ONTARIO COURT OF JUSTICE DATE: 2024 03 15 COURT FILE No.: Pembroke 22-0592; 22-0591

BETWEEN:

HIS MAJESTY THE KING

— AND —

TP

Before Justice J.R. Richardson

Heard on October 25, 27, 2023; January 17, 18, 2024 Reasons for Judgment released on March 15, 2024

Counsel: Richard Morris.................................................................................... counsel for the Crown Jennifer Ho.................................................................................... counsel for the defendant

RICHARDSON, J.:

Introduction

[1] TP is charged with:

a) Assaulting CR on 21st day of April 2022 contrary to section 266 of the Criminal Code; b) Mischief to Property on the 21st of April 2022 contrary to section 430(1)(a) of the Criminal Code; c) Operating a conveyance in a manner that was dangerous to the public on the 18th of April 2022, contrary to section 320.13(1) of the Criminal Code; d) Uttering a threat to burn the property of Jordan Bullis on the 18th of April, 2022, contrary to section 264.1(b) of the Criminal Code; and e) Failing to Comply with an undertaking on the 26th of April, 2022, contrary to section 145(4)(a) of the Criminal Code.

[2] The first four charges appeared on information 22-0592. The last charge appeared on Information 22-0591. Counsel agreed that the trial with respect to both informations would occur at the same time.

[3] With respect to the fourth count, Uttering a Threat, in the course of preparing my reasons for judgment, I noticed that the offence as charged has an offence date of April 18, 2022. The evidence which I heard in court was clear that this offence, if it occurred, took place on April 21, 2022. My assistant emailed the parties, and they agreed that the information should be amended to conform with the evidence heard at trial.

[4] The Crown elected to proceed summarily.

[5] At the outset of the trial, the parties advised that date, jurisdiction of the court, identity of the accused as the individual arrested and the authenticity of the undertaking that she is alleged to have violated on April 26, 2022 were all admitted.

[6] With the exception of the Uttering Threats Charge, which is alleged to have taken place in the Town of Renfrew, and the Breach of Undertaking charge, which is alleged to have taken place in the City of Ottawa, these offences took place in Admaston-Bromley Township. The area where these offences took place is often referred to as the Bonnechere Plain, a flat, very fertile area of land that lies between the Deacon Escarpment to the north and the Mount St. Patrick hills to the south. The Bonnechere River intersects the plain.

[7] The area is pastural, and but for the antics of TP and CR, peaceful and quiet. The folks who live there are either farmers or folks who work in the nearby towns and cities and want to live a quiet rural life.

[8] Unfortunately, on the dates in question, TP and CR conducted themselves in a fashion that would not be out of place in an episode of the Jerry Springer Show. Both of them should be ashamed of their behaviour, particularly the recent portion giving rise to the charges which was witnessed by their children DP and LR.

The Burden of Proof and the W.(D.) Formulation

[9] This case involves the assessment of reliability and credibility and the application of the principles in R. v. W.(D.).

[10] TP is at all times presumed innocent until such time as the Crown proves her guilt beyond a reasonable doubt.

[11] The Crown must prove the elements of the offences beyond a reasonable doubt. The Crown bears the onus of establishing them. The onus never shifts to TP. A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone. It is a doubt that is based on reason and common sense. It is a doubt that logically arises from the evidence or the absence of evidence.

[12] In R. v. W.(D.), 1991 SCC 93, [1991] 1 S.C.R. 742, the Supreme Court of Canada instructed triers of fact to assess evidence in this way:

a) First, if you believe the evidence of the accused, obviously you must acquit. b) Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. c) Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[13] In R. v. Kruk, 2024 SCC 7, at paragraphs 59 through 62, the Supreme Court of Canada affirmed W.(D.) and had this to say about the linkage between the presumption of innocence, proof beyond a reasonable doubt and a trial judge’s task in assessing credibility:

The overarching principle of the presumption of innocence, enshrined in s. 11(d) of the Charter, and the correlative principle of the Crown’s burden of proof, must always govern the fact-finding process. The presumption of innocence — a “hallowed principle lying at the very heart of criminal law” (R. v. Oakes, 1986 SCC 46, [1986] 1 S.C.R. 103, at p. 119) — requires the Crown to bear the onus of proving all essential elements of the offence charged, beyond a reasonable doubt, before a conviction may be entered (Osolin). Closely related to the presumption of innocence is the accused’s right to silence as enshrined in s. 11(c) of the Charter, which safeguards human dignity and privacy against processes or reasoning that would compel an accused person to incriminate themselves with their own words (R. v. Noble, 1997 SCC 388, at paras. 69-78).

Various protections relating to the assessment and weighing of evidence flow from the presumption of innocence and the right to silence. Notably, an accused’s silence at trial may not be treated as evidence of guilt, as such reasoning would violate both principles (Noble, at para. 72). Likewise, it is improper to discount the credibility of accused persons on the basis that, because they face criminal penalties, they will say anything to protect themselves. Though considering the possibility that the accused may have a motive to lie will not necessarily offend this rule, courts should be wary of going further and drawing the “impermissible assumption” that they will do so in all cases (R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at para. 14). Such reasoning is premised on a supposition of guilt and therefore offends the presumption of innocence (para. 12).

The presumption of innocence also restricts how credibility is assessed in cases of conflicting testimony between defence and Crown witnesses. The analysis of testimony must never be treated as a contest of credibility, and triers of fact need not accept the defence’s evidence or version of events in order to acquit (R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 23; R. v. W. (D.), 1991 SCC 93, [1991] 1 S.C.R. 742, at p. 757). The burden never shifts to the accused to establish their own innocence, and the onus always lies with the Crown to prove every essential element (R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13).

Reasonable doubt applies to credibility assessments such that if the evidence the Crown adduced does not rise to the level required of a criminal conviction, an accused cannot be found guilty simply because they are disbelieved (see W. (D.)). Some elements of the totality of the evidence may give rise to a reasonable doubt, even where much — or all — of the accused’s evidence is disbelieved. Any aspect of the accepted evidence, or the absence of evidence, may ground a reasonable doubt. Moreover, where the trier of fact does not know whether to believe the accused’s testimony, or does not know who to believe, the accused is entitled to an acquittal (J.H.S., at paras. 9-13; R. v. H. (C.W.) (1991), 1991 BCCA 3956, 68 C.C.C. (3d) 146 (B.C.C.A.); R. v. S. (W.D.), 1994 SCC 76, [1994] 3 S.C.R. 521, at p. 533; R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, at para. 19). Finally, where the Crown relies on circumstantial evidence to establish guilt, the trier of fact may only convict if guilt is the only reasonable inference from the evidence (R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30).

[14] The caselaw is also clear that W.(D.) is not a “magic incantation” (R. v. S.(W.D.) 1994 SCC 76). Where the analysis in this case does not follow the W.(D.) “order of operations”, I have at all times remained true to its meaning and import.

[15] The law is clear that I can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence. Further, when considering the testimony of a witness, a Court can accept all, some, or none of a witness’ testimony.

The Impact of a Criminal Record on the Evidence of a Witness

[16] Both of the main protagonists in this case, CR and TP, have criminal records and both testified. CR’s criminal record was made an exhibit. He was convicted in August of 2023 for the offences of Impaired Operation of a Conveyance, Dangerous Operation of a Conveyance and Flight while pursued by a Peace officer.

[17] TP’s record was not entered into evidence as an Exhibit but she acknowledged in cross-examination that she has a record for Failing to Comply with an Undertaking (2016) for which she received a suspended sentence and probation and assault and assault with a weapon for which she received a conditional discharge in 2023. Because the discharge is not yet absolute, the latter offences are something that can be considered. I note that these offences factually post-dated the events of April 2022 that are at issue here. I understand that they arose later in 2022 or 2023 once TP was residing in Ottawa and attending Algonquin College.

[18] The law is well settled that the existence of a criminal record can be useful in assessing credibility and reliability of a witness. Where an accused person has put their character in issue, sometimes a criminal record can be useful in rebutting an accused’s evidence of good character.

[19] Similarly, where the accused attacks the credibility of other witnesses, the accused’s record can be filed, and the accused can be examined on the details of it in order to “level the playing field”. In this case, for example, the Crown argued that examining TP about the details of her criminal record, including the facts of the offences on it was necessary because she had put her character in issue through the filing of the letter of apology to the police officers.

[20] I allowed this to proceed on this basis, but at the end of the day the exercise did not help me. As I have set out below, there is an ample record on which to make findings of credibility and reliability with respect to TP without considering the factual details that accompany her criminal record.

[21] When it comes to the criminal records of witnesses in general, and accused persons in particular, a trial judge must exercise extreme caution in at least three respects.

[22] First, the classic reason for leading a criminal record is to show that the witness has, in the past, been dishonest. Not all crimes, however, are crimes of dishonesty.

[23] In this case, CR’s offences are driving offences. They are not as serious a reflection on his credibility and reliability as convictions for offences such as theft, perjury, fraud, obstructing justice or obstructing a peace officer might be. I find similarly with respect to TP’s convictions failing to comply with an undertaking, assault and assault with a weapon.

[24] Secondly, the age of the record is important. A criminal record’s relevance is inversely proportional to its age. This is a well settled principle. In this case, TP’s 2016 conviction, when considered in 2023 and 2024 in the context of events which occurred in 2022 is not as significant as something more recent.

