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Monday, March 03, 2014

Jayme Pasieka was given 15 months probation instead of going to jail when he should have

Pasieka was convicted of threatening to cause death or bodily harm and assault with a weapon over an incident in May 2009. He was sentenced two years later to 15 months probation.


R. v. Pasieka, 2010 ABPC 362

In the Provincial Court of Alberta

Citation: R. v. Pasieka, 2010 ABPC 362
                                                                                                                              Date: 20101109
                                                                                                                  Docket: 090590118P1
                                                                                                                        Registry: Edmonton


Her Majesty The Queen

                                                                        - and -

Jayme Joshua Pasieka

                    Reasons for Judgment of The Honourable Judge S.R. Creagh

[1]               Mr. Pasieka is charged with uttering threats to kill or cause bodily harm to Devon Sandford, possessing a bow for a purpose dangerous to the public peace, using a bow when committing an assault on Devon Sandford and engaging in harassing conduct that caused Bailee and Devon Sandford to fear for their safety.

[2]               These charges arise as a result of an incident that took place on May 15, 2009 in Edmonton, Alberta. 

[3]               These reasons were delivered in court on September 10, 2010.  This is the written version of those reasons.  If there is any variation between what was said in court and these written reasons, the written reasons are to prevail. 

[4]               I have divided my reasons in to four general sections.  The first is a very brief and general overview of the evidence.  The second is a statement of the general principles engaged by this case.  The third is my analysis of the case.  In the analysis portion of my reasons I will address each count in the Information in turn.  I will begin each with an overview of the law relating to the specific count followed by an analysis of the evidence as it relates to that count.  The final section is a summary of the conclusions and the verdict on each count.

Summary of the Evidence

[5]               I now turn to my summary of the evidence.  This summary is intended to set the context for the law and the analysis.  It will be brief.  Further more detailed references to the evidence, and the finding of facts, will be in the analysis portion of the reasons.

[6]               On May 15, 2009, the Sandford family lived at 15814‑64 Street, Edmonton, Alberta. Sixty‑fourth street is a cul‑de‑sac with a number of houses around it.  The family consisted of Mr. Devon Sandford, his wife Bailey Sandford and their nine year old son.

[7]               During the previous months the Sandford’s home and vehicles had been tampered with and had been egged.  In addition, there had been a number of threatening or "harassing" telephone calls to the residence from a blocked telephone number. These incidents upset the family and they were considering moving to get away from this situation.

[8]               That night, May 15, 2009, Mr. Sandford had fallen asleep watching televison.  Sometime after 9:00 p.m. (it was dark out) he was awoken by his son, who told him there was a fire in the cul‑de sac.  When Mr. Sandford ran outside he could see not only that there was fire, in the shape of a heart, burning on the pavement in the crescent, but that his vehicle had been egged again.  He jumped in his truck and drove around the neighbourhood to see if he could find the person who had done this.  He did not.

[9]               When he returned home, both his father and his father‑in‑law were with his wife.  He was told that "they" had called the police.  After a conversation with his father‑ in‑law, Mr. Sandford searched the grounds around his house.  As Mr. Sandford came around the front of the house, he head a yell from the darkness that "he was going to kill us and don’t fuckin’ mess with me and whatnot."  He thought the voice was coming from the neighbour's back yard.

[10]           Mr. Sandford jumped into a vehicle and circled the back of the cul‑de‑sac, looking for whoever said that.  Once again, he did not find anyone.

[11]           When Mr. Sandford returned to his home for the second time, his father-in-law told him that "he just broke into your neighbour’s house," so Mr. Sandford went over to his neighbour’s house.

[12]           When Mr. Sandford reached the front door, he could see a man, in a bit of a cloak or “something like that” running towards the front door saying he was there to kill Mr. Sandford and "other threats."  The man was chanting and swearing.  Mr. Sandford could not recall what the man was chanting.

[13]           When the man was a couple of feet away, Mr. Sandford could see that the man was holding a bow and arrow in one hand and a knife or a club in the other.  When the man reached for the door, Mr. Sandford immediately returned to his house and called the police.  He did so because things seemed to be escalating and he was concerned for his safety.

[14]           Mr. Carreiro, Mr. Sandford’s father‑in‑law, testified that around 11:00 p.m. that night he received a telephone call from his daughter.  She was crying and told him that there had been a fire in the cul‑de‑sac and that their house and car had been egged again.  He immediately went to her home.

[15]           While Mr. Sandford was checking the area for the person who did these things, Mr. Carreiro stayed on the front lawn with his daughter.  As they were standing there he heard a voice say "You don’t want to fuck with me."  Mr. Carreiro yelled out "Who are you?"  He yelled forcefully because his daughter and grandson were upset and this upset Mr. Carreiro.

