Court File and Parties
Date: July 12, 2019
Information No.: 4821-998-18-75000233-00
Ontario Court of Justice
Her Majesty the Queen
v.
Dexter Lucas
Proceedings
Before: Honourable Mr. Justice S. Clark
On: July 12th, 2019 at 311 Jarvis Street, Toronto, Ontario
Appearances
MS. C. MULLALY – Counsel for the Provincial Crown
MR. D. LUCAS – Self-represented
Friday, July 12, 2019
THE COURT: Yes Ms. Mullaly in - good afternoon to you Mr. Lucas.
MR. LUCAS: Good afternoon sir.
THE COURT: I take it the complainant is not present. She is not required to...
MS. MULLALY: No - no she's not, I...
THE COURT: I think we have a representative from Barber Schiffler clinic and a representative from the Victim Witness Program, yes good afternoon to you both. Mr. Lucas can I just ask you sir, we do have the benefit of the Tagalog interpreter today. I recalled that we conducted the trial proceeding in English...
MR. LUCAS: Yes, Your Honour.
THE COURT: ...and that you did not require interpretation services in your first language of Tagalog is that correct sir?
MR. LUCAS: Yes, Your Honour.
THE COURT: So, how do you wish to proceed today? Are you content that I render - I have an oral judgment that I will be rendering. You are content that I do it in English...
MR. LUCAS: Yes.
THE COURT: ...and if you require any assistance - if you have not been able to understand what I have said, by all means please bring it to our attention and then - our interpreter can...
MR. LUCAS: Yes, Your Honour.
THE COURT: ...assist you. Are you content that we proceed on that basis sir?
MR. LUCAS: Yes, Your Honour.
THE COURT: Okay. Thank you. Ms. Mullaly are you content? I think we have already established on the last occasion that Mr. Lucas did not have any concerns about the interpretation component and we did conduct the proceedings in English. In fact, the interpreter was really used for the benefit of the complainant as it turned out.
MS. MULLALY: Yes.
THE COURT: Only from time to time? So, what I will do sir is I will speak at a pace that is a little slower...
MR. LUCAS: Yes.
THE COURT: ...than conversational pace.
MR. LUCAS: Thank you Your Honour.
Reasons for Judgment
CLARK, S. (Orally):
THE COURT: If you will all please indulge me, this is a fairly lengthy and dense oral judgment. Because it is an oral judgment, the Court therefore reserves the right to make any corrections or alternations or additions, only as it relates to any syntax or grammar, or adding headings, including citations, or if case law is referred to, but of course, it would not change the content or substance of the judgment.
A Tagalog interpreter in the Philippine language was made available to the defendant at trial. He advised the Court that he did not require one, and was content to conduct the proceedings in English. The interpreter was otherwise on standby throughout the trial proceedings on both May 10th and June 14th, of 2019. He was also available to assist the complainant who also testified in English, but who required interpretation services from time to time throughout the course of the trial.
It should also be noted that the defendant was self-represented or unrepresented at trial, not by choice but by financial inability to retain counsel either privately or publicly. Given the domestic nature of the charges, assault with a weapon and threatening death, the Court, with the consent of the Crown, made an order pursuant to section 486.3 subsection (4) of the Criminal Code appointing counsel for the limited purpose of cross-examination of the complainant. Ms. Lydia Riva served well and truly in this capacity.
As indicated, this oral judgement is somewhat, but purposely, dense and a little bit lengthy. It serves to explain how the Court does its work and the pathway to its decision, for the edification of the parties, particularly the - a self-represented defendant. I will be ordering the transcript of the judgment and my reasons Madam Reporter. I will do that through the appropriate channels.
1:0 Introduction
The defendant is charged, that on November 1st, 2017, he assaulted his spouse, Veronica Lucas, with a weapon, a knife, and threatened to kill her as well as her family, pursuant to the relevant sections of the Criminal Code. He has pleaded not guilty to the charges.
There are two diametrically opposed versions as to what happened. The complainant contends that during a verbal argument in their residence about possible infidelities by the defendant, it escalated to the point where he obtained a knife from a drawer in the kitchen and pointed it at her, telling her that he wanted to or was going to kill her, and then followed her and thrust the knife blade into the closed but unlocked bedroom door, as she and their 15 year old son were behind it and pushing against it to prevent him from advancing, and while he simultaneously verbally threatened that he would kill her and her family.
The defendant submits, however, that no such incident took place, and at no time did he ever hold a knife, much less assault her with it, by stabbing the bedroom door, and that at no time did he threaten to kill her or her family. All he said to her in the course of their argument was words to the effect, "son of a bitch" in frustration, but not intended as a threat.
The trial took place in this Integrated Domestic Violence Court here at 311 Jarvis Street, in Toronto. It commenced on May 10th, 2019, and continued on June 14th. Judgment was reserved to today's date, July 12th. The Crown, Ms. Mullaly, called only the complainant to testify for the prosecution. The defendant also testified on his own behalf. Neither the 15 year son nor the almost 17 year old daughter, both of whom were present at the time of the incident gave evidence in this trial.
Mr. Lucas, am I going at a pace that is understandable to you so far sir?
