Court File and Parties

Court File No.: 12-7102 Newmarket Date: 2014-01-18 Ontario Court of Justice

Between: Her Majesty the Queen — and — Marshal Roth

Judgement

Heard: January 16, 18, 2014 Delivered: January 18, 2014

Counsel:

• Mr. Jeffrey Pearson for the Crown
• Mr. Marshal Roth Self-Represented

KENKEL J.:

Introduction

[1] Mr. Roth is charged with uttering a threat to cause death to persons within the Chabad-Lubavitch Community Centre Synagogue contrary to s. 264.1(2). The Crown elected to proceed summarily.

[2] The court heard evidence from various witnesses present at the time of the incident as well as from the accused. In determining whether the Crown has proved the allegation beyond a reasonable doubt, the central issue is the credibility of the witnesses.

The Evidence

[3] Rabbi Goldstein testified that he was speaking with two congregants outside the sanctuary when Mr. Roth interrupted their conversation. He asked for their attention for 30 seconds and showed them an open laptop with a photo of RCMP officers. He told them he trained those officers. He also said he works with the CIA. There was a photo of Barack Obama on his computer and he said that someone would or should put a bullet through his head.

[4] The three men took offence to Mr. Roth's suggestion that President Obama should be killed. That ended the conversation. Mr. Roth was upset and pulled a watch off a chain around his neck saying he'd only been given 17 of the 30 seconds of their attention he'd requested.

[5] Rabbi Goldstein left and went to the sanctuary to say his prayers and Mr. Roth followed. Inside the sanctuary Mr. Roth was not wearing a kippa as is the custom and Rabbi Goldstein offered to go with him to get it as Mr. Roth did not appear to want to go alone. Once they left the sanctuary Mr. Roth said that someone had stolen his hat and he described it as an expensive $3000 hat from Africa. He also said something to the effect that there were persons conspiring against him. Mr. Roth appeared mentally unstable to the Rabbi.

[6] Rabbi Goldstein said that Mr. Roth then spoke negatively about the Lubavitch people and said he'd bring a machine gun and mow them all down. His words were accompanied by a gesture of someone holding a gun low at the waist and firing horizontally as demonstrated by the witness. Rabbi Goldstein contacted Rabbi Spalter via a Blackberry BBM message and alerted him to the situation.

[7] Rabbi Spalter testified that after receiving the BBM message he attended the hallway and found Mr. Roth. He asked him to leave the building and Mr. Roth refused. He then told him he would call the police and again Mr. Roth refused. Rabbi Spalter called the police and Mr. Roth spoke to the police on his phone. The police attended the synagogue and arrested Mr. Roth.

[8] Mr. Yehuda Goldstein (no relation to the Rabbi) was called as a witness by Mr. Roth. He was in the hallway at the time of Mr. Roth's conversation with Rabbi Goldstein and two others but he has hearing problems and was too far away to hear what was being said.

[9] Mr. Roth spoke with Mr. Goldstein in the hallway about Mr. Goldstein's marriage and religious conversion. During that conversation Mr. Roth became very emotional and there were tears in his eyes. Mr. Goldstein later noted that Mr. Roth was not wearing a kippa when speaking with Rabbi Goldstein as they went to the sanctuary. He found that to be uncharacteristic behaviour for Mr. Roth and it caused him to worry that "something was going on" with Mr. Roth.

[10] Mr. Goldstein recalls that Mr. Roth was rational and had a detailed memory of past events, but he appeared to be troubled and Mr. Goldstein felt he needed someone to listen to him. Mr. Goldstein also testified that he felt the arrival of multiple police officers and the arrest of Mr. Roth was unnecessary.

[11] Mr. Roth disagreed with the words recalled by Rabbi Goldstein about the American president, but he did admit that he told Rabbi Goldstein and the other two men present that in his view if President Obama were to be re-elected it would be a good thing if he were assassinated.

[12] Mr. Roth conceded that he did discuss shootings with Rabbi Goldstein but he explained that his statement referred to past attacks in the United States and elsewhere and he was saying that if such an attack occurred at the synagogue Rabbi Goldstein would stand there meek hiding behind his rabbinical degree while Mr. Roth would fight back.

[13] The Crown submits that Rabbi Goldstein's evidence was credible and proves the threat alleged. Mr. Roth submits that there was no threat uttered and no intention to utter such a threat. He submits that there is doubt about both the accuracy of Rabbi Goldstein's evidence and his credibility and the charge has not been proved to the criminal standard.

