IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth Division

Transcription

1 Citation: Regina v. D.W. and K.P.D. Date: BCPC 0096 File No: Registry: Abbotsford Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth Division REGINA v. D.W. and K.P.D. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C.J. ROUNTHWAITE Counsel for the Crown: Wendy van Tongeren Harvey Counsel for the Accused: Darrel G. Schultz for Accused D.W. Counsel for the Accused: Ken Skilnick for Accused K.P.D. Place of Hearing: Abbotsford, B.C. Dates of Hearing: March 11, 13, 14, 15 and 18, 2002 Date of Judgment: March 25, 2002 [1] "Whoever is lying, I'm going to beat them up"; "If you say anything else, I'm going to beat you up"; "You're dead". When do school yard taunts cross over the line to become a criminal offence of threatening death or bodily harm? When does a teenager's annoying behaviour towards a fellow student amount to an offence of criminal harassment? These questions must be answered in order to determine whether K.P.D. is guilty of one count: uttering a threat to Dawn Marie Wesley to cause her death or bodily harm on November 10, 2000; and whether D.W. is guilty of three counts: the same charge on November 9 and 10, 2000, and a further charge of criminal harassment of Ms. Wesley over the related five day period. I will set out the facts of this case, the law as it relates to threatening and criminal harassment, and then apply the law to the facts. As always, the ultimate question: has Crown proven guilt, beyond a reasonable doubt?

2 [2] Tragically, Dawn Marie Wesley committed suicide the evening of November 10 th. Crown Counsel clearly has stated they are not alleging a causal link between these events and that suicide. They are not seeking to find anyone responsible for Ms. Wesley's death. The Facts [3] In making the following findings of fact, I have considered the evidence of all of the witnesses. Given the age of many, I will not mention them by name. The facts are not in dispute. The accused K.P.D. did not testify, relying on the evidence given by witnesses for the Crown. The accused D.W. did testify, in a remarkably frank and candid fashion. In several areas where the Crown's evidence was weak or contradictory, she freely admitted certain facts. [4] Initially, upon meeting in September for their Grade 9 year, the accused D.W. (15 years) and Dawn Wesley (14 years) were friends, having sleepovers and even spending Halloween together. In November, the relationship soured, when D.W. heard that Dawn was calling her names and causing rumours. Approximately one week before November 10th, D.W. confronted Dawn at her locker, telling her to stop talking about her or she was going to beat her up. Several times during that last week, D.W. told Dawn's best friend that she did not like Dawn, and would like to get other people to beat her up, naming one person in specific. Not surprisingly, the best friend told Dawn. D.W. told her own friends she was going to beat up Dawn, and said that, because of the size differential, she tried to get another person to do it for her. There is no doubt that Dawn Wesley was scared, by this and by other peoples' threatening behaviour. She spoke to the school counsellor on a daily basis, and made efforts not to walk home alone. [5] On November 9, at lunch, Dawn and three friends were sitting on the baseball bleachers, eating pizza, when they were approached by five girls, including D.W. A second girl, not currently before the court, began yelling at Dawn, also threatening to beat her up. One or more of the group prevented Dawn's best friend from intervening. D.W. stated that she had known that the second girl was mad at Dawn, and had accompanied her to see what happened. She admitted saying to Dawn: "Stop talking about me. If you say anything else, I will beat you up". [6] Dawn was crying, while the five girls left together, giggling and laughing. A short while later, D.W. and the second girl encountered Dawn and her best friend on their way back to school. When Dawn turned around to walk away, both D.W. and the second girl laughed, and commented about her being scared of them and running away. [7] The next day, November 10th, D.W. met Dawn in the library, laughing, and asking to borrow a pair of Dawn's shoes. Dawn lent the shoes, but is described by D.W. as having a little half smile on her face, which looked "fake", as if she was not happy. [8] After school, D.W. and the accused K.P.D. ran into the second girl, at the Petro Canada. A witness describes all three as being mad at Dawn (each regarding their separate rumours), saying they wanted to beat her up, and that one of them was going to try to befriend her, lure her out of the house, and beat her up. However, the witness could not say who said what, and did not give evidence sufficient to justify a finding that the others had adopted such statements. [9] That evening, Dawn returned D.W.'s telephone call, and was confronted about the new rumour involving K.P.D. K.D. had determined that one of three people was lying to her: Dawn, D.W., or a friend. While talking to Dawn on the phone, looking at the friend, and with D.W. standing beside her, K.D. said: "Whoever is lying, I'm going to beat them up". Initially, K.D. spoke in an angry tone, but then calmed down, and tried to calm Dawn as well. K.D. spoke to Dawn in a soft, gentle tone, telling her to stop crying, that everything was going to be ok, and agreeing that they meet in order to talk. Witnesses thought everything was fine, until D.W. yelled into the phone: "You are fucking dead".

