R. v. Jararuse, 2019 NLSC 207

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Jararuse , 2019 NLSC 207 Date : November 20, 2019 Docket : 201808G0152 Her Majesty The Queen v. Thomas Jararuse Before: Justice Frances J. Knickle Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Dates of Hearing: April 3, 4, 5, 2019 June 21, 2019 September 10, 17, 27, 2019 November 19, 2019

Summary: The Accused, armed with at least one knife, and while under the influence of alcohol, barricaded himself in his bedroom with R.M.F. for almost two hours. Police attempted to negotiate with the Accused to end the standoff. The officers could hear R.M.F. pleading with the Accused. The Accused threatened to kill himself and R.M.F. if the police did not leave. It was not until R.M.F. shouted “I have the knife! Break the door!” that the officers forced the door open and the Accused was arrested without further incident.

The Accused was found guilty of assault with a weapon, forcible confinement, uttering threats, sexual assault with a weapon, and possession of a weapon for a purpose dangerous to the public peace. He also breached two conditions of his most recent terms of release. The offence of possession of a weapon for a purpose dangerous to the public peace was stayed under the Kienapple principle. Appearances:

Samantha E. Allen Appearing on behalf of the Crown Shelley A. Senior, Q.C. Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40; R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742; R. c. Gagnon, 2006 SCC 17; R. v. K.P., 2019, NLCA 37; R. v. Best, 2016 NLCA 10; R. v. S.O.,2019 NLCA 42; R. v. M. (R.E.), 2008 SCC 51; R. c. McRae, 2013 SCC 68; R. v. Bone, (MB CA), [1993] 81 C.C.C.(3d) 389, 21 C.R. (4th) 218 (Man. C.A.); R. v. Smythe, 2019 NLCA 73; R. v. Pritchard, 2008 SCC 59; R. c.

Tremblay (1997), (QC CA), 117 C.C.C. (3d) 86, 35 W.C.B. (2d) 384 (Qc. C.A.); R. v. O’Quinn, 2014 NLCA 23; R. v. Briscoe (1992), (BC CA), 76 C.C.C.(3d) 563 (BCCA); R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729. STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46. REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] Thomas Jararuse is charged with a number of offences under the Criminal Code of Canada, R.S.C. 1985, c. C-46: sexualassault with a weapon contrary to

section 272(a); assault with a weapon contrary to

section 267(a); uttering threats to cause deathcontrary to

section 264.1(1)(a); forcible confinement, contrary to section 279(2); possession of a weapon for a purpose dangerous to thepublic peace contrary to section 88(2); and two breaches of a recognizance arising from the alleged offences by failing to keep the peaceand be of good behavior, and consuming alcohol, contrary to section 145(3). The alleged victim is R.M.F., the girlfriend of the Accused.The trial proceeded over the course of several days. Five police officers and R.M.F. testified for the Crown. The Accused testified onhis own behalf. [2] This is the decision on verdict.

THE EVIDENCE The testimony of Constable David Trenholm [3] Constable Trenholm testified he was a peace officer employed with the Royal Canadian Mounted Police (RCMP). On the datein question, he was stationed in the community where the offences were alleged to have occurred. He was on day shift and shortly before9 a.m., he became aware of an incident at the Accused’s home. There was a call from the Accused’s sister, R.J., who advised the policethat the Accused was intoxicated, suicidal and threatening that he would be dead before they could get to his home.

Constable Trenholmtestified he was familiar with the Accused and where he lived. He explained he had previous dealings with the Accused, both when theAccused was sober and under the influence of alcohol. [4] Upon receiving the telephone call, he and Sergeant Davis, also on duty, “suited up” in their winter gear to travel to theAccused’s house. They traveled by skidoo. The weather was cold, clear and sunny and it took only a few minutes to reach theAccused’s home. Constable Trenholm believed that one of the Accused’s sons, he was not sure if it was E. or M., was present whenthey arrived.

Another son, M., arrived on the scene. After some brief discussion, the officers were satisfied that there was a legitimateconcern that the Accused was suicidal, so they decided to enter the house. [5] Both officers entered the side entrance to the house. They entered a narrow hallway that showed two bedrooms on both sidesof the hallway. The first three bedrooms were cleared by the officers. But the second room on the right had the door closed. ConstableTrenholm believed something was blocking the door from the other side. Constable Trenholm testified he could hear voices comingfrom the room.

He recognized the voice of the Accused. It was loud and yelling “Get the f—out of my house. Get the f--- out of myhouse”. Constable Trenholm testified he could also hear a woman sobbing, and saying “He’s got a knife on me”. The woman identifiedherself as R., but Constable Trenholm testified he was also familiar with R. and recognized her voice. Constable Trenholm then heardthe Accused say “I’ll kill her, I’ll kill her if you do not leave”. [6] Constable Trenholm testified he and Sergeant Davis positioned themselves in different areas and communicated via radio.

Hewas positioned in the first bedroom on the right, so he could hear through the walls to the room where R.M.F. and the Accused werelocated. Constable Trenholm testified he was near the door and Sergeant Davis was “coming and going”. Constable Trenholm testifiedhe tried to “de-escalate” the situation by talking to the Accused. However the Accused was yelling and was not listening to anythingConstable Trenholm had to say. Constable Trenholm testified that he could easily hear what was said inside the bedroom as the wallswere “paper thin”.

The Accused yelled he did not want to go back to jail, and did not want to die. Constable Trenholm asked theAccused to let R.M.F. out of the room and talk with the officer, but he “could not make a connection” with the Accused. He testified he

thought the Accused sounded intoxicated. He was familiar with the Accused when he was under the influence of alcohol. [ 7 ] M., one of the other sons of the Accused present at the scene, offered to speak to the Accused. Constable Trenholm thought M. might have a rapport with the Accused so allowed him to try and talk to the Accused. M. was not successful in calming down the Accused, and he eventually left the scene. Constable Trenholm was not certain when in the sequence of events M. made the effort to speak with the Accused, as his attention was focused on the Accused.

Constable Trenholm testified he and Sergeant Davis then discussed what might be the next steps and whether to break down the door. He radioed Sergeant Davis to let him know what was going on. Things seemed to have quieted so the officers decided not to try to break the door, and continued to try to talk to the Accused. At this point, three other officers arrived on scene to assist. [ 8 ] Constable Trenholm testified that the Accused called out that he could see the sleds and skidoos of the officers, and repeatedly demanded the equipment be moved.

Constable Trenholm responded to the Accused that they would move the sleds if the Accused would release R.M.F. The Accused responded he would release R.M.F. Directions were given to move the equipment. However, when Constable Trenholm advised the Accused that the sleds were removed the Accused responded “Get the f—out of my house. If you want to see R.M.F die, you come in here”. Constable Trenholm testified R.M.F. was crying.

He testified there were periods when R.M.F. was quiet and periods when she was sobbing. [ 9 ] Constable Trenholm was unsure whether to leave the house because he was afraid they might lose control of the situation. Constable Trenholm testified that when “back up” arrived, another officer, Constable Charlton, came in the house and took up position across the hallway in one of the other bedrooms. Sergeant Davis, who at that point had been in that bedroom, left. Constable Trenholm testified that he heard R.M.F. pleading with the Accused and telling him that she “loved” him.

The Accused responded repeatedly “You don’t love me”. [ 10 ] At another point, one of the officers, Constable Thomson, was outside and near the front window. Constable Trenholm testified that Constable Thomson was directed to see what he could see inside the window. However when the Accused saw Constable Thomson, he became very irritated so the officer withdrew from the proximity of the window. [ 11 ] Constable Trenholm testified that there then was a long period of waiting where not much appeared to happen. The officers were hoping that the Accused would “pass out”.

He listened for this, or for signs if things were “worsening”. He then heard the door of the bedroom open and heard what sounded like feet shuffling. He was not able to see what was happening, but it sounded as if someone was exiting the room. He heard the Accused call “Anyone f—ing here?” and also heard R.M.F. call out. He then heard R.M.F. say “No one’s there” a couple of times, and “You got to let me go”. Constable Trenholm then heard what sounded like the two were moving back into the bedroom and the Accused barricading the door.