[16]           Mr. Carreiro could see a figure dressed in dark clothing standing by the front stoop of  the home directly across the cul‑de‑sac.  When Mr. Carreiro yelled, the figure moved away from the door and went through the side gate into the back yard.  It stopped next to the gate and then disappeared behind the fence.  He told his daughter to stay on the lawn and he walked towards the home.  He thought that whoever this was had gone into the back yard and he wanted to tell the neighbours that someone suspicious was in their yard.  He had no thought that the suspicious person was connected to this house.

[17]           He went to the front door of the house and rang the bell.  He could not recall if there were any exterior lights on at this house.  However, the front door was glass and since a light was on in the back, he could see into the house.  No one came to the door.  He was about to knock on the door when he heard the back door open and he saw a figure walk from the side of the house into the middle of the viewing area of the front door.  He called out "Who are you?" and "What are you doing?"  Although there were two dogs at the door barking, there was no verbal response from the figure and whoever it was did not come to the door.  Mr. Carreiro thought this was not right so he returned to his daughter.

[18]           When his son‑in‑law returned, Mr. Carreiro told his son-in-law that he thought that "It’s someone from that house" and his son‑in‑law went to that house.  Within minutes his son‑in‑law ran back to them and told them to get into the house because "he" had a cross bow and an arrow.

[19]           Cst. Hoogenberg was one of the police officers who was dispatched to this incident.  As he was checking the addresses on the houses in the cul‑de-sac, the accused walked out of a house and approached the police vehicle.  The accused was wearing camouflage pants, gloves with guards like the ones archers wear on both wrists, and spurs.  Given that the 911 call referred to a man with a cross‑bow, the Constable immediately ordered the accused to get on his knees and took custody of him.

[20]           With the consent of the accused, Cst. Hoogenberg entered the residence of the accused.  There was no one in the residence.  On the kitchen table, the Cst. Hoogenberg found a bow with four arrows.  One of the arrows was nocked, or ready to fire.  On the kitchen counter, Cst. Hoogenberg found bear spray, a collapsible baton and two utility belts with a knife holder.  Next to the belt were four empty beer bottles.

[21]           The accused was arrested and taken into custody.  Back at the police station Cst. Hoogenberg strip searched the accused.  Throughout the search the accused stood at attention despite being told to relax.  The accused mentioned that he was applying for the army and the police service.  He also told Cst. Hoogenberg that everything he did that night was done in the name of the Queen and had been recorded because he was updating his dispatch over a radio.

[22]           Although the accused admitted that he had consumed two beers that night, Cst. Hoogenberg did not notice any physical signs of alcohol consumption about the accused.

[23]           That concludes my initial summary of the Crown evidence.  I now turn to the defence evidence.

[24]           The accused testified.  While he admitted that he had egged Mr. Sandford’s vehicle and he had lit the fire in the cul‑de‑sac, he insisted that this was the only time he had done anything to their property.  He denied making any telephone calls to the Sandfords.

[25]           He acknowledged that the egging was foolish.  In his opinion it was only a mischief because they had been trying to provoke him in the past.

[26]           During cross‑examination he added that the egging was more in fun, a little bit of enjoyment, "maybe we could get to know each other kind of thing."  He later agreed that egging someone’s house and vehicle is not an appropriate way to meet people.

[27]           Later in his testimony, he admitted that he had also egged the Sandford vehicle the Wednesday before this incident.  He did it that time just to do mischief, and that was the only other time he egged the Sandford’s vehicle.

[28]           He explained that he made the fire in the shape of a heart as a cry‑out on his part.  He was emotional and upset because he had broken up with his girlfriend, Natalie Polney, the week before.  The act was not directed at anyone in particular. 

[29]           He used camp fuel to start the fire.  When it was burning he went to the back of his house, made a fire in the fire pit and had a few drinks.

[30]           When he had finished his drinks, he went out to check that the fire in the cul-de-sac was extinguished and he saw the "Bailey family" standing on the lawn.  He was asked why he called them the "Bailey" family, which is the first name of Mrs. Sandford, not the Sandford family.  The accused said that it was just what came to mind and later he noted that he must have been mistaken. 

[31]           He admits that at this point he might still have been a little upset about the break-up, so he might have said something like "Don’t mess with me or whatnot", but it was more speaking to himself instead of uttering death threats.  He agreed that it was possible that Mr. Carreiro heard his voice.  He denied ever saying that he was going to kill anyone in the Sandford family.

[32]           On cross‑examination he said that he could not hear what they were saying and he did not hear anyone else say "Don't fuck with me."

