Court File and Parties
COURT FILE NO.: 11/15 DATE: 20160425 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN Respondent – and – PAUL ANTHONY BAKER Appellant
Counsel: Elizabeth Wilson, for the Crown Frances Brennan, Counsel for the Appellant
HEARD: April 11, 2016 at St. Thomas
DESOTTI, J.
A. The Facts
[1] On November 12th, 2014, the accused was convicted before Justice McKay of the offence of uttering a threat to cause death to the complainant, Paula Wendland and as well of breaching the term of his probation order, namely, “to keep the peace of be of good behaviour”. The accused, Paul Baker was acquitted of forcibly confining Ms. Wendland.
[2] All of these circumstances arose as a result of the ending of a 13 year common law relationship wherein the complainant, Wendland was leaving the accused and was seeking a division of assets acquired during their relationship.
[3] The trial took place on September 18th and 26th, 2013 with the reasons for judgment released on November 12th, 2014. The accused was sentenced on February 19th, 2015 and was granted a suspended sentence.
B. The Analysis
[4] Despite able and careful argument on the part of counsel for the accused, Paul Baker, I could find no error in Justice McKay’s assessment of the evidence, that is, in both his analysis of the credibility of the evidence of the complainant, Paula Wendland and his comprehensive W. (D.) analysis of the testimony of the accused, Paul Baker, whose evidence he rejected.
[5] Bluntly put, Ms. Wendland gave direct evidence and believable evidence that withstood cross-examination with only marginal discrepancies. None of those inconsistencies could or would impact negatively on her credibility.
[6] On the other hand, I would agree with Justice McKay that the accused, although admitting that he was angered, and had used vulgarities in describing the complainant, Paula Wendland and her desire to remove certain property, he attempted to downplay the severity of his emotional upset.
[7] However, that does not end the matter, counsel for the accused indicated that even if the finding of the trial judge that the accused, Paul Baker shouted or yelled at the complainant in words to the effect that “she was going to die” or you “deserve to die”, the necessary mens rea was absent, thus, even with a finding that those utterances were said by the accused, an acquittal should follow.
[8] Importantly, given the finding by the trial judge that he accepted the version of events as conveyed to the court by the complainant, Paula Wendland, is her testimony, in both examination-in-chief and cross-examination, about what the accused said to her, the context in which these words were spoken to her, and her reaction to the accused’s comments to her, sufficient to reflect the requisite mens rea?
[9] At page 27, lines 9-14 of the transcript is the following excerpt about what the accused said to the complainant and her reaction:
In addition to shouting, he started telling me that I was a fucking piece of garbage. There was a lot of profanity. It was very vulgar, very offensive. I felt very abused and threatened and well – the comments that were repeated over and over again were you’re a fucking cunt, you’re a fucking slut, you should die, you are going to die.
And at this point I ran up the stairs and I went into my office which was a kind of a place of safety because that’s where I work and I spent a lot of time there ….
[10] In addition, at page 28, line 5 and then lines 26 -29:
Obviously, I was frightened so I wasn’t going to back-talk …
And I thought well, if I just go up and –go in my office and shut the door and don’t say anything, this will all blow over but I was afraid at that time. I was beginning to be quite afraid.
[11] Finally, at page 32, lines 6-9:
And I was afraid. I was both angry and afraid. I was a little bit angry but as time went on I just became afraid and nothing else because he just wasn’t stopping, he was just winding himself up more and more.
[12] During very thorough cross-examination, the complainant indicated at page 69, lines 26-28:
He never said I will kill you. He never said that, I’ve never claimed that. He said, “You deserve to die, “and, you’re going to die.” He didn’t say by what means.
[13] Later at page 75, lines 4-7, the complainant stated:
And I was afraid that that was escalating it and that’s why I became more emotional, is I thought he would retaliate against me for calling the police.
[14] The Supreme Court of Canada in R. v. O’Brien indicated that the accused’s words had to intimidate or taken seriously. Given that the complainant was both frightened and intimidated, I am satisfied that the trial judge correctly determined that the requisite mens rea was present and entered an appropriate conviction.
[15] For these written reasons, I agree with this verdict.
The Honourable Mr. Justice John A. Desotti
Released: April 25, 2016
COURT FILE NO.: 11/15 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – PAUL ANTHONY BAKER REASONS FOR JUDGMENT Desotti, J.