He did not see either the Accused or R.M.F. when they exited the room, but Sergeant Davis advised him by radio that the Accused held R.M.F. at knife point when they were in the hallway. [ 12 ] Constable Trenholm testified there was another period of waiting. He then heard R.M.F. say “I love you” and then asked the Accused if he wanted to have sex with her. The Accused responded “You want to die” to which R.M.F. responded “I don’t”.

Then the Accused stated “I’m on top of you” and R.M.F. then responded “Ow, ow, ow, you’re cutting me, I need a bandage.” The Accused then stated “You don’t love me, you don’t love me” to which R.M.F. responded “I’m trying, I’m trying”.

Hearing this exchange, Constable Trenholm was concerned that the Accused was sexually assaulting the complainant; but because the Accused was armed with a knife, he was also concerned what would happen to R.M.F. if the officers tried to force the door. [ 13 ] Constable Trenholm testified that the room started to get quiet, and then he heard R.M.F. yell “I’ve got the knife, I’ve got the knife! Break the door!” Constable Trenholm testified the officers then immediately kicked the door open. When the door opened, the Accused was next to Constable Trenholm and R.M.F. was to the far left in the room.

The officer could see the Accused’s hands and he then used what is commonly known as a “taser” on the Accused who, upon receiving the electrical current, immediately went to the ground. Constable Trenholm testified that the Accused was cooperative once subdued. The Accused was given his rights and caution as well as his rights under the Charter . Constable Trenholm testified that the Accused responded “sure”. The time was 10:58 a.m. Constable Trenholm testified the Accused was very intoxicated. R.M.F.’s coat and boots were found, and she was taken to the health clinic.

Although the Accused was cooperative he stated repeatedly “Kill me. Kill me.” [ 14 ] Inside the room the officers located a bottle of liquor and a knife on the bed. Photographs were taken of the house, and the room, as well as of injuries to R.M.F. [ 15 ] Under cross-examination Constable Trenholm testified that he was the first person in the house and did not see anyone else in the house at the time. When it was put to him that according to Sergeant Davis’s notes one of the Accused’s sons, J., was in one of the bedrooms and was removed by the officer, Constable Trenholm testified he did not see anyone else.

He testified that he checked all the rooms, but Sergeant Davis may have also checked the rooms prior to him checking the rooms. [ 16 ] Constable Trenholm agreed he did not know how long R.M.F. had been at the residence prior to the arrival of the police. When asked if R.M.F. was intoxicated, Constable Trenholm testified that initially, when he heard her voice he did not think so, but as time passed, it sounded to him as if she was becoming intoxicated. He testified that he is familiar with R.M.F. and has had dealings with her both when she was intoxicated and sober.

He testified that she was not someone who was “a problem” in his dealings with her. [ 17 ] Constable Trenholm agreed the house was very small. He confirmed he did not see R.M.F. holding the knife. Constable Trenholm was challenged as to whether it was necessary to “taser” the Accused. He agreed the Accused was of small stature, and there was no indication of firearms. He also agreed the Accused did not attack the officers when the door was opened. Constable Trenholm was firm that his decision to “taser” the Accused was reasonable in the circumstances.

The testimony of Constable Sean Thomson [ 18 ] Constable Thomson testified he has been with the RCMP as a peace officer for three years and was posted in N., NL for two years. He testified he was not on duty on the date in question but was called in to assist the other officers because of what he described as an “unfolding situation”. Constable Thomson testified he was familiar with the Accused, and his residence. He testified he and

Constable Charlton arrived at the residence at about 9:30 a.m. in the morning. He was not certain but he thought the Accused’s two sons, E. and J., were present outside upon the officers’ arrival. [ 19 ] Constable Thomson testified that upon arrival he was instructed to move past the window from the bedroom where the Accused was located. He positioned himself to try to see in the window but could not see in because of the glare. At one point, he observed the Accused and R.M.F. come to the window. He could see the Accused was brandishing a knife. Constable Thomson could not tell the colour of the handle.

The Accused held the handle of the knife over his head, hitting the window with the blade, gesturing aggressively and yelling “incoherently”. Constable Thomson testified that R.M.F. was gesturing as if to “wave off” Constable Thomson. Constable Thomson testified he radioed the information to the other officers. He was then directed to move away from the window. He moved to the other side of the street. He could still see the window and see clearly if someone was at the window.

However, he could not see once they stepped back from the window. [ 20 ] Constable Thomson testified he remained outside the home, until 10:55, when R.M.F. came out of the house. He heard that she was coming out over the radio. He observed her running frantically, and took her to her mother’s house. He did not recall observing injuries. He testified Constable Charlton took R.M.F. to the health clinic and he went back into the house to take photos and seize exhibits. Constable Thomson described the room as “very messy”. A bottle of rum was seized, as well as a brown handled knife that was on the bed.

Constable Thomson could not say if the knife on the bed was the same knife he had observed the Accused holding at the window. He did not make any observations as to what may have been used to barricade the door to the room. [ 21 ] Constable Thomson testified he also had an opportunity to observe the Accused after he was arrested. The Accused was described as “intoxicated”. His speech was slurred, and he smelled of liquor.

Constable Thomson testified that at the clinic the Accused had to be held down until he could be treated by the nurses, but he did eventually calm down. [ 22 ] On cross-examination Constable Thomson testified it was approximately 45 minutes from the time he received the call to when he observed the Accused at the window. He testified he did not see R.M.F. at first but thought the Accused pushed her in front of the window. Constable Thomson agreed he could not say for sure that the Accused pushed her but described that she was not there, and all of a sudden she was there.

Constable Thomson did not recall J., one of the Accused’s son’s, being present at the scene outside. He agreed that R.M.F. was intoxicated. He stated her speech was slurred. He had observed her on previous occasions and was familiar with her both in a sober and intoxicated state. The testimony of Sergeant Ross Davis [ 23 ] Sergeant Davis testified he has been a peace officer with the RCMP for 22 years, and has been a sergeant for four years. On the date in question, he was stationed in N., NL.

He testified that at 8:50 a.m. the detachment received a call from R.J., the sister of the Accused, that the Accused was in breach of his current court order and the Accused was saying he was not going back to jail and would be dead before the police got there. Sergeant Davis testified he was familiar with the Accused and had dealings with him when the Accused was sober and when the Accused was intoxicated. [ 24 ] Upon arrival, the officers pounded on the door, and waited momentarily, but there was no response. Sergeant Davis testified that they decided to enter the house.

The door was opened and they yelled “police, police”. Sergeant Davis testified that it was very quiet inside the house. He and Constable Trenholm went from room to room. When they got to the room where the Accused was located one of the officers “jiggled” the door knob. The Accused shouted from behind the door “Get the f— out of my house”. Sergeant Davis testified he recognized the voice of the Accused. [ 25 ] Sergeant Davis testified that he asked the Accused to open the door, but the Accused screamed “I have a knife. I’m gonna’ kill myself. I’m gonna’ kill R—“.

Sergeant Davis then heard a female voice say “He has a knife, he has a knife”. Sergeant Davis testified he recognized the female voice as R.M.F.’s voice. Sergeant Davis asked again for the Accused to open the door, but the Accused responded telling the officers to get out of his house. Sergeant Davis testified that the Accused had mental health issues in the past, so he was concerned. He decided to give the Accused some distance, and the officers “backed off”. Sergeant Davis testified that he went across the hall to one of the other rooms.

It was at that point he saw the Accused’s son, J., seated on a chair in that bedroom smoking a cigarette. He escorted J. out of the house. Sergeant Davis then returned to the house, checking the kitchen and the living room for other persons. [ 26 ] Sergeant Davis testified he then radioed for assistance. He discussed with Constable Trenholm their options, and how they might “de-escalate” the situation. They asked the Accused to release R.M.F. The Accused was striking the door with something metal responding that he was not going back to jail and was going to die first.