[25] Thirdly, the court must be careful not to fall down the slippery slope of propensity reasoning. In this case, TP is now charged with two of the same offences on her criminal record.

[26] So what use is the criminal record in this case? Frankly very little. Elsewhere in these reasons, I essentially conclude that I do not find the evidence of either CR or TP credible and reliable. This conclusion is grounded on the oral evidence that I heard in this trial. Their criminal records did not assist one way or another with this assessment. At best, the records lend credence to the evidence I heard and the conclusions that I ultimately drew with respect to the dysfunctional nature of their relationship and their struggles with addiction.

Evidence of CR

In-Chief

[27] CR is 34 years of age. He now resides in Ottawa. He has known TP since they were teenagers. By April 2022, he had been in an intimate partner relationship with her for seven years. They have two children of their own, ZR and LR. There is also a third child, DP. Although CR is not DP’s biological father, he has acted in loco parentis and as DP’s de facto father since the boy was three. “He calls me “Dad”. I am the only person he has ever known as a father”, CR stated.

[28] CR stated that he and TP now share parenting time with the children 50-50.

[29] He stated that in April 2022, the relationship “came apart”. He added that it had been deteriorating for a while. He described the relationship as a “rocky road”.

[30] They resided together up until approximately the morning of the 18th of April, 2022 when she left with one of the family vehicles. He recalled that he and TP were in conflict that morning. He had been staying at the Holiday Inn in Kanata. He stated that he got “an alarming text” from TP to come home. She told him that she had packed her stuff and she was leaving.

[31] He had to figure out what to do with the children so he could go to work. TP told him that she was going to take off.

[32] When CR arrived home, he observed all of TP’s bags packed beside one of the family vehicles. The children were in the driveway. They were crying and upset. He said that everyone was in a “panicky state”. He told TP to calm down.

[33] CR realized that the clothes that he needed for work were missing. He asked TP about it and TP told him that she burned them. He checked the “burn pile” and the woodstove and formed the opinion that what she told him was not true.

[34] TP was about to leave. He said that she screamed at him from the car to get her cell phone or her cigarettes. He told her to go get the items herself. He then pulled out her luggage and started looking for his work clothes. When asked if he found his work clothes, he stated, “I don’t recall. I don’t think so.”

[35] CR stated that TP came out of the house “screaming and erratic”. She asked him what he was doing in her luggage. He told her that he was trying to find his clothes.

[36] He stated that at this point, TP turned the car around and gunned it at him. He jumped out of the way. She ran over her own suitcase in the driveway as she sped away from the residence.

[37] A neighbour, who was a friend of TP came about five minutes later and grabbed the suitcase to deliver to TP. CR stated that the suitcase was crushed.

[38] On April 21, 2022, CR was at the house at supper time. He had a friend over. He was cooking dinner. He recalled that DP came running in and told him that “the shed” was on fire. At first CR thought he was just joking. He then observed DP’s demeanour and thought he was “completely in shock”. At this point, CR gathered LR and DP and got them out of the house. He pushed his car out of the garage. He called 911.

[39] He recalled that a fire truck arrived first. Mr. Menkhorst came and took the children to his house. CR stated that he remained at the house and watched it burn. Before Mr. Menkhorst came, the children were with him. He said they were crying and panicking.

[40] CR recalled that he really did not know Mr. Menkhorst. He was just a neighbour. Mr. Menkhorst set the children up in the basement of his home so that they could not see their house burn.

[41] CR called TP to let her know that the house was burning down. TP was extremely upset. She yelled at him. She told him that this was “the final straw” and she was taking the children.

[42] Up until this point, since their final separation on April 17 or 18, the children had been staying with CR. “She told me to figure it out”, he said.

[43] CR recalled that he was also “in shock pretty bad” during the whole thing. He did not think to tell her where the children were.

[44] CR recalled that the firefighters told him that there was nothing he could do. Rather than watch his house burn any longer, he went to Mr. Menkhorst’s house as well. He estimated that he went there about ten minutes after the children left.

[45] CR stated that he was at the Menkhorst house about twenty or thirty minutes before TP arrived. He was in the living room with one of the children. He recalled hearing TP “scream” or “peel” into the driveway and “slam on the brakes”. CR stated that she “beelined” it to the door and “smashed the door open.” He said that she started slapping him or hitting him in his arm and he demonstrated the movement in Court.

[46] CR stated that he “hunched away” from TP. TP pulled the child from his hands and got DP and LR into the vehicle. DP was screaming. TP, and a friend, were in the car. They told DP to “get the f in the car”. DP told TP that he did not want to go. TP managed to get LR in the car. She then yelled at CR and accused him of “brainwashing” DP. At about this time, CR’s father, DR arrived. CR opined that TP had been drinking. He described her demeanour as “beside herself” and “irate”. He thought she would be “more sympathetic and compassionate”. Other than TP’s demeanour and behaviour, he did not notice any other signs of alcohol consumption, such as the odour of alcohol.

[47] DR called the police. CR recalled that the police arrived quickly, within five or ten minutes. CR said that he told Constable McLaren everything. Later that night he got ZR and LR back.

[48] CR directed Constable McLaren where to go to retrieve the children. He knew where TP was because he recognized the friend that TP was with. He recalled being present with the police in the police car when the officer drove to TP’s friend’s residence.

[49] CR watched from the police car as the officers went to the door. He recalled that the friend answered the door and came out and spoke with police. Then TP came out. She was arrested and taken into custody. CR observed a confrontation between TP and police in the yard.

[50] He stated that after TP was in custody, “CAS told me to take the kids”.

[51] TP messaged him after she was released from custody and she continued to message him until she was arrested for the breach. He also recalled seeing TP when he took the children to a park. He complained that she was videotaping him. He said that the CAS told him to phone the police. He could not recall the date of this incident.

[52] CR stated that about a month later, TP texted him. He complained that she was saying “inappropriate things”. He believed that TP was using an “app” that disguises the number that the messages originate from. He was later advised by a person named “Cheyenne” that TP was using Cheyenne’s phone. He stated that he was advised of this after TP and Cheyenne had a “falling out”.

[53] Cheyenne was later identified as Cheyenne Piers and she testified later in the trial.

[54] CR stated that those text messages discussed the various incidents. TP tried to cast blame on him.

[55] CR called the OPP to complain about the text messaging. He agreed that he reacted to the messages by messaging her back.

[56] Crown counsel asked CR whether TP has continued to text him. He related that TP is now permitted to text him about “things that relate to the children”. He complained that TP talks about things other than the children and he has informed her a few times to stop contacting him. He said that he has also complained to the Ottawa Police.

Cross-Examination

[57] CR agreed that the house was jointly owned. They had lived there for about three years before the events of April 2022. He also agreed that he worked in construction and TP was not working. She stayed at home and took care of the children.

[58] He stated that the relationship was always “rocky” but allowed that it was a lot better at the beginning then it was at the end.

[59] He disagreed that he and TP had a common interest in drinking. He stated that he stopped drinking when LR was born. He agreed, however, that both he and TP were “heavily into drugs”. He stated that he had been sober and off drugs since March 2022. He stated that his drug of choice was morphine and he and TP used morphine together. He acknowledged that their drug problem was “pretty bad”.

[60] CR acknowledged that he had a criminal record (Exhibit 1), with one conviction from 2021 for Operating a Motor Vehicle While Impaired by a Drug.

[61] CR disagreed that two or three years into the relationship TP stopped while he continued to use. “That’s not true at all,” he said.

[62] He said that the relationship deteriorated in part because she was continuing to use drugs. He also suspected that she was being unfaithful. They argued and the children would frequently witness their arguments. He disagreed with the suggestion that he would be upset if TP took too long at the grocery store. He also disagreed that he put TP “down” during those arguments in front of the children.

[63] He disagreed ever telling TP that she was not a “good mom” or she was not contributing the running of the house. To the contrary, CR stated that he was happy. TP had a job as a dental assistant until her last pregnancy. He said that he thought he was making enough money in his job to support the family. He stated that they had a plan that TP would go back to work once ZR was old enough to go to school. He disagreed that he did not allow TP to return to work when that time came. He stated, “I would have loved to have some help. It was a big financial burden”.

[64] He disagreed that he did not allow TP to go to school. “That was not discussed”, he said.

[65] He disagreed that he was scared or insecure that she might meet someone else. He acknowledged that their arguments went both ways. He disagreed that TP accused him of neglecting the children. “She said I was a good father”, he stated. He agreed that during their arguments, TP would leave and go to her mother’s for a few days.

[66] CR agreed that in September 2021, TP left for about two weeks. He disagreed however with counsel’s suggestion that she left because he left some guns out and DP shot one of the guns in the house. “I am not aware of that. My guns were in a trigger lock.”, he stated. He summed up their problems by stating, “Our problems were between us. They had nothing to do about how I was raising the children”.

[67] Defence counsel suggested that by April 17, 2022, CR was seeing someone else. “It was complicated”, he acknowledged. He added that TP told him that she was seeing someone else and he “begged her not to”. He stated that TP encouraged him to see someone else to point of encouraging him to taking the better car to “have a nice car and look good.”

[68] He recalled that the night before Easter Monday 2022, they got in an argument after she came home at 3:00 in the morning. He repeated again that he was “begging her not to do it”. He stated that she said, “It is what it is” and told him that he should go find someone else.