MR. LUCAS: Yes, Your Honour.
THE COURT: And you are able to hear my voice, as well?
MR. LUCAS: Yeah, it's good Your Honour.
THE COURT: Okay sir. Thank you.
2:0 Background
The parties have been together since 2002. They were married 12 years ago in the Philippines. The defendant then left the Philippines for some time to work in Korea, while the complainant remained with the children. She then came to Canada first, in 2013, and found work as a caregiver. She subsequently sponsored the defendant and the children to Canada in early 2017. They all lived together in a two bedroom apartment. According to her, while the children adjusted well, the defendant did not. He was always comparing the life he had as a factory worker back in Korea to the difficulty he was experiencing in Canada, until he found a job in a bakery. He had only been in Canada for approximately nine months before this incident took place.
3:0 The Issues
Although the alleged offences arose out of the same ongoing or continuing transaction on November 1, 2017, the Court is entitled to find two separate and distinct delicts if the totality of the evidence, of course amounts to proof beyond a reasonable doubt.
The first issue is, did the defendant possess a knife at all and if so, can an assault or an assault with a weapon be made out even if the defendant never made any direct contact with the complainant?
The second issue is, did the words used by the defendant constitute a threat, and if so, did he knowingly intend to intimidate or to have his words be taken seriously by the complainant?
4:0 The Guiding Principles
The guiding principles in any trial involve careful consideration of such things as the presumption of innocence; the standard of proof; and how to evaluate and assess credibility and reliability of the witnesses. This case turns on this Court's findings with respect to the credibility and reliability of these two witnesses.
This is often referred to as a "she said, he said" type of case. This characterization should not be trivialized, however, as many, if not most scenarios of this nature take place in private.
In resolving this issue, the Court is guided by the following framework for analysis and evaluation, commonly referred to as the "WD" test.
First, if I believe the testimony of the defendant, I must find him not guilty.
Second, even I do not believe his testimony, if it leaves me with a reasonable doubt, I must find him not guilty.
Third, even if his testimony does not leave me with a reasonable doubt about his guilt, if after considering all of the evidence that I do accept I am not satisfied beyond a reasonable doubt of his guilt, I must also acquit. More simply put, or put another way, if I do not know whom to believe, it means that I have a reasonable doubt, and I must find the defendant not guilty. In other words, if the Court is unable to resolve the conflicting evidence, this means a reasonable doubt exists because the Court cannot determine wherein the truth of the matter lies.
In determining this, I must keep in mind that the defendant, just like any other person charged with an offence, is presumed to be innocent unless and until the prosecution has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty on a mere balance of probabilities, which is the civil law standard. However, it is nearly impossible to prove anything with absolute certainty and the prosecution is not required to do so. The reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities. This is a high standard for very good reason, as it is one of the principal reasons for safeguards which seeks to ensure that no innocent person is convicted.
The essence of the analysis, therefore, is that the defendant's evidence does not have to be believed to secure an acquittal. There need only be a reasonable doubt, as to guilt. On the other hand, the prosecution's evidence, by contrast, does have to be believed to secure a conviction.
This analysis is also used as a powerful tool for protecting the rights of the defendant, by providing a solid method for resisting the temptation to reduce the credibility assessment to a competition and preventing the burden of proof from shifting onto the defendant. Of course the Court may with reason, accept some, none, or all of the testimony of any witness. As well, where reasonable, the Court may also accord different weight to different parts of the evidence that it does accept.
Furthermore, where a defendant has testified, his evidence, like that of any other witness, cannot be assessed in a vacuum. Standing alone, there may be nothing about the defendant or his demeanour or his testimony that calls into question the honesty or reliability of his account of the events of the day in question. However, it must be evaluated by weighing it together with the conflicting prosecution evidence. What this means is that it is open to the Court to reject this otherwise plausible testimony when satisfied that it cannot stand against the rest of the evidence, as long as there is no risk a of credibility competition. In other words, the defendant's evidence, despite the absence of any flaws in it, may still not leave the Court with a reasonable doubt. The Court should also direct itself to the fact that it must not apply a more strict standard or level of scrutiny to the evidence of the defendant. than that used to assess the evidence of the complainant.
Assessing credibility and reliability is not a science. Whereas credibility relates to sincerity or honesty, reliability generally relates to the testimonial factors of perception, memory and communication. Other factors may include the consistency of the evidence within itself; consistency with the evidence of others; the objectivity of a witness's evidence; the frankness of the witness; and whether there was a tendency to overstate, exaggerate, or embellish.
The court is also entitled to consider the demeanour or manner in giving the evidence, including whether the witness was hesitant, argumentative, or forthcoming and straightforward. It should be noted, however, that no case can be decided solely on this basis.
Demeanour is but one factor. This is because a court often and usually only has a onetime brief exposure to a witness and to his or her behaviour. There is no real opportunity, therefore, to establish a baseline for that individual's behaviour when lying or telling the truth. In other words, there is no opportunity to see what a witness would be like in a normal setting.
