She asked him if the keys he was looking for were the keys with the bright coloured tags, which theaccused confirmed were the missing set of keys. She was standing outside during this brief exchange. He returned back into his houseand then Ms. Oscar heard the sound of an electric motor. The front door was open. She then saw the gate start to shake and beginclosing.

She testified it took a long time for the gate to close. [96] During cross-examination, Ms. Oscar testified that she saw the accused push the key fob to re-activate the gate as he wasstanding in the doorway and saw it begin to open again. It opened about two feet and then stopped. [97] In direct she testified that she asked the accused “are you holding me hostage here”. He responded, “no he was not”, but added,“nobody’s going anywhere until I find my keys”. [98] Ms. Oscar testified as to the following exchange with the accused: Q What happens after that?

A That's when I started getting a little bit more frantic and he came outside as well and I started raising my voice, saying that,"What are you doing shutting the gate? You never shut the gate and you're holding me hostage here. I need to get to my appointment."

And him saying, no, that he's not keeping me hostage, but nobody is going anywhere until he gets his keys. And me just being like, "I don't have your keys and I need to get to my appointment. Like, I can't be dealing with your psychosis or whatever is going on here." And he said, "Well, that's too bad." And I -- I think I stated, like, "Do I have to call the police," because I was worried at that point that I wasn't going to be getting out of there anytime soon.

He told me, "Go ahead, call the police," and he goes, "I've got stories to tell them." And I paused for a minute just out of sheer somebody saying they're going to tell cop stories about me, but then I realized that I don't have any issues with the cops, that -- anything to even really worry about… [ 99 ] It was at this point, Ms. Oscar made the decision to leave by climbing over the pedestrian gate. During cross-examination, Ms. Oscar conceded that the opening to the gate was approximately “ten strides” from where she was standing.

She also agreed there were other “lower areas of the fence” around the property that she could have climbed over more easily than the pedestrian gate, but explained that the accused was keeping a “really close eye” on her and believed she could not make it to the lower

section of the fence before he would catch up with her. The Accused’s Evidence: [ 100 ] In direct, the accused denied that he was holding Ms. Oscar hostage; rather, he “merely wanted” his keys back. From his standpoint, the reality of the situation was that he was not prepared to drive Ms. Oscar back to into town until he found his keys. This is obvious from the following exchange during his cross-examination: Q Now, you said in your direct examination that you had a spare set of keys -- A That's correct, I did. Q -- in your safe? A That's correct. Q You could have driven away? A I could have.

I could have driven away with her in the car, too, but I chose not to. That would have defeated the point of -- the purpose of finding my keys, my original set of keys, and I wasn't about to take a chance of her having my set of keys on her possession, period. Q So, in your mind she was not leaving that property until your keys were located? A I never said that. Q That's not the case? A I never said -- I never said that, no. I didn't confine her. I didn't hold her hostage, forcible or otherwise.

Q Do you deny saying, "No one's leaving this property until I find my keys," or, "No one is leaving this house until I find my keys"? A Well, that's just a quip. Of course I said that, yes, but I didn't mean anything by that. You say things like that, it's a quip. I mean, I had to have a car key. Q But you had a spare set. A That's not the point. I wasn't going to leave that residence until I found my keys. She could have phoned a taxi, too. She could have phoned a taxi. She had money in her wallet. She had two cellphones. Q But she was in a hurry to get to her appointment, right? A Yeah.

Why didn't she phone a taxi? Q Well, because ... You do live in a rural area? You're not in a downtown location, so it's -- A I'm exactly seven minutes from downtown Maple Ridge from my house -- Q Okay. A -- by car doing the speed limit. [ 101 ] It was the accused’s evidence that after Ms Oscar had emptied her purse in the foyer, she again used the bathroom. After finishing in the bathroom, she said she had to “get going” and decided to leave. She exited the house but then told him “the gate is closed”. The accused told her to “hold on a minute” while he went to get the key fob which he had left in the bedroom.

