BARRIE COURT FILE NO.: CR-21-73

DATE: 20221202

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

CHARLES MACKENZIE

Defendant

Hanieh Azimi, for the Crown

Victoria Strugurescu, for the Defendant

HEARD: November 21-25 and 28, 2022

RESTRICTION ON PUBLICATION

Pursuant to s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast or transmitted in any manner. This Judgment complies with this restriction so that it can be published.

REASONS FOR DECISION

CHARNEY J.:

[1] Charles Mackenzie stands charged with the following offences:

1. Kidnapping the complainant, J.M., with intent to confine her against her will (s. 279(1)(a));

2. Engaging in threatening conduct directed at J.M. causing her to fear for her safety (s. 264(2)(d));

3. Administering poison (Ketamine) to J.M. with intent to endanger her life (s. 245(1)(a));

4. Sexually assaulting J.M. (s. 271);

5. Failing to comply with an order under s. 516(2) of the Criminal Code to abstain from communicating with J.M. (s. 145(5)(b));

6. Uttering a threat to cause death to J.M. (s. 264.1(1)(a));

7. Attempting to obstruct justice by threats and intimidation (s. 139(2)): and

8. Threaten to use violence against J.M. for the purpose of compelling her to abstain from testifying (s. 423.1(1)(b)).

[2] The first four counts relate to events alleged to have occurred between October 19 and 20, 2020.

[3] Counts 5, 7 and 8 relate to events alleged to have occurred between November 28 and December 1, 2020.

[4] Count 6 relates to events alleged to have occurred between October 18 and December 1, 2020.

Facts

Evidence of the Complainant, J.M.

[5] J.M. is 35 years old. She first met Mr. Mackenzie about 3.5 years ago. They became friends when J.M. was living in a women’s shelter, and eventually developed a relationship. J.M. began to use drugs when she was 30 years old, and was using drugs when these events occurred, although she had gone for treatment to help her break the addiction. Her drug of choice was crystal meth. She also takes prescription drugs to deal with anxiety.

[6] J.M. testified that she found her relationship with Mr. Mackenzie to be comforting at first, and, at the beginning of the relationship, they would find comfort in each other’s company instead of using drugs.

[7] She testified that Mr. Mackenzie became controlling and would sometimes lose his temper and become violent. The control and violence increased as the relationship progressed, and they began to fight. Mr. Mackenzie frequently threatened her when they were together, and he was often violent. The accused also used drugs, primarily crack cocaine. She testified that he “was not good at helping me stay sober”.

[8] As a result of her drug use, the Children’s Aid Society took J.M.’s three children. Mr. Mackenzie is not the father of the children. Prior to these alleged incidents, J.M. was given parenting time with her three children. She shared this parenting time with the father of two of the children.

[9] J.M. testified that she decided to end her relationship with the accused because she used drugs when she was with him, and she was concerned about violence in the presence of her children. She felt that she had to end her relationship with Mr. Mackenzie to retain shared custody of her children.

[10] Mr. Mackenzie persisted and would not accept that the relationship was over. J.M. tried to “ease out of the relationship” and remain on good terms with the accused to prevent violence.

[11] The day of the first threat, J.M. was with her children, and she called the father of the children on his cell phone to tell him that she would be late returning the children to his residence in accordance with the court order. Mr. Mackenzie answered the phone. He was angry, although J.M. could not recall why. He screamed at her and threatened to smash her face and break into her house and rape her in her sleep. He told her that it would be worse than what Ryan had done to her (Ryan was J.M.’s former human trafficker).

[12] After the phone call, J.M. called the police because she had a court order to take the children back to their father’s residence, but she believed that Mr. Mackenzie was with the children’s father because he had answered the father’s cell phone when she called. She was frightened that the accused would act on the threats, and she was not sure what to do. While he had threatened her before, and been violent before, he had never threatened to rape her before. She felt that he was able and willing to act on those threats.

[13] The police told J.M. that they would pick up Mr. Mackenzie for making the threats.

[14] J.M.’s next contact with Mr. Mackenzie was several hours later on October 19, 2020. She could not remember whether they spoke on the phone or texted, or whether she contacted him, or he contacted her, or any of the details of the conversation, other than it included some discussion about using drugs. J.M. testified that she spoke to Mr. Mackenzie because she wanted to make peace with him. J.M. does not like conflict, and she was trying to “calm things over” and “de-escalate” him so she could get more control of the situation.

[15] The two met up, possibly the next day. They met in downtown Barrie. J.M. got into Mr. Mackenzie’s truck, and they drove to a few places. At one point they drove to a place J.M. identified as the New Cundles Plaza (Mr. Mackenzie referred to this as the North Barrie Crossing Plaza, but counsel confirms that this is the same location), where Mr. Mackenzie purchased drugs from a drug dealer. He purchased crystal meth for J.M. and Ketamine for himself.

[16] On cross-examination, J.M. acknowledged that one of the reasons that she went with Mr. Mackenzie that day was because he would help her get the crystal meth.

[17] J.M. described Mr. Mackenzie as wavering between love and anger. He was hurt and angry that she wanted to end the relationship. She tried to calm him down whenever he became angry.

[18] They then drove to the parking lot of the Avoco Bar, a restaurant in Barrie, also on Cundles Road.

[19] J.M. was supposed to pick up her oldest son from her friend’s house. The house was just down the street from the Avoco Bar. J.M. wanted to get out of the truck to go to her friend’s house, but Mr. Mackenzie wanted “to do a line” of Ketamine, and he wanted J.M. to stay with him in the truck so she could drive the truck after he took the drugs.

[20] J.M. saw Mr. Mackenzie crush the Ketamine he had purchased so he could snort it. She believes that he did snort it before she got out of the truck, although she was uncertain whether she saw him snort it before she got out.

[21] J.M. testified that she wanted to pick up her son from her friend’s house, so she got out of the truck and started to walk down Carlton Road towards her friend’s house. Mr. Mackenzie got out of the truck and pursued her. He caught up to her on Carlton Road and put her in a “bear hug” from behind. He was talking sweetly, but was threatening and demanding that she “get back in the fucking truck”. Mr. Mackenzie “kind of carried” her back to the truck. J.M. testified that there were times when her feet were not on the ground.