On the other hand, the Courtroom often affords an advantage in comparison with most other situations in daily life. The court can take into account multiple cues as well as the presence or absence of supporting or confirmatory evidence, such as photographs. Also, a well conducted cross-examination can reveal inconsistencies and implausibility in a witness's account. The court must also be alive to the possibility that a witness may have a motivation to lie or to fabricate. Motives, however, are often difficult to ascertain. There can be no suggestion, however, of an onus on the defendant to show that the complainant is lying. To conclude otherwise impermissibly reverses the burden of proof and impinges on the presumption of innocence.
Finally, the Court must not approach its mandate with a preconceived notion or suspicion that the male in the relationship must be the perpetrator and is therefore lying about the allegations or denials. It is also an impermissible assumption that the defendant, because of his mere status as the accused, would lie to secure an acquittal. Rather, the Court must go through a number of steps to avoid premature or erroneous findings of fact. It is a truism that a defendant rarely convicts himself on his own evidence. There is usually nothing about his evidence, by itself, that would likely lead the Court to believe that he is not telling the truth. Merely denying the allegations does not make it incredible. Therefore, there must be cogent reasons for just disbelieving the defendant.
THE COURT: Mr. Lucas, again I apologize to you sir. I am just explaining some of the legal principles that apply to my mandate to evaluate the evidence. I hope that you are able to understand it sir. I am using some language that may not the usual language of daily conversation. Are you able to follow and understand...
MR. LUCAS: Yes, Your Honour, yes.
THE COURT: ...what I have said thus far sir?
MR. LUCAS: Yes, Your Honour.
5:0 Evidence of the Relationship History
THE COURT: Okay. thank you.
I would like to now turn briefly to another aspect and that is the extent to which the Court is entitled to consider the history of the parties in a domestic relationship. I think this is worthy of some consideration.
In order to better assess the evidence in the proper context, the Court is entitled to consider the history of a relationship as part of the narrative to understand and explain the actions of the parties. It is important to note that this is not admissible strictly as what is referred to as similar fact evidence. It is admissible, however, in the context of allowing the Court to first, understand the history, dynamics and nature of the relationship, and second, to demonstrate that the defendant may have had an animus toward the complainant consistent with the offences with which he is charged, or to show that the complainant may have had an animus or anger toward the defendant. The evidence also assists in addressing the credibility of the parties and to perhaps refute the defendant's theory of fabrication by the complainant.
It is important to balance the probative value versus the prejudicial effect in this analysis. It is also important that the Court recognize its limited permissible weight and use. It cannot have a disproportionate emphasis placed on it.
Furthermore, it cannot be used to simply bolster the complainant's credibility, or establish that the defendant was a bad person. The court must also be careful not to use what is referred to as "propensity reasoning", which is based solely on the general bad character of a defendant, which of course, is prohibited. This would, hopefully, also avoid the risk of the Court being swayed by either "moral prejudice", or reasoning prejudice. The court can also consider this evidence to explain the power and control dynamics in a relationship and to avoid looking at a single incident in a vacuum and consequently running the risk that the Court might unfairly discredit the complainant's or the defendant's testimony. It might also assist in establishing how the complaint came to be made and when it was made. Of course, the Court must be vigilant to protect the fundamental right of the defendant to a fair trial.
The Court is, however, also obliged to balance out the fact that the Crown is not overly prejudiced in its ability to make out its case. While aggressive or assaultive behaviour between strangers, as a general rule, involves circumstances of a limited temporal duration, controlling behaviour by one partner over another frequently involves complex dynamics and subtleties of personalities. Therefore, without giving consideration to the history of a relationship, the process runs the risk of having a sterile or antiseptic record, devoid of the realities of the circumstances of the particular parties. Therefore the Court is entitled to recognize that individuals in intimate domestic relationships may respond differently than they would in other circumstances. This evidence may also be relevant in assessing the complainant's credibility, particularly on the questions of why she did or did not leave a relationship, for example, or leave the scene of the incident on that day in question, or disclose the alleged abuse earlier.
6:0 The Evidence
6:1 The Complainant
The complainant testified that she confronted the defendant in the bedroom, because she found a bikini and panties in his drawer, which did not belong to her. When she asked him where he got them, he told her words to the effect it was not her business and that it was his money and he could buy what he wanted. He also told her that she had no right to ask him questions, and that he could do whatever he wants, because he is the husband. As the verbal argument escalated in the presence of the children in the living room, he then went to the kitchen and obtained a knife from the drawer. As he forcefully pulled it, the drawer fell on the floor and broke into pieces. The complainant was familiar with the knife as she had previously purchased it. He then pointed it at her and stated that he wanted to or was going to kill her. She described that he looked so violent, to use her words, as he spoke. She retreated with their son, to the childrens' bedroom. She closed the door. Because there was no lock on it, she and the boy pushed against it, in an effort to keep the defendant, who was angry, from coming in. She stated that she knows from his previous past behaviour, which started back in the Philippines, that he was capable of hurting anyone. Next, she heard him say, as he was outside the bedroom door, words to the effect: "I will kill you, you shit." He also told her that her family were thieves and that he would kill them too. The incident lasted for approximately seven to ten minutes. She described the defendant as being really mad. Although she could not see it, she heard him stabbing, to use her word, the outside door of the bedroom, as well as the wall outside the door.