[33]           He was still standing on his front lawn when the father of the family, whom he later identified as Mr. Carreiro, started running after him without warning and without saying anything.  Mr. Carreiro was able to get within three or four metres of him.

[34]           The accused thought he was going to be attacked so he ran around to the back of his house and went in the back door, which put him in the kitchen area.  He was afraid. He thought they might break into his house.

[35]           He was able to get his bow quickly because he had been cleaning it earlier that evening and it was still on the kitchen table.  He admitted that he took the bow to the door.  He insisted that he had no arrows with him and, in particular, he did not have an arrow nocked in the bow.  When he grabbed the bow he called 911.  The Crown admits that this call was made.

[36]           He was not sure if one or two people came to his door.  The door has stained glass so it was hard to see anybody standing on the front steps, especially when the outside lights are off as they were that night.  However, he acknowledged that he would be visible because the inside lights were on.  When he did look out the door all he could see was "them running back to their house already."

[37]           He did not utter any threat to kill Mr. Sandford.

[38]           When the police arrived he walked out to speak to them and did what they told him.  At first he denied that he lit the fire because he wants to join the military and a criminal conviction may prevent that.

[39]           The accused’s father, Samuel Pasieka, testified about his son’s personality and character.  He noted that about three years ago his son had an accident and was concussed.  Since then he has noted that his son takes a little longer to understand things.

[40]           He recalled that his son has had a couple of girlfriends, but he did not know if Natalie was one of them.  He thought that on May 15 his son did not have a girlfriend.  He had one earlier and he kept in touch with her.

[41]           That concludes my initial review of the evidence.  I will now turn to the law.

[42]           The starting point in every criminal trial is that the accused is presumed innocent until proven guilty by the Crown.  This means that the burden is on the Crown to prove the guilt of the accused beyond a reasonable doubt.  This burden remains on the Crown throughout the trial.

[43]           Conversely, if a reasonable doubt exists as to the guilt of the accused, he must be acquitted.  Reasonable doubt means a doubt that is based on reason and common sense and that is logically connected to the evidence or the absence of evidence.  It is not based on sympathy or prejudice.  See R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320; 118 C.C.C. (3d) 1; 9 C.R. (5th) 1; 150 D.L.R. (4th) 733.  It does not involve proof to an absolute certainty; it is not proof beyond any doubt such as an imaginary or frivolous doubt.

[44]           In this case the analysis of the evidence will involve an assessment of the credibility of the witnesses.  When assessing the credibility of the witnesses, I must be mindful that reasonable doubt applies to that process.  The Supreme Court has given clear guidance to trial judges on the interplay of reasonable doubt and credibility.  I understand that a trial judge need not firmly believe or disbelieve any witness.  Where, as here, the accused has put forward a defence to the charge, I must acquit if I believe the defence evidence.  I must also acquit the accused in cases where the testimony of the witnesses, while not firmly believed or disbelieved, taken in the context of the evidence as a whole, raises a reasonable doubt as to the guilt of the accused.

[45]           If the testimony of the accused does not raise a doubt or is rejected, then I  must determine whether the evidence that I do accept proves the guilt of the accused beyond a reasonable doubt.  If it does not, then I must acquit.  If the evidence that I do accept does meet that standard of proof, then and only then, may I convict the accused.  R. v. W.(D)., 1991 93 (SCC), [1991] 1 S.C.R. 742; 63 C.C.C. (3d) 397; 3 C.R. (4th) 302; 46 O.A.C. 352; 122 N.R. 277.

[46]           I also remind myself that I may believe some, all or none of the evidence of any witness and that I must not permit my analysis of the evidence to become a credibility contest between the Crown and the defence witnesses as that will move the focus away from the fundamental question: whether, on the evidence, there is a reasonable doubt about the guilt of the accused.

[47]           I now wish to make a few general comments about the credibility of the witnesses. I will begin with the accused.

[48]           The first point to note is that the accused admits that he had been drinking that night.  He estimated that he had about six beers and two glasses of wine.  I must also bear in mind the comments he made to Cst. Hoogenberg about doing these things in the name of the Queen and that “these things” were recorded.  This latter evidence raises the prospect that the consumption of alcohol affected both his recollection and his perception of the events of the evening.  

[49]           The second point to note is that the accused had some difficulty understanding the court process.  At one point in his testimony, particularly when he was describing what happened when he went to the door with his bow and arrow, he made several hand gestures.  As he was denying ever uttering threats, he made a gesture as if to fire a gun and then placed his hands across his body in the shape of an "X".  When Crown counsel described the actions and asked him to agree that he made them, he would not do so.  It was clear that he did not understand what was being asked of him and could not follow the explanation given to him.