[69] When it was put to him that the night before the incident in the driveway, he was with “another woman”, he agreed. He stated that, “I thought it was my best bet to leave and go to another location. I took her [TP’s] advice.” Defence counsel asked, “You told her that you were with another woman on the morning of April 18?” CR replied, “Yes, she told me that she was with another man.”

[70] He could not recall whether he helped TP pack. “Possibly”, he said.

[71] He stated that he “popped the back hatch” of the couple’s SUV, opened the suitcase and looked in it for his clothes, but he again could not remember if they were there.

[72] Defence counsel confronted CR with a statement that he gave to the police on April 21, 2022. In that statement, at page 13, CR told the officer that the clothes were in his suitcase. CR adopted what he said in the statement. He stated that he remembered “little bits and pieces” and he remembered that TP was gunning the car.

[73] He disagreed with the following suggestions made by defence counsel:

a) that the car was facing the road; b) that after he opened her suitcase, he threw it in the mud; c) that TP remained in the car at all times; d) that when TP went to leave, he ran in front of the vehicle; e) that after he did this, TP had to stop the car so that she would not hit him. “Not at all. That’s completely fabricated”, he said; f) that he yelled at TP that she ran him over; g) that TP drove around him and not toward him; h) that she reversed the car and ran over her suitcase; i) that she only increased her speed when she drove on the road. “As she left the property she was driving like a crazy person”, he stated.

[74] He agreed with the suggestion that TP did not hit him with the car.

[75] Defence counsel suggested that when he called TP to tell her the house was on fire, he abruptly terminated the call after delivering this news. CR disagreed. “I called to tell her everyone was safe”, he said. He agreed, however, that he did not tell her where the children were. Defence counsel suggested that TP tried to call him back. “Possibly”, he said. “If I didn’t answer, it was not intentional.”

[76] He agreed that while he was at the Menkhorst house, the door was unlocked. Defence counsel asked if he saw the broken door frame. CR stated, “I believe a piece went flying. Maybe a foot. It’s hard for me to remember”. He agreed that immediately before she came in, he saw her pull up. He also stated that she saw him through the door.

[77] He clarified that when TP came in, he and the children were present along with Mr. Menkhorst and his wife. He disagreed with the suggestion that Mr. Menkhorst was at the door and invited her in.

[78] He stated that she grabbed one of the kids out of his arms. He could not remember which child she grabbed. He stated that there was a huge commotion. When asked to confirm that TP grabbed LR from the couch, CR stated, “Possibly. I can’t remember.”

[79] He stated that TP did not physically hurt him, but she was slapping him.

[80] Defence counsel suggested to CR that TP pointed her finger and yelled, “That’s the last time you’re putting our kids in danger”. He stated, “I can’t remember what she was yelling.”

[81] He stated that TP ran around and chased DP. He thought she was intoxicated because she was stumbling.

[82] He agreed that the first time he had contact with TP’s friend, Cheyenne Piers, was through text messaging.

[83] Defence counsel showed CR the text messages that Cheyenne Piers or TP sent to him. He claimed not to remember what the various text messages were about. He agreed, however, that his phone number was at the top of the screen.

[84] The text messages are not dated.

[85] It is clear that the author of the text messages is probably CR. In the text messages, CR mocks TP’s situation, makes fun of her lawyer, wonders aloud how she will support herself and the family.

[86] TP/Cheyenne Piers fires back with a discussion of a “GHB night” in August 2021. TP/Cheyenne Piers writes: “You should have stopped this could have been dealt with mutually [TP] will tell everything and she keeps proof of everything.”

[87] TP/Cheyenne Piers also wrote, “Your fucked watch. You should just start being mutual, k. Civil. Grow up. Stop being so vindictive.”

[88] TP/Cheyenne Piers then wrote, “It can get way worse eh she protected you all these years never said anything to anyone. And you do her like she showed me all the dirt you should just thing about start being civil so you guys can go parent without hostility.”

[89] TP/Cheyenne Piers then wrote, “[CR] Please Answer me. That was all [TP] on my phone. She’s fucked.” Even though he claimed not to remember the earlier text messages – which do not paint him in a positive light – CR remembered this one.

[90] CR’s sudden recollection was short-lived however. He waxed and waned about whether he remembered the following messages. “It was a long time ago”, he said.

Yea sure but hey I just wanted to thank you for joining the winning team good prevails over evil every time glad to have you on our side.

Cops will want you to make statement have your shit together for maximum impact.

That cop’s calling you now.

Tell him everything you told me.

Don’t forget about there [sic] plan to set me up that’s unbelievable.

[91] Defence counsel suggested that he told Cheyenne what to say to Police about the text messages. He denied telling her what to say but acknowledged, “Just to have her ts crossed or whatever I guess.”

[92] Defence counsel suggested that he knew that if TP was charged, she would have more difficulty in family court. CR disagreed. Later, however, he stated, “That’s just the way it was.” He agreed that he initially sought full custody of the children.

[93] Defence counsel suggested that he knew that there was a possibility that if she was charged, she could go to jail. CR stated, “The fire incident was the last straw. You can’t do stuff like that.”

[94] CR agreed that on April 21, when TP left with LR, she already had ZR in her care. He also agreed that he and TP did not have a formal separation agreement. “When she left, I was sad. I was having difficulty coping”, he stated.

[95] Defence counsel asked CR if he believed that TP was mentally ill. He stated that he believed that she had mental health issues. When asked if he believed that she was not safe with the children, he stated, “When she gets into a downward spiral like she was in the two weeks leading up to this, she isn’t the best.”

Assessment

[96] CR’s amnesia with respect to his part in the text messages is fatal to his credibility. These are things that an honest witness would recall and own up to.

[97] The text messages also demonstrate that any communications with TP were initiated by him.

[98] As I will discuss below, this does not mean, however, that all of CR’s allegations are false. Some of the allegations that he made are corroborated by other witnesses, such as Anthony Menkhorst or TP herself.

Evidence of Anthony Menkhorst

[99] Anthony Menkhorst has been a resident of Renfrew County for 46 years. He is a retired carpenter. He has lived in the same house in Admaston-Bromley Township.

[100] He did not know his neighbours, CR and TP, well. He said that he had seen them occasionally. He recalled they had a rabbit who was a frequent visitor to his place. He knew TP by her first name. He did not recall the name of CR. He referred to him as TP’s husband.

[101] He recalled that on the date in question, he was in his home having a coffee. His wife looked out the window and saw smoke. He ran over to see what was going on and by the time that he got there, the garage had caught fire. He said that the Fire Department arrived shortly after he got there. Another neighbour, Alex Briscoe, also was there.

[102] With respect to the fire, he said that there was nothing they could do. He recalled that CR wanted to go back in the house to get some toys for the children but he would not let CR go in because the smoke was too heavy. He said that the house was a total loss. In cross-examination, he recalled that it was a very windy day and he opined that this made the fire worse.

[103] Mr. Menkhorst said he stood and watched with CR for quite a while. Finally, he asked CR if he could take the children to his house. He estimated that his house was 600 meters down the street. Because his wife provided daycare, the house had a big toy room. CR agreed so he took the children and stayed with them at his home.

[104] He recalled seeing CR later that night. He estimated that the time was about 5:00 or 6:00. He stated that CR and a girl who was with him, had nothing on his feet and he had no coat. Mr. Menkhorst gave him a coat and something for his feet. He stated that the field separating the two houses had just been cropped. CR, and another person who was with him, walked across the field. He said it would have been like walking on pins and needles. He told CR to go downstairs with the children.

[105] After a while, CR, went back to the fire.

[106] Mr. Menkhorst said that the other person with CR was a young girl. He did not know who she was. She stayed at the house with the children.

[107] Another neighbour, who lives immediately next door to Mr. Menkhorst came over.

[108] TP came. She was very upset. She put her shoulder to the door and broke the bottom of the door. There was no warning. “Boom, she was in”, he said. Mr. Menkhorst recalled that he was sitting on the couch with the little girl [LR]. The boy [DP] was there too. Mr. Menkhorst could see the door from where he was sitting. He did not remember where CR was.

[109] He described the part of the door as a sidelight. He stated that as it broke, about a 20-inch piece of the door came apart. He later found a broken piece of wood in his dining room. He estimated that it travelled about four feet. He got a quote for the door and it was $3500. He said, “I’m a carpenter. I thought I could fix it and I did. I managed to glue and screw it together and it is still working now”. He would later tell me that he had about $10 in materials the repair. The sidelight was not broken before TP arrived.

[110] Once TP was inside, she “barrelled” straight to the children. Mr. Menkhorst recalled that she grabbed her daughter by one arm and dragged her out. He recalled that the boy came upstairs from the toy room. She had him by the other hand.

[111] In cross-examination, he recalled that he was quite concerned about how TP grabbed the little girl by the arm.

[112] “It totally startled us. We had no idea what was going on. It was not a nice scene.”, he said. He recalled that the little boy yelled, “I’m not going with you” and he ran up the laneway. Mr. Menkhorst stated that he could not see what happened once TP and the children were outside. He was emphatic, however, that he could hear it very clearly. He believed that CR was, by this time, outside but he was not 100 percent sure.

[113] In cross-examination, he recalled that TP was very upset. She was cursing, swearing and shouting. She was blaming a lot of people for what was going on. In cross-examination, he agreed the door that she barged through was not locked. To his recollection, no one invited her to come in.