She testified that she felt helpless and unable to defend herself. She also felt bad and dumb, to use her words, because she was the one who was making money for the family and yet this is how he was treating her. She could hear their daughter, who had been in the living room, stop him or tell him to stop. She then heard him as he walked away from the door say the words, "Son of a bitch" in the Tagolog language. Once things were quiet she came out of the bedroom. She now observed the defendant in the living room. He was quiet and appeared to be thinking about everything that had just happened. She did not report the incident right away. In fact she did not report until January 15th, 2018. She did, however, take photographs of the knife with paint on the tip of the blade from the defendant thrusting the knife into the wall, and the bedroom door. There were also photographs of the bedroom door itself and the drawer in pieces. She intended to keep these until she reported the matter. Various photographs were made exhibits in the trial.
She stated that the defendant had threatened her with a knife on previous occasions. He would always tell her that he could do or commit a crime without leaving any evidence. Subsequently, the defendant went back to the Philippines in December of 2017, as his father was quite ill. He returned a month later on January 14th, 2018. The day after, on January 15th, they again argued. She had seen some of his emails or face book messages leaving her with the impression that he was still having an affair with someone. She confronted him about this. He was quite angry and denied this. She described that she was really afraid, given the events in November, 2017, and decided to now notify the police and call 9-1-1.
On cross examination, despite Ms. Riva's efforts on instructions to impeach the credibility and reliability of the complainant, the court finds that no reasonable doubt was raised. She withstood the various suggestions made and was not shaken. There was nothing in any of her responses that served to leave the Court with any lingering doubts about her motivation to report, or in having a motive to be untruthful or to have exaggerated, embellished or overstated her version of events. Ms. Riva made the following suggestions: first, that her motive for reporting the incident was to have the defendant deported, so she could have the children and would finally have him out of their lives. She acknowledged that as permanent residents, a criminal record would affect one's status to become a Canadian citizen, but that this is not why she called 9-1-1. She explained that she did so because she was scared and afraid that she would get hurt or die, and that the children would get hurt too. Counsel, challenged her further however, because in her statement to the police she said that she just wanted to send him back to the Philippines. She forthrightly explained, however, that the reason why she said this, is because she knew he did not want to be here in Canada, but wanted to be back in Korea. She had already decided that she was intending to separate from him and if she could deport him, this would be the best for her and the children.
Second counsel also asked her if on November 1st, 2017, whether this was the first such incident where the defendant had produced or used a knife while they argued. She replied that there had been two previous incidents since they had been in Canada together. Counsel showed her relevant sections of the transcript of her 9-1-1 call, however, showing that she said nothing about any such previous incidents. She replied that she had no time to be talking about this. She explained further that she did tell the police about previous incidents, but did not provide details because they never asked her for any.
Third, Ms. Riva asked why she did not report the November 1st, 2017 incident right away, instead of waiting until January of 2018, more than two months later. She explained that she believed that the defendant was already planning to go back to the Philippines. The Court infers that what she meant is that if he was going back there anyway, she would just wait for this to happen rather than reporting this incident as it happened. Some weeks later, on December - December 14th I believe he did leave. It was only after he returned and when the arguing continued, she reported it. In the Court's view, this makes sense, or at least it does not give the Court pause to think that the complainant was being careless with the truth. It is axiomatic that there are myriad ways and times to report an incident to the authorities given the complex dynamics of relationships.
Counsel also suggested that after the November 1st incident, the defendant went into the bathroom to cool off and later came out to apologize to her for arguing, because that is all that occurred. Although it was not articulated in Ms. Riva's suggestion, the Court takes from this that the defendant was only apologizing for having argued with her, and not for having assaulted or threatened her. The complainant responded that he has never apologized to her, ever, because in her view he believes that he is the victim and that she makes his life terrible, to use her words.
6:2 The Defendant
The defendant acknowledged that throughout their relationship, he and complainant did have confrontations, but nothing of consequence. If they argued he would usually leave the residence t o allow her to calm down. When he came back he would make some jokes or make light of matters, and everything would be fine. If they had any problems in the family, he explained that they were relatively easy to fix. He stated that ever since they were married he worked hard to give his wife and children a nice life. They had decided that he would come to Canada for their children's future. He does not know where the complainant's allegations are coming from. He was shocked to have been charged, because no weapon was every produced or used by him. He stated that this has never happened before. Furthermore, the kitchen drawer was not broken by him. He and their daughter were merely trying to fix it that day. He explained that because he works in construction, he knows how to fix a lot of things in the house.
Regarding the allegations of threats, he testified that anything he may say, if angry, in his language is just an expression. All he said was "son of a bitch." He stated that he often, or always says this. He did not consider it as a threat. He never said "I will kill you," to the complainant, adding rhetorically, how can you kill your own wife or kids? It is impossible. For all the time they have lived together, he has never said this to her.