[22] J.M. did not want to return to the truck – she wanted to get her son. Mr. Mackenzie took her back into the truck, opened the door and made her get in. He began to choke her in the truck, and her head hit the side panel of the truck door as he lunged for her. His hands were around her throat and he choked her, although she was not certain how long that lasted before he let go.

[23] J.M. felt that she could not leave the truck, so she decided to “work with him so he would calm down”. Mr. Mackenzie was high at this time. She told him that she had to get back to her son, but he wanted her to take care of him because he was high. Mr. Mackenzie continued to go back and forth between being nice and being angry.

[24] Mr. Mackenzie tried to give J.M. a shot of crystal meth in the parking lot, but they could not locate a vein to inject it and he was not successful. On cross-examination J.M. acknowledged that she asked Mr. Mackenzie for the crystal meth, but explained that it was her way of “shutting off”. She does not believe that she had done any other drugs that day because it was a day that she was supposed to be with her son.

[25] Mr. Mackenzie and J.M. drove to the home of a friend of Mr. Mackenzie named Antoine. Mr. Mackenzie wanted J.M. to drive, but J.M. was too anxious. J.M. acknowledged on cross-examination that it is possible that she tried to drive part of the way, but was too anxious to continue, although she did not remember doing so. Antoine’s house was located in an area where there were no other houses nearby, and it was dark. She told Mr. Mackenzie that she did not want to be there – she wanted to be with her son.

[26] Mr. Mackenzie wanted J.M. to snort some Ketamine with him. She refused, but Mr. Mackenzie told her that he would break her nose if she refused. J.M. told him to go ahead, and Mr. Mackenzie began to choke her again with both hands. He squeezed tightly, and this time it lasted longer than the first time. She could not speak and was frightened that she might die. J.M. felt like she was about to pass out.

[27] J.M. agreed to do the Ketamine because she thought that things would get worse if she did not. Mr. Mackenzie crushed the Ketamine. J.M. did not snort the Ketamine fast enough, so Mr. Mackenzie began to choke her again, and J.M. snorted the Ketamine.

[28] That was the first time that she had ever tried Ketamine. She described it as feeling “drunker than I’ve ever been”, and that her mind remained alert, but it was like having an out of body experience, like her body and head were in different spaces. Her head was spinning, and although she knows what was happening, she agrees that parts of what happened are missing from her memory.

[29] She recalls that they had some sexual activity before she took the Ketamine. She believes that she gave Mr. Mackenzie oral sex while they were waiting for the drug dealer at the New Cundles Plaza, before Mr. Mackenzie choked her the first time, in the hope of calming him down so that he would not get angry. She thought that if she did that, she would be able to get out of the situation: “I did what I thought would change the mood”.

[30] They had intercourse two or three times in the truck after J.M. took the Ketamine. She cannot recall how it began. She was under the influence of the Ketamine at the time. She cannot recall what was said, and described it like “watching a movie with no sound”. She believes that she did tell Mr. Mackenzie “no”. She did not want to have sex or do the drugs, she just wanted to get her son.

[31] Due to the Ketamine she had less control over her body and was not able to fight or push Mr. Mackenzie off. She was also concerned that if she fought him it would get worse, and it would be easier if she just “let him get done with it”. She was afraid that Mr. Mackenzie would start to strangle her again.

[32] Mr. Mackenzie’s friend Antoine came by while they were in the truck. He was surprised that they had parked at his house but had not come in.

[33] Mr. Mackenzie then drove the truck back to Barrie, and they went to Mr. Mackenzie’s mother’s house. J.M. could no longer remember what happened there (she had remembered at the preliminary inquiry), and agreed on cross-examination that a lot of what happened that day is a blur. It is possible that she fell asleep at Mr. Mackenzie’s mother’s house.

[34] Mr. Mackenzie then drove her back to her residence at the women’s shelter in the morning of October 20, 2020. J.M. knew it was morning because the shelter office was already open, and it opens at 9:00 a.m. Again Mr. Mackenzie was wavering between being nice and getting angry. When he let her out of the truck she was concerned that he was getting angry again and would have punched her in the face if she had not gotten out of the truck. After she left the truck Mr. Mackenzie yelled at her and threw his phone at her through the truck window. His tone was aggressive, but she cannot remember what he said. She grabbed the phone and took it into the shelter with her, and later gave it to the police.

[35] J.M. went upstairs to her residence, and then came back downstairs to the office to let them know what had happened. She told A.N., one of the staff workers at the women’s shelter, and A.N. called the police and drove J.M. to the hospital.

[36] J.M. testified that her throat hurt and she believed that it was injured. She did tell the nurse about her throat injury, but she cannot remember what was said exactly. She remembers that she was also sore in her private area, on her side where she was bear hugged, and on her head where she hit it on the inside of the truck door.

[37] Sometime after Mr. Mackenzie was arrested, J.M. began receiving telephone calls from him. She believes that the phone calls came from the Central North Correctional Centre where Mr. Mackenzie was being held.

[38] In those calls Mr. Mackenzie tried to persuade J.M. to recant her story and tell the police that he did not rape her. He wanted her to drop the charges, and told her that he would never do the things that she alleged. He told her different things to say to the police. J.M. would hang up, but he would keep calling back. Whenever she answered the phone, it was Mr. Mackenzie calling, and she stopped answering the phone. J.M. testified that Mr. Mackenzie threatened to kill J.M. and her children and to tell Ryan (the human trafficker) what her address was if she testified. J.M. could not recall Mr. Mackenzie’s exact words.

[39] On cross-examination J.M. acknowledged that during these phone conversations Mr. Mackenzie also asked her about his truck and how she was doing. But every phone call he tried to get her to drop the charges or tell the police that “what I know is true is not true”.

[40] J.M. reported these calls to the police, and gave the police her telephone to take screen shots of the phone numbers and times of the calls.

[41] In cross-examination, J.M. acknowledged that she could not remember certain details or the precise progression of events. She insisted, however, that the locations she remembered were accurate, even if her chronology was a little off. She was firm in her statement that the things she remembered did happen.

Other witnesses

[42] A.N., the staff worker at the women’s shelter where J.M. resided, also testified. She testified that on October 20, 2020 she was in the living room having coffee with other staff, when she saw someone come into the house and go upstairs. A bit later J.M. came downstairs, shaking and crying. A.N. rushed J.M. to the front room, where J.M. sat on the chair in a fetal position, shaking, crying and hitting herself. A.N. asked what happened, and after hearing J.M.’s answer, A.N. called the police and relayed to the police the information that J.M. gave her.