After retrieving the fob, he observed Ms. Oscar climbing over top of the pedestrian gate. He pressed the key fob and the gate began to open. [ 102 ] I do not accept the accused’s evidence that he told Ms. Oscar he would retrieve his key fob and open the gate. The reason is because he was angry and upset about the missing keys and was convinced Ms. Oscar had taken them. While I accept that he told her that he was not holding her “hostage”, it is highly unlikely given his state of anger that he was going to do anything to assist her in leaving.

This is evidenced by the fact that he had a spare set of keys and could have easily driven Ms. Oscar into town. [ 103 ] I prefer Ms. Oscar’s testimony to that of the accused and on her evidence, I find that accused closed the gate shortly after he made the statement about hitting her with the baseball bat. Ms. Oscar became increasingly concerned about his behaviour during his

frantic search for the missing keys. She also came to realize that he was holding her responsible for the missing keys. I find that the accused was not about to drive her anywhere until the keys had been found. [ 104 ] During cross-examination, the suggestion was put the accused that he was trying to “trap” Ms. Oscar by closing the gate. In reply, the accused testified: Q -- Ms. Oscar was stuck, there was no way to -- no practical way to leave the property unless the gate was opened or she climbed over some portion of the fenced part of your property?

A She had access to the driveway through the patio, which she said yesterday in her statement she sat at on with me and had coffee and lunch. And there was a little gate there that didn't have a padlock. She could have taken -- that sliding glass door in the back of the house was open that day, which would have very easily left -- taken egress without any problem through that manner easily. However, as I said, when she said to me that the gate is closed, as soon as I could I said, "Tasha, I'll be right back. I'll get the FOB." I didn't know the gate was closed.

And once I got my bedroom to retrieve the FOB and -- and go back to the front door to be able to apply the -- the button successfully was about 35 or 40 seconds at the most and she was already on top of the fence. 35 or 40 seconds at the most. I did not remember that the gate was closed. That's happened before lots of times. Simple -- simple remedy, get the FOB and open the gate. Simple -- simple remedy. Q But you testified a moment ago that you deliberately closed the gate for privacy. A That's correct. But I didn't know she was that [indiscernible] leaving. I didn't realize that.

You think I closed the gate to trap her inside my -- my property? Like I said, you'd have to examine -- you'd have examined that other egress route that was available. [ 105 ] I accept that there were other means of egress available to Ms. Oscar which could have been used to leave the property. Moreover, I find that there was a two foot opening in the electric gate at the point in time Ms. Oscar made her decision to leave. [ 106 ] The accused’s acts of violence in pulling Ms.

Oscar down off of the gate and during the two struggles over her purse do not support the charge of unlawful confinement, but rather give rise to the offence of common assault: R. v. B.A.R. , supra, at para. 56-58 . [ 107 ] In sum, I find on the totality of the evidence before me that the accused clearly intended to make it difficult for Ms. Oscar to leave his property. However, his intent fell short of the requisite mens rea to prove the charge of unlawful confinement. Moreover, I find on the evidence that Ms.

Oscar was capable of and able to move about from place to place within the accused’s property, and that there were other means of egress open to Ms. Oscar to leave the property. Thus, the Crown has not proven the actus reus for this offence: see, E.B., supra , at para. 119. [ 108 ] Accordingly, the Crown has not proven beyond a reasonable doubt that the accused unlawfully confined Ms. Oscar within the meaning of section 279(2) of the Criminal Code and I thus acquit him of Count 3 of the Information. Assault [ 109 ] Count 1 of the Information alleges that the accused assaulted Ms. Oscar pursuant to

section 266 of the Criminal Code . Ms. Oscar’s Evidence: [ 110 ] Ms. Oscar testified that as she was in the process of climbing over the pedestrian gate, the accused grabbed her by the back of her shirt and “yanked” her to the ground. She landed flat on her back with her feet facing the gate. The accused stood over her and kicked her in the leg. [ 111 ] Ms. Oscar sat up and retrieved her purse which the accused attempted to take from her. He pulled her up off the ground and then punched her with a closed fist to the back of her head causing her to let go of her purse. He then started running towards the house.

