R. v. Desrosiers, 2016 ONCJ 872

ONTARIO COURT OF JUSTICE CITATION: R. v. Desrosiers , 2016 ONCJ 872 DATE: 2016·06·28 COURT FILE No.: Kenora 152742 BETWEEN: HER MAJESTY THE QUEEN — AND — Peter Desrosiers Before Justice Sarah Cleghorn Heard on January 8, January 22 & May 4, 2016 Reasons for Judgment released on June 28, 2016 Josh McKay ............................................................................................ counsel for the Crown John Bilton .......................................................... counsel for the defendant Peter Desrosiers Cleghorn J.: Overview [ 1 ] The defendant, Peter Desrosiers is charged with 3 offences.

First, that he uttered a threat to cause bodily harm to Keiyanah Bird, contrary to

section 264.1(1)(a). Secondly, that at the time of his arrest he had on his person a knife for a purpose dangerous to the public peace, contrary to

section 88. Lastly, it is alleged that by uttering the threat and possessing the knife that he breached the terms of a probation order that required him to keep the peace and be of good behaviour contrary to

section 733.1(1). The Crown elected to proceed summarily on all three counts. [ 2 ] On September 13, 2015 it is alleged that a male (who identified himself by his first name only, “Peter”) knocked on the door of the home of Jamie Pahpasay, in an intoxicated state, asking for a cigarette for his mother, “Rebecca”. The homeowners’ 16-year old daughter, Keiyanah, answered the door after yelling through the window to see who was outside and what the person wanted.

On her account upon opening the door and providing a cigarette to the person outside her home, the individual then made a threat, for no apparent reason, to return to the home and stab the occupants. [ 3 ] Keiyanah’s mother, Jamie Pahpasay, heard the threat but was otherwise occupied and therefore did not see the person at the front door. Based on the information provided to her by her daughter she assumed the male at the door was Peter Desrosiers, the defendant before the court. In response to what had transpired she contacted the police who responded by attending the home of Mr. Desrosiers. Mr.

Desrosiers was outside of the home when the police arrived. It was necessary for the police to issue the standard “police challenge” (described as an officer stating, “police don’t move” when an officer is going to draw his or her weapon) as it was believed Mr. Desrosiers had a weapon in his hand. In response to the challenge Mr. Desrosiers tossed an item to the ground. Found in the grass after Mr. Desrosiers was arrested was a fillet knife. [ 4 ] The case against Mr. Desrosiers is circumstantial. Neither the homeowner, Jamie Pahpasay, nor her teenage daughter, Keiyanah Bird, were able to identify Mr.

Desrosiers as the individual who attended at their home and uttered the threat. The Crown

called as witnesses at trial: Keiyanah Bird; Jamie Pahpasay; Sergeant Gervais; and Constable Ponton. The Evidence at Trial [ 5 ] Keiyanah Bird recounted the events of September 13, 2015. She heard a knock on the door while she was in her bedroom. She responded by looking out her bedroom window and asking who was there. The person responded, “I’m Peter. I’m looking for a cigarette for my mom Rebecca.” In response to this information Keiyanah asked the person to wait.

She then sought out her mother and informed her of what was occurring at which point she proceeded to the front door in order to provide the individual outside with a cigarette. [ 6 ] It is at this point that it is alleged the person outside the home uttered a threat. Keiyanah testified that although the person was mumbling and she was not able to discern all of the statements uttered she quite vividly recalls the very specific threat that this individual was going to return to the home and “stab us”.

In particular she testified; …when [he] said that “I’ll stab you” part, he was still close to like the house but he was walking away. But then I know for sure he said that because that, like I heard clearly. [ 7 ] What is clear from the evidence of Keiyanah is that she did not recognize the person at the door. However, she was able to describe what the person was wearing; a blue shirt and beach shorts. [ 8 ] She assumed it was the defendant based on her mother, (who at no time saw the face of the person standing outside), providing her with the last name, “Desrosiers”.

In short, Keiyanah informed her mother that a “Peter” was outside looking for a cigarette for his mother, “Rebecca”, and she concluded that it was defendant based on her mother’s say so. Although Keiyanah identified Mr. Desrosiers in court, I place virtually no weight on her in-dock identification given her concession that she had no idea who Peter Desrosiers was before this incident and the absence of any evidence that she identified him outside of court through a proper identification procedure. [ 9 ] Keiyanah Bird’s mother, Jamie Pahpasay, testified. Ms.

Pahpasay was bathing her younger children when her oldest daughter, Keiyanah approached her. She told Keiyanah that she was not to give the person at the door a cigarette. She next heard arguing. On her account she was able to hear the individual make a threat to return to the home and stab everyone who was in the household, “I’m going to come back and stab you all.” [ 10 ] In response to hearing the threat Ms. Pahpasay left the bathroom to investigate what was occurring. By the time she arrived the individual was walking away from the home and she was not able to see the person’s face.

Based on what transpired, Ms. Pahpasay made the assumption that the person at her front door was Peter Desrosier. In response to the threat she immediately contacted the police. She made the call to police at approximately 9:30 p.m. [ 11 ] Sergeant Gervais responded to the call along with Constable Ponton. After statements were obtained the police proceeded to the residence of Mr. Desrosiers, arriving there at 10:18 p.m. Sergeant Gervais was aware that both Shane and Peter Desrosiers reside at the same residence and testified that the residence was approximately 300 metres from the complainant’s home.

When they initially arrived at the home Sergeant Gervais observed an individual outside of the home. As it was unclear to him whether it was Shane or Peter, he called out the name “Peter” (parethically Constable Ponton testified that she was the person responsible for calling out the name Peter. Regardless of who called out the name Peter, I am satisfied that the name was called out by one of the officers at which point the individual responded as described by Sergeant Gervais).