[43] A.N. drove J.M. to the hospital where J.M. was examined by a nurse.

[44] The other witnesses who testified included the nurse who examined J.M. at the hospital, and several police officers involved in the investigation.

[45] The evidence of the police officers related primarily to the phone records from the Central North Correctional Centre where Mr. Mackenzie was held following his arrest. These records confirm that telephone calls were made from the Central North Correctional Centre to J.M.’s phone on November 28, November 30 and December 1, 2020, while Mr. Mackenzie was in custody. Mr. Mackenzie acknowledges that he did phone J.M. from prison, although he denies threatening her in these phone calls. The police investigation confirms that Mr. Mackenzie did phone J.M. from the prison, but the police can provide no information regarding the content of these phone calls.

[46] I will review the evidence of other witnesses if and where relevant to my analysis of the facts.

Evidence of Charles Mackenzie

[47] Most of Mr. Mackenzie’s evidence was consistent with the basic chronology outlined by J.M., although his testimony did differ from hers in several significant respects.

[48] Mr. Mackenzie testified that he and J.M. had been in a relationship for about 2.5 years. He described the relationship as “toxic”. They frequently did drugs together. J.M. would use crystal meth, he would use “all kinds of drugs”.

[49] He acknowledges that when J.M. called her children’s father on October 18, 2020, it was Mr. Mackenzie who answered the phone. He stated that he was “rude and mean” to J.M. when he spoke to her because he found out that she had cheated on him. He called her “a piece of shit”, but he denied that he threatened her or her children in any way. He expressly denied threatening to smash her face, or break into her house and rape her in her sleep, or do things that were worse than what Ryan had done to her.

[50] After the telephone call Mr. Mackenzie went to his friend Antoine’s house. He had sex with another woman at Antoine’s house in order to get back at J.M. for cheating on him.

[51] The next morning (October 19, 2020) Mr. Mackenzie called (or texted) J.M. He and J.M. texted (or spoke) several times that day. The texts were always nice, never threatening. He told J.M. about the other woman he had slept with because J.M. had cheated on him.

[52] At around 5:45 p.m. Mr. Mackenzie called his drug dealer to obtain some drugs.

[53] J.M. had agreed to meet with him to get the drugs, and he picked her up in downtown Barrie. At around 7:00 p.m. they arrived at the North Barrie Crossing Plaza where they were to meet the drug dealer. The drug dealer was late and did not arrive until around 8:20 p.m. While they were waiting J.M. initiated oral sex.

[54] After receiving the drugs, they drove to the parking lot of the Avoco Bar. J.M. wanted to get her son, who was staying with J.M.’s friend down the street from the Avoco Bar. She also wanted to sell her friend some of the drugs that Mr. Mackenzie had just purchased.

[55] J.M. left the truck. While she was gone Mr. Mackenzie snorted a line of Ketamine that he had crushed. When J.M. returned to the truck about ½ hour later, she had $20 from the sale of the drugs.

[56] J.M. wanted to go back to Mr. Mackenzie’s house, but he told her that he thought it was not a good idea because the sheets were dirty from his having sex with the other woman the night before. J.M. was angry at this, and left the truck and started to walk back to her friend’s house.

[57] Mr. Mackenzie did not want J.M. to leave the truck because he had just snorted a line of Ketamine, and he did not want to drive or be left alone while high. Mr. Mackenzie chased after her, grabbed her from behind and asked her to come back to the truck. He remembers falling on her when he grabbed her, and he might have turned her around when he fell. J.M. agreed to return to the truck. At that point Mr. Mackenzie was too weak to walk by himself because of the Ketamine, so J.M. acted as a crutch or support to walk him back to the truck. He does not recall what was said, but denies forcing her back to the truck.

[58] Mr. Mackenzie stated that J.M. was not concerned about her son, because J.M.’s friend would watch him.

[59] On cross-examination Mr. Mackenzie stated that J.M. did say to him: “If you don’t hurt me, I’ll come with you”, but he told J.M. that he did not want to hurt her. He also agreed that he whispered into J.M.’s ear: “Get the fuck back to the truck”, but he was being nice when he said this.

[60] Mr. Mackenzie testified that J.M. put him in the passenger side of the truck, and started to drive to Antoine’s house. About half-way to Antoine’s house, J.M. had an anxiety attack as she was getting on the highway. She stopped the truck and Mr. Mackenzie drove the rest of the way.

[61] When they arrived at Antoine’s house, Mr. Mackenzie drove in behind the barn because they both wanted privacy. Mr. Mackenzie also wanted to sniff another line of Ketamine. He wanted J.M. to do the Ketamine with him, and when she first refused, he was “insistent” and “persistent”. Mr. Mackenzie wanted J.M. to do the line of Ketamine so she could feel what it was like to be high on Ketamine so she could understand why she should not have left Mr. Mackenzie in the truck when he was high. He wanted her to know what kind of condition he was in: “I was sharing an experience with her”.

[62] J.M. started to panic and was having an anxiety attack. She began hitting herself and saying: “No, no, no”. Mr. Mackenzie screamed at her and grabbed her by the shoulders to get her to stop hitting herself and saying “no”, and she said “OK, I’ll do the line”. Mr. Mackenzie testified that he did not threaten to break J.M.’s nose, or choke J.M., or force her to do the Ketamine, and that she was free to leave or refuse the drugs at any time.

[63] In cross-examination Mr. Mackenzie acknowledged, in retrospect: “I can see how she felt the way she felt”.

[64] J.M. snorted a line of Ketamine, and Mr. Mackenzie had another line.

[65] Soon they started to have sex. Mr. Mackenzie knew about J.M.’s past trauma, so he was always careful to ask permission before they had sex. He would ask: “may I kiss you?”, “may I continue?”, “do you mind if I do this?”, “are you O.K. with this?”, and “do you want to fuck?” as they proceeded. J.M. answered “yes” every time he asked. He agrees with J.M. that they had sex three times in the truck. He could not recall who initiated the sex in the truck, but testified that J.M. was just as much in charge as he was.

[66] Afterwards, they left Antoine’s house and drove to Mr. Mackenzie’s mother’s house. On the way they stopped at a restaurant to get some food. Then they went to bed.

[67] The next morning (October 20, 2020) Mr. Mackenzie tried to give J.M. drugs, but he was only successful in giving her about ½ dose. Mr. Mackenzie also got high.