[50]           In light of those two facts I must view his evidence with some concern as to its reliability.

[51]           I now turn to the two Crown witnesses, Mr. Sandford and Mr. Carreiro.  There is no evidence on the record that either man had been drinking alcohol that night.  Accordingly I find that they were both sober and alert throughout this incident. 

[52]           However, Mr. Sandford was often imprecise in his evidence.  For example , when describing the scene and the man coming at him at the front door of the premises he indicated that he was "chanting something or other" and issued "various threats."  In addition, earlier in his testimony he mentioned the voice in the dark saying don’t mess with me "and whatnot."  While I must bear in mind that this was a very stressful event for Mr. Sandford, his lack of precision and detail of the event must be borne in mind when analyzing his version of events.

[53]           The evidence of Mr. Carreiro was straightforward and to the point. While he too was under some stress because of the state of his daughter and grandson, I find his evidence is reliable. 

[54]           I will now deal with each offence in turn.  I will not follow the order on the Information; instead I will begin with the last count, harassment.  I will then return to the order on the Information: uttering threats, count one; possession of the bow for a purpose dangerous to the public peace, count two and finally assault with a weapon, count three.

[55]           I have divided the counts in this manner because the last three offences focus on what happened at the front door of the residence of the accused and he asserts a common defence to all three – defence of property – while the harassment count more or less stands on its own.

Count Four, Criminal Harassment

[56]           Section 264 (1) of the Criminal Code provides that:

"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.

[57]           Although subsection 264(2) describes four types of conduct which are prohibited by this section, only two are in issue here.  They are:

1.         Repeatedly communicating with, either directly or indirectly, the other person or any person known to them, and

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

[58]           In Alberta, the leading case on this section is R. v. Sillipp 1997 ABCA 346 , (1997), 120 C.C.C. (3d) 384.  In that decision the Court made three observations that are relevant to this matter.

[59]           Firstly, the Court of Appeal noted that "harassed" means something substantially more than being "vexed, disquieted or annoyed."  See R. v. Sillipp, supra, para 16.  Other decisions, such as R. v. Kosikar 1999 3775 (ON CA), (1999), 138 C.C.C. (3d) 217 (Ont. C.A.), use phrases such as tormented, troubled, worried continually or chronically, plagued, bedevilled and badgered to describe the level of harassment must reach to make these actions criminal.

[60]           Secondly, the Court noted that the Crown must prove that an accused who engages in the prohibited conduct did so knowing that the complainant was harassed by the actions in question.  The knowledge requirement may be met by proof of either actual knowledge, recklessness or willful blindness.

[61]           Lastly, the Court noted that the use of the word "reasonably" in the section "imports an objective standard which is measured by the reasonable person standard".  (See R. v. Sillipp, supra at para. 26)

" If a reasonable person would experience fear for her safety, it follows that such a person would have no difficulty in concluding that it was reasonable for the complainant, in all of these circumstances, to fear for her safety. The argument must fail."

[62]           I now return to the evidence.

[63]           Mr. Sandford testified that over the last 18 months several harassing telephone conversations had been made to his residence.  He did not log the calls and so had no precise history of them.  With one exception, the telephone number of the caller was blocked, so he had no information about the source of the call.  In addition, he did not describe the content of the telephone calls as other than "harassing."

[64]           On the one occasion the telephone call was not blocked, Mr. Sandford returned the call immediately.  A male answered with the word "Jamie".  When Mr. Sandford began to speak the voice said it would get right back and then hung up.  There was no return call.

[65]           Mr. Sandford also spoke briefly of other instances of vandalism against his truck and house but he did not deal these instances in any detail.  His lack of precision with respect to these instances is likely explained by the fact that the Indictment in the case specifies that the harassment occurred only on May 15, 2009; it makes no reference to any other dates.

[66]           Mr. Sandford did not report the other incidents to the police.

[67]           Mr. Sandford frankly admitted that he did not know who had made the telephone calls or had vandalized or egged his home and vehicle.

[68]           From his point of view, the events of the night in question may be summarized as follows.  They began with a discovery of the mysterious fire, in the shape of a heart, in the middle of the cul‑de‑sac.  This was followed by the realization that the vehicle had been egged again.  Thereafter, came the mysterious voice from the dark uttering words, which, for the purpose of my analysis of this point, I will assume were taken as threats.  Finally, despite two searches of the neighbourhood, the perpetrator of these actions could not be found.  Put against the context of the other events, it is not surprising that Mr. Sandford and his family were unsettled, apprehensive, and on guard that night.  This emotional state is confirmed by the evidence of Cst. Hoogenberg as to his observations of the Sandford’s that night.