Sergeant Davis testified that the Accused stated that if the police did not leave he would kill R.M.F. Sergeant Davis testified that he then heard R.M.F. say “are you really going to kill me” and the Accused responded “No, I will kill myself.” When R.M.F. asked him why, the Accused stated because he was not going back to jail. [ 27 ] Sergeant Davis testified that M., one of the Accused’s sons, tried to talk to the Accused as well. The Accused responded “Get out of my house, get out of my house”. The officer did not let M. go into the house, but had M. remain at the doorway.

After the unsuccessful effort made by M. to talk to the Accused, M. left saying to the officers, “You will have to let him sleep it off”. [ 28 ] Sergeant Davis testified there was further discussion with Constable Trenholm about whether to break down the door. He testified that there was a point that the Accused became irritated because of the sleds and snowmobiles outside.

As Constable Trenholm testified, despite agreeing to release R.M.F. if the machines were moved, the Accused refused to let her leave the room and instead screamed and yelled at the officers again to get out, and that he was not going back to jail. [ 29 ] Sergeant Davis also testified that at one point the Accused became upset because he could see Constable Thomson from the window, so he directed Constable Thomson to move. Sergeant Davis testified that Constable Thomson radioed that he could see the Accused brandishing a knife towards R.M.F.

Sergeant Davis also confirmed that at one point the Accused and R.M.F. exited the room. He heard R.M.F. state “they’re gone” and what sounded like moving and scraping of furniture. Sergeant Davis saw the door knob move. Sergeant Davis stated he could not see R.M.F., or the Accused, but could hear the shuffling of feet. It sound like they exited the room, and then re-entered the room. The door closed, and the officers remained silent. There was more conversation between R.M.F.

and the Accused. The Accused was yelling at R.M.F. saying “You don’t love me, you don’t love me” and she repeatedly saying “I do love you”. Sergeant Davis testified he then heard R.M.F. ask the Accused if he wanted to F--- her, and there was sounds of moving and “shuffling”. He then heard R.M.F. say “I’m trying, I’m trying”, and then “Ow”, and “You told me you were not going to hurt me” and then, “Now I need a band-aid”. Then Sergeant Davis heard R.M.F. say “Ow, ow, ow”, and “You’re cutting me. That hurts.” There was a moment of quiet, and then Sergeant Davis heard R.M.F. yell, “I’ve got the knife!

I’ve got the knife! Kick the door!” [ 30 ] Sergeant Davis testified the officers immediately forced the door and entered the room. R.M.F. was standing on the bed. Sergeant Davis told the Accused, “You’re under arrest” and to “Show me your hands”. The Accused was then “tasered” by Constable Trenholm. Sergeant Davis handcuffed the Accused. A knife was observed on the bed and a 750 ml bottle of Lamb’s rum, about three quarters full, was on the table in the room.

Sergeant Davis testified that it was about 11 a.m. when the Accused was placed in custody, and he observed the Accused was intoxicated. [ 31 ] Under cross-examination, Sergeant Davis agreed he could not say if the door was barricaded, however the door knob was locked. He denied that his notes suggested that at the time they thought the Accused was “sobering up”. Sergeant Davis testified that the note referred to the fact that he and the other officers discussed the possibility of waiting for the Accused to “sober up”.

Sergeant Davis testified that to him, at the time, it sounded as if the Accused was “forcing” R.M.F. to drink. [ 32 ] Sergeant Davis then identified a number of photos taken of the room and the house. He confirmed that a knife was seized as well as a bottle of rum. The testimony of Constable Charlton [ 33 ] Constable Charlton testified that he has been a member with the RCMP since 2008 and is currently stationed in the community where the alleged offences occurred. He was familiar with the Accused and has had dealings with the Accused when he was both sober and intoxicated. He was also familiar with R.M.F.

He testified that upon arrival at the scene he was directed to park “behind” the home as the Accused wanted the police to leave. He testified that Constable Thomson stayed outside, and he went into the house. He positioned himself in the bedroom across from where the Accused and R.M.F. were located. [ 34 ] Constable Charlton testified the other officers tried to negotiate with the Accused to let R.M.F. out of the room. Constable Charlton heard the Accused say “Do you want to die. I want to die. I will kill you” and “I love you”. He then heard R.M.F. say “I’m afraid. I want my mommy I am scared”.

Constable Charlton testified that despite the efforts to negotiate with the Accused, the Accused became “more and more” angry. [ 35 ] Constable Charlton testified that at one point the door opened. He could not see but was certain the door opened by the sounds he heard. He could hear the voices of the Accused and R.M.F. There was another period when he overheard R.M.F. ask the Accused if he wanted to have sex.

He then heard the Accused say “You don’t love me”, to which R.M.F. responded “I’m trying.” [ 36 ] He testified there was another period of time, he did not know how long, when he heard R.M.F. yell “I have the knife”. The officer then entered the room. He could see R.M.F. standing on the bed holding the knife over her head. Constable Charlton went over to her, and convinced her to come with him, to get her out of the room.

He testified that he could tell she was intoxicated and it took some convincing, but she agreed to go as long as she could go to her mother’s house to have a smoke, which Constable Charlton agreed to let her do. [ 37 ] Constable Charlton testified that he observed cuts on R.M.F.’s neck and her hands and described her as “terrified” and “trembling”. Constable Charlton testified he could tell R.M.F. was intoxicated because he had dealt with her “a lot”. He could smell liquor and she was unbalanced on her feet and staggered. He drove R.M.F. to her mother’s residence and to the clinic.

Constable Charlton then returned to the clinic where he observed the Accused. Constable Charlton testified the Accused was also intoxicated. [ 38 ] Constable Charlton then explained several photographs that were taken of R.M.F. at the clinic showing cuts to the right side of her neck, a large scrape on the front left side, and a cut in between the thumb and forefinger of her left hand. [ 39 ] On cross-examination, Constable Charlton stated there were four officers present when the door was forced open. He testified that Sergeant Davis kicked the door.

Constable Charlton did not see the Accused, but observed R.M.F. on the bed with the knife. He testified that he did not know if R.M.F. was bound by any court orders that required her to refrain from alcohol. Constable Charlton testified that he knew R.M.F. was intoxicated and that she was reluctant to speak with the police. The testimony of Constable Henry Broomfield [ 40 ] Constable Broomfield testified that he has been a peace officer with the RCMP since 2007. He is originally from coastal Labrador. He was supposed to be on regular time off that day, but received a call from Constable Charlton to come to work.

He went to the scene on his own skidoo and parked in a location out of view of the Accused. There were a few people standing around, including two of the Accused’s sons, E. and M. They told Constable Broomfield that R. was inside, and he asked, his “daughter?” They responded no, R.M.F. At that point, Constable Charlton approached him. Then Sergeant Davis came out and briefed him. Constable Broomfield testified he contacted the medical clinic, to “put them on notice” as to what was going on.

He testified he could hear yelling from inside the home. [ 41 ] Constable Broomfield testified that when the officers entered the house, Constables Trenholm and Charlton were on his right in the first bedroom, and he and Sergeant Davis went to the bedroom across the hall from where he understood the Accused and R.M.F. were located. At that time, Constable Broomfield could hear the Accused yelling asking R.M.F. if “she wanted to die” and that he “was going to kill her”.

Constable Broomfield testified that R.M.F. was crying saying “No, don’t kill me, I don’t want to die” and “stop waving the knife around” and “you said you weren’t going to hurt me”. Constable Broomfield testified the Accused repeatedly stated: “I’m going to kill you”. [ 42 ] Constable Broomfield testified that at one point, Constable Thomson advised he could see the Accused waving a knife and that

R.M.F. was upset. Constable Broomfield testified that what Constable Thomson described “made sense with what we were hearing”, because they could hear R.M.F. crying and saying “please go”. He testified that Sergeant Davis told Thomson to move out of sight of the Accused. When Constable Thomson moved away, this seemed to calm down the Accused, although R.M.F. still sounded upset and was pleading with the Accused to “give up”. [ 43 ] As testified to by the other officers, Constable Broomfield described that at one point it appeared that the Accused and R.M.F. left the bedroom.