[114] After everyone left, Mr. Menkhorst, his wife and the other neighbour couple sat in the house. “We were kind of shocked as to what happened”, he said. He recalled that his female neighbour said, “Well, that just happened.”

[115] Mr. Menkhorst stated that he has not had any interactions with any of them since. The first time he saw CR since the incident was in court.

Assessment

[116] As I will set out later, I found Mr. Menkhorst to be an excellent witness. Contrary to the submissions of defence counsel, I agree with the Crown: his account was straight-froward, honest and reliable. Unlike every other witness in this case (other than Constable McLaren) he had no stake in what occurred between CR and TP. He was a good Samaritan who suddenly found himself embroiled in the surreal world of CR and TP, a world not unlike an episode of Jerry Springer.

Evidence of Cheyenne Piers

[117] At the time of this incident, Cheyenne Piers was living in Griffith. She knew CR and TP through a mutual friend. She recalled that she and TP and the friend went to the Nordique Spa in Gatineau together. After that, she and TP got closer.

[118] Ms Piers recalled that she received a call from TP who reported that she and her boyfriend had been in an argument and she needed to get out of that situation. Ms Piers went and picked her up and TP stayed overnight with her in Griffith. She later drove her to meet a family friend at the Walmart in Renfrew and she believed that TP intended to ultimately go stay with her mother in Ottawa.

[119] Ms Piers stated that she recalled picking TP up from her mother’s before they went to the Spa. After that, TP returned to the residence she shared with CR.

[120] Ms Piers recalled that TP and CR got into “another fight” and they rented a U-Haul and put TP’s stuff in storage. TP then stayed at her house for three or four days while TP tried to find her own place. Ms Piers believed that TP was looking for a place that could accommodate her children.

[121] Ms Piers stated that during the time that TP was living with her, there was a “bunch of drama” between TP and TP’s friend, Isabelle. She recalled that there was a discussion between them about “setting up CR”.

[122] Ms Piers recalled that TP left her residence. Later that night, she received a phone call from TP who told Ms Piers she had been arrested. Ms Piers talked to the police and the police told her what was going on prior to and during the arrest. Ms Piers told them that she could not come to pick up TP because she had two children of her own to care for.

[123] A couple of hours later, Ms Piers recalled that TP called her. She was at the hospital. Ms Piers stated that she sounded “distraught, angry and upset.” She complained to Ms Piers that “they” were keeping her there and she did not want to be there. She was confused as to why “they” would not let her leave. TP told her that she had done “inappropriate stuff” and “got violent” in the cells and had to be taken to the hospital. She asked Ms Piers to pick her up. Ms Piers told her that she would pick her up in the morning.

[124] Ms Piers recalled getting a telephone call from TP that her house was on fire. Ms Piers also said that her neighbour contacted her and told her that TP showed up, kicked in the door and had a beer in her hand. Ms Piers said that she talked to TP and TP confirmed it all.

[125] TP told Ms Piers that she had drank some beers. She told Ms Piers that she was disappointed in herself. She had made some mistakes, assaulted a police officer and got arrested. She then proceeded to tell Ms Piers that she intended to set up CR through Tinder and put cocaine in his vehicle. When he went to pick up the children with the vehicle, she would call police and children’s aid and have him arrested. Ms Piers recalled chuckling about this and saying, “Karma will get you.” Ms Piers believed that this conversation took place the last of the four days that TP stayed with her or the day before.

[126] Ms Piers stated that she was upset because she “got dragged into things” where she had no involvement. She recalled that she let TP use her phone. Ms Piers got a message from CR who told her that she should watch out for TP and tell her to find a cheaper place. She stated that TP took her phone and started replying “as if she was me.”

[127] She recalled that this took place on the last day that TP was with her. She remembered this because the next day, she texted CR and told him to answer her because TP “screwed me over and used my phone.” By this time, TP had gone to her mother’s.

[128] Ms Piers stated that TP did not come and live with her after the fire.

Assessment

[129] Ms Piers’ evidence is confusing as to time frames, and it does not neatly fit in with the sequence from the narrative of the other witnesses.

[130] Although she did not wish to be brought into the fray between CR and TP, she allowed herself to be brought into it by messaging CR directly. Her motivation for supporting CR was revenge for conduct that she attributed to TP and their mutual friend, Isabelle. In the text messaging to CR about this, she wrote “[TP] is mentally fucked. I got ur back. I helped her. She tricked me. She lied so bad.” What she should have done is called the police herself and reported what she knew.

[131] Thus, while her evidence has a ring of truth to it, the ring turns out to be hollow and I cannot safely rely on anything that she says.

Evidence of Constable Matthieu McLaren

[132] Constable McLaren is a member of the Ontario Provincial Police (“OPP”) stationed at Renfrew. He has been a member of the OPP since August 2017. He was on duty on April 21, 2022 working a 7-7 nightshift. He was assigned to general patrol. He was dressed in full uniform. He operated a black and white Ford Explorer police vehicle.

[133] At 8:12 pm, he was dispatched to a call of an assault in Admaston-Bromley Township. The complainant was DR, the father of CR. DR told the dispatcher that TP assaulted CR. There was also the report that TP “snatched a child”.

[134] Constable McLaren arrived at 8:36 pm. When he arrived, the scene was chaotic. Both DR and CR approached him. They were talking over each other.

[135] The residence was completely engulfed in flames. The local fire department was trying to bring it under control. I would later hear that the residence was a total loss.

[136] Constable McLaren was advised that everyone in the burning residence was accounted for. He was told that when the fire broke out, they all left and went to the home of Anthony Menkhorst and his wife which was located approximately 500 meters down the road.

[137] Constable McLaren was told that CR, who was one of the owners of the burning residence, contacted TP, the other owner, to advise her what happened. Shortly after this, TP and an unknown woman arrived at the Menkhorst residence. It was alleged that TP proceeded to break through the front door of the residence. Once inside, she confronted CR who was holding their daughter LR. Constable McLaren was told that she attempted to gather their son, DP, but he refused to go and ran away scared. It was also alleged that she slapped CR across the face twice.

[138] In cross-examination, Constable McLaren stated that he did not observe any damage to the door of the Menkhorst residence. He also did not take pictures of any damage.

[139] Constable McLaren stated that he, and the other officers present, which by now included Sergeant Bullis and Constables Roberge and Talbot, were concerned for the safety of LR.

[140] Constable McLaren had an opportunity to have some interaction with and observe the demeanour of DP. He was distraught and “appeared traumatized”. He was feeling guilty because the fire started after he put some ashes from a woodstove in a composter next to the house.

[141] I note that at the time of this incident, DP was only ten years old. LR was only four and a half.

[142] CR directed Constable McLaren to a residence on Vimy Boulevard in Renfrew which is the residence belonging to the person who drove away from the Menkhorst residence with TP and LR.

[143] Constable McLaren formed grounds to arrest TP.

[144] On arrival at this residence, Constable McLaren engaged with TP. He described her as defiant, confrontational and argumentative. She was not willing to listen to what Constable McLaren and other officers were trying to tell her.

[145] In cross-examination, Constable McLaren indicated that TP was trying to shift blame for what happened to CR. He could not recall the exact nature of the conversation.

[146] Ultimately, she calmed down to the point that she was arrested by Constable Roberge. The arrest was uneventful. The usual rights and cautions were read to TP by Constable Roberge in Constable McLaren’s presence. Constable Roberge then transported TP to the Renfrew Detachment in her cruiser. Constable McLaren noted that he arrived back at the detachment at 9:25 pm. In cross-examination, he agreed that he and Constable Roberge arrived back at the station at the same time.

[147] LR was said to be inside the residence sleeping. Family and Children’s Services were contacted and Constable McLaren later returned to Vimy Boulevard to retrieve LR and transfer custody of her to CR.

[148] Between 9:25 pm and 10:21 pm, Constable McLaren took a cautioned audio-video statement from CR and discussed the next course of action with Sergeant Bullis and Constables Roberge and Talbot. He contemplated taking a statement from DP, but decided not to after learning that he was asleep.

[149] At some point after 10:21 pm, he heard a commotion coming from the cell where TP was confined. He went to the cell area to investigate and found Sergeant Bullis and Constables Roberge, Talbot and Chaplin in the cell area trying to restrain TP. He described her as “manic”. She was kicking the steel door of the cell. She was handcuffed and shackled to her ankles. Officers were trying to restrain her to prevent her from hurting herself. She was actively resisting this by pulling away. She verbally accosted the officers and, among other things, told them to “Fuck off”. She stated, “I’m going to find out all your names, find out where you live on Facebook and burn your fucking houses down.”

[150] As the other officers were struggling with TP, Constable McLaren was able to reach under them, grab the shackles on her ankles and pull her feet out from under her. In this way, Constable McLaren testified that she was “guided to the floor with the assistance of most of us”.

[151] This apparently had the effect of subduing and controlling TP. Constable McLaren was the last to leave the cell area. In a further act of defiance, TP spat in his direction as he did so.

[152] In cross-examination, Constable McLaren agreed that TP’s “manic” episode was a complete surprise. He agreed that up to the point that he heard the commotion going on the cell, there had been no disturbance.

[153] He also agreed that he did not have the exact words of her threat and the words quoted above were not verbatim. Defence counsel suggested to Constable McLaren that TP prefaced what she said by saying, “How would you feel if you were in my situation and your house was on fire?” Constable McLaren stated, “She may have said that; I can’t say.”