[69]           However, the Indictment specifies the date of May 15, and looking at the whole of the events of that evening, I find that the Crown has failed to prove this allegation beyond a reasonable doubt.  As Mr. Sandford fairly acknowledged, there is no evidence who committed the events that occurred before May 15.  While he now has a suspicion who placed one of the telephone calls, there is only evidence with respect to the two instances of egging the vehicles.  Furthermore, as pointed out by Mr. Tralenberg, Bailey Sandford did not testify nor was she mentioned in evidence.  Accordingly, there is no evidence on the record with respect to the affect of the activities upon her.

[70]           The accused admits egging the vehicle on two occasions and setting the fire.  Assuming for the purposes of this argument, that the accused was the mysterious voice in the dark, this type of conduct is more consistent with vexations, disquieting and annoying conduct.  It does not reach the level required to prove harassment.

[71]           Accordingly, I acquit him on this count.

[72]           I now turn to the remaining counts:  uttering threats, possession of a weapon for purpose dangerous to the public peace, and assault with a weapon.  As I noted earlier, each of these offences are based on the incident at the door to the Pasieka residence.  With respect to these matters, the defence raises, among other things, one defence: defence of property.

[73]           I will deal with each offence in turn.  I will address section 41 of the Criminal Code at the end.

Uttering Threats, Section 262.1 of the Criminal Code

[74]           I will begin my analysis of this count with a brief synopsis of the law relating to threats.  Section 262.1 of the Code provides that:

"Everyone commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat to cause death or bodily harm to any person."

[75]           I understand that a threat is a menace or denunciation that will befall the recipient.  See R. v. Leblanc 1989 56 (SCC), (1989), 50 C.C.C. (3d) 192 (S.C.C.).  Words or an oral utterance by the accused may not be necessary to constitute a threat if, in all of the circumstances of the case, the actions of the accused make the menace clear enough.

[76]           The accused must intend that his acts or words be taken as a threat.  See R. v. Clemente 1994 49 (SCC), (1994), 31 C.R. (4th) 28, 91 C.C.C. (3d) 1 (S.C.C.), and see R. v. Neve reflex, (1993), 87 C.C.C. (3d) 190.

[77]           While the Crown puts its case forward on this count only with respect to what happened at the front door of the residence, there are in total three possible points in this incident where words which might constitute threats were uttered:

∙           When Mr. Sandford returned from his first trip around the cul‑de‑sac looking for the culprit, he heard a voice, coming from the neighbour's back yard, saying “He was going to kill us” and “Don’t fuckin’ mess with me and whatnot."

∙           Mr. Carreiro also heard a voice in the dark say "You don't want to fuck with me."  This occurred while he was standing with his daughter, waiting for his son‑in‑law‑ to return from his first trip around the cul‑de‑sac, looking for the person who egged the car.

∙           When Mr. Sandford was standing at the front door of the accused’s residence, he heard the man in the residence say "He was going to kill me" and "other threats."  At this time the person had a bow in his hand, ready to fire an arrow.

[78]           The accused gave three pieces of evidence concerning these statements.  He testified that he did not make the first statement;  he never said that he was going to kill someone in the Sandford family.  However, with respect to the second statement, he admitted that when he went to check on the burning heart, which would correspond with the time Mr. Carreiro heard the words set out above, he was still upset and "might have" been speaking to himself and might have said something like "don’t mess with me or whatnot". The accused also concedes that Mr. Carreiro might have been able to hear these words.  With respect to the third statement his testimony was a straightforward denial: he did not run at the front door yelling that he was going to kill Mr. Sandford.

[79]           I reject this evidence.  Given my earlier findings on his credibility and reliability, I find that his evidence on these points is completely unreliable and I reject it.   In addition, with respect to the first statement, it is clear that there was no one else in the area at the time (Mr. Sandford checked the area twice).  His presence in the area is, however,  consistent with his admitted other activities that night.  With respect to the second statement, he does acknowledge the prospect that he made the statement.

[80]           Having rejected the evidence of the accused, I know turn to the evidence of the other two witnesses. 

[81]           While Mr. Sandford is vague about what was said ‑‑ he uses the phrase "other threats" ‑‑ he does specifically remember that the person with the bow and arrow said he was going to kill him.  Those words are memorable, particularly when uttered by a man running at him while armed with a bow and I accept his testimony that the accused said those words.  In addition, the use of the words “I am going to kill you” at the door is consistent with the things I find the accused had said earlier that evening.

[82]           In addition, I accept the evidence of both Mr. Sandford and Mr. Carreiro about the words that they heard uttered by the voice in the dark. (See para. 77 above.)  The threat uttered at the door fits in with the nature of or continues this pattern of comments that were made earlier. 