He could see shadows of moving figures, although he could not actually see either the Accused or R.M.F. He heard the Accused say “Is anyone there?” and then R.M.F. say, “See there’s no one there”. The voices sounded like they went towards the living room, and then back to the bedroom. He heard R.M.F. say “Just let me go please”. Once the two were back in the bedroom, Constable Broomfield testified that he could hear a sound as if something heavy was being moved. [ 44 ] Constable Broomfield testified he could tell R.M.F. was upset, and it sounded as if the Accused was demanding that she drink.

He then heard R.M.F. ask the Accused if he wanted to have sex. R.M.F told the Accused that she loved him, and to stop waving he knife. The Accused then said, “Do you want me to kill you? I’m not going back to jail”. At one point Constable Broomfield heard R.M.F. say “You’re hurting me” and “You cut me” and “I need a band-aid”. [ 45 ] Constable Broomfield testified he went outside to try and get a better vantage point. He could hear the Accused continuing to say “You want to die” and R.M.F. pleading with him: “Please let me see my mom. I don’t want to die”.

Constable Broomfield testified that just as he decided to go back into the house, he heard R.M.F. yell “Break it in! I’ve got the knife”. [ 46 ] When the door was forced open, Constable Broomfield observed R.M.F. on the bed holding the knife over her head. He stated “R—, drop the knife”. R.M.F. dropped the knife on the bed. He described the knife as having a blade of about 5-6 inches. Constable Broomfield testified he reached over and dragged R.M.F. from the room and passed her over to Constable Charlton.

Constable Broomfield testified that he then dealt with the Accused, who repeatedly said “Kill me, kill me” as he was escorted from the scene via the snowmobile to the health clinic. Constable Broomfield testified he tried to calm the Accused. Several of the Accused’s family members were at the health clinic. [ 47 ] Constable Broomfield testified the incident seemed to “go on” forever but lasted about two hours. He testified that when the Accused is sober, he is the kindest, gentlest man. On cross-examination, Constable Broomfield was surprised that the Accused was aggressive with him.

He described the Accused as “very intoxicated’. Constable Broomfield maintained that he could hear the Accused forcing R.M.F. to drink while they were in the bedroom. The testimony of R.M.F. [ 48 ] R.M.F. was the last witness for the Crown. She testified she is 35 years old and lives with her mother in the community where the incident occurred. She testified that she has lived in the community all of her life. [ 49 ] On the date in question, she testified that she rose early and went to the Accused’s home. She testified that she was worried about the Accused because he had been arrested the day prior.

She testified that at the time, she was “seeing” the Accused, and had been “seeing him” for about three months. She testified she saw him almost daily. Although she could not testify to his civic address number, she knew his home was just “down the street” from her and about a “minute” away. [ 50 ] She testified that when she arrived, the Accused was “already smoking dope”. R.M.F. testified that while she was there, the Accused’s daughter, R., came in the house and asked the Accused if he was doing drugs and drinking, because if he was she was going to call the police.

At the time, the Accused was bound by a court order not to consume alcohol. R. stated she was going to call the RCMP and left. [ 51 ] According to R.M.F., after this exchange with R., the Accused then went to the kitchen, grabbed a knife and then locked the door. The Accused started getting angry and “throwing stuff”. He pushed R.M.F. and stated “I’m not going to jail” three times. He then stated he was going to kill her and kill himself. R.M.F. testified that it was about 5 minutes later that the RCMP arrived.

R.M.F. could tell the police had arrived because she could hear the snowmobiles. [ 52 ] R.M.F. testified that the police tried to talk to the Accused and asked “R--- is that you?” even though the officers knew it was her. She testified that “they” told her to go look for the Accused’s “booze”. R.M.F. testified that she found a 26-ouncer of Lambs rum. It was full. “They” told her to drink the booze, and she had no choice because he had a weapon (Although R.M.F. used the pronoun “they”, it was evident from the context of her testimony that she was referring to the Accused).

R.M.F. described the knife as being long with a brown handle. She testified that the Accused had two knives, and forced the alcohol to her mouth. She had no choice but to drink. She testified that when the Accused looked away she spat out the liquor because she was on conditions not to drink. She testified the Accused was not drinking, but was “smoking dope”. [ 53 ] There was a period of quiet, and R.M.F. tried to calm the Accused. She gave him a hug, but he would not listen to her and got mad. She testified that she wanted to calm down the Accused because he had a weapon.

She wanted to go home but the Accused would not let her leave. Whenever he heard the RCMP he would say “f--, f--, f--”. She testified that she was scared and thought the Accused was going to kill her, and she was in danger. [ 54 ] R.M.F. testified that she told the Accused she loved him. He put his head on her knees, and she was trying to comfort the Accused and get him to go to sleep. After being shown her written statement to the police to re-fresh her memory, R.M.F. added that the Accused tried to get her to perform oral sex on him.

She testified that he held down his pants and was forcing her head towards his penis. He was standing. He had one hand in her hair, and did not know where the other hand was, or where the knife was. At that point R.M.F. requested a break from testifying. [ 55 ] When she returned to the stand, R.M.F. testified that the Accused had one hand “tangled up” in her hair, and his left hand was holding the knife. She testified he was telling her to “suck on it” and she replied “No, it’s gross”. It was during this time the knife came into contact with her cheek.

She testified that the two knives “criss-crossed” her neck leaving scratches. The Accused stated he would

kill her and then kill himself. She testified that she soiled herself while she was in the room with the Accused because she was scared. [ 56 ] R.M.F. testified that the Accused then wanted to have intercourse. R.M.F. testified that she was on her period so she did not want to have sex. However, she agreed because she wanted to make him happy. She testified she did not like him “mad” and he was “scary” when he was mad. R.M.F. testified she had a chance to “smack” the knife. She testified that she counted 120 seconds while the Accused had his head on her knees. She told the police to “Do it now”.

The police came in and they got her out of the room. [ 57 ] She testified that while she was in the bedroom with the Accused, he would not let her leave. She testified that she asked to “pee” and he told her to urinate in the salt beef bucket. She testified that the Accused had barred the door with a metal rod, about three feet long. R.M.F. was shown the photos that had been taken by Constable Charlton.

R.M.F. testified that the marks on her neck was where the Accused had scratched her with the knife and the cut to her hand was when she tried to move the knife away. [ 58 ] She testified that she tried to go home but they took her to the hospital. She testified that she did not want to be in the room with the Accused, and that she was on conditions to not consume alcohol. [ 59 ] On cross-examination, R.M.F confirmed she had been in a relationship with the Accused for about three months. She agreed that she had gone to jail for drinking. She testified the Accused also went to jail.

She also agreed she was on conditions not to consume alcohol at the time of the alleged offences. She was not sure if she was breaching the court order by “smoking dope”. When asked why she was “worried” about the Accused, she stated that he was her boyfriend, and that she was up early every morning. It was suggested to R.M.F. that she had been at the Accused’s home all night drinking. R.M.F. responded “No, I wasn’t. I have witnesses.” When asked who, she stated “My mother”. When asked if she saw anyone else at the house, R.M.F. stated she did not see anyone else.

R.M.F. was not sure if she saw the Accused drinking when he was in the room. She agreed that the Accused was a very different person when drinking. When he was sober, he was a “nice person”. [ 60 ] R.M.F. stated that the Accused’s daughter, R., came to the house around 8:30 or 9:00 a.m. R.M.F. testified she told R. she did not know if the Accused was drinking, but he was smoking “weed”. At that time, the Accused did not threaten to kill himself or state he would be dead before the police arrived. R.M.F. testified that she was not allowed to leave as soon as she arrived; that the Accused told her to stay.

She did not know how long she was there before R. arrived. R.M.F. testified that the Accused was obsessed with her. It was pointed out to her that in her statement to the police R.M.F. had said nothing about the Accused preventing her from leaving before R. arrived. R.M.F. testified that she and the Accused lay down together for a little bit before the police arrived, but she did not want to get the Accused mad. [ 61 ] She testified that while the Accused was in the bedroom he lit a “couple of bowls”, meaning that he smoked marijuana. She testified that the police would have been able to smell the smoke.