[154] He agreed that TP’s spittle landed a few inches from his feet. He could not recall if TP was saying anything immediately before she spat at him. “Possibly some profanity. I can’t remember.”, he said.

[155] Defence counsel asked Constable McLaren if he perceived the threat to burn the officers’ homes down as a serious threat. “Given the state she was in and the resistance that she was putting up trying to restrain her, yes.”, he answered. He agreed that his home address is not publicly available. He also agreed that he has never seen TP in his neighbourhood.

[156] Constable McLaren’s next interaction with TP was at approximately 12:40 am. He was returning to the detachment from attending another call. TP had been repeatedly kicking the steel door of the cell area where she was confined and was now complaining of pain to her ankle. Constable McLaren described her kicking as “donkey kicking”.

[157] Paramedics were called and the determination was made to take her to the hospital. Constables Roberge and Talbot transported her.

[158] Ultimately, she was released on a Form 10.

[159] Constable McLaren’s next involvement in the case was on April 29, 2022. On that day at 7:54 pm, he was checking his email and voice mail and he received a message from CR. CR advised that he had “big news” that TP had been texting and communicating with him through a friend’s cell phone.

[160] Constable McLaren investigated and ultimately formed reasonable grounds to believe that TP was using a phone belonging to her friend Cheyenne Piers to communicate with CR. He obtained screen shots of the alleged communications which were entered into evidence later in the trial.

[161] Constable McLaren arrested TP for the breach on May 6, 2022 when she attended at the detachment to speak with police on an unrelated matter. He released her on a new Form 10. He said that she was much more cooperative than she was during her previous visit to the police station.

Assessment of Constable McLaren’s Evidence

[162] I accept almost all of what Constable McLaren had to say in this case. His evidence was consistent with evidence TP would later give about her behaviour in the cells.

[163] I was troubled by Constable McLaren’s failure to note with specificity what exactly TP stated with respect to burning down his house and the houses of his fellow officers. I would have thought that if you intended to charge someone for the offence of uttering a threat, you would have been specific with respect to the words of the threat. Instead, Constable McLaren was wishy-washy. He acknowledged that TP might have prefaced the words he attributed to her with, “How would you feel if….”.

[164] I was also troubled by the fact that even though TP was being charged with Mischief, he did not recall seeing the broken door, nor did he apparently take any steps to document the damage.

Evidence of TP

[165] TP testified in her own defence.

[166] TP is 31 years of age. She has three children, who are ages 11, 6 and 5. She lived with CR in 2022. He was the sole provider. Her income was limited to the Child Tax benefit.

[167] TP started dating CR on August 18, 2016. They lived together for seven and a half years. There was significant drug and alcohol use. For a while they lived in Barrhaven. Ultimately, they bought the house where the incident occurred. She stated that CR was a “heavy morphine user”. She used alcohol. With respect to morphine, she stated that she used it for about a year and a half. She recalled that CR once stated, “A family that uses drugs together, stays together.”

[168] TP stated that she went to Detox in Kingston in June 2020.

[169] By April 2022, the relationship was “going downhill”. She stated that there was a lot of resentment. Ultimately, “the last straw was when he left and cheated on me”. As far as TP was concerned, the relationship ended on April 18, 2022. She stated that he left at about 5:00 pm on April 17 after meeting a woman on Tinder. He reached out again at 8:00 pm and told TP that he was with the woman at a motel in Kanata. Ultimately, she told him that he needed to get home. She recalled that he told her he had to drive the woman home. He got home on the 18th at about 11 am.

[170] TP stated that it was calm when he got home. He helped her pack the car. She told him that she needed to leave for a bit and think. She said she left the house “just normally.” She recalled that the car was parked in the driveway facing towards the home. She stated that she did a three-point turn and she left. She estimated that she drove about 10 km up to the road. Once on the road, she accelerated to the 80 km/h speed limit.

[171] TP recalled that she went back because she forgot something.

[172] Once she drove in she used the horn twice to let him know that she was there. He saw her and he was outside on the phone. She asked him to “run inside and get my vape.” He told her to get out of the car. She recalled that he went to the back of the car and opened the trunk. He then opened her suitcase and asked her where his work clothes were. She told him that his work clothes were in the house. She pushed the button to close the door to the hatch of the vehicle and drove out of the driveway. She stated that she drove about five km/h as she left the driveway. She said that she was only able to move the vehicle about five feet before CR ran to the front of the car and tried to stop her. She told him to “move or he was going to get hit”. She stated that this “was not a threat but a precaution.”

[173] She then backed up the car to give some space. She went to the right to go around him.

[174] In the course of doing this, she ran over her suitcase.

[175] She recalled him yelling to one of the children, “Look at what your mom’s doing. She tried to hit me with the car”.

[176] She said that she went to her friend’s house and asked her friend to go pick up her belongings.

[177] TP stayed with her mother for one night. The next day, she called the County of Renfrew to try to arrange emergency housing. She recalled that she also met with the shelter to set up a safety plan. The County set her up in a hotel in Renfrew.

[178] Her next interaction with CR was on April 21, 2022. CR called her and stated, “Just so you know, the house is on fire.” He then hung up.

[179] TP recalled that she and her friend got in the car and drove over to the house. The house was engulfed in flames. She asked the firefighters were everyone was, and they told her that they did not know. She said that she was “frantic.” TP went to her neighbour’s house but no one was there.

[180] She then went to Mr. Menkhorst’s house. She said that she went up the steps and banged on the door. She recalled that a man, who was about 70 or 80 years of age, answered the door. She asked the man if her kids were there. He told her “I am sorry about your house”. She said that CR was there and she pointed at him and said, “That’s the last fucking time you put my kids in danger.”

[181] TP recalled seeing Mr. Menkhorst and LR on the couch. She grabbed LR and checked her for marks and bruises. LR told her that the fire was DP’s fault. She did not know where DP was. She grabbed DP and put him in the car. DP ran out of the house. She told DP to come with her. DP said that the fire was his fault and he refused to come.

[182] She left. She said that she intended to take LR to her friend’s house and then return to get DP. She stated that about a half an hour after she arrived at her friend’s house the police arrived. She said that “the cop” told her that they “needed to take her in for questioning for assault on CR”. “I was hesitant, but I was cooperative”, she said.

[183] TP stated that she did not observe any damage to Mr. Menkhorst’s home before or after she went there. She stated that she only banged on the door loudly enough to have someone hear it.” She admitted that she was frantic and scared. She denied having any other interaction with CR.

[184] She recalled that when she left LR was scared, DP was traumatized, and everyone was confused.

[185] Once she got to her friend’s house she consumed some alcohol. She stated that she consumed four beers in the matter of 30 or 35 minutes “just trying to deal with what happened or occurred.” She denied drinking before. She stated that the last time she drank was about a year before. She acknowledged that she has struggled with alcohol her whole life. She chose to drink because she “wanted to get rid of the pain”.

[186] She was asked her reaction to the police attending. “I was confused”, she stated. She recalled being taken to the police station. After that she recalled bits and pieces. She remembered being in her cell, asking for a lawyer and being given the wrong lawyer. She remembered that the police told her that her son, DP, was writing a statement about something that happened three days earlier. She stated that she didn’t agree with that because of the trauma of the house fire.

[187] She remembered blacking out in her cell. “I was very upset. I couldn’t do anything”, she said.

[188] She remembered wrestling with the police. She said that her words were, “How would you like it. I am going to find you all and put your house on fire.” “This wasn’t a threat”, she said. “I wanted them to feel how I was feeling.” She stated that she did not know any of the officers and she did not know where they lived. She stated that she did not intend to burn the homes belonging to any of the officers, or scaring them or making them feel unsafe.

[189] She does not recall being taken to the hospital, but she does recall being there. She says that her ankles were hurt and cut up. She does not believe that she was assessed by any medical professional. She left the next morning at 4:00 am.

[190] After she was released from hospital, she called the detachment because she wanted to know the names of the officers, so she could write them an apology letter. “I felt really bad for what I did”, she said.

[191] Exhibit 2 is a letter that she wrote to the police apologizing for her actions. The excerpt below contains an admission:

There was a lot going on that would explain my behaviour that night. It was unacceptable to treat the police officers on duty that night the way I did. They were nothing but patient, cooperative, and reasuring [sic]. I would like to apologize to everyone of them and I hope they can forgive me. I didn’t mean anything I said, I was very unstable with the tramic [sic] events that occured [sic].”

[192] She went to stay at her mother’s and she stayed there until April 26. After that she went to Ms Piers’ for two nights. She said she left Ms Piers’ residence on good terms. She agreed that she met Ms Piers through a friend on April 19 – the day after the alleged incident in the driveway.

[193] TP stated that she had her own cell phone when she was at Ms Piers’ residence. She had no issues with cellular service while she was there. She denied using Ms Piers’ cell phone. She stated that she did not know the password to Ms Piers’ phone. I note that Ms Piers was never asked if her phone was password protected. TP denied sending messages to CR. Ms Piers told her when CR was texting her and read the messages aloud. She stated that she did not see the messages until she got her disclosure.

[194] TP stated that she left Ms Piers’ residence on April 28.

[195] She dropped the letter off in person. She does not recall who she spoke to. She never got any response to the letter.