3 [10] Shortly thereafter, D.W. told K.D.'s mother that she had "told the little bitch that she was dead". When the mother questioned the appropriateness of this statement, and how she would feel if anything happened to Dawn, D.W. said she did not care, and shrugged it off "like nothing serious". In private, K.D. told her mother that she had figured out that it was D.W. who was lying, and that nothing would happen to Dawn. [11] D.W. testified that she did not mean it when she said "you're dead". That she was really angry at Dawn, and that when she gets mad, she yells stuff she does not mean. The accused's friends testified that teens say "you're dead" and "I'm going to beat you up" all the time, with nobody actually getting beaten up. Others defined "beating up" as being physically hurt, punched, hit, and kicked. I am satisfied, on the whole of the evidence, that these young people took such comments seriously. That was obvious from their reaction when such comments were directed specifically at them or at their friends. The Law [12] The offence of threatening death or bodily harm is set out in Section 264.1(1)(a) of the Criminal Code, which reads: 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; Bodily harm is defined in Section 2: "bodily harm" means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature. [13] Case law has defined these sections by establishing certain principles. Bodily harm includes psychological hurt or injury, as well as physical (R v McCraw (1991) 66 C.C.C.(3d) 517 (S.C.C.)). The threat does not have to be directed at a particular person, but simply an ascertainable or identifiable group (R v Remy (1993) 82 C.C.C. (3d) 176 (Que. C.A.); and R v Deneault (2002) B.C.J. No. 517 (B.C.C.A.)). Conditional and future threats are included (R v Ross (1986) 26 C.C.C. (3d) 413 (Ont. C.A.)). And perhaps most significant, the offence does not require that the threatener have any intention to carry out or act on the threat. As stated by the Supreme Court of Canada in McCraw: "Parliament, in creating this offence recognized that the act of threatening permits a person uttering the threat to use intimidation in order to achieve his or her objects. The threat need not be carried out; the offence is completed when the threat is made. It is designed to facilitate the achievement of the goal sought by the issuer of the threat. A threat is a tool of intimidation which is designed to instill a sense of fear in its recipient. The aim and purpose of the offence is to protect against fear and intimidation. In enacting the section Parliament was moving to protect personal freedom of choice and action, a matter of fundamental importance to members of a democratic society" (p. 524).

4 [14] For the purposes of this case, the test is, has Crown proven beyond a reasonable doubt that (1) the accused spoke words to Dawn Marie Wesley containing a threat of death or bodily harm; and (2) the accused intended the words to intimidate or be taken seriously. The Supreme Court of Canada has said, in determining whether the accused's words were a threat, they are to be viewed objectively in the entire context or circumstances in which they were spoken. Would the words, spoken under the circumstances and in the manner in which they were said, and having regard to the person to whom they were addressed, convey a threat of death or bodily harm to a reasonable person (McCraw, and R v Clemente (1994) 91 C.C.C. (3d) 1 (S.C.C.))? [15] Following the reasoning at pages of the McCraw decision, I am satisfied that a threat to beat somebody up may well, depending on the context and circumstances, constitute a threat to commit bodily harm. Extrapolating from McCraw, "it would be ludicrous and contrary to the purpose of Section to interpret the section as criminalizing the threat to damage a piece of property or a pet while permitting a threat" to beat somebody up "on the grounds that it did not constitute a threat to commit bodily harm". [16] Section 264 sets out the offence of criminal harassment: 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 (b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them; (d) engaging in threatening conduct directed at the other person or any member of their family. [17] Again, case law has established the test to be met: (1) the accused has engaged in one of the specified forms of conduct; (2) the complainant was harassed; (3) the accused knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed; (4) the conduct caused the complainant to fear for his or her safety or the safety of anyone known to them; and (5) the complainants fear in all of the circumstances was reasonable (R v Sillipp (l997) 120 C.C.C. (3d) 384). Being harassed has further been defined as feeling either tormented, troubled, worried continually, or chronically plagued, bedevilled and badgered (R v Kosikar (1999) 138 C.C.C. (3d) 217 (Ont. C.A.)). Application of the law to the facts [18] The words spoken by K.P.D., "Whoever is lying, I'm going to beat them up", are capable of constituting a threat to Dawn Marie Wesley to cause her bodily harm. Notwithstanding their general nature, the words were directed at an identifiable group, one of whom included Dawn. However, viewing the words objectively within their entire context, it must be noted there is no evidence of K.D. having previous bad relations with Dawn. In fact the opposite; one witness told of K.D. having been protective of Dawn, accompanying her to the school counsellors.