Analysis

[14] Mr. Roth submits that Rabbi Goldstein and Rabbi Spalter are not neutral witnesses. Apparently there is a past history and Mr. Roth submits that at the very least the two Rabbis do not view him as an observant follower of their faith. There is some evidence of this in responses from both witnesses such as Rabbi Goldstein's comment that Mr. Roth "comes around" to the synagogue when he was asked if Mr. Roth attended services. Rabbi Goldstein also exaggerated somewhat when trying to remember the value Mr. Roth attributed to his hat, but he immediately agreed with the lower figure from his initial video statement when that was put to him in cross-examination. While the number was different, the rabbi's point was consistent – the claimed value of the hat was extravagant.

[15] Whatever their view of Mr. Roth, the conduct of both witnesses towards Mr. Roth on the day in question was remarkably tolerant. When Mr. Roth interrupted Rabbi Goldstein's conversation and then made the alarming comment that he hoped for the assassination of the American president, Rabbi Goldstein simply excused himself and walked away to say his prayers. Even after hearing Mr. Roth's threat to the synagogue he calmly contacted Rabbi Spalter for assistance. Rabbi Spalter didn't contact police until after Mr. Roth refused to leave the synagogue.

[16] The evidence of both rabbis does not appear to be affected by any animus towards Mr. Roth and their conduct towards him on the day of the incident was patient. Both witnesses testified in a careful and forthright manner and both were candid in identifying details they could no longer remember.

[17] Rabbi Goldstein's actions were consistent responses to the statements he attributes to Mr. Roth. At the time he felt that Mr. Roth was having a mental breakdown and required assistance and he contacted Rabbi Spalter in that regard. Rabbi Spalter's testimony that Mr. Roth refused to leave the synagogue when asked, even when he was told that the police would be called, is consistent with the agitated state described by Rabbi Goldstein.

[18] Mr. Yehuda Goldstein didn't hear either conversation at issue, but he did sense that Mr. Roth was troubled and emotional that day. Mr. Roth had come to tears when they spoke and that was unusual. Mr. Goldstein felt that Mr. Roth was "feeling something quite strongly" and he tried to help Mr. Roth by listening. He saw Mr. Roth interrupt Rabbi Goldstein's conversation, he also saw Mr. Roth follow the rabbi into the sanctuary without wearing a kippa which he noted was contrary to their tradition. Mr. Goldstein felt uncomfortable when he saw this and was worried about Mr. Roth.

[19] Mr. Roth is an intelligent and articulate man who was polite and courteous at all times with the court. His demeanour here stands in contrast to his state at the time of the incident in which he appeared emotional and troubled to his friend Mr. Goldstein. His interruption of Rabbi Goldstein's conversation to show the three men photos on his laptop and his bizarre statement regarding the American president are inconsistent with his evidence as to his demeanour at the time but are consistent with the observations of the other three witnesses. The fact that he followed the Rabbi into the sanctuary to continue an unwanted conversation and that he did so without his kippa is again inconsistent with the calm demeanor he recalls, but consistent with the observations of the other witnesses. His admitted statement as to wanting 30 seconds to show the three men photos and the fact that he measured the time given as 17 seconds is consistent with the agitated state observed by the three other witnesses. The inflated value he attributed to his hat and his fear it had been stolen by others when it remained where he left it all suggest agitation and confusion inconsistent with his recollection at trial but consistent with the demeanour described by the other witnesses.

[20] While I accept that Mr. Roth truthfully relayed to the court his best recollection of the incident, given his agitated state at the time, his unusual actions and statements and the credible evidence of other witnesses I find I cannot accept Mr. Roth's account as accurate or reliable. His testimony does not leave a reasonable doubt in my mind.

[21] I accept the testimony of the remaining three witnesses with the exception of Mr. Goldstein's account of the arrest. I understand why seeing a friend and fellow congregant arrested would be upsetting to him but his testimony about the police response was shown to be erroneous in part and I do not accept that the actions of the York Regional Police in responding to that level of threat in that context were "appalling".

[22] I find Rabbi Goldstein's evidence regarding the threat uttered by Mr. Roth is both credible and accurate. Mr. Roth's gestures at the time the threat was uttered made his meaning plain and I find it's not reasonably possible that Rabbi Goldstein misunderstood.

Conclusion

[23] I can find no credible evidence that reasonably could leave a doubt. I find that the Crown has proved the charge alleged beyond a reasonable doubt and there will be a finding of guilt.

Delivered 18 January, 2014.

Justice Joseph F. Kenkel