Cross-Examination

[196] Crown counsel started by cross-examining TP on the letter to the police. She stated that when she referred to an abusive spouse, she was referring to CR. She stated that when she referred to having a mental breakdown that night, she referred to a psych assessment with her family doctor. She stated that this was done on April 26. She also stated that she did some counselling after the fire for relationship issues, trauma, anger management and PTSD. The counselling comprised of six sessions over the course of the following year. The sessions were two hours in length and there was some homework. The counseling was done through CFS counselling in Ottawa. TP stated that she also put DP in counselling at the same time.

[197] The Crown suggested that TP went to counselling because she had concerns about how she was handling issues in her life. TP disagreed. She stated that she did it because she thought she would be a healthier person. “I went through a traumatic experience, and I thought it was healthy to go to counselling to deal with issues to deal with relationships, anger and trauma. I was also in family court.”, she stated. She agreed that going to counseling would have been useful in dealing with her issues in family court. Her first counselling session was in June 2023. She said that it took that long to find counselling because she had to deal with an emergency motion in family court, and it was difficult to find counselling that was free. “I wasn’t struggling”, she stated. “I wanted to take precautions so that I was not dealing with these issues my whole life.”

[198] TP stated that she did not appropriately word her letter to police because she didn’t really have a mental breakdown that night. She said that she should have said that this happened while she was dealing with a traumatic experience.

[199] In the letter, TP stated that she was sober for four years. She said that including April 21, 2022, she had three relapses over those four years. She disagreed that she had an anger management issue when she drank. She also could not recall if she normally blacked out when she drank. She believed that what caused her to black out was being taken from her children and confined in a cell.

[200] She stated that the period of detox that she described in-Chief was seven days. After detox she went to AA meetings. She agreed that she also had an issue with drugs. She stated that her alcohol issue was a life-long struggle. She stated that she went to the Portage Centre for treatment when she was a teenager. She agreed that she was not under any formal assistance for her addictions in April 2022.

[201] Crown counsel asked TP what she meant when she said in the letter that, “I didn’t mean what I said”. She said that she wanted them to feel how she felt and she said what she said at the time out of anger.

[202] With respect to the actions of CR the night before the incident in the driveway, TP stated that she thought that this was a joke or a cry for attention. She stated that she was worried the whole night because she thought he got hurt. She claimed that she did not know what Tinder was. She stated that when he showed up, she was relieved to leave because the relationship had been over for a long time.

[203] She agreed that she did text him, “You better get home because I am burning your clothing.” She stated that this was “an empty threat”. She said that she was not angry; rather she was confused and a little disappointed. She stated that she didn’t have feelings because she had “dissociated”.

[204] She stated that it was cordial when she got home despite the threat. She agreed that he was upset because his clothes were missing. She said that she had hid them in the basement and she told him where the clothes were. She said that she told him his clothes were in the house. She then stated, “I told him that the clothes were in the basement”.

[205] She admitted that she ran over her suitcase even though on her evidence she was giving him space and not driving fast. “I was very slow. I was very careful.”, she stated.

[206] With respect to the evidence of Mr. Menkhorst, TP stated that he was not correct and not remembering things. She was adamant that she knocked on the door, loudly, before entering. She was adamant that someone opened the door for her. She reiterated that she had no idea how the door got damaged. She opined that CR slammed the door. She denied that she was having a mental breakdown at this time. That came later when she was in the cell, she said.

[207] Crown counsel suggested that TP assumed that CR was responsible for the fire and putting the children in danger. TP stated, “I knew he had something to do with the fire because he was the only adult in the home. [CR] should have put the ashes in the fire pit. Crown counsel asked if she agreed that the fire was accidental. She stated, “When you read the police report and the fire report.”

[208] With respect to CR, TP stated, that there had been a lot of negligence over the twelve months before April 2022. She spoke about an incident involving a 12-guage shotgun, being passed out due to GHB, not having heat. She stated that she resented him. Despite all this she stated, “I wasn’t angry that night. I was so used to it. It was another day with CR.”

[209] She stated that she went to hospital because her ankles were hurting from kicking the door out of frustration and anger.

[210] She stated that she was charged with breaching out of spite. She opined that CR and Cheyenne Piers were planning to have her charged. She stated that she was not comfortable with Cheyenne Piers because she tried to offer TP drugs and she tried to pressure TP to have a threesome. She stated that Cheyenne Piers threatened her through text and told her to kill herself. She stated that she called the police about this and filed a report. She stated that charges were not laid. The officer simply told her to stop communicating with Cheyenne Piers.

[211] The Crown showed TP screenshots of text messages from “Cheyenne Leigh” (Exhibit 3). It is clear that the screenshots are not a complete conversation and the record is not complete as to what was said. In the screenshots that were filed, Cheyenne Leigh wrote:

Honestly, I was talking to your baby daddy and we were laughing at the fact the best thing you could do for your girls is to kill your self.

The cops called me an said I was messaging me an harassing him off my phone and he was gunna charge me with harassment so sorry naw I ain’t going down for someone who can’t even be real.

But that’s fine guess I’ll send Chris all these screen shots an the cops an keep this going.

[212] Although these messages were filed by the Crown and used to cross-examine TP, they were never put to Ms Piers.

[213] TP admitted that she has a criminal record with two entries. The first, from February 19, 2016, was for Failing to Comply with an Undertaking. The second, from September 22, 2023 was for assault and assault with a weapon.

Submissions of the Crown

[214] With respect to the threat charge, the Crown stated that TP’s statement “I didn’t mean anything I said” in the letter was a tacit admission of guilt. He also argued that her admission “I wanted them to feel the way I felt” was sufficient to make out the offence.

[215] With respect to the mischief charge, the Crown argued that TP’s version of events could not be a realistic rendition of what happened, given the evidence of Mr. Menkhorst and CR.

[216] With respect to the assault on CR, the Crown acknowledged that Mr. Menkhorst’s evidence was that he did not see any assault. He argued, nonetheless, that on CR’s evidence the assault happened. He stated that CR was fair in his description of the assault as a slap that did not hurt him. He did not embellish. The Crown argued that, given the evidence with respect to TP’s abrupt and violent entry into the home and the fact that she blamed CR for the fire and uttered harsh words towards him, it was highly likely that she assaulted CR.

[217] With respect to the Dangerous Driving count, the Crown argued that TP’s story does not make sense. What was clear is that TP wanted him home and to make sure he got home, she threatened to burn his clothes. Then once in the driveway, even though she proclaimed that she was not angry about CR being out with his new friend the night before she mistakenly backed over her own suitcase and left quietly. This, the Crown argued, was unbelievable, self-serving exaggeration. CR’s account of what happened in the driveway, on the other hand, has a ring of truth.

[218] With respect to the evidence of CR, the Crown argued that I should find him a credible and reliable witness. He admitted minor memory flaws. He admitted to having his own issues. He was forthright about his criminal record. He was not prone to exaggeration.

[219] TP, on the other hand, made every effort to paint CR in a bad light. The Crown argued that I should find that she wrote the text messages on Cheyenne Piers’ phone because they match everything that TP said in court about CR. The Crown stated that she was communicating with him in order to “pull his chain and make his life difficult.”

[220] With respect to TP, the Crown submitted I should not believe what she said, nor should her evidence leave me in doubt. He argued that she was not capable of admitting any fault on her part without an excuse for her behaviour, such as being sad, worried, frantic, disappointed, having a mental health breakdown or having a response to traumatic experiences.

Submissions of Defence

[221] Defence counsel argued that the issue with respect to the uttering threats charge is whether TP had the requisite mens rea. Defence counsel argued that TP did not have the requisite mens rea because she did not intend to say what she is alleged to have said against the officers; she only wanted them to feel how she felt that night.

[222] She argued that CR was not credible or reliable because he was vague with respect to some evidence and evasive with respect to the text messages.

[223] Defence counsel argued that Anthony Menkhorst was not reliable because he could not say where CR was when both TP and CR testified that he was in the living room when she came into the house.

[224] Defence counsel argued that Cheyenne Piers was not credible or reliable because she was inconsistent with respect to her evidence, particularly as it related to times and there was now animosity between her and TP.

[225] Defence counsel argued, however that TP testified in a straight-forward manner. She did not embellish her evidence. She was forthright. She conceded her struggle with alcohol. She conceded that “she told the officers about burning their house down”. She conceded that she texted CR and threatened to burn his clothes. Any inconsistencies in her evidence, argued, defence counsel, were peripheral and minor.

[226] Defence counsel argued that I should have a reasonable doubt with respect to the dangerous driving incident. I should reject CR’s evidence because he conceded that he helped her pack her clothes. He was vague on the issues of turning the car around. The offence of dangerous driving is not made out. She did not drive the vehicle fast and CR was not at risk of harm. The accidental running over of a suitcase was not objectively dangerous.

[227] With respect to the mischief, defence counsel argued that TP should not be held to account for what happened because she was frantic. She also argued that the police should have observed the mischief.

[228] With respect to the failure to comply, defence counsel argued that based on CR’s denial of the text messaging, the Crown has not proven the breach.

Assessment

The Law with Respect to Uttering Threats

[229] Section 264.1 of the Criminal Code makes an offence to knowingly utter a threat to burn, destroy or damage real or personal property.