She testified that before the police arrived, the Accused had placed a knife down his shirt. She did not see it, but he was running after her. When asked if she told R. that the Accused would not let her leave, R.M.F. testified that she did tell R., but R. responded “It’s your problem”. [ 62 ] R.M.F. testified she did not know from where the second knife came. She thought one knife had a brown handle and one knife had a black handle. The Accused had the two knives until he cut her hand and neck. This was just before the police came into the bedroom.

When asked where she was spitting the alcohol, R.M.F. stated she was spitting it on her coat. R.M.F. maintained that the Accused forced her to drink the alcohol. When R.M.F. was asked if it was her evidence that she was not drunk at all that day, R.M.F. responded she was high before she went over to the Accused’s house. R.M.F. testified that the officer may have smelled the alcohol on her clothes. [ 63 ] R.M.F. agreed that she did offer to have sex with the Accused, but the Accused said “No.” She testified that she was on her period, and he was wanting to have sex and trying to take off her clothes.

She did not want to have sex. She testified that the Accused forced her head, but her head did not touch his penis. She stated the knife “bumped” on her cheek. While in the room the Accused also stabbed at himself. This was just before the police came through the door. When asked why she counted to 120, R.M.F. stated she was afraid she was going to be murdered and she was trying make sure the Accused was calmed down.

She agreed she did not say that she had counted to 120 in her statement to the police. [ 64 ] When asked at what point she wanted to leave the Accused’s residence, R.M.F. testified that the Accused told her when she was getting ready to leave, that she could not go. That was when the police arrived. She testified that she tried to walk out, and the Accused grabbed her arm and said she was not leaving. It was pointed out to her that this was not mentioned in her police statements.

R.M.F. stated that “There’s a lot of things I didn’t mention to the police”. [ 65 ] R.M.F. testified that the Accused was not drunk that morning, but she has seen him drunk. She testified that the Accused had ordered a ring and wanted to marry her. She testified that he did not get violent “right away” but went “crazy” when she tried to open the window. The window was frozen. [ 66 ] R.M.F. remembered speaking with Constable Charlton and that he wanted her to speak to the police. The application under

section 714.1 [ 67 ] At the conclusion of the Crown’s case, the Accused requested an adjournment to consider whether to have witnesses testify on behalf of the Accused. Because it would take some time for arrangements for these witnesses to appear, if indeed the witnesses were to testify, the matter was set over for a period of months, at the request of counsel. [ 68 ] A few days prior to the trial resuming, the Accused filed an application under

section 714.1 to have two witnesses appear by telephone, E. and R.L. Between the trial adjournment in June, 2019, and the filing of the application, there had been amendments to the Criminal Code on such applications. Previously

section 714.1 was the

section that permitted testimony via video.

Section 714.3 was the

section governing “audio” testimony. The considerations for each are different. The amendments condensed the two sections and the considerations of the previous

section 714.3 were now included with the considerations of the former

section 714.1.

Section 714.1 now covers both video and audio testimony.

[ 69 ] At the hearing of the application, counsel for the Accused advised they no longer sought the two witnesses named in their application but there was a third witness, M., who might testify if he could be located, and requested the Court approve instead that this witness testify by telephone.

A brief adjournment was permitted for counsel to determine whether or not they would in fact seek to call the witness, M., the son of the Accused. [ 70 ] When court resumed and counsel was asked as to the nature of the evidence this witness might be expected to give, counsel advised that it would be to contradict the complainant’s testimony that she was not drinking that morning. M. was expected to testify that he was there at the Accused’s home that morning and saw R.M.F. drunk.

Counsel submitted that the evidence undermined the credibility of R.M.F., who testified that she had not been drinking prior to the arrival of the police. [ 71 ] The Crown objected to such testimony by telephone. As the witness was being called to contradict another witness, the credibility of the witness was relevant. Even if the witness contradicted R.M.F. as to whether she had been drinking with the Accused prior to the arrival of the police, this was not evidence that related to whether or not the offences were committed.

The testimony anticipated was evidence that was collateral to the issues that needed to be decided. Whether or not the complainant was at the home of the Accused that morning and was drinking or drunk, did not really assist the court with determining what happened the next day. [ 72 ] The application was denied. Taking into account the considerations under

section 714.1, while the court was not opposed to hearing a witness appearing by telephone in the appropriate circumstances, especially given that there was a cost to having the witness appear in person, the application did not establish that it was appropriate in these circumstances to permit the witness to appear by telephone. [ 73 ] The witness was being called to contradict another witness. This would mean that the credibility of the witness would be relevant.

In the court’s view, in such circumstances it would be prejudicial to the parties, and difficult for the court to properly assess the credibility of the testimony of such a witness without that witness being present or at least appearing via video. This was a significant concern. [ 74 ] The proposal was to have M. testify from the office of R.L., who was related to the witness.

There was no other plan or assurance about the circumstances of the testimony via telephone, such as who else might also be in the room with the witness. [ 75 ] While not determinative, the court also noted that the application was untimely. The first time counsel had spoken with M. was the morning when the trial resumed. The matter had been adjourned for several months for the very purpose of permitting counsel to organize its possible witnesses.

Had there been a timely application, it may have been possible to have the witness appear by video if the proper arrangements had been made; thereby helping to alleviate some of the concern about potential prejudice in being able to properly assess the testimony. [ 76 ] Finally, even if M. testified via telephone that when he was at the home of the Accused that morning before the police arrived he saw both the Accused and R.M.F. “drunk”, it was not clear to the Court that this testimony was significant.

At most, such testimony, if accepted, contradicted R.M.F.’s evidence as to her own state of sobriety at that point. As there was no dispute that R.M.F. had been drinking at some point whether by choice or by force, in the court’s view, the proffered testimony was on an issue that was collateral to whether or not the offences occurred. [ 77 ] In considering all of the above, the application was denied. The testimony of the Accused [ 78 ] The Accused was the sole witness for the Defence. He testified that prior to the events on February 22, 2018 he had been arrested by the police.

He testified that he was in custody from February 16 to 22, 2018. He testified that on February 22, he and his daughter, R., went to buy some groceries as there was not much at his house. He testified that R. went home, and he went to visit R.M.F. He testified that R.M.F. told him she would change and come over to his house. It was about 6 p.m. when she came over. He testified that R.M.F. wanted something to drink, which he did not have, so she went for a walk, to “look for booze”. She came back to the house, and his son E. said he knew where they could obtain some alcohol. A 26-ouncer was obtained.

The Accused testified that R.M.F. started drinking. The Accused told her he did not want to drink. He testified that he was “smoking weed”. A second bottle of alcohol was acquired, although it was unclear whether this came from E., or R.M.F. The Accused testified it was around 9 p.m. that R.M.F. stated that she wanted to go out, and take the bottle with her. The Accused testified he said “No”. He testified that she left, slammed the door and stated she was going to call the RCMP. [ 79 ] He testified that R.M.F. came back again, and was drinking and asked again to take the bottle with her.

The Accused testified that he told her to drink it here at the house. She left again. She came back a third time and drank some more. This was around 10 - 11 p.m. The Accused testified that he was not drinking at that point. After about 2 a.m. he started drinking. He testified that R.M.F. asked him to drink, so he did. [ 80 ] The Accused testified that from that point, he had no memory of what happened as he became intoxicated. He testified that R.M.F. drank a “whole bottle” herself. On cross-examination, the Accused confirmed he had no memory of what happened after he started drinking around 2 a.m.

He could not say where R.M.F. may have gone after 2 a.m. THE POSITION OF THE PARTIES [ 81 ] The Defence concedes that the offence of forcible confinement has been established. The Defence also concedes that the words uttered by the Accused may constitute a threat, however, given the intoxicated state of the Accused, it is difficult to be satisfied beyond a reasonable doubt that the Accused intended the words to be taken seriously. [ 82 ] With respect to the alleged sexual assault, the only evidence that this occurred comes from the testimony of the complainant, R.M.F.