[83]           Accordingly I find that the accused made the threats to Mr. Sandford as he approached the door of the accused’s residence.  Whether or not he is guilty of the offence will depend on the analysis of the defence. 

Possession of a Weapon Dangerous to the Public Peace

[84]           Section 88 of the Criminal Code provides that:

"Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence."

[85]           This charge flows from the allegation that, when the accused went to the front door of his residence, he had in his hands a bow and arrow. 

[86]           There is no issue that the bow is a weapon.  However, the mere possession of the bow is, in and of itself, not a criminal offence; it is the purpose for which the accused possesses the weapon that makes the possession an offence.  In the analysis of this count, the purpose of the possession is the key issue. 

[87]           The purpose of the possession may change as the situation in which an accused finds himself evolves.  In other words, at the outset of an incident the possession may be innocent.  However, that may change as the intention of the accused changes. R. v. Calder reflex, (1984), 11 C.C.C. (3d) 546 (Alta. C.A.) at 548, see also R. v. Cassidy 1989 25 (SCC), (1989), 50 C.C.C. (3d) 193 (S.C.C.).

[88]           In order to determine the purpose of the possession at the relevant time, a trial judge must look at all of the circumstances of the possession.  See R. v. Nelson (1972), 8 C.C.C. (2d) 29 (Ont. C.A.) at 31.

[89]           All of the circumstances would include factors such as:

∙           the nature of the weapon;
∙           the manner of its use and the use to which it is actually put;
∙           the place in which the offence occurs;
∙           the accompanying statements or actions of the accused;
∙           the overall nature and context of the event.

[90]           I return to the evidence, beginning with the Crown evidence.  While this is not the analytical order contemplated by the Supreme Court of Canada in R. v. W.D., I do so in the particular circumstances of this case to set the context for the possession of the weapon.

[91]           Mr. Carreiro did not see any weapon when he was standing at the door.  All he saw was a figure towards the back of the house.  When he could not get any answer from the figure, Mr. Carreiro left.

[92]           Mr. Sandford then approached the residence.  His initial testimony was that the man in the house had a bow and arrow.  He later clarified that although he saw a bow he did not specifically see any arrows and the "club" could have been a knife or a batch of arrows. 

[93]           Mr. Sandford was sure that had done nothing to give any indication that he wanted to fight with the man.

[94]           Cst. Hoogenberg found three weapons when he checked the kitchen: the bow, a baton and bear spray.  The bow is a 2008 combat bow which holds four to eight arrows in some type of holder on the left hand side.  There is a pulley system on the bow which makes it fairly powerful. There was an arrow in the bow, making it ready to fire.  The other two weapons are self explanatory.    

[95]           Having set the context, I now turn to the accused’s version of what happened, with particular emphasis on his reason for bringing the bow to the front door. 

[96]           The accused testified that when he returned to his house after checking the heart-shaped fire, and after probably saying “You don’t want to fuck with me”, Mr. Carreiro charged at him, and almost caught him.  Accordingly, the accused was afraid and ran into his house to get away.  However, when he got into the house he saw the man knocking forcefully on the front door and ringing the door bell. This lead the accused to believe that the man was going to break into his house and he decided he had to defend both himself and his house from invasion.  He did not realize that Mr. Carreiro had left the door and that Mr. Sandford was now at the door. Accordingly, he called 911 and grabbed the bow and went to the front door. 

[97]           The accused testified that while arrows may have been in the holder, he did not have an arrow in his hand when he went to the door.  Nor was the arrow nocked in the bow.  He did not have a knife. 

[98]           With respect to the weapons that were in his house that day, he had the following to say. The bow and arrows were his and he had them out to  clean them earlier that day.   The baton was also his.  He thought it was in his room but he accepted what the constable said about it being in the kitchen.  He was asked what he was doing with it that day.  From what he could recall he was just cleaning it and taking a look at it.

[99]           He further acknowledged that he was wearing an empty utility belt that night.  He was wearing the belt for enjoyment.

[100]      I find as a fact that the accused’s perception of events is inaccurate because of the issues with his reliability that I have described above.  I find that the following happened.  When Mr. Carreiro saw the man go into the neighbour’s yard, he went to the home to warn the neighbours.  I accept his testimony that he walked to the door.  I find that he did not charge or run at the accused; I find that the accused was already in the back yard when Mr. Carreiro approached the house.

[101]      I also accept Mr. Sandford when he says that he did not offer to fight the accused.

[102]      With those findings of fact in mind, I know return to the law.