[68] Mr. Mackenzie drove J.M. to her residence, and dropped her off. Mr. Mackenzie tried to kiss J.M. as she got out of the truck, but J.M. turned her cheek away. Mr. Mackenzie became angry at this, he yelled at her to “fuck off”, rolled down his window and threw his cell phone at her because he did not want to speak to her. He did not try to hit J.M. with his cell phone.

[69] Mr. Mackenzie went home and snorted some more Ketamine, and was arrested about 3:00 p.m. that afternoon.

[70] Mr. Mackenzie acknowledges contacting J.M. from prison on November 28 by phone from the Central North Correctional Centre. He believed that they were in a committed relationship, and he still cared for her. He was frustrated and wanted to know why she had made these allegations to the police. While on the phone they discussed many things, but J.M. did not want to discuss the allegations. He tried to explain his side of the alleged sexual assault, but she did not want to hear it. He does not remember telling J.M. to go to the police to recant her story, but he did want her to rethink her allegations based on what he told her. He agreed that he was probably upset during those phone calls because he was in prison, and although he would try to be nice, he might become frustrated and angry.

[71] Mr. Mackenzie denied making any threats to J.M. while he was speaking to her on the phone from prison. He assumed that the prison phones were being recorded, so he would not make threats from those phones.

[72] While Mr. Mackenzie denies making any threats in the phone conversation of October 19, 2020, he acknowledges that he has made threats against J.M. in the past, but stated that he would never carry through on such threats. His coping strategy for his anger was to “verbalize instead of actualize”.

[73] On cross-examination, he acknowledged that he might have made some threats to J.M. in the October 19, 2020 telephone conversation, and agreed that he told the police on October 20, 2020: “And there’s times where I’ve said, you know, I’ve screamed and yelled like, you were fucking your husband, and yeah I wanna fucking punch your face and kill you and shit, but it’s not legitimately I’m going to kill her and shit, you know what I mean?”

[74] Mr. Mackenzie also acknowledged that he has slapped J.M. in the past, but this was done to help her “snap out of” an anxiety attack she was having at the time.

[75] On cross-examination Mr. Mackenzie stated that he was hurt and angry because J.M. had cheated on him, and while he might feel like he wants to hurt or kill J.M., he never said he would.

Analysis

The Presumption of Innocence

[76] The accused is presumed to be innocent under our law unless Crown counsel proves his guilt of the offences for which he has been charged beyond a reasonable doubt. It is also important to remember that the accused does not have to present evidence or prove anything in this case. In particular, the accused does not have to prove that he is innocent of the offences charged or that these events never happened.

[77] Mr. Mackenzie did testify, but this does not alter the burden of proof. Unless Crown counsel has satisfied me beyond a reasonable doubt of his guilt, I am obliged to find him not guilty of any offence. If I am unsure whether the events alleged by the complainant ever took place, it would require that Mr. Mackenzie be acquitted on the charges.

Application of the W.(D.) Instruction

[78] The testimony of the complainant differs from the testimony of Mr. Mackenzie with regard to some of the essential elements of the offences charged. While some of these differences may be differences of perception, they cannot both be telling the truth.

[79] Because Mr. Mackenzie testified, I must instruct myself in accordance with the principles enunciated in R. v. W.(D.), 1991 93 (SCC), [1991] 1 SCR 742. Accordingly, the issue is not simply whether I believe the complainant or whether I believe the accused. Even if, on a balance of probabilities, I believe the complainant, I must still find the accused not guilty if the evidence, taken as a whole, including the accused’s evidence, raises a reasonable doubt about his guilt. A reasonable doubt may be doubt based upon the evidence or lack of evidence (R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 30).

[80] The W.(D.) framework is often summarized with these three directions:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.

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 you do accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused.

[81] If I believe the evidence of the accused that he did not commit the offences charged, then he must be found not guilty. However, even if I do not believe his evidence, if it leaves me with a reasonable doubt about his guilt, or an essential element of the offences charged, then he must be found not guilty.

[82] Mr. Mackenzie testified and denied the allegations. Mr. Mackenzie is not required to prove anything or to provide any explanation for the fact that the complainant made these allegations against him. He is not required to demonstrate that the complainant had a motive to fabricate evidence. Nor does the absence of a motive to fabricate conclusively establish that a witness is telling the truth. “The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility.” (R. v. Batte (2000), 2000 5751 (ON CA), 49 O.R. (3d) 321 (C.A.), at para. 121). The burden of proof is always on the Crown.

Assessment of Credibility

[83] It is important to note that in deciding a case, a judge is not simply comparing each account and deciding which account he or she believes: see R. v. Esquivel-Benitez, 2020 ONCA 160, 61 C.R. (7th) 326. The Court must consider whether the evidence as a whole leaves a reasonable doubt. A judge can believe or disbelieve a witness, but still be left with a reasonable doubt 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 Crown is not required to point to something inherently contradictory or demonstrably false in the evidence of the accused for his or her evidence to be rejected. Similarly, frailties and inconsistencies in a complainant’s evidence do not necessarily mean that his or her evidence should be rejected: see R. v. J.J.R.D. (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at paras. 46-48, leave to appeal to SCC refused, [2007] S.C.C.A. No. 69.

[84] Contradictions within a witness’ testimony and those demonstrated through consideration of the witness’ prior accounts of events are important considerations. A meaningful tool in assessing the reliability of an individual’s testimony is to review the consistency of that person’s account, either over time or within the context of their evidence-in-chief and in cross-examination: R. v. A.M., 2014 ONCA 769, at para. 12.

[85] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: A.M., at para. 13.

[86] I must also be concerned if a witness embellishes their evidence or appears to fill in details that they do not remember. I recognize that the process of embellishing one’s evidence, or filling in details to compensate for memory lapses, might occur unconsciously. If this happens, an honest and sincere witness might be credible but still unreliable.

Credibility of the Witnesses

[87] I found the complainant to be a credible and reliable witness. It was clear that she was, at times, struggling to remember certain details such as words spoken, the order of certain events, dates and times. But it was equally clear that, where she could not remember these details, she was honest in acknowledging her limitations and was very careful not to fill in gaps or speculate.

[88] The details that J.M. could not remember with certainty – dates, times and exact words – are details that I would expect any witness to have difficulty with two years after an event. She had no difficulty remembering the core aspects of her evidence – the threats, the choking, being forced to return to the truck and being forced to take Ketamine – and her evidence on these issues was consistent and coherent.