The Defence submits R.M.F. was not a credible witness. There were inconsistencies in her testimony and between her evidence and the evidence of the officers. Given this, the Court should be left with a reasonable doubt as to whether or not a sexual assault

occurred inside the bedroom. [83] With respect to the offence of possession of a weapon for a purpose dangerous to the public, the Defence submit again thatwhile there is some evidence from the officers as to what they heard, the evidence largely comes from R.M.F., and her evidence is notcredible. [84] The Defence conceded that if the court is satisfied that any of the above offences occurred, the Accused should be found guiltyof failing to abide by the condition of his recognizance to keep the peace and be of good behavior.

Defence also conceded that from theobservations of the officers, and the Accused’s own admissions, the Accused also breached the condition of his recognizance to abstainfrom the consumption of alcohol. [85] The Crown submits the Accused should be found guilty of all the offences. The Crown agrees that the evidence that establishesthe assaults comes largely from the complainant, but her testimony is corroborated. There is no dispute the Accused had a knife, or thatR.M.F. was observed by the police to have injuries.

Even though the police could not see what was going on in the room, the statementsand utterances overheard by the police, such as “Ow you’re hurting me”, and “Now, I need a bandaid”, and that R.M.F. was crying andpleading with the Accused to let her go, are consistent with her testimony that there was an application of force by the Accused withouther consent. [86] The Crown submits that while R.M.F.’s testimony as to how much she was drinking and how much the Accused had drunk maynot match with the observations of the officers, her account of the alleged assaults and sexual assault was unchallenged. [87] With respect to the uttering threats, the Crown submits that the fact the Accused may not now remember what he stated duringthe incident, does not mean that at the time he uttered the words he did not intend the words to be taken seriously. [88] The Crown submits the evidence clearly establishes all the offences.

ISSUES [89] Does the evidence establish that the elements of each of the alleged offences have been proven beyond a reasonable doubt? THE STANDARD OF PROOF IN A CRIMINAL TRIAL [90] In a criminal trial, the onus is on the prosecution to prove all the elements of the offence charged beyond a reasonable doubt. That onus never shifts (R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320). The standard of proof beyond a reasonable doubt iscloser to absolute certainty than it is to the balance of probabilities (R. v. Starr, 2000 SCC 40).

It is not enough to be satisfied that theAccused “probably” or “more likely than not” committed the offences. On the criminal standard, a court must be satisfied well beyondthis level of certainty. [91] In this case, because the Accused testified, in deciding whether the offences have been proven, the Court must also be cognizantof the instruction in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742.

This approach is to ensure that in a case where theremay be competing versions as to what occurred, the court does not fall into the trap of simply choosing between the two contestedversions of events, but renders its verdict on an assessment of all the evidence.

It is always helpful to review the framework of W. (D.). [92] Firstly, if the evidence of the Accused is believed and would support a finding of not guilty, the Court must find the Accusednot guilty. [93] Secondly, even if the Accused’s evidence is not believed, if the Court is left with a reasonable doubt by the evidence, then theAccused must be acquitted. [94] Finally, even if the evidence of the Accused does not raise a reasonable doubt, the Court must still assess all the evidence that itdoes accept, to determine whether the evidence supports beyond a reasonable doubt that the offences occurred. [95] In this case, there is conflicting evidence; not only between R.M.F. and the Accused as to what happened prior to the policeattending to the residence, but also between all the witnesses with respect to their observations of the events.

It is helpful to review whatthe law says about the assessment of the credibility of witnesses and their evidence. [96] The assessment of the credibility of a witness, as well as the veracity of a witness’ testimony, is not a formulaic process; but theculmination of a number of considerations such as, but not limited to, how the witness responded to questions, were they argumentative,evasive or forthright, how was their recall, what was their opportunity to observe the event, and were there inconsistencies in theirevidence standing alone, or in relation to the other evidence called.

In assessing the witnesses, I also keep in mind the words of theSupreme Court of Canada in R. c. Gagnon, 2006 SCC 17 at paragraph 20: Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. … [97] I also keep in mind the further comments of our Court of Appeal in R. v. K.P., 2019, NLCA 37 at paragraphs 42 and 47. Referring to their previous decision of R. v.

Best, 2016 NLCA 10, the court reminds us that as the trial judge, I may accept all, some ornone of the evidence of a witness. In R. v. S.O., 2019 NLCA 42, at paragraph 16, Hoegg, J.A, speaking for a unanimous court, stated thatthe assessment of credibility of the witness is the “province” of trial judges, and “many factors inform the result”. At paragraph 17,Hoegg, J.A. stated further: This Court addressed the issue in Stassis v.

Amicus Bank, 2014 NLCA 38 , 356 Nfld. & P.E.I.R. 80, wherein White J.A.endorsed the time-tested approach to assessing credibility set out by the British Columbia Court of Appeal at page 357 of Faryna v.Chorny (1951), (BC CA), [1952] 2 D.L.R. 354, (B.C.C.A.):

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions … …The trial judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion.

The law does not clothe the trial judge with a divining insight into the hearts and minds of the witnesses… [ 98 ] As stated by McLachlin, C.J. in R. v. M. (R.E.) , 2008 SCC 51 , at paragraph 49 , “assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization”. I also keep in mind that witnesses may have differing perceptions of the same event. [ 99 ] With the above guidance I will review my findings with respect to the assessment of the witness evidence.

The assessment of evidence of the police officers [ 100 ] I agree with counsel that the evidence of the police officers who testified as to their observations was credible and reliable. While there were differences in their accounts, they were differences that might be expected given the circumstances. The officers were candid and forthright about their observations and dealings with both R.M.F. and the Accused, and about what they did or not remember. I accept their testimony as to what occurred, and their observations of both the Accused and R.M.F.

The assessment of R.M.F.’s evidence [ 101 ] I found R.M.F. to be a generally credible but reluctant witness. I accept she minimized both how much alcohol she had consumed and how much alcohol the Accused had consumed. When considered with the observations of the officers, R.M.F.’s lack of recall as to whether or not the Accused had consumed alcohol, when she arrived, and how long she was at the home prior to the arrival of the police, is evidence of her minimizing what happened. As well, R.M.F. also had to be prompted at one point by refreshing her memory with her statement.

It was not until she reviewed her statement on the stand that she testified to an assault by the Accused. When she testified that the Accused attempted to force her to perform oral sex, she became distraught and needed a brief respite.

It was clear to me that she did not want to implicate the Accused in wrongdoing. [ 102 ] I note that the officers’ observations that when R.M.F. emerged from the room she appeared “intoxicated” also does not easily square with her evidence that she had not been drinking prior to being at the Accused’s home, and that she did not want to drink, but was impaired mostly because of her consumption of marijuana.

R.M.F. readily admitted that she was bound by a court order at the time not to consume alcohol. [ 103 ] It is plausible that because of this court order, R.M.F. may have minimized how much alcohol she had consumed and when. This is particularly so when considered in light of the Accused’s evidence which, although also confusing, was generally clear that R.M.F. had been at his residence the night before. That R.M.F. had been at the Accused’s residence the evening prior to the incident is plausible, because as R.M.F. had testified herself, she had seen the Accused “almost daily”.

She was also concerned for his wellbeing because of the most recent arrest. It is plausible given this, that once the Accused was released from custody that evening before that R.M.F. would have wanted to see him. [ 104 ] I also agree with Defence Counsel that R.M.F.’s account of events prior to when the police arrived was confusing at times. For example, although R.M.F. testified on direct examination that she had only just arrived at the Accused’s home before the police were called, on cross-examination she seemed to agree that she had been there for some time.

She seemed to explain that she and the Accused had laid down together in his room; but it was not clear.

While I agree with the Crown that one might expect less precision from R.M.F. in recounting the sequence of events inside the bedroom which was a traumatic and terrifying experience, this would not explain her confusion in her testimony about the events leading up to the arrival of the police. [ 105 ] However, apart from what appeared to be a tendency to minimize the events; especially, her own and the Accused’s consumption of alcohol, R.M.F. appeared to answer questions as best as she recalled – especially when describing what took place inside the room. She spoke calmly and listened to the questions.