On cross-examination, he stated that they only had two arguments since he came to Canada in March, 2017. On one previous occasion, although he could not remember when, he came home from work. She kept yelling at him while he was eating his dinner. In response, he stood up and threw the plate on the floor. He then went to the bathroom to calm down. He also stated that the complainant was always accusing him of having affairs. He has never been involved with anyone else since they first met. He would not argue with her about this, however, because he had no reason to have to defend himself. Although there may have been some face book messages on his phone, this does not mean that they were from a girlfriend.
It was also suggested to him that the day after he returned to Canada, now January 15th , that the complainant confronted him asking about his girlfriend in the Philippines. Despite the fact that he had heard this many times, he stated that he did not want to argue with her. He also stated that he does not like to get angry with her because he loves her, and it is all about taking care of the children. To his recollection all they discussed upon his return was the deed to a house that they both owned in the Philippines in the name of the complainant only, and the possibility of selling it to obtain money to buy a house in Canada. This was not an argument, however, but a discussion.
Ms. Mullaly showed the defendant exhibit 5, which is a photo of the drawer, and suggested to him that he pulled it out and that everything was a mess on the floor. He disagreed, indicating that he was fixing it and that his daughter was helping him. He did not recall however if this was on November 1st, 2017, or if they had even been arguing on this day.
Regarding the Cuisinart knife, exhibit 6, he indicated that he did not know how the paint markings got on the blade of the knife. Regarding the door to the bedroom Ms. Mullaly suggested to him that the markings looked like they were made by a knife. He responded that he did not know how these came about.
Regarding the one inch gash on the wall shown in exhibit 4, he did not know how this got there either. He never saw any such marking, explaining that every time he saw any damage to anything in the apartment he would fix it. He concluded his testimony by stating that he never said that he was going to kill her and her family back home. All he said was "son of bitch." This is all he knows. There is nothing more to tell. It was the complainant who always got angry with him, but he never got angry with her.
7:0 Analysis
Turning to the evaluation of credibility and reliability of the witnesses, I do not believe the defendant. For him to say that he never argued with the complainant or got angry is incredulous and implausible and improbable. He had an animus against the complainant on November 1st, 2017. He was not merely fixing a broken drawer in the kitchen, but taking a knife out of it and in anger, the drawer broke. This is the finding of fact that the Court makes. His testimony that he did not know or agree that there was damage to the wall or bedroom door, in the face of the photographic evidence, does not square. Both the defendant and the complainant in their testimony agreed that he said the words "son of a bitch" at some point during the incident. If this was all that he said it would not, in law, necessarily constitute a threat. The Court finds as a fact, however, that this is not all that the defendant had said. He continued to utter death threats to complainant by saying, "I will kill you, you shit", and that he also threatened to kill her family as he was striking the wall and door.
There is also nothing in his evidence that raises a reasonable doubt about what happened, despite my not believing him. The substance of his testimony is wanting. My outright rejection of his evidence is based on a considered and reasoned acceptance, beyond a reasonable doubt, of the truth of the complainant's conflicting testimony. This is as much of an explanation for a rejection as one based on identifying a problem with the way in which the defendant testified, or in manufacturing a reason as to how he testified. I accept, categorically, the complainant's evidence and make the following findings of fact that the defendant held a knife and pointed it at the complainant in the kitchen area, while threatening to kill her, thus committing both an assault with a weapon as well as uttering a death threat; and that he threatened to kill her and her family as he thrust the knife into the door outside the bedroom. The complainant was refreshingly candid in giving her testimony. She acknowledged that, given the nature of their relationship, she and the children would be safer and better if the defendant was gone, although she was aware that he could be deported if convicted of a criminal offence. The Court accepts her explanation that this was not foremost in her mind when she notified the authorities.
Although corroboration is not required in order to find guilt, the Court's decision is fortified by support of photographic evidence from the various exhibits, including the broken drawer on the kitchen floor and the knife marks on the bedroom door and wall, as well as the paint like marks on the tip of the subject knife blade. This leads to a logical inference that that the defendant did indeed stab or thrust at the door and wall after the complainant retreated to the bedroom, although she did not see this directly.
7:1 Issue One
Did the defendant possess a knife at all, and if so can, an assault and an assault with a weapon be made out, even if he never made any direct contact with the complainant? The legal principles under section 267 (a) of the Criminal Code require that the Crown prove the essential elements beyond a reasonable doubt that the defendant:
Intentionally applied force to the complainant.
That she did not consent to the force applied.
That the defendant knew that she did not consent to this.
That a weapon was involved in his assault on her.
Applying these principles, the Court finds that all four essential elements have been proven beyond a reasonable doubt. The defendant did initially apply force to the complainant on two occasions. First, after taking the knife out of the drawer and pointing it at her, as he uttered the words, "I am going to kill you" and second, as he thrust the knife tip in to the bedroom door as he uttered the words, "I will kill you, you shit". Although, there was no direct contact, an assault can take place, in law, if there is a fear or apprehension shown of imminent harm to be visited upon a victim. Section 269 (a) of the Criminal Code provides that everyone who, in committing an assault carries, uses, or threatens to use a weapon. It should be noted also that section 265 (1) (b) of the Criminal Code provides that a person commits an assault when he attempts or threatens by an act or gesture to apply force to another person, if he has or causes that other person to believe upon reasonable grounds, that he has present ability to effect his purpose. Also, in law, it is not necessary to show that the weapon also caused injuries to the victim. This proposition is set out in the case of R v. Richard, 1992, 72 Canadian Criminal Cases (3rd), page 349, a decision of the Nova Scotia Court of Appeal.