[89] Defence counsel argues that there were important inconsistencies in the complainant’s evidence, and that this undermines her reliability as a witness. In my view, these “inconsistencies” are not significant, and are simply examples of the complainant being confused about peripheral details.

[90] For example, the complainant testified that she and Mr. Mackenzie went to the New Cundles Plaza before they went to the Avoco Bar Plaza. This chronology is confirmed by Mr. Mackenzie.

[91] During cross-examination, defence counsel put to J.M. that in the Preliminary Inquiry she testified that they went to the New Cundles Plaza after the Avoco Bar. J.M. testified that if she said that at the Preliminary Inquiry, she did not believe that her statement at the Preliminary Inquiry was correct, and she confirmed her belief they went to the New Cundles Plaza first.

[92] A review of the transcript of the Preliminary Inquiry indicates that J.M. spoke about the Avoco Bar first because the Crown asked her the following question: “Let’s talk about a particular incident. This is an incident involving a restaurant we call Avoco Bar.” Defence counsel, quite properly, objected to the question because it was leading, and the Crown changed the question to “I want to take you to an incident that happened around a restaurant in Barrie. Do you recall what incident it is that I’m trying to talk about?” Not surprisingly, J.M. responded by talking about the plaza where the Avoco Bar is located.

[93] Later in her examination-in-chief she was asked “Do you recall where Mr. Mackenzie drove to?”, and she answered: “I believe we had gone to the New Cundles Plaza”, and she testified about purchasing the drugs at the New Cundles Plaza.

[94] In her cross-examination at the Preliminary Inquiry, however, J.M. corrected the chronology, and testified that they went to the Avoco Bar after the New Cundles Plaza because she had to pick up her son.

[95] While J.M. was asked about her testimony at the Preliminary Inquiry, she was not shown her transcript so that she could provide an explanation for any inconsistency. She did acknowledge that she might have mixed up the order of events at the Preliminary Inquiry, and stated that her best recollection was that the answer she gave in her testimony in court (that they went to New Cundles Plaza first) was correct, but there was a “small possibility” that she had mixed up the order. She stated that it was also possible that they went back to the New Cundles Plaza after Antoine’s house to get food.

[96] This was not, in my view, an inconsistency in J.M.’s evidence. While J.M.’s Prelimianry Inquiry testimony was initially confused as to which plaza they went to first, the confusion appears to be caused by the sequence of questioning. At the end of the day, her recollection of the chronology at the Preliminary Inquiry and the trial was the same: they went to the New Cundles Plaza before the Avoco Bar. This chronology was confirmed by Mr. Mackenzie.

[97] Defence counsel also argues that J.M. testified that she had not used cocaine since high school, but the toxicology report from J.M.’s urine sample taken at the hospital on October 20, 2020 indicated the presence of cocaine in her urine, although no cocaine was detected in her blood sample.

[98] In her testimony, Cara Shepard, the Forensic Toxicologist from the Centre of Forensic Sciences, testified that it is possible that a person using crystal meth might have cocaine in their blood or urine if there is cocaine in the crystal meth because, with street drugs, there can be different combinations of drugs within a certain preparation. Accordingly, Ms. Shepard could not say whether the cocaine was taken on its own or in combination with the crystal meth. Based on this expert evidence, the detection of cocaine in J.M.’s urine cannot be used to undermine her credibility or reliability or suggest that there is an inconsistency in her testimony.

[99] Finally, defence counsel argues that the medical records prepared on October 20, 2020 do not corroborate the complainant’s allegation of choking because there were no bruises visible on her neck when she was examined. The photograph and the nurse’s notes indicate that the complainant did have an abrasion on the right side of her neck. The abrasion and redness is apparent on the photograph. The nurse also testified that she could observe swelling on the right side of J.M.’s neck, and this was the one observable symptom that she could see. There were no injuries noted on the left side of J.M.’s neck. The nurse could not provide an opinion as to the cause of the abrasion or when the abrasion occurred.

[100] There was no expert evidence indicating that choking will always result in a bruise or external swelling on the neck, or that the absence of a bruise is evidence that choking did not occur. Accordingly, while the medical records do not necessarily corroborate J.M.’s evidence, they do not contradict it.

[101] Having considered J.M.’s evidence, I have no doubt that she accurately remembered the choking incidents, the threats, and being dragged to the complainant’s truck when she tried to leave. These were traumatic events, and her evidence regarding these incidents was consistent and coherent. The fact that she may be confused or uncertain about some peripheral details like the precise hour or exact words used in other conversations does not lead me to doubt the accuracy and reliability of her evidence on these central points.

[102] I am also permitted to consider other witnesses’ observation of J.M.’s demeanour, “to draw inferences about the credibility of the complainant’s account, and to rely on this evidence as supporting her testimony of having experienced a violent sexual assault”: R. v. Brown, 2022 ONCA 417, at para. 14; R. v. Steele, 2021 ONCA 186, at para. 94; R. v. Mainville, 2022 ONCA 792, at para. 11. In this regard, the evidence of A.N., the staff worker at the women’s shelter, that when J.M. came home on the morning of October 20, 2020, she sat on the chair in a fetal position, shaking, crying and hitting herself, is some corroboration that J.M. had just endured a traumatic event before she was dropped off by Mr. Mackenzie. It is significant that these behaviors are consistent with J.M.’s anxiety attack described by Mr. Mackenzie when he insisted that J.M. try the Ketamine in the truck..

[103] Mr. Mackenzie’s evidence was generally honest. For the most part he did not try to whitewash his drug use, or the nature of his relationship with the complainant, or the chronology of events that led to these charges.

[104] On the other hand, I do not believe his evidence that, after he grabbed J.M. on the street, the complainant returned to his truck voluntarily, or that he used her as a crutch because he could not walk on his own because of the Ketamine use. Nor, most importantly, do I believe his evidence that he did not choke the complainant on the occasions where she alleged that he choked her. His suggestion that he asked for the complainant’s consent at every stage of their sexual engagement strikes me as particularly dubious, and is, in any event irrelevant, given my finding below, that her consent, such as it was, was obtained after the choking incidents and threats of violence.