[103]      The law with respect to the test or approach to be used by a trial judge when determining purpose was addressed by the Supreme Court in R. v. Kerr 2004 SCC 44 , [2004] 2 S.C.R. 371, 2004 SCC 44.  The Court divided on whether the assessment of purpose should be done subjectively or on an hybrid subjective-objective test, in other words, whether an element of the analysis involves the consideration of objective criteria. 

[104]      All, however, agree that an accused person may have more than one purpose for his possession of a weapon at any given time and as long as one of the purposes involves danger to the public peace the offence is made out. In addition, it is clear than any analysis must take into account all the evidence. 

[105]      In this case the following facts are relevant to the determination of the issue:

(1)        The accused believed that the man at the door was going to break into his house and he was alone in the residence at the time.
(2)        The accused had called the police for assistance but they had not yet arrived.
(3)        The accused took a powerful weapon that was loaded (the bow with an arrow) with him when he went to the door to confront the man at the door.
(4)        As the accused went to the door, he was yelling that he would kill the man.
(5)        The accused was under the influence of alcohol at the time he did these things and may not have had a realistic appreciation of the circumstances.
(6)        The accused did not discharge the weapon.
(7)        The accused remained inside his residence.  There is no evidence that he followed Mr. Sandford when he fled the residence. 

[106]      Whether I use strictly subjective or a hybrid objective test to analyse this case, the accused’s appreciation of the facts, even if flawed, is an important consideration.  I find that his belief of what was happening, i.e., that someone was trying to break into his house, was genuine because of the call to 911.  In light of that fact, I find the accused has raised a doubt that the purpose of his possession of the bow was for a purpose dangerous to the public peace and I acquit him of that offence.

Assault with a Weapon

[107]      This offence is found in section 267(a) of the Criminal Code.  The gravamen of the offence is the commission of an assault as defined by section 265 of the Criminal Code where the accused, while committing the assault, carries, uses or threatens to use a weapon or an imitation weapon. 

[108]      Section 265 of the Criminal Code describes several ways of committing an assault. Since this case does not involve actual physical contact between the accused and Mr. Sandford, the applicable portion of the definition is subsection (b):

 265(1) A person commits an assault when
(a) ...
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; ...

[109]      The allegation here centers on the possession of the bow (a weapon) while threatening Mr. Sandford.

[110]      I have already given my reasons for my conclusion that I do not accept the accused’s version of the events at the front door.  I find his evidence on the point is unreliable.  Having found that the accused threatened Mr. Sandford and that while he did so the accused was carrying a bow, nocked with an arrow, the essential facts of this offence are made out.  

[111]      Unlike the previous offence, possession of a weapon for a purpose dangerous to the public peace, which focuses on the intention and perception of the accused, the offence of assault with a weapon includes an assessment of the belief of the recipient of the threat. 

[112]      In this particular case, having accepted the evidence of Mr. Carreiro and Mr. Sanford, I have no doubt that Mr. Sanford perceived a threat by an act or gesture to apply force to him. 

[113]      Furthermore, I find that Mr. Sanford had a clear reason to believe that the accused had the present ability to affect his purpose.  That reason is quite simply because I find the accused did have the bow in his hand and he did have an arrow nocked in the bow at the time he made the threat. 

[114]      The fact that the bow was found with the arrow in it supports that evidence. 

[115]      Accordingly, I find that the Crown has made out the essential facts of this offence.  Indeed, on the basis of the facts that I have found, the charge of assault with a weapon captures the criminality of the actions of the accused more accurately than does the charge of possession of a weapon for a purpose dangerous to the public peace. 

Defence of Property

[116]      Having found that the Crown has established the facts necessary to establish the offences of uttering threats and assault with a weapon, I now turn to the final issue: are these actions excused by section 41 of the Criminal Code: defence of property?

[117]      Section 41 (edited to omit portions that do not apply in this case) provides that:

Everyone who is in peaceable possession of a dwelling‑house or real property … is justified in using force to prevent any person from trespassing on the dwelling‑house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.

[118]      The law holds that the standard used to assess "no more force than is necessary" is that of reasonable prudence in the circumstances.  See R. v. Dixon 1993 5402 (NB CA), (1993), 26 C.R. (4th) 173 (N.B.C.A.).  Necessary force is a flexible standard and whatever force is used will not be measured to a nicety. 

[119]      As with other defences, once the accused has adduced evidence (either through the Crown witnesses or its own) which is capable of supporting the defence, the burden is on the Crown to negate the defence.  The standard of proof on the Crown to do this is beyond a reasonable doubt.