In response, the person stopped walking and looked at Sergeant Gervais. [ 12 ] After calling out, “Peter”, Sergeant Gervais observed what he believed to be a weapon being held by the male. Based on Sergeant Gervais account the following occurred: “And then when I said, ‘Peter don’t move’, he threw the knife down in the tall grass beside the house.” [ 13 ] Fearing for officer safety, the standard police challenge was issued. Mr. Desrosiers complied with all instructions from the police. Sergeant Gervais confirmed the identity of Peter Desrosiers after the arrest through his date of birth.

Sergeant Gervais described Mr. Desrosiers as displaying some signs of intoxication, for example “red glossy eyes”. [ 14 ] Constable Ponton seized a fillet knife from the area where the officer observed the object to be thrown. The knife became Exhibit 2 at trial. [ 15 ] Constable Ponton has had prior dealings with Mr. Desrosiers’ brother, Shane Desrosier and the mother (who Constable Ponton identified as Rebecca Fobister). She has been involved with the defendant on one prior occasion. As a result of her past involvement with the family she is familiar with the residence and where it is located.

She testified that it would take approximately one minute to drive from the complainant’s home to the Desrosiers’ residence. Given the size of the community of Grassy Narrows and the officers’ involvement with the family she was well aware of where the family residence was located within the community. Analysis [ 16 ] The Crown’s case against the defendant depends entirely on circumstantial evidence.

In such a case, the law is clear; a finding of guilt requires that the trier of fact be satisfied beyond a reasonable doubt that the defendant’s guilt is the only rational inference to be drawn from the entirety of the evidence. In other words, if there is a rational alternative inference to be drawn from the evidence, then there is a reasonable doubt and the defendant must be found not guilty. See R. v.

Griffin , 2009 SCC 28 at para. 33 . [ 17 ] Keiyanah Bird did not know the man who came to her door on the evening in question, who identified himself as “Peter”, asked for a cigarette and ultimately issued a threat. She was forthright in her evidence that she could not identify him. Her mother is the person who suspected that the “Peter” at the door must be Peter Desrosiers. She did so based on the fact that the man had said his mother was “Rebecca”. Constable Ponton testified that Peter Desrosiers’ mother is Rebecca Fobister.

[ 18 ] Based on this information the officers attended the home of Rebecca Fobister. Constable Ponton has had many past dealings with the family and was therefore in a position to know the location of the home. Upon arrival at the home she found Peter Desrosiers outside the residence. [ 19 ] At the time of Mr. Desrosiers arrest he was wearing black jeans and a turquoise t-shirt. The evidence of Keiyanah is that the person at the front door was wearing a blue shirt and beach shorts. The events of this evening occurred at nighttime (Ms. Pahpasay called the police at approximately 9:30 p.m.).

The police arrived at the Desrosiers’ residence at 10:18 p.m. It is reasonable to infer that if Mr. Desrosiers was the person at the door he would have had ample opportunity to change his clothes between his departure from the residence and the arrival of the police. [ 20 ] Both Keiyanah Bird and Jamie Pahpasay testified to the threat that was uttered. Both gave evidence that the person at the door made a threat to return to the household and stab the occupants.

The threat was specific in nature. [ 21 ] The distance between the complainant’s home and the residence where the defendant was residing were close in proximity and certainly within walking distance of one another. [ 22 ] Upon the arrival of the police at his residence, Peter Desrosiers was standing in his yard and holding a knife in his hand. [ 23 ] The totality of the evidence reaches a level, in my view, that eliminates the chance of coincidence.

The evidence clearly establishes that a person who claimed his name was “Peter” attended at the home of the complainant requesting a cigarette for his mother, who he identified as “Rebecca”. Peter Desrosiers mother is Rebecca Fobister. Two occupants of the home testified as to the nature of the threat, to return and stab the occupants of the home. The defendant resides within walking distance of the victims’ home.

Within forty minutes of the incident, police attended at his home and observed him standing outside and holding what turned out to be a fillet knife. [ 24 ] On the totality of the evidence, there is simply no logical alternative explanation other than that the defendant is the perpetrator.

The idea that someone named “Peter”, whose mother was named “Rebecca”, attended at the victims’ residence and threatened to stab them, and that the defendant, who happened to share these unique characteristics, lived a short distance away, just happened to be outside a short time later holding a large knife, seems improbable in the extreme. [ 25 ] The only incongruent fact would seem to be that Mr. Desrosiers clothing did not match that of the perpetrator. But as I noted earlier, given the passage of time between the threat and the attendance of the police, Mr.

Desrosiers clearly had ample opportunity to change his clothing. [ 26 ] Based on the evidence I am satisfied that the individual who attended the home of Keiyanah Bird is the defendant before me, Peter Desrosiers. I am satisfied that the Crown has discharged its burden and established beyond a reasonable doubt the mens rea and actus rea for all three offences. Peter Desrosiers uttered a threat to cause harm when he made the statement that he would return to stab the occupants of the home sufficiently raising a level of fear in the complainant and Ms. Pahpasay that the police were immediately contacted.

At the time of his arrest he had in his possession a fillet knife. I am further satisfied that his intention in possessing the fillet knife was for a purpose dangerous to the public peace. In all of the circumstances, I find that Mr. Desrosiers possession of the knife was directly related to his threat. Lastly, as he was bound by a probation order at the time of the offences he did not keep the peace nor was he of good behaviour. Conclusion [ 27 ] For these reasons I find Peter Desrosiers guilty of all three charges. Released: June 28, 2016 Signed: “Justice Cleghorn”