[105] The evidence clearly demonstrates that Mr. Mackenzie was angry with the complainant for cheating on him and for leaving him in the truck when he took the Ketamine. It is apparent from the evidence I have heard that Mr. Mackenzie is prone to threats and violence when he is angered, and he was prepared to use violence and threats of violence to get his way in his relationship with J.M. This is confirmed by his own acknowledgement that he threatened J.M. in the past – even though he denied that he would ever act on these threats – and his admitted actions such as throwing his cell phone out the window when J.M declined to kiss him. Given this evidence, I find Mr. Mackenzie’s testimony unbelievable when he states that he did not make any threats in the telephone conversations, and that he did not threaten the complainant in his truck or choke her when she refused to comply with his demands.

Charges Against Mr. Mackenzie

[106] With that introduction I will consider the evidence relevant to each charge in turn.

Count 1 - Kidnapping the complainant with intent to confine her against her will (s. 279(1)(a))

[107] Section 279(1)(a) of the Criminal Code provides:

Every person commits an offence who kidnaps a person with intent

(a) to cause the person to be confined or imprisoned against the person’s will;

[108] For kidnapping, the Crown must prove the following essential elements:

1. Mr. Mackenzie kidnapped J.M.; and

2. Mr. Mackenzie kidnapped J.M. with intent to confine her against her will.

[109] Kidnapping requires that Mr. Mackenzie unlawfully took J.M. and removed or carried her away by force or fraud, against her wishes, to another place. The taking is unlawful if he had no lawful authority to do what he did. To carry someone away is to move that person, or cause that person to be moved, in some manner, from one place to another. It is not restricted to picking up and carrying the person from one place to another: R. v. Espinola, 2019 ONSC 1177, at para. 76.

[110] Kidnapping is not defined in the Criminal Code. In R. v. Vu, 2012 SCC 40, at para. 25, the Supreme Court of Canada clarified that kidnapping is an aggravated form of unlawful confinement. The element of movement differentiates kidnapping from the lesser included offence of false imprisonment (Vu, at para. 31). Kidnapping is a continuing offence that begins with the taking of the victim and ends only when the victim is released or consents to detention.

[111] The actus reus of kidnapping consists of the abduction and movement of the victim against his or her will from one place to another. The actus reus may be accomplished by force or fraud: Vu, at para. 78.

[112] In this case the mens rea is the intention set out in subs. (a): the intention to cause the person to be confined or imprisoned against the person’s will.

[113] To constitute kidnapping there must be a movement or taking of the person from one place to another and not simply the placing of the person in the area of confinement: R. v. Oakley (1977), 1977 ALTASCAD 118, 36 C.C.C. (2d) 436 (Alta. C.A.); Espinola, at para. 80.

[114] I am satisfied beyond a reasonable doubt that Mr. Mackenzie kidnapped J.M. when he forced her to return to his truck against her will and then caused her to drive, or be driven, to Antoine’s house with the intent that she remain in the truck with him and not leave.

[115] I accept J.M.’s evidence that she did not want to return to the truck, but wanted to go to her friend’s house to pick up her son. I accept her evidence that she only returned to the truck with Mr. Mackenzie because he grabbed her and threatened her, and essentially dragged her back. Once back in the truck, I accept J.M.’s evidence that she felt that she could not leave the truck, so she decided to “work with him so he would calm down”. She was frightened, and was confined against her will.

[116] J.M.’s testimony in this regard is confirmed by Mr. Mackenzie’s own testimony that he grabbed J.M., and that J.M. did say to him: “If you don’t hurt me, I’ll come with you”. It is clear on any objective basis that J.M. was acting out of fear and not by her own free choice. She was not able to go where she wanted – to pick up her son at her friend’s house – but was compelled to return to the truck, and then to accompany Mr. Mackenzie when he drove to Antoine’s.

[117] I also reject Mr. Mackenzie’s evidence that J.M. initially left the truck because she was angry that he had slept with another woman the night before. The evidence indicates that J.M. was trying to end her relationship with Mr. Mackenzie, and it seems most unlikely that she would leave the truck for that reason, rather than the reason she gave, to pick up her son just down the street.

[118] I find that Mr. Mackenzie knew that J.M. did not want to return to the truck, and that he brought her back to the truck with the intention of confining her against her will in the truck to take care of him while he did the Ketamine.

[119] The element of movement in this case is satisfied both by Mr. Mackenzie moving the complainant away from Carlton Road to the truck, and then moving from the Avoco Bar Plaza parking lot to Antoine’s house. Throughout this movement, J.M. cooperated with Mr. Mackenzie because she was afraid that he would hurt her.

[120] I do not accept Mr. Mackenzie’s testimony that the complainant was at all times free to go wherever she wanted, and was even free to take the truck and leave him if she chose. The illogic of this testimony is further confirmed by Mr. Mackenzie’s insistence that J.M. do the Ketamine with him so that she would understand why she should not have left Mr. Mackenzie in the truck when he was high. It is clear that Mr. Mackenzie did not want to be left alone in the truck when he took the Ketamine, and was intent on keeping J.M. with him at that time.

[121] Mr. Mackenzie’s acknowledgement that J.M. started to panic and was having an anxiety attack, and began hitting herself and saying: “No, no, no”, is also inconsistent with any notion that J.M. was free to leave at any time and that she was not held against her will by Mr. Mackenzie.

[122] I find that J.M.’s evidence was consistent and coherent, and I am persuaded beyond a reasonable doubt that she was forced to return to the truck by Mr. Mackenzie, and forced to drive or be driven to Antoine’s house. Mr. Mackenzie’s evidence does not give rise to a reasonable doubt in my mind with respect to the kidnapping charge for the reasons given above.

Count 2 - Engaging in threatening conduct directed at J.M. causing her to fear for her safety (s. 264(2)(d))

[123] The relevant provisions of s. 264 provide:

264 (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of

(d) engaging in threatening conduct directed at the other person or any member of their family.

[124] This allegation relates to the telephone communication between the complainant and Mr. Mackenzie when Mr. Mackenzie answered the cell phone belonging to the father of J.M.’s children on October 19, 2020. J.M. testified that Mr. Mackenzie screamed at her and threatened to smash her face and break into her house and rape her in her sleep. He also told her that it would be worse than what Ryan had done to her (Ryan was J.M.’s former human trafficker). She was frightened that the accused would act on the threats, and she was not sure what to do. She called the police.