[230] In R. v. McRae, 2013 SCC 68 at paragraphs 10 to 13, the Supreme Court had this to say about the actus reus of the offence of Uttering a Threat:

The prohibited act of the offence is “the uttering of threats of death or serious bodily harm” (Clemente, at p. 763). The threats can be uttered, conveyed, or in any way caused to be received by any person. The question of whether words constitute a threat is a question of law to be decided on an objective standard. Justice Cory put it this way in McCraw:

The structure and wording of s. 264.1(1)(a) indicate that the nature of the threat must be looked at objectively; that is, as it would be by the ordinary reasonable person. .

The question to be resolved may be put in the following way. Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person? [pp. 82-83]

The starting point of the analysis should always be the plain and ordinary meaning of the words uttered. Where the words clearly constitute a threat and there is no reason to believe that they had a secondary or less obvious meaning, the analysis is complete. However, in some cases, the context reveals that words that would on their face appear threatening may not constitute threats within the meaning of s. 264.1(1)(a) (see, e.g., O’Brien, at paras. 10-12). In other cases, contextual factors might have the effect of elevating to the level of threats words that would, on their face, appear relatively innocent (see, e.g., R. v. MacDonald (2002), 2002 ONCA 14251, 166 O.A.C. 121, where the words uttered were “You’re next”).

For example, in R. v. Felteau, 2010 ONCA 821, the accused had told a mental health care worker that he was going to follow Ms. G, his former probation officer, and “assault” her (paras. 1-2). The trial judge found that the words did not constitute a threat because the threat must be of death or bodily harm and the accused’s reference to “assault” did not necessarily include bodily harm (para. 3). The Court of Appeal for Ontario found that the trial judge had erred in looking at the word “assault” in isolation from the circumstances (para. 7). The court held that the factors relevant to the determination of the meaning of the words included the facts that: the accused was fixated upon Ms. G and had very recently been convicted of harassing her; he was angry with Ms. G when he uttered the words; he blamed her for his arrest and detention; and he was mentally unstable, had been consuming cocaine and had a known history of serious violence directed at women (para. 8). The Court of Appeal concluded that the accused’s words, viewed in these circumstances, would convey a threat of bodily harm to a reasonable person (para. 9).

Thus, the legal question of whether the accused uttered a threat of death or bodily harm turns solely on the meaning that a reasonable person would attach to the words viewed in the circumstances in which they were uttered or conveyed.

[231] With respect to the mens rea of the offence, the Supreme Court stated at paragraphs 17 through 19:

The fault element is made out if it is shown that threatening words uttered or conveyed “were meant to intimidate or to be taken seriously” (Clemente, at p. 763).

It is not necessary to prove that the threat was uttered with the intent that it be conveyed to its intended recipient (Clemente, at p. 763) or that the accused intended to carry out the threat (McCraw, at p. 82). Further, the fault element is disjunctive: it can be established by showing either that the accused intended to intimidate or intended that the threats be taken seriously (see, e.g., Clemente, at p. 763; O’Brien, at para. 7; R. v. Neve (1993), 1993 ABCA 14708, 145 A.R. 311 (C.A.); R. v. Hiscox, 2002 BCCA 312, 167 B.C.A.C. 315, at paras. 18 and 20; R. v. Noble, 2009 MBQB 98, 247 Man. R. (2d) 6, at paras. 28 and 32-35, aff’d 2010 MBCA 60, 255 Man. R. (2d) 144, at paras. 16-17; R. v. Heaney, 2013 BCCA 177, at para. 40; R. v. Rudnicki, 2004 QCCA 39133, [2004] R.J.Q. 2954 (C.A.), at para. 41; R. v. Beyo (2000), 2000 ONCA 5683, 47 O.R. (3d) 712 (C.A.), at para. 46).

The fault element here is subjective; what matters is what the accused actually intended. However, as is generally the case, the decision about what the accused actually intended may depend on inferences drawn from all of the circumstances (see, e.g., McCraw, at p. 82). Drawing these inferences is not a departure from the subjective standard of fault. In R. v. Hundal, 1993 SCC 120, [1993] 1 S.C.R. 867, Justice Cory cites the following words from Professor Stuart which explain this point:

In trying to ascertain what was going on in the accused’s mind, as the subjective approach demands, the trier of fact may draw reasonable inferences from the accused’s actions or words at the time of his act or in the witness box. The accused may or may not be believed. To conclude that, considering all the evidence, the Crown has proved beyond a reasonable doubt that the accused “must” have thought in the penalized way is no departure from the subjective substantive standard. Resort to an objective substantive standard would only occur if the reasoning became that the accused “must have realized it if he had thought about it”. [Emphasis added: p. 883.]

The Law with Respect to Dangerous Driving

[232] In R. v. Roy, 2012 SCC 26 at paragraph 28, the Supreme Court of Canada reiterated the findings of the majority of the Court in R. v. Beatty, 2008 SCC 5 with respect to the actus reus and mens rea required to make out this offence:

The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place (s. 249(1)(a) of the Criminal Code). The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances (Beatty, at para. 43). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48)

[233] At paragraph 34 of the judgment, the Court instructed trial judges to make an inquiry with respect to the details of the manner of driving when considering whether the actus reus has been made out:

In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused’s manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty, “The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving” (emphasis added). A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions.

[234] At paragraphs 36 to 38, the Court instructed trial judges how to assess the mens rea:

The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48). It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances.

Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal. As noted earlier, Charron J., for the majority in Beatty, put it this way: “If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy” (para. 34). The Chief Justice expressed a similar view: “Even good drivers are occasionally subject to momentary lapses of attention. These may, depending on the circumstances, give rise to civil liability, or to a conviction for careless driving. But they generally will not rise to the level of a marked departure required for a conviction for dangerous driving” (para. 71).

The marked departure from the standard expected of a reasonable person in the same circumstances — a modified objective standard — is the minimum fault requirement. The modified objective standard means that, while the reasonable person is placed in the accused’s circumstances, evidence of the accused’s personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused’s incapacity to appreciate or to avoid the risk (para. 40). Of course, proof of subjective mens rea — that is, deliberately dangerous driving — would support a conviction for dangerous driving, but proof of that is not required (Charron J., at para. 47; see also McLachlin C.J., at paras. 74-75, and Fish J., at para. 86).

Do I believe the Accused

[235] Generally, no.

The Dangerous Driving Charge

[236] Her evidence with respect to the events leading up to April 18 was not consistent. She was worried about where CR was when he was not home the night before. She was afraid that he was hurt. Then she was upset that he had repudiated the relationship by spending the evening with another woman. She hid clothing and boots that he required for work somewhere in the house. Yet, when it came to her driving, despite her apparent upset at the end of the relationship (which she said was in its dying days anyway) she was the model of a safe and prudent driver.

[237] The evidence tells a different story. Both TP and CR’s evidence are in agreement with the fact that she drove over her suitcase as she was leaving. She was so quick to leave that she shut the back hatch of her vehicle without taking the time to ensure that her suitcase was still in it. As she was leaving she ran over the suitcase. Despite the fact that she lost track of the suitcase, she would have me believe that she was travelling at a benign rate of speed, and she deftly drove around CR in order to leave. She claims she did not, as CR testified, almost strike him with the car, but then she also blames CR for coming at her and telling him that if he did not move, he was going to get hit. She was careful to point out to me in court that this was “not a threat, but a warning”.

[238] I do not believe her. It is internally inconsistent evidence.

The Mischief

[239] I turn to the events of April 22.

[240] I do not believe her evidence that even though she was “frantic” and “scared”, she politely went to the door of the Menkhorst residence, knocked and waited until an older man (not Mr. Menkhorst) let her in. This behaviour is inconsistent with her insistence that she was worried sick and traumatized about her children because CR hung up on the phone after telling her about the fire – but without telling her where the children were or that they were safe. It is inconsistent with other evidence with respect to how TP reacts to stressful situations, including as I will set out below, TP’s letter to police. It is inconsistent with her admission that upon entering the residence, the home of people she did not know well, if at all, she accosted CR for being careless with her children. It is inconsistent with what we know about her behaviour over the course of the rest of the evening, including, her inability to reason with police when they went to Renfrew to retrieve the children, her behaviour in the cells, where she kicked the cell doors to the point that she hurt herself and had to go to the hospital, the words that she uttered towards the officers who came to get her under control and Constable McLaren’s evidence that she spat in his direction as he left the cell area.

Assault

[241] For precisely the same reasons, I do not believe her evidence denying that she assaulted CR.

Uttering Threats

[242] In my estimation, TP has the innate, almost pathological inability to admit any fault. She has a drinking problem and she relapsed but she was entitled to relapse because of the stress she was under. She behaved badly, but she is entitled to behave this way because she was frantic and scared. She was in an abusive relationship. Her house burnt down. It was CR’s fault. It was the drink. It was the trauma. She explains her behaviour away by pointing her finger at some external force, rather than look at the only common denominator with respect to all of these issues: herself. In her letter to the police, while she acknowledged that her behaviour was “unacceptable”, and she begged forgiveness, the letter is largely self-serving drivel designed to help her avoid accountability and responsibility for her actions. It is largely a prior consistent statement. If not for its potential use as an admission, which the Crown harvested with some success, it would be completely inadmissible.

[243] In evidence, TP claimed that she really did not threaten the police officers because she said, “How would you like it if your house burned down.” I do not believe it.