5 Immediately after saying the words, K.D. spoke to Dawn in a soft, gentle voice, trying to calm her down, telling her that everything was going to be ok, and agreeing to meet in order to talk. Witnesses thought that everything had been resolved, and K.D. subsequently told her mother that nothing was going to happen. Given that entire context, Crown has failed to prove, beyond a reasonable doubt, that K.D. intended her words to intimidate or be taken seriously. The general nature of the words, when coupled with the immediate attempt to calm and reassure, and the proposal of some sort of alternate resolution, constitute the reasonable doubt. Crown has failed to prove count 3 against K.P.D. [19] The circumstances involving D.W. are quite different. There is ample evidence of previous bad relations: the locker incident; the comments to the best friend. D.W. admitted that she did not like Dawn, wanted to beat her up, and tried to recruit another person to do it for her. On November 9 th, while another person was yelling threats at Dawn, D.W. joined in: "Stop talking about me. If you say anything else, I will beat you up". On November 10 th, D.W. yelled into the phone: "You are fucking dead". There were no immediate attempts to calm or reassure, but rather laughter, and comments about Dawn being scared and running away. D.W. said that she did not mean the "you're dead" comment. However, the offence does not require that the threatener have any intention to carry out the threat, only that they intend the words to intimidate or be taken seriously. There is no doubt whatsoever that D.W. intended her words to intimidate or be taken seriously, or that a reasonable person, having regard to all of the circumstances, would view them as a threat. Crown has proven, beyond any reasonable doubt, that D.W. threatened Dawn Marie Wesley with death and bodily harm, on November 9 and 10, [20] Crown also has proven the offence of criminal harassment against D.W., between November 5 and 10, D.W. clearly engaged in threatening conduct directed at Dawn, on November 9 and 10. Dawn Wesley was harassed, in that she was troubled and worried continually. This was exhibited through tears, visits to the school counsellor, and making efforts not to walk home alone. D.W. must have known that Dawn was harassed, after seeing or hearing about her tears during each threat, and commenting that she was scared and running away. Finally, this threatening conduct caused Dawn to fear for her safety, a fear that was entirely reasonable in all of the circumstances. In this regard, I consider not just the threats of November 9 and 10, but also the earlier threat at the locker and the comments to the best friend, which may or may not have occurred during the stated time period. [21] There is a long established legal principle that a person cannot be convicted of two criminal offences made out of a single subject matter. In this case, Crown agrees that the same facts which justify a finding of guilt on the charges of threatening also constitute the offence of criminal harassment. Crown asks that the conviction be recorded for the offence of criminal harassment. [22] I find K.P.D. not guilty of Count 3. I find D.W. guilty of Counts 1, 2, and 4. The conviction will be recorded for Count 4, while conditional stays will be entered for Counts 1 and 2. I wish to make some comments which do not form part of my Reasons for Judgment. I was dismayed, for many reasons, throughout this trial. I was dismayed by the rumours and innuendoes, and that so many people seem to have acted on them without even considering whether they were based on fact. I was dismayed that people would gather around a bully, without recognizing that by doing so, they added to the power and intimidation of the bully. And that they would leave with the bully, apparently not caring that they increased the feelings of exclusion for the victim. I was particularly dismayed that none of the bystanders had the moral strength or the courage to stand in front of Dawn Marie Wesley, to tell the bullies to stop, go away, leave her alone. Only two friends said no.

6 C. J. ROUNTHWAITE, PCJ