[125] Mr. Mackenzie acknowledged answering the telephone on October 19, 2020, and being “rude and mean” to J.M. because he found out that she had cheated on him. He called her “a piece of shit”, but he initially denied that he threatened her or her children in any way. On cross-examination, he acknowledged that he has made threats against J.M. in the past, but stated that he would never carry through on such threats. He described this as a coping strategy for his anger.

[126] On cross-examination he also acknowledged that he might have made some threats to J.M. in the October 19, 2020 telephone conversation, and agreed that he told the police on October 20, 2020: “And there’s times where I’ve said, you know, I’ve screamed and yelled like, you were fucking your husband, and yeah I wanna fucking punch your face and kill you and shit, but it’s not legitimately I’m going to kill her and shit, you know what I mean?”

[127] Based on the totality of the evidence, I am satisfied beyond a reasonable doubt that Mr. Mackenzie did make the threats alleged by J.M. during the October 19, 2020 phone call.

[128] I accept Mr. Mackenzie’s statement that he did not actually intend to carry through with any of these threats and that he intended to “verbalize instead of actualize”. But an intent to carry through with the threat is not an element of the mens rea required under s. 264 of the Code. The mens rea required is an intention to cause the other person to fear for their safety or the safety of anyone known to them, and knowledge or recklessness that the other person is harassed.

[129] In R. v. Clemente, 1994 49 (SCC), [1994] 2 S.C.R. 758, the Supreme Court of Canada held, at para. 14, that “words spoken in jest or in such manner that they could not be taken seriously could not lead a reasonable person to conclude that the words conveyed a threat”. In assessing whether a reasonable person would consider that the words are uttered as a threat (at para. 13), “the court must regard them objectively, and review them in light of the circumstances in which they were uttered, the manner in which they were spoken, and the person to whom they were addressed.”

[130] Mr. Mackenzie did not speak these words in jest. He was not trying to be funny. He was angry that J.M. had cheated on him. He intended to be mean, abusive and demeaning. He was trying to get back at J.M. for what he perceived to be J.M.’s infidelity.

[131] Mr. Mackenzie testified that he knew that J.M. had suffered past trauma as a result of human trafficking, and that she was susceptible to anxiety and panic attacks. Given the nature of the threats made, I am satisfied beyond a reasonable doubt that Mr. Mackenzie knew or was reckless that J.M. would fear for her safety and the safety of her children upon hearing these threats. In particular, by referring to J.M.’s former human trafficker and telling her that this time it would be worse, Mr. Mackenzie knew or was reckless that J.M. would fear for her safety.

[132] I also find, given the toxic history of their relationship and Mr. Mackenzie’s history of violence, that, in all the circumstances, it was reasonable for J.M. to fear for her safety upon hearing these threats.

Count 3 - Administering poison (Ketamine) to J.M. with intent to endanger her life (s.245(1)(a))

[133] Section 245(1)(a) provides:

245 (1) Every person who administers or causes to be administered to any other person or causes any other person to take poison or any other destructive or noxious thing is guilty

(a) of an indictable offence and liable to imprisonment for a term of not more than 14 years, if they did so with intent to endanger the life of or to cause bodily harm to that person;

[134] There is no dispute that Mr. Mackenzie caused J.M. to take the Ketamine.

[135] I also find that Mr. Mackenzie forced J.M. to take the Ketamine against her will. J.M. took the Ketamine because Mr. Mackenzie threatened her and choked her. He was, by his own admission, insistent and persistent.

[136] That said, the mens rea required for this offence is an intent “to endanger the life of or to cause bodily harm to that person”. The Crown concedes that Mr. Mackenzie did not have the requisite intent in this case and that Mr. Mackenzie should be acquitted of this charge. I agree with that concession.

[137] I did not hear any submissions on whether Ketamine qualifies as a “poison or … other destructive or noxious thing”, and I express no opinion on that issue.

Count 4 - Sexual Assault (s. 271)

[138] To convict Mr. Mackenzie of this offence, the Crown must prove each of the four elements of sexual assault beyond a reasonable doubt. Those four elements are: (a) that there had been intentional touching, (b) of a sexual nature, (c) without the complainant’s consent, and (d) that the respondent knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent.

[139] This case turns on whether the Crown has proven the third and fourth elements beyond a reasonable doubt.

[140] The Ontario Court of Appeal has recently considered the meaning of consent in R. v. H.W., 2022 ONCA 15, at para. 47:

At the actus reus stage of the analysis, the absence of consent is determined solely by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred: R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330, at para. 26; G.F., at para. 25. The question is solely whether the complainant, in her mind, wanted sexual touching to take place. Whether or not the accused thought or perceived that the complainant was consenting is irrelevant to whether the actus reus occurred: Barton, at para. 89.

The mens rea stage of the analysis is typically reached after the trier of fact has concluded that the actus reus has been committed. In the sexual assault context, this means that the trier of fact has concluded that touching of a sexual nature occurred, and that the complainant did not actually, subjectively, consent within the meaning of the Code to that sexual touching. The focus then shifts to the accused’s mental state, the question being whether the accused knew of, or was wilfully blind or reckless as to, that lack of consent: Barton, at para. 87

[141] See also R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 SCR 330, at paras. 48 and 49.

[142] The complainant testified that she did not want to have sex or do the drugs, she just wanted to get her son. Due to the Ketamine she had less control over her body and was not able to fight or push Mr. Mackenzie off. She was also concerned that if she fought him, it would get worse, and it would be easier if she just “let him get done with it”. She was afraid that Mr. Mackenzie would start to strangle her again if she refused.

[143] Since absence of consent is determined solely by reference to the complainant’s subjective internal state of mind at the actus reus stage, then her testimony that she complied with the sex act out of fear is sufficient to meet this element of the offence. “The complainant’s fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated.”: R. v. Ewanchuk, at para. 39; R. v. J.A., 2011 SCC 28, at para. 45: “[T]he absence of consent is established if the complainant was not experiencing the state of mind of consent while the sexual activity was occurring”.

[144] I am satisfied that the complainant was being honest when she testified that she was frightened and pressured in the context of that specific situation and submitted to the sex acts out of fear.

[145] Thus, I must conclude that the complainant, in her own mind, did not want to engage in sex with Mr. Mackenzie and therefore did not consent. Mr. Mackenzie’s perception is irrelevant to this third element of the offence.

[146] The Crown must still, however prove the mens rea element of the offence: whether the accused knew of, or was wilfully blind or reckless as to, the absence of consent.