She did not exaggerate what happened. For example she did not agree that there was any kind of assault that occurred at the window, contrary to what Constable Trenholm had testified, as he understood an assault was seen by Constable Thomson. [ 106 ] I also accept it is more likely than not, that she and the Accused were together the evening prior for some period.

However, when I consider this conflict in her evidence with all of the other evidence, in my view, her minimization of this aspect of the events, and her consumption of alcohol, does not undermine her overall credibility as to what happened between her and the Accused inside the room the next day. Much of what she described was confirmed by the officers. [ 107 ] For example, her assertion that the Accused was forcing her to consume alcohol while in the room is corroborated by both Constables Trenholm and Broomfield.

Constable Trenholm testified that it sounded to him as if R.M.F. was becoming more intoxicated as the ordeal went on, and Constable Broomfield testified that it sounded to him as if the Accused was forcing R.M.F. to drink something, while barricaded in the room. This description is consistent with R.M.F.’s narrative that she did not go to the Accused’s home until the next morning and had not otherwise been drinking. [ 108 ] Her assertion that the Accused had a knife was confirmed by the observations of Constable Thomson from outside.

[ 109 ] Her assertion that she was cut by the Accused with the knife is consistent with the injuries observed by the officers, the photographs, and her utterances from the bedroom overheard by the officers. [ 110 ] It is also clear from the observations of the officers, as well as R.M.F., that the event was traumatic for R.M.F. Given this, it is not surprising that she may have forgotten or confused details. In particular, I am not persuaded that where R.M.F. referred to details not stated in her original statement to the police, this constitutes an inconsistency that weighs against her credibility.

In my view, this was more a function of remembering details at trial that may not have been remembered at the time she was interviewed. There is nothing, standing alone, about this difference between her statements and her testimony that is troubling in terms of assessing her credibility. [ 111 ] For example, R.M.F. testified that she counted to 120 seconds before yelling out to the police, and conceded this was not in her statement to police.

When I consider that R.M.F. was overall a reluctant witness, while it is evidence that was not in her original statement to police, it is not a detail that puts the Accused in a worse light or increases the severity of the circumstances as already described. It is a detail that is consistent with her overall narrative: that R.M.F. was scared and wanted to get out of the room. It is a detail that possesses an internal logic. There is ample evidence R.M.F. pleaded with the Accused, and tried to calm him down.

That she waited to the count of 120, to be sure the Accused was calm before trying to get the knife and get free, is consistent with her overall narrative. The assessment of the evidence of the Accused [ 112 ] The Accused’s testimony was brief. He was adamant that he has no recollection of events after a certain point. He testified in a straight forward manner and his evidence that R.M.F. was present the entire evening before was plausible. But his recollection of the evening prior was also lacking.

There were few details, except to testify that the complainant came and went to his house at least three times in search of alcohol, and then stayed and he started to drink. [ 113 ] His narrative about events that unfolded the evening prior also lacked an internal logic. For example, the Accused testified that he started to drink and blacked out as if it occurred almost immediately upon the commencement of drinking. There was no evidence or any account of the time in between the commencement of drinking and becoming intoxicated to the point of blacking out.

To the contrary, the Accused was adamant that he was not drinking and then because he started drinking around 2 a.m. he has no recollection after he started drinking. I am circumspect about his explanation as to why he has no recollection of the events; particularly the next day. [ 114 ] I do not accept the Accused’s account of R.M.F. drinking and leaving and returning several times. This testimony is so lacking in detail and cohesiveness it was not credible.

The assertion that R.M.F. was drinking to excess the night before is also not consistent with the observations of the police officers that to them, it seemed as if the Accused was “forcing” R.M.F. to drink while in the bedroom, and that she became intoxicated as the ordeal ensued. [ 115 ] He provided no testimony about the alleged offences, as he testified he has no recollection. The Application of W.D. [ 116 ] Firstly, having made the above observations, I do not believe the evidence of the Accused in its entirety.

However, I do find it plausible that R.M.F. was present the evening before the incident involving the police, for the reasons explained above in my assessment of R.M.F.’s evidence. It is more likely than not that R.M.F. was at the Accused’s home the evening prior. I accept the Accused’s testimony to that extent. [ 117 ] While I accept the Accused’s evidence that R.M.F. may have been present at his home the evening prior, this is not evidence that raises a reasonable doubt as to whether or not the offences were committed.

This is because whether or not R.M.F. was present the evening before at the Accused’s home is irrelevant to what happened in the house the next day - except to the extent that this testimony conflicts with R.M.F.’s own account of where she was the evening prior. R.M.F.’s denial that she was in the Accused’s home the evening prior is an inconsistency on a fact that is collateral to whether or not the offences occurred. It is not an inconsistency that causes me concern in accepting her evidence as to what happened in the bedroom.

As explained above, while a reluctant witness, I generally found R.M.F.’s account of what took place in the room credible, and corroborated by what the officers observed. [ 118 ] When I consider all the evidence that I do accept, including the evidence of the Accused, I am satisfied beyond a reasonable doubt that the offences have been proven. [ 119 ] I will address each offence in turn and the evidence I accept in relation to same. Count 1: The offence of assault with a weapon [ 120 ] The Accused is charged that he committed an assault with a weapon in relation to R.M.F.

While the Accused was also charged with an alleged sexual assault with a weapon, the Crown submitted that the assault with a weapon under

section 267(

a) referred to the conduct at the window, at the point the officers had understood that the Accused was brandishing the knife towards R.M.F. [ 121 ] I am not satisfied that there was specific conduct by the Accused at the window that constituted an assault with a weapon on R.M.F.

R.M.F. did not testify to such an application of force with the knife, and Constable Thomson did not testify that he observed any assault at the window. [ 122 ] I am satisfied however that the Accused threatened and did use the knife against R.M.F. as part of the means to effect the forcible confinement throughout the ordeal and beyond the conduct associated with the alleged sexual assault discussed below. I am also satisfied that when the Accused uttered the threats, as discussed below, he also threatened to use and used the knife against R.M.F. which

was one of the reasons R.M.F. and the police took the threats seriously. I find the Accused guilty of Count 1. Count 2: The offence of uttering threats. [123] The Accused is charged with uttering threats to cause death to R.M.F. The actus reus of the offence is the utterance of the wordsthat constitute a threat to cause R.M.F. death, and the mens rea of the offence is the intention to have the words intimidate or be takenseriously (R. v. McRae, 2013 SCC 68). [124] There is evidence from all of the police officers that the Accused uttered threats to kill R.M.F.

Constables Trenholm, Charlton,Broomfield and Sergeant Davis heard the Accused utter repeatedly that he was going to kill R.M.F., and himself, and he would kill her ifthe police did not leave. In particular the Accused was heard to state repeatedly: - Get out of my F—ing house.

I’ll kill her, I’ll kill her, if you do not leave. - If you want to see [R.] die, come in here [125] The police also heard, and R.M.F. testified, that the Accused threatened R.M.F. directly, not just to the police, that he would killher, and asked her if she wanted to die, and he would kill her, and then himself. [126] There is no dispute these words when considered in the circumstances constitute the actus reus of the offence.

The “plain andobvious” meaning of the words “I will kill her”, and “I will kill you”, and “I will kill her if you don’t leave”, while brandishing a knifeand holding R.M.F. essentially hostage in the room, is that the Accused was going to cause serious bodily harm to R.M.F by killing her(McRae at paragraph 11.) [127] In establishing the mens rea, the question is whether the Accused intended that the words intimidate, or that they be takenseriously (McRae, at paragraph 18).

In McRae, at paragraph 23, the Supreme Court of Canada summarized the mens rea this way: 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 the circumstances, including how the words were perceived by those hearing them. [128] The Court can consider all the circumstances and draw inferences from the surrounding circumstances, including the conduct ofthe Accused, and the perception by other persons. It is not necessary to establish that a person was intimidated, or took the words thatwere taken seriously.