7:2 Issue Two
Did the words used by defendant constitute a threat, and if so, did he knowingly intend to intimidate or to have his words be taken seriously by the complainant? The legal principles set out in section 264.1 subsection l(a) require the Crown to prove the essential elements beyond a reasonable doubt. First, that he made a threat. Second, that it was to cause to death. Third, that he made the threat knowingly. The court finds that the Crown has met this burden as well. Was there a threat? Yes. A threat may be spoken, written, or communicated in any other way that caused it to be received by another person. It may be direct, for example, the words "I will kill you, you shit", or conditional, for example "if you do or do not do something I am going to kill you". What is important is the meaning that a reasonable person would give to the words used in the circumstances. Words spoken in jest, for example, or in such a way that they could not be taken seriously by a reasonable person in the circumstances do not constitute a threat. A threat does not have to be directed at a specific person. It can be directed at an identifiable or ascertainable group of persons, that is, in this case, the complainant's family. A person or persons who are the subject of the threat does not have to be aware of it, or if aware of it, would not have to be in fear or even intimidated by it, or to take it seriously. To decide whether the words used amount to a threat, it must be considered from the point of view of a reasonable person.
This is someone who is objective, fully informed of the circumstances, right-minded, dispassionate, practical and realistic. Would a reasonable person fully aware of the circumstances in which the words were uttered or conveyed, therefore, have perceived them as a threat, taking into account the circumstances in which the words were used; the manner in which the words were communicated; the nature of any prior or existing relationship between the parties; and the plain and ordinary meaning of the words used? Did the defendant make a threat knowingly? The answer to that is, yes, in the Court's respectful view. The term knowingly refers to the defendant's state of mind. It must be meant to intimidate, or to be taken seriously by the complainant. The fault element, therefore, is disjunctive. Either state of mind will suffice to prove this essential element. The Crown need not prove both. It should also be noted that the Crown does not have to prove that the defendant intended that the words be passed along to others, that is, the complainant's family, or that the complainant herself was actually threatened or made afraid by them. It does not matter whether the defendant meant to carry out the threat. The Court is entitled to infer, as a matter of common sense, that a person usually knows the - predictable consequences of his conduct and means to bring to them about.
Applying these principles to the evidence of this case there was, indeed, a threat, as the Court has already found. The circumstances in which these words were used were in anger and not in mere frustration or in jest. The defendant was holding a knife in his hand at the time and was, in fact, making thrusting movements outside the bedroom door as well as being proximate to the complainant, while in the kitchen and threatening her.
The manner in which the words were communicated were, in the Court's view, meant to intimidate and instil fear. The plain and ordinary meaning of the words used cannot be considered vague, veiled, or ambiguous. These were more than words being spoken out of anger or frustration or mere bravado, or puffery, or carelessness, or merely in the heat of the moment, or just "blowing off steam", so to speak, given the length of time of the entire incident. The defendant had time, therefore, to weigh and measure his words. These words against the complainant and her family were not innocently made.
The Court is satisfied that there was an actual menace and a declaration that harm would follow. The Court is also satisfied that this behaviour and the words used should attract and deserve the intervention of the criminal law. This is more than just unacceptable and inappropriate behaviour or vocalizing, or merely saying something that one did not mean. The facts and circumstances in the present case are quite different from a scenario, for example, where two people are merely arguing with one another in a climate of mutual frustration and insults where neither is listening, or are talking over one another in an effort to provoke. These types of emotionally charged exchanges as a mere reaction to an insult with no real intent to instil fear or to intimidate ought not be caught necessarily by this section of the Criminal Code . In some circumstances, despite the plain meaning of the words spoken, no reasonable person would regard the phrase, "I will kill you" spoken in a loud and vulgar and acrimonious argument between the two spouses as amounting to a real threat to cause death, that is murderous intention. Of course, words are expressive of thoughts, emotions and many inner moods and states of mind and are used in many ways and contexts which add to their meaning.
In the present case, however, the Court is satisfied that on the totality of the evidence, when viewed objectively, and to an informed reasonable person, the words used by the defendant were something more than just troubling or concerning. The Court has also taken a step back, so to speak, and employed a "bird's eye view" of the context of and the dynamics of the family unit. Pre-charge conduct of the defendant is relevant as to whether the complainant's fear of him was reasonable, as well as the defendant's intent in knowing or being reckless as to whether his conduct and words constituted a threat. This proposition is taken from the case of R v. Ryback 1996, 105 C.C.C, 3d page 240.
Regarding the nature of the prior existing relationship, it is clear that the defendant had an animus towards the complainant. Although the words uttered by the defendant were not face to face, at least as it relates to being outside the bedroom door, the Court finds that they were emphatic and aggressive, when the defendant spoke them, and that with the knife in hand he had the present means to effect his purpose. He clearly meant his words to intimidate or to be taken seriously, and that a reasonable person in similar circumstances would find this to be so. A death threat made by an intimate partner is not to be approached or assessed necessarily as a discrete act or isolated incident, nor should it be considered normalized as the way one speaks to one's partner. In a domestic context, the words should not be looked at as a "snap shot". Furthermore, the seriousness of the threat should not be downgraded or minimized necessarily when made to an intimate partner.