[244] It does not bear scrutiny. On her own evidence, she had been drinking, she was distraught with her predicament, she kicked the doors to the point that she had to be ultimately taken to the hospital, she blacked out, she was confused, at times she only remembered bits and pieces of what was going on while she was there, she was traumatized by the fire, she was worried about her children, one of whom she believed was at the police station to give a statement, and she wrestled with the police. Yet, despite all this confusion, drama, and incoherence to her evening, somehow, she distinctly remembers saying, “How would you like it if your house burned down?”. I do not believe it.

[245] Furthermore, she went to the step of writing the letter to the police to apologize for her actions. Why would she write “I didn’t mean anything I said, I was very unstable with the traumatic events that occurred.”, if she did not believe that her words could be construed as a threat?

Breach of Undertaking

[246] With respect to the breach of undertaking her evidence was that she had her own phone when she stayed at Cheyenne Piers’ residence and she was able to use it. She also stated that she recalled Ms Piers reading the messages to her.

[247] Given the significant issues with TP’s credibility and reliability as a whole, I do not believe this.

Does Her Evidence Leave Me in Doubt?

[248] With respect to her evidence with respect to the Mischief, Dangerous Operation, Uttering a Threat, and Assault charges, for the reasons I have set out above, her evidence does not leave me with the slightest doubt.

[249] I am left in doubt, however, by her evidence with respect to the Breach. The messages are not clearly couched in such a way that they are obviously from the fingers of TP. There is no equivalent to a unique calling card, signature or trademark in the messages that reveals that TP, not Cheyenne Piers, was the true sender of the messages.

[250] With the exception of a couple of messages which enjoin CR in their forthcoming family law proceedings, the messages are relatively benign messages suggesting that the parties work together and cooperate for the sake of the children. These are messages that could have reasonably been written by Cheyenne Piers.

[251] Therefore, even though I do not believe TP, I have a doubt with respect to her evidence on the breach charge and she will be acquitted of that count.

On The Basis of the Evidence Which I do Accept, Am I Convinced Beyond a Reasonable Doubt of the Guilt of the Accused?

A Note about CR’s General Credibility and Reliability

[252] Firstly, even though I do not believe TP’s evidence, I do not, for the reasons I set out above, believe the evidence of CR, standing alone. He failed to admit the text messaging in Exhibit a (now Exhibit 4). I find that it is obvious that he wrote it. He agreed that the telephone number on the messages was his. The content of those portions of the text messaging clearly emanates from him. The text messaging opens with CR making light of TP’s lack of affordable accommodation, the end of the child tax benefit (baby bonus), and no longer qualifying for his benefits which was all brought about by their separation. Later in the messages, after Cheyenne Piers alleges TP was using her phone, he thanks Piers for “joining the winning team” and proclaims referring to TP, “she’s fucked now.” At this point, according to the text messages, he called police to report the breach and directed them to call Cheyenne Piers. These text messages are fatal to his credibility and reliability. He has palpable animus towards TP. The only bits of his evidence I do believe is evidence that is corroborated by other witnesses, who I do believe and find credible and reliable.

Dangerous Driving

[253] As much as I completely disbelieve the evidence of TP for the reasons I set out above, I cannot convict her of this charge.

[254] Although CR and TP agree on the issue of running over the suitcase, there is no congruence in their evidence with respect to anything else at it pertains to her driving. She says she safely did a three point turn. He says she was already set to go with the vehicle pointing out and she took off like a rocket after backing up over the suitcase. While it is very, very close, I am not convinced that running over the suitcase itself is sufficient to get over the hurdle of the marked and substantial departure from the norm that is necessary to establish this charge at law.

[255] TP provoked the confrontation with CR and added unnecessary drama when she decided to go back for her vape pen and when she hid his workclothes and workboots. Those moments on the driveway as this couple were separating, their seven-year relationship in tatters, were already stressful. By going through her suitcase in search of his clothes, CR added to this unnecessary drama. None of that excuses TP’s behaviour. If she drove the way CR described, I would have no difficulty concluding that she is over the threshold required for criminal liability. If there was an independent witness who corroborated CR’s account, I would have no difficulty convicting. Because I cannot be sure, however, I have a doubt. She is entitled to that doubt. She will be found not guilty of this charge.

Mischief

[256] With respect to the charge of Mischief in relation to the damage to the door on the 21st of April 2022, I find TP guilty.

[257] As I indicated, I accept the evidence of Anthony Menkhorst without reservation.

[258] I find that TP was hellbent to enter his home in order to confront CR and take the children. In the course of doing so, she broke the door and sent a piece of it flying about four feet. Had Mr. Menkhorst not had the skills to repair the door for $10 in supplies and two hours of labour, the cost of replacing the door would have been much, much higher.

[259] This is not a situation where de minimus non curat lex applies. Although the mischief offence takes place with respect to the property of Anthony Menkhorst, a third party, the real targets of the offence was CR and the children. In this way, the mischief offence is grounded in intimate partner violence. The law is clear that de minimus does not apply in intimate partner violence cases: see my discussion of this in R. v. C.M., 2022 ONCJ 505 at paragraphs 103 to 107. Although that case dealt with an allegation of a minor assault, the following words from paragraph 107 are as apt here as they were in CM:

Children should never be exposed to domestic violence. The intergenerational transfer of domestic violence is well known. Trauma during childhood can have serious ramifications for adulthood. The costs to society can be profound. Consequently, de minimus does not provide a defence in these circumstances.

Assaulting CR

[260] I think that TP probably assaulted CR. Such an action is entirely consistent with everything else we know about her behaviour that night which I have already gone to great pains to describe elsewhere in this judgment.

[261] The problem here is the same problem with respect to the Dangerous Driving charge. To convict, I must accept the credibility and reliability of CR standing alone, which, for reasons I have already given, I cannot do. The one other witness who was present when the alleged assault took place, Anthony Menkhorst, whose credibility I accept without reservation, did not witness TP assault CR.

[262] It may be that it happened, but Mr. Menkhorst simply does not remember it. I think this is unlikely. If Mr. Menkhorst saw an assault, he would have remembered it. During the melee, it may be that Mr. Menkhorst simply did not see the assault because his attention was drawn to something else such as the children or the broken door.

[263] Regardless, I cannot convict unless I am sure, and I am not sure on CR’s word alone. TP will be acquitted of this charge.

Uttering a Threat

[264] For reasons I have already given when I reviewed the first and second branches of the W.(D.) inquiry, I do not believe anything that TP said about this threat.

[265] I am satisfied that the words that were attributed to TP, that is “I’m going to find out all your names, find out where you live on Facebook and burn your fucking houses down.” constitutes a threat at law. Although TP was charged with uttering the threat toward one officer, Sergeant Bullis, it is clear that it was directed to all of the officers who entered her cell that evening to bring her under control. I have no doubt that she intended the threat to be taken seriously given that:

a) She utters it in the course of something that is nothing short of a brawl between herself and four police officers. b) She utters it after she has been kicking at the cell door all night. c) After she utters the threat and the officers gain control of her, she spat at Constable McLaren, something that is not only a revolting and inherently degrading act of complete defiance but also a signpost of the venom, if not hatred, with which she held her convictions against the police. d) She refers to finding out where the officers live on Facebook – in other words she would do the research necessary to pierce the officer’s right to live peacefully and anonymously in the community in order to invade their homes and destroy them. e) She later apologized for the threat, tried to assure the officers that she did not mean it and blamed her bad behaviour on alcohol, stress, trauma, the disintegration of her relationship.

[266] All of the elements necessary to make out the offence of Uttering a Threat are present, except one: I am not certain of the words that TP actually said. While for reasons I set out above, I do not believe that TP couched the words she used with a hypothetical or condition (and even if she did, that still constitutes a threat at law), in order to find a person guilty of the offence of Uttering a Threat, I have to be satisfied beyond a reasonable doubt that the words which they uttered were threatening. On the evidence before me, five officers were in the cell with TP and presumably, all five heard what she said.

[267] However, I was only offered the evidence of one officer, Constable McLaren, who essentially testified that he cannot be sure exactly what she said. If he cannot be sure, how can he expect the Court to be sure?

[268] For these reasons I have a doubt about the exact words that were uttered by TP. She accordingly will be acquitted of this charge.

Breach of Undertaking

[269] With respect to the charge of Breaching Her Undertaking by communicating with CR through Cheyenne Piers’ phone, I also have a doubt and TP is entitled to that doubt.

[270] As I stated when I assessed the evidence of Cheyenne Piers, Ms Piers and TP had a falling out and Ms Piers rushed to take the side of CR after that falling out. Her motivation for coming forward was revenge for the falling out. She has animus towards TP that colours her evidence. She is not a disinterested party.

[271] Other than the evidence of Ms Piers, there is nothing about the content of texts attributed to TP that assists me in identifying the fact that TP, and not Cheyenne Piers, is the author of those messages. Since I cannot be sure that TP is the author of those messages, I cannot find her in breach.

[272] CR testified that there were other messages and communications that he reported to the police in Ottawa. However, I did not see any documentary evidence of those messages and communications.

[273] She will be found not guilty on this charge.

Conclusion

[274] TP, I find you guilty of one count of Mischief. You are found not guilty of the other four counts.

[275] You may take this as a vindication. It is not. I think you are probably guilty of virtually all of these charges. But probable guilt is not enough. Although the Crown has failed to discharge the burden of proof with respect to four of the five counts you faced, and you are therefore at law presumed innocent, in my view this case was extremely close and in fact, with respect to events of April 18 to 26, 2022, you are far from innocent.

Released: March 15, 2024 Signed: Justice J.R. Richardson