What is necessary is that the Accused intended that the words intimidate or be taken seriously. [129] The Accused submits that the mens rea has not been proven because he was so intoxicated the court cannot be satisfied beyond areasonable doubt that the Accused intended they be taken seriously or to intimidate. The level of intoxication of the Accused is arelevant consideration. The offence of uttering threats is a specific intent offence; that is, it is not enough to establish that the Accusedintended to say the words, the Accused must also have intended that the words be taken seriously or intimidate (See R. v.

Bone, (MB CA), [1993] 81 C.C.C. (3d) 389, 21 C.R. (4th) 218 (Man. C.A.). See also R. v.

Smythe, 2019 NLCA 73 at paragraphs23-26, for a review by Hoegg, J.A. regarding the nature of specific intent offences). [130] I am satisfied that in all the circumstances that notwithstanding that the Accused may have been intoxicated, he possessed thenecessary mens rea, that is he intended all the utterances, including the utterances to the police, “I will kill her”, and “I will kill her if youdo not get out of here” and “If you want to see her die, come in here” were meant to both be taken seriously and to intimidate. [131] The Accused was described as “angry” and shouting” when these utterances were made.

These utterances were also made inconjunction with the statements of wanting the police to leave, saying he was “not going back to jail”. I also consider R.M.F.’stestimony that when the Accused’s sister advised she was going to call the police, that the Accused took hold of a knife, and stated hewas not going back to jail. In my view, it is clear from the evidence that when the police did arrive, the Accused was not so intoxicatedhe did not know to whom he was talking or the implications of barring himself in the room and refusing to co-operate with the police.

Inmy view, these utterances were the very means by which he could accomplish having the police leave his home and avoid going to backto jail. [132] I also consider that there were periods of calm, and these periods occurred when the police did comply with the Accused’swishes. For example, when the equipment was moved from his view, and when Constable Thomson moved away from the window, theAccused was observed to calm down.

When I considered this conduct with his conduct in which he uttered the threats in anger, I haveno difficulty in being satisfied beyond a reasonable doubt the Accused possessed the necessary mens rea that his words be both takenseriously and to intimidate both R.M.F. and the police. [133] Further, while it is not necessary for the Crown to establish that the words actually were taken seriously or did intimidate, there isno doubt that the officers did take the words seriously, and were concerned that the Accused was actually going to carry out his threat.

Itwas for this reason, as they testified, that they “backed off” and tried to calm the Accused down. Their very concern was that theAccused was going to act on the words he uttered. [134] I also find his utterances to R.M.F. directly that he would kill her, and asking her if she wanted to die, were intended by him to betaken seriously by R.M.F. R.M.F. also did take the words seriously. I accept her testimony that she was scared and she thought theAccused was going to murder her.

She was described by the officers as terrified and trembling when she emerged from the room. [135] I find the Accused guilty of the offence of uttering threats as alleged in Count 2 of the Indictment. Count 3 of the Indictment: Offence of Forcible Confinement

[136] Section 279(2), the offence of forcible confinement states: 279. . . .

(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of (

a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or (

b) an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months.

(3) In proceedings under this section, the fact that the person in relation to whom the offence is alleged to have been committed did notresist is not a defence unless the accused proves that the failure to resist was not caused by threats, duress, force or exhibition of force. [137] The actus reus of the offence is to confine or imprison, or forcibly seize a person, without lawful authority. In R. v.

Pritchard,2008 SCC 59, at paragraph 24, the Supreme Court of Canada described the offence as those circumstances where the victim “for anysignificant period of time” is “coercively restrained or directed contrary to her wishes, so that she could not move about according to herown inclination and desire.” [138] In R. c. Tremblay (1997), (QC CA), 117 C.C.C. (3d) 86, 35 W.C.B. (2d) 384 (Qc.

C.A.), the court found thatthe offence will be committed by the “planned and deliberate restriction of a person’s freedom or movement” (paragraph 11) and that aperson is confined as soon as he “is deprived of his liberty to move from one place to another” (paragraph 13). While the period ofconfinement must be something more than transient, a matter of minutes may suffice. [139] The mens rea for the offence is the intention to engage in the above conduct.

That is, in order for the Court to be satisfied that theoffence has been committed, I must be satisfied beyond a reasonable doubt that the Accused intended to confine R.M.F. without lawfulauthority. [140] Counsel for the Accused conceded that the elements of this offence have been proven beyond a reasonable doubt. I am alsosatisfied the offence is proven.

There is no dispute that R.M.F. was “coercively restrained or directed contrary to her wishes, so that shecould not move about according to her own inclination and desire” by being confined in the bedroom by the Accused at knife point andassaulted and threatened to be killed by the Accused (see R. v. O’Quinn, 2014 NLCA 23). The Accused barricaded the door and theconfinement was for almost two hours and continued even at the point that the Accused opened the door and appeared to exit the roomholding R.M.F. [141] There is also no dispute that the Accused intended to deprive R.M.F. of her liberty.

This is evident by his words that the officersleave, or he would kill R.M.F. and himself, and that he was “not going back to jail”. The totality of these comments, and all hisutterances in relation to the uttering threats charge, is evidence of an intention to refuse to leave or let R.M.F. leave the room. Theconfinement ended only because the police forced open the door when R.M.F. took possession of the knife. [142] The offence of forcible confinement has been proven beyond a reasonable doubt and I find the Accused guilty of Count 3.

Count 4: The offence of possession of a weapon for a dangerous purpose [143] I am also satisfied that the offence of possession of a weapon for a purpose dangerous to the public peace is established. I amsatisfied that the conduct of the Accused, as described by the officers and R.M.F., establishes that the Accused was possessed of theknife, for a purpose that was dangerous; that is to intimidate and threaten, and assault R.M.F. As this conduct is largely the same conductthat constitutes the assault with a weapon, and the uttering threats, I will enter a stay of this count (See R. v.

Briscoe (1992), (BC CA), 76 C.C.C.(3d) 563 (BCCA)). Count 5: Sexual assault with a weapon [144] Count 5 of the Indictment alleges that the Accused “did in committing a sexual assault on [R.M.F.] carry a weapon, to wit, aknife contrary to section 272(2)(b)”. The Indictment states subsection (

b) which is the subsection that refers to “causing bodily harm”,not the use of a weapon. The proper

section is subsection (a), and the inclusion of subsection (

b) is clearly in error. I amend theIndictment accordingly to conform with the wording of the alleged offence. Sexual assault with a weapon under

section 272(

a) states: 272

(1) Every person commits an offence who, in committing a sexual assault, (

a) carries, uses or threatens to use a weapon or an imitation of a weapon; … [145] The elements of the offence can be stated as follows:

- there was an application of force - in the circumstances of a sexual nature - by the Accused upon R.M.F. - without the consent of R.M.F. - that the Accused intended to apply that force - that the Accused knew R.M.F. did not consent - that in the course of committing the assault the Accused carried the weapon, in this case, the knife. [ 146 ] The evidence that this offence occurred comes largely from the complainant. R.M.F. testified that the Accused attempted to have her perform oral sex, and it was then that she received the cuts on her neck.

Her testimony that the Accused held her hair with one hand and held the knives to her face with the other is evidence that I accept and establishes an application of force without her consent. The application of force was for the purpose of having R.M.F. perform oral sex on the Accused, and I accept that this constitutes an assault in circumstance of a sexual nature. [ 147 ] The complainant testified that she did not want to perform oral sex on the Accused, however, she also testified that she attempted, and was heard to say “I’m trying, I’m trying” around the time that this appeared to have occurred.

In these circumstances, and given that she was also being forcibly confined at this point, her submission to the Accused’s wishes is not evidence of consent, and is vitiated by section 265 (3) (

a) and (

b) of the Criminal Code . Section 265(3) (

a) and (

b) state: 265(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (

a) the application of force to the complainant or to a person other than the complainant; (

b) threats or fear of the application of force to the complainant or to a person other than the complainant; … [ 148 ] Similarly, the fact that R.M.F. was heard to have asked the Accused if he wanted to have sex at another point is not evidence, in my view, that she consented to sexual contact. R.M.F. was clear that she did not want to have sex, but tried to calm the Accused, and that she was scared

[…]