The Court is satisfied that the Crown has proven the essential elements of each offence beyond a reasonable doubt. In the result, the defendant is found guilty as charged.
Sentencing Hearing
THE COURT: Ms. Mullaly of course the next step in the trial process would be the sentencing and I do not know what your position is on that today or at this time.
MS. MULLALY: Well, I do think we - need to give that opportunity for the complainant and the victim to do a victim impact statement and I think we can get that fairly quickly I think, yes. So, perhaps - today is the 12th – Your Honour is next sitting on August 23rd, could we do the sentencing on that day?
THE COURT: Yes. I was not contemplating making any orders for any reports, like a Pre-Sentence Report. There is fairly sufficient information from the family law component...
MS. MULLALY: Right.
THE COURT: ...in this Integrated Domestic Violence Court, as well as the circumstances of this case. So, I would not need to order a Pre-Sentence Report. I do not know what your preliminary position would be at this time, or whether you...
MS. MULLLALY: Well...
THE COURT: Wish to reflect on that.
MS. MULLALY: Well, I think it's - in light of course Your Honour's findings and the finding of guilt on both charges. I do think it's a case that the Crown is going to be considering asking Your Honour for a jail sentence, and I would like to give some thought to how that might be, but that is what I am considering at the moment. I will of course take in to account the impact statement, but I think it's - that's what I - at the moment, I think the Crown's position is going to be.
THE COURT: Yes. Thank you. You are certainly entitled to have a input from the complainant in this matter. Just because she testified does not necessary constitute her input on sentencing.
MS. MULLALY: I know and - well because we know it is the right to - do the victim impact statement, so I really do have to ask and I have a feeling she might want to - do one this case.
THE COURT: Yes. Of course I will give you that opportunity. Mr. Lucas, I know you have been to court on many occasions, sir. What is being proposed here is that I now have to deal with the sentencing part of the process, which is to determine what the appropriate penalty or sanction should be. Ms. Mullaly is asking the Court to adjourn the sentencing to August 23rd which is the next date that I will be sitting in this integrated court. Would you agree to come back on that date for sentencing sir? By that time Ms. Mullaly will have had an opportunity through others to obtain some input from Ms. Lucas.
MR. LUCAS: Yes, Your Honour I would like to.
THE COURT: That is a right that she has - in our process to have her voice heard before a sentence is passed. I will obviously give you every opportunity to make submissions to the Court, sir, about what you think should be the appropriate sanction. Then, I have a duty to apply the sentencing principles to the circumstances of this case. I have to follow a certain framework. In others words, I do not impose a sentence based on emotion. I am required to consider the circumstances of the offences themselves; and the circumstances of the offender, which is you. I can ask you some further questions about your background. It would be helpful if I knew a little bit more about your present circumstances. The fact that I am also aware of the issues that were addressed in the family component of this case and the resolution of those matters is certainly information that I should give proper consideration to. I am also required to consider the positions of the parties, so if Ms. Mullaly is asking the Court for a particular sentence, I have to give careful consideration to that, as much as I would to any sentence that you are asking me to consider. I then have to apply the principles of sentencing set out in the Criminal Code, particularly, S.718 , and anything else that you would like to - like the Court to be aware of , sir. If you have any materials or documents or letters of support from any family members or friends or people who know about your character otherwise, I am happy hear that or receive that kind of information. I do not know if you would like to have the benefit of speaking to Duty Counsel about how to prepare for the sentencing. I would like to give you that opportunity. I am just wondering, Ms. Mullaly, I think I saw Mr. Sinclair. If he is still here in his capacity as Duty Counsel, just as a courtesy, if that is...
MS. MULLALY: Right.
THE COURT: ...a service that he might provide to...
MS. MULLALY: Right.
THE COURT: ...Mr. Lucas, just before he leaves today, so he has a better appreciation of what to come to court with on the next occasion. Could you page him Mr. Clerk, Ms. Mullaly anything?
MS. MULLALY: You can go get him - oh great.
THE COURT: Ms. Mullaly, I will be mindful, of course, having heard the trial and recognizing Mr. Lucas's status in the country, that there is immigration component to this matter. It is not determinative of any sentence, but it certainly is a factor that I must consider.
MS. MULLALY: I will be mindful of that too, in my submissions, but I would just need to - just want to get the impact statement and then consider my position...
THE COURT: Yes - of course.
MS. MULLALY: ...but I'm just - I said that the Crown will be asking - I just want it out there as a possibility that the Crown would be asking for a jail sentence.
THE COURT: Yes. I understand. Your position is subject to other information you might receive, or upon reflection. So, is that date otherwise agreeable to you Mr. Lucas? I am sorry that you will have to come back on another occasion, sir.
MR. LUCAS: It's okay - Your Honour.
THE COURT: ...but for the reasons indicated, it is important that it be done in that manner.