She pursued him and another struggle ensued outside the front door. The accused shoved her against the wall of the house and pushed past her to go inside. He then closed and locked the front door. [ 112 ] Photographs of Ms. Oscar taken later that day showed a fresh scratch on her upper back below her left shoulder and bruising on her left leg in the area where she testified that the accused had kicked her. [ 113 ] Ms. Oscar gave a clear and detailed account in her evidence of the circumstances pertaining to the assault charge and her testimony was unshaken in cross-examination. I found Ms.

Oscar’s evidence to be credible and reliable. The Accused’s Evidence: [ 114 ] The accused, on the other hand, gave varying accounts of the sequence of events during both his direct examination and cross- examination regarding his physical confrontations at the gate and over the purse. In each of the accounts , it is his evidence that it was Ms. Oscar who was the aggressor. [ 115 ] The accused testified that he approached Ms. Oscar from behind as she was standing on the centre bar of the gate and told her to “get down” or she would hurt herself. Ms.

Oscar kicked him “in the chops” on the left side of his face as she lost her footing and then slid down the gate. He denied pulling on her shirt, hitting or kicking her. However, he admitted that he may have “patted her on the back” to brace her from falling before she slid down and fell to the ground. [ 116 ] The accused described in chief receiving “two blows” from Ms. Oscar after she hit the ground: Q Okay. What's the next thing that occurs? And go through this slowly and step by step, please. A I still have the FOB. She slides down the gate.

Q And when you say "slides down", does she get to the ground? A Yes. She rolls around, knocks the FOB out of my hand – … Q Okay. What does she do when she rolls around? A I get punched in the head, just above my left eye, abrasions to my forehead. Q Okay. She -- so, she punches you in the head, left-hand side in the area of the left eye? A Yes. Q What does that do to you? A Well, it blurred my vision. My glasses went flying off. Q Okay. What happened? Okay. Anything else?

A The FOB hit the ground. [ 117 ] Given the accused’s angry and agitated state, I do not accept that he responded in a calm manner by “patting” Ms. Oscar on the back to protect her from falling down off of the pedestrian gate and I reject his evidence in this regard. I find instead that in his frustrated state, he grabbed onto the back of Ms. Oscar and aggressively pulled her off the centre bar causing her to fall to the ground. In the course of the ensuing struggle, Ms. Oscar sustained the injuries visible to Cst.

Taylor later that day. [ 118 ] I further find on the evidence that the missing keys were never inside Ms. Oscar’s purse. Ms. Oscar told the accused that she did not have his keys. He refused to accept that and maintained his belief that she had taken his keys until he took possession of her purse. I prefer Ms. Oscar’s testimony to that of the accused and I find that Ms. Oscar had every right to resist the accused’s efforts to take the purse away from her. Thus I find that the accused was the clear aggressor in the two struggles over Ms.

Oscar’s purse. [ 119 ] Accordingly, I find beyond a reasonable doubt that the charge of common assault has been made out. I therefore find the accused guilty of Count 1 on the Information. Theft [ 120 ] The accused is alleged to have committed theft of Ms. Oscar’s purse. In her submissions, Crown counsel made the following concession: With respect to Count 4, the Crown concedes that when considered in the context of the evidence as a whole, there is an air of reality to the “colour of right” defence asserted by the defence. For this reason, the Crown invites the court to find Mr.

Heinze not guilty of Theft Under $5,000. [ 121 ] I find on the evidence as a whole that the accused did not take Ms. Oscar’s purse with the intention to steal it - rather he took the purse for the sole purpose of looking for his missing keys. The purse and its contents had been left by the accused on a ledge outside the front door of his house from which it was retrieved. As such, I direct an acquittal on Count 4 of the Information.

Summary [ 122 ] I find the accused guilty of assault in Count 1 of the Information and direct an acquittal on the remaining charges. _____________________________ The Honourable Judge D.L. Dorey Provincial Court of British Columbia