[147] In my view, this question turns on the allegation that Mr. Mackenzie choked the complainant in the truck immediately before she took the Ketamine. If Mr. Mackenzie did choke J.M., it would be abundantly obvious that any apparent consent was given under the threat of violence.

[148] In Ewanchuk, the Supreme Court of Canada stated, at para. 36:

To be legally effective, consent must be freely given. Therefore, even if the complainant consented, or her conduct raises a reasonable doubt about her non-consent, circumstances may arise which call into question what factors prompted her apparent consent. The Code defines a series of conditions under which the law will deem an absence of consent in cases of assault, notwithstanding the complainant’s ostensible consent or participation. As enumerated in s. 265(3), these include submission by reason of force, fear, threats, fraud or the exercise of authority, and codify the longstanding common law rule that consent given under fear or duress is ineffective… [Citations omitted.]

[149] Mr. Mackenzie’s testimony does not raise a reasonable doubt in my mind. I accept the complainant’s evidence regarding the threats and the choking.

[150] Mr. Mackenzie testified that he grabbed the complainant by the shoulders and screamed at her so that she would “snap out” of her anxiety attack. Even on Mr. Mackenzie’s evidence, it is apparent that the complainant was feeling threatened and anxious in the situation she found herself, with Mr. Mackenzie’s persistent insistence that she try the Ketamine. Mr. Mackenzie acknowledged that J.M. started to panic and was having an anxiety attack, and began hitting herself and saying: “No, no, no”. In these circumstances, a reasonable person would understand that J.M.’s apparent consent to intercourse was given under duress. Added to this, my acceptance of J.M.’s evidence that Mr. Mackenzie had choked her and threatened to break her nose, I am left with no doubt that J.M.’s ostensible consent was given as a result of the application of force and threats or the fear of the application of force, and does not qualify as consent: Criminal Code, s. 265(3)(a) and (b).

[151] In these circumstances, Mr. Mackenzie was reckless or wilfully blind as to the absence of consent, and the defence of an honest but mistaken belief in consent is not available on these facts: Criminal Code, s. 273.2(a)(ii).

Count 5 - Failing to comply with an order under [s. 516(2)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) to abstain from communicating with J.M. (s. 145(5)(b))

[152] On October 21, 2020, the Justice of the Peace ordered Mr. Mackenzie not to contact J.M. while in custody, pursuant to s. 516(2) of the Criminal Code.

[153] Mr. Mackenzie has acknowledged that he did contact J.M. by telephone while he was in custody, and the defence concedes that he is guilty of this charge.

Count 6 - Uttering a threat to cause death to J.M. (s. 264.1(1)(a));

[154] Section 264.1(1)(a) provides:

264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

(a) to cause death or bodily harm to any person;

[155] This provision is similar to s. 264(2)(d) considered above, and covers the same conduct addressed in Count 2.

[156] Based on my factual findings and analysis in relation to Count 2 (see paras. 120 – 128) I am satisfied beyond a reasonable doubt that Mr. Mackenzie did intentionally utter a threat to cause bodily harm to J.M. between October 18, 2020 and December 1, 2020.

Count 7 - Attempting to obstruct justice by threats and intimidation (s. 139(2))

[157] The relevant portions of s. 139(2) and (3) of the Code provide:

(2) Every person who intentionally attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; …

(3) Without restricting the generality of subsection (2), every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed,

(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence;

[158] To establish this offence, the Crown must prove more than the fact that Mr. Mackenzie called the complainant from prison and tried to persuade her that she had misinterpreted his conduct. The Crown must prove that Mr. Mackenzie attempted to dissuade her from testifying, or to change her evidence, by “threats, bribes or other corrupt means”.

[159] J.M. testified that Mr. Mackenzie called her from the prison and tried to persuade her that he had not raped her and that she should change or recant her story. He also threatened to kill her and her children and to tell Ryan (her former human trafficker) what her address was if she testified. When asked about the threats, J.M. testified: “The one that stands out the most is that he would kill my children if I went to trial”.

[160] Mr. Mackenzie acknowledged calling J.M. from the prison, and that he was sometimes angry and yelled at her during these calls, but denied making any threats during any of those calls. He assumed that the prison phones were being recorded, so he would not make threats from those phones.

[161] For the reasons set out above, I accept J.M.’s evidence that threats were made, and I do not believe Mr. Mackenzie’s denials of those threats. Mr. Mackenzie’s denials do not give rise to a reasonable doubt that the threats were made during one or more of these phone calls. Looking at the evidence as a whole, I am satisfied beyond a reasonable doubt that Mr. Mackenzie did try to dissuade J.M. from testifying by threatening her.

[162] It is not relevant for the purposes of this charge whether Mr. Mackenzie intended to act on any of these threats – it is unlikely that he did – it is enough that he made them with the intent of dissuading J.M. from testifying in these proceedings. Nor is it relevant that J.M. was not dissuaded from testifying, since the actus reus consists of attempting to dissuade.

Count 8 - Threaten to use violence against J.M. for the purpose of compelling her to abstain from testifying (s. 423.1(1)(b)).

[163] Section 423.1(1)(b) provides:

423.1 (1) No person shall, without lawful authority, engage in any conduct with the intent to provoke a state of fear in

(b) a justice system participant or military justice system participant in order to impede him or her in the performance of his or her duties;

[164] As a complainant and prospective witness, J.M. qualified as a “justice system participant” within the meaning of that provision: Criminal Code, s. 2:

justice system participant means…

(v) an informant, a prospective witness, a witness under subpoena and a witness who has testified,

[165] As indicated above with respect to Count 7, the intention of the threats made by Mr. Mackenzie to J.M. was to intimidate and dissuade her from testifying in this proceeding. I am satisfied beyond a reasonable doubt that these threats were made with the intention of provoking a state of fear in J.M. in order to impede her in the performance of her duty as a justice system participant. That duty was to testify as a witness in this case. As a result, I am satisfied beyond a reasonable doubt that Mr. Mackenzie is guilty of this offence.

Summary of Conclusions

[166] In summary the accused is found guilty of counts 1, 2, 4, 5, 6, 7 and 8, and not guilty of count 3.

Justice R.E. Charney

Released: December 2, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

CHARLES MACKENZIE

Defendant

REASONS FOR DECISION

Justice R.E. Charney

Released: December 2, 2022