MR. LUCAS: Yes, Your Honour.
THE COURT: Alright. So, would you prefer to come back in the afternoon of the 23rd, again sir, like we did today? Is that better for you Ms. Mullaly?
MS. MULLALY: That's fine.
THE COURT: Thank you. We have not had the direct involvement of the Tagalog interpreter today, although he was at the ready and sitting at counsel table with you, and in fact even making some notes as I observed, I thank you for your engagement in the matter Mr. Interpreter.
MR. INTERPRETER: It's my pleasure Your Honour.
THE COURT: Would you feel comfortable in having the interpreter on the next occasion as well sir, just in case you have some difficulty in expressing yourself...
MR. LUCAS: Yes, Your Honour.
THE COURT: ...because I am required to ask you before sentence is imposed whether you wish to address to the Court and say anything or bring any other information to the Court's attention...
MR. LUCAS: Yes, please Your Honour.
THE COURT: ...and if you would like to do that and you would like the security of having the interpreter assist if you are at a loss for words...
MR. LUCAS: Yes, Your Honour.
THE COURT: ...then I am quite prepared to have that take place. So, Mr. Interpreter, I appreciate I cannot order you specifically to return but will you please make it known to your principals...
MR. INTERPRETER: Yes, I will.
THE COURT: That this matter is coming back. It would be very helpful if we had the continuity of your involvement.
MR. INTERPRETER: I will let them know Your Honour, also - as the Court has also request for an interpreter and I can let them know.
THE COURT: Thank you very much sir, Ms. Mullaly, do you think it would be prudent to do that?
MS. MULLALY: I think so.
THE COURT: Yeah.
MS. MULLALY: I think Mr. Sinclair is gone for day. Just to note before I forget Mr. Clerk could you note a Tagalog interpreter is required for the next day.
MR. CLERK: Yes.
MS. MULLALY: Thank you, so I don't know if Mr. Lucas might want to come early on the 23rd and be able to speak Mr. Sinclair or...
THE COURT: Yes, thank you.
MS. MULLALY: Yeah.
THE COURT: I think what we could do is we will certainly give Mr. Lucas the opportunity to speak with Duty Counsel on the afternoon of August 23rd. So Mr. Lucas, just so you have a better appreciation sir, when you come back on August 23rd, I am going to hear submissions from Ms. Mullaly, the Crown Attorney, about what sentence I should consider imposing, and then I am required to hear from you about your position on sentence. You may not appreciate all the different types of sentences that could be available here, but this would be your opportunity to bring anything else to the Court's attention that you feel is helpful to you or important for me to know about. In terms of your employment, if you are presently working, perhaps a letter confirming that would be helpful. I do not know if there is anyone else who is aware of your circumstances before the Court. I appreciate this is a private matter...
MR. LUCAS: Yes.
THE COURT: ...and something that you do not necessarily share with many people.
MR. LUCAS: Yes, Your Honour.
THE COURT: If there are any individuals part of your network that is a support, or any friends who can speak to your character, this is also helpful.
MR. LUCAS: Yes, Your Honour.
THE COURT: If you wish to have any or all of those people come to court to support you and perhaps address the Court, I am happy to hear from them. Or if you wish to obtain letters from some of your friends or those who know you, about other parts of your character, and that you are an otherwise responsible gentleman, then - it is helpful for me to know that so that I can properly balance the competing sentencing principles. Okay sir?
MR. LUCAS: Yes, Your Honour, thank you for that Your Honour.
THE COURT: Alright. I do not think I will say anything more at this time Ms. Mullaly. Given the fact that this matter was in trial mode, there may not have been any rehabilitative steps taken by Mr. Lucas, and so I would not have the benefit of that. That will perhaps be a consideration going forward. Okay. Thank you very much. Mr. Lucas, do you have any questions at this time, sir? I apologize again that my judgment was so lengthy and perhaps hard to follow at times. I hope it was not, but I can appreciate that it may have been. Do you have any questions at all, sir?
MR. LUCAS: No, sir I think - no I do not have any questions, but I am waiting for the decision today. You know, because I am - it's been 18 months since this was started. Sorry, but I can still come on another few months, as long as - I just want to finish this case, and I want my wife to move on and, you know, I want my wife to be - not to disturb her again coming here, that is all Your Honour.
THE COURT: Alright. Thank you very much, sir. Ms. Mullaly, I will leave it to your good office, as to whether Ms. Lucas wishes to actually attend court on August 23. It might be very helpful, because I think she might be able to provide a little more narrative or context about the family unit to the dynamics of those issues, so...
MS. MULLALY: Yes, and sure - certainly advise her of that and if she wishes to come that would be - very helpful I think.
THE COURT: Oh yes. Thank you very much. I appreciate that. Alright sir, thank you again for your attendance today. August 23 is a Friday at two-fifteen in this same some court...
MR. LUCAS: Yes, Your Honour.
THE COURT: ...for sentencing, okay. Thank you very much. You are excused now Mr. Lucas. Thank you. Madam Reporter, I would like to order the transcript of my judgment, my reasons please. So I will have my judicial assistant contact the Trial Coordinator or court administration.