[120]       However the Crown need only negate one element of the defence. In R. v. Hebert 1996 202 (SCC), (1996), 107 C.C.C. (3d) 42, the Supreme Court said:

"...The Crown is not required to prove beyond a reasonable doubt that the appellant’s conduct fails on every element of the defence.  It suffices if the Crown can prove beyond a reasonable doubt that any one of the four elements set out above was not established." (paragraphs 23‑25)

[121]      The elements of this defence are:

(A)      the accused is in peaceable possession of the property;
(B)      the victim of the assault is a trespasser ;
(C)      the force used to prevent the trespasser or remove the trespasser is no more than

[122]      Accordingly, the Crown need only negative one of the three elements of this defence to remove it from my consideration.

[123]      In this case, the basis of the defence is the belief of the accused that the man at his door had earlier charged him and was now going to break into his house.  On these facts there is no issue that the accused was in peaceable possession of the property.  The issues that arise in this case, then, are whether Mr. Sanford and Mr. Carreiro were trespassers and whether the force used was no more than necessary. 

[124]      I will return to the evidence on this point.

[125]      Mr. Carreiro testified that he went to the door to warn the neighbour, whom he knew slightly, about the presence of the unknown man in the back yard.  When he reached the door he rang the door bell and knocked, with purpose, on the door. When he got no reply, he called out "Is anybody home?"  He then heard the dogs and saw the figure in the house.  He asked that the person identify himself.  He also asked the person to come to the door.  When he received no response he left the premises.  However, by then his suspicions were aroused and he concluded that the figure that he had seen earlier that evening had come from this house. 

[126]      He denied charging at the accused while he was standing near the fence. 

[127]      He told Mr. Sandford that he believed that the man in the house was breaking into the neighbour’s house.

[128]      Mr. Sandford testified that when he returned from the second check of the neighbourhood, his father-in-law told him that "he" just broke into the neighbour’s house.  Mr. Sandford then went over to the neighbour’s.  When asked why he did that he said "obviously the heat of the moment.  Wanted to find out who would come harassing my family".  He conceded that he was possibly angry. 

[129]      Mr. Sandford said he walked towards the door.  He could not remember if he said anything or if he actually reached the door. He could only remember the man coming to the door with the bow saying that "He was there to kill me."  The man got within a couple of feet of Mr. Sandford who quickly turned and ran to his home, got his family inside, and called the police.

[130]       Mr. Carreiro testified that he saw Mr. Sandford walk up to the door of the neighbour’s house and ring the bell.  He then saw his son-in-law run from the house.  

[131]      On this evidence I find that Mr. Carreiro was not a trespasser.  His intention upon entering the property was to warn his neighbours that a man was possibly lurking on their property.  This good Samaritan role would fall within the invitee rules.

[132]      The analysis concerning Mr. Sandford’s status, on the other hand, is problematic given his intentions and his emotional state.  Accordingly, for the purposes of assessing this defence, I will assume, without more, that Mr. Sandford was a trespasser.

[133]      The question then becomes, was the accused’s response reasonable?  Calling 911 was a reasonable course of action.  However, going to the door, threatening to kill Mr. Sandford while armed with the bow and arrow was not reasonably prudent and I find that it far exceeds even the generous standard of "no more force than is necessary". 

[134]      In some circumstances a person in possession of real property may well have to resort to force to protect the property and may not be in a position to wait for police assistance.  However, the facts of this case do not fall within that situation.  While Mr. Sandford was emotional, there is nothing to suggest that he wanted to attack the accused or that he would break into the home.  Indeed, he had not even made it to the door when the accused ran at him, armed with the bow, threatening to kill him.  

[135]      The accused’s choice of this manner of dealing with a "trespasser" becomes even more unreasonable when one considers the other choices available to the accused.  He could readily close and lock the inside door, keeping Mr. Sandford out of the house.  Rather than threatening to kill, he could have asked Mr. Sandford to leave the premises. Since he had already called the police, he could have merely waited. 

[136]      This negates the third element of the defence beyond a reasonable doubt.

[137]      Thus I find that even assuming that Mr. Sandford was a trespasser, the response is not justified by section 41 of the Criminal Code. Accordingly, the defence as set out in section 41 of the Criminal Code is not available to the accused.

[138]      In conclusion, I acquit the accused of the offences of criminal harassment and possession of a weapon for a purpose dangerous to the public peace.  Having found that the Crown has made out the offences of uttering threats and assault with a weapon beyond a reasonable doubt, and having found that the defence does not justify these actions, I convict the accused of those two offences.

Dated at the City of Edmonton, Alberta this 9th of day of November, 2010.

S.R. Creagh
A Judge of the Provincial Court of Alberta


S. Niblock
for the Crown

B. Tralenberg
for the Accused
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