Court Information

Ontario Court of Justice

Date: 2017-09-07

Court File No.: Newmarket 16-07476

Parties

Between:

Her Majesty the Queen

— and —

M.K.

Counsel

Mr. R. De Chellis — counsel for the Crown

Mr. J. Rabinovitch — counsel for the defendant

Judgment

Evidence heard: September 7, 2017

Delivered: September 7, 2017

KENKEL J.:

Introduction

[1] Mr. M.K. called the Children's Aid Society (CAS) worker who had been working with his family to complain that his six year old daughter had accessed unsuitable material on his cellphone. He wanted the worker to take his daughter away from the house to punish her for using his phone and to prevent her from exposing the other children to inappropriate ideas. The worker went to the K. home and spoke with all of the children. Those conversations led her to call her supervisor and a decision was eventually made to remove all 4 children from the family home. The CAS worker testified that the accused told her his six year old daughter was lucky he didn't put her in the ground. When he was told that all children were being removed he said, "I see you on the street, I beat the shit out of you" and "I know your home … shame on you". Mr. M.K. was charged with Threatening to Cause Bodily Harm s.264.1.

[2] Mr. M.K.'s testimony was substantially consistent with the CAS worker's evidence except with respect to the allegation of the threat. In examination-in-chief he denied making any threat but said he was rude to the worker and apologized to her as suggested by a police officer.

[3] The reliability and credibility of the evidence of both witnesses is the sole issue at trial. I agree with both counsel that the WD analysis applies – R v WD, [1991] SCJ No 26.

The Witnesses

[4] Ms. O'Connor works with York Region Children's Aid as a caseworker. She meets with families who meet the criteria for intervention based on protection concerns. She first met with the accused's family in June of 2016 and attended the home several times afterwards in planned and unannounced visits.

[5] On August 12th, 2016 Mr. M.K. called her and asked her to come to his home and remove his 6 year old daughter as he no longer wanted her in his home. He said she'd accessed inappropriate material on the internet by using his cellphone. Ms. O'Connor attended the home and spoke to the child. She spoke to the accused's wife. Mr. M.K. was upset. He said to Ms. O'Connor that his daughter was lucky he didn't, "put her in the ground." Based on her conversations Ms. O'Connor called a supervisor and had another co-worker attend. They later spoke with the supervisor again and the decision was made to remove all 4 children from the home with the assistance of the police.

[6] Ms. O'Connor testified that the accused became emotional and agitated when he learned that all four children would be taken. His wife sobbed and became very upset. It was at that point she said Mr. M.K. said to her, "I see you on the street and I beat the shit out of you." He said he couldn't believe what she was doing to him and, "I know your home." He said she wasn't doing her job properly and, "shame on you." His threats made her feel fearful and in the following days they took steps at the CAS to ensure her safety. She no longer works on this case file.

[7] In cross-examination, Ms. O'Connor agreed that there was a police officer present who told her he heard the same statements from the accused. She agreed that she did not give a formal statement to the police until two weeks later. She left quickly that night as they needed to get the children to multiple foster homes and she did not finish that process until after midnight.

[8] Mr. M.K. said he'd "lost his mind" he was "so nervous" when he called Children's Aid to remove his daughter. He recalled telling Ms. O'Connor that he needed help, he didn't want to see his daughter anymore and he wanted her removed from the house for two or three months. He confirmed he was positive he wanted her removed and Ms. O'Connor attended on that basis.

[9] He was "shocked" when the CAS workers told him that all four children were being removed. In examination-in-chief he testified that he said, "Shame on yourself, that's not how it works, you should do your job." When a police officer present told him he shouldn't speak that way in front of the children he apologized to Ms. O'Connor. He was "so upset" at the time with the situation and with the fact that Ms. O'Connor was not respecting his wishes.

[10] In cross-examination when asked about whether he uttered the threat alleged, Mr. M.K. denied it then said, "maybe I said, maybe not I forget it … it's like one year ago."

Submissions of Counsel

[11] The defence submits that the CAS worker's evidence doesn't make sense. There are two problems that cast doubt on her evidence: first, the police officer present who apparently heard the same words did not arrest Mr. M.K. that evening. Second, Ms. O'Connor did not complain to the police present or demand the accused be charged. The defence submits further that Ms. O'Connor's account is not logical overall and that a reasonable doubt remains on the whole of the evidence.

[12] The Crown submits Mr. M.K. has no present recollection on the central point. Ms. O'Connor was a credible and reliable witness. Her evidence is logical and consistent with the circumstances of the events. The Crown submits the allegation has been proved beyond a reasonable doubt.

Analysis

[13] I've considered the evidence as a whole and make the findings of fact that follow in that context.

[14] Ms. O'Connor was acting in a professional capacity at the time. There's no evidence of any animus towards the accused or his family. She'd made multiple visits to that house without incident. She attended that day specifically at the request of the accused. She was calm throughout and had a detailed memory of the events including the words spoken by the accused. Her evidence was internally consistent and logical. The fact that she took no action in response to the threat at the time was reasonably explained by her belief that an officer heard it and by the fact that she was busy removing the children and trying to get them to foster care late in the evening. I find Ms. O'Connor was a credible and reliable witness.

[15] It's hard to imagine the state of mind that would have caused Mr. M.K. to call Children's Aid and ask them to remove his six year old daughter from his home for two or three months because she used his phone in an inappropriate manner. He's right that he was so upset over that minor incident that he, "lost his mind." His gross overreaction was irrational and that circumstance I find detracts significantly from the reliability of his evidence.

[16] It's understandable that he became even more upset when he learned that contrary to his plan all four children were being removed. I would place little or no weight on his recollection of the words he spoke at that time given his high level of agitation and his behaviour to that point, but as he admitted in cross-examination he doesn't now know if he said those words or not. He doesn't remember given the passage of time. That lack of present memory is understandable given his mental state at the time and the shock he described when events took an unexpected course. His account of the reaction of the police officer and his apology to Ms. O'Connor is consistent with her evidence but not with the minor criticism he initially described.

[17] Mr. M.K. has a criminal record including an offence of dishonesty, but I don't place much weight on that in assessing his evidence. I find that that his recollection of the events is unreliable where not confirmed by external evidence but I accept that he has no present recollection of what he said at the time of the alleged threat. There is nothing in his evidence that could reasonably leave a doubt.

[18] Rejection of the accused's evidence does not automatically mean acceptance of the complainant's evidence. In this case I find the complainant's testimony was credible and reliable. Her evidence explained the progress of the incident in a logical fashion and was consistent with the circumstances she described. I accept her evidence and find that the words uttered to her amount to a threat. I disagree that the fact the accused was not arrested until two weeks after the children were removed is a circumstance that detracts from the credibility of Ms. O'Connor's evidence. There is no basis in the evidence to draw a negative inference from the failure of either party to call the police officers who were present in the room as witnesses.

[19] I can find no credible and reliable evidence that reasonably could leave a doubt on this charge.

Conclusion

[20] I find that Crown has proved the charge alleged beyond a reasonable doubt. There will be a finding of guilt.

Released: September 7, 2017

Justice Joseph F. Kenkel