The Judge's Decision In The "Death Threat" Trial
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
R E A S O N S F O R J U D G M E N T
BEFORE THE HONOURABLE JUSTICE L. DEAN,
on JANUARY 24, 2007, at WINDSOR, Ontario.
CHARGES: S. 264.1(1), C.C. – Utter threat to cause death
WEDNESDAY, JANUARY 24, 2007
CLERK OF THE COURT: In the matter of Nectarios
REASONS FOR JUDGEMENT
DEAN, O.C.J (Orally):
Mr. Kouvalis is charged with on or about the 13th day of July, 2005, at the Town of Kingsville he did utter a threat in person to Kadee Schnekenburger and Angela Jonsson to cause death to Jeff Watson. The court heard evidence two separate days. It is always important to remind members of the public who are not familiar or as familiar with the criminal process as they are perhaps with the civil process about the differences between a civil prcess and a criminal process.
The accused is presumed innocent, walks through the courtroom doors in a criminal matter with the presumption of innocence cloaked around him. Until the crown meets their burden, which is to prove the allegations against the accused beyond a reasonable doubt, that presumption of innocence remains in tact.
It is not unusual for members of the public to hear about someone being charged, read about the allegations as the case proceeds and take that presumption away from the accused and presume that he is guilty as opposed to presuming he is innocent.
The court is always reminded on a daily basis and starts every trial with that presumption. It is a heavy onus on the crown to prove a case beyond a reasonable doubt. I rely on the Supreme Court of Canada decisions in Lifchus and Starr which help or at least attempt to help explain to members of the public and also lawyers and judges alike what beyond a reasonable doubt means.
It does not mean absolute certainty. That is a burden that most likely could never be met. But it is closer to an absolute certainty than it is to a balance of probabilities which is the burden of proof in a civil case. If one were to picture the scales of justice which is often a symbol associated with justice it is the burden of “on the balance of probabilities” which is more reflective of a civil burden in that one side is tipped either way. That symbol more reflects a civil burden than a criminal burden. If it reflected a criminal burden one side would be touching the ground or almost touching the ground.
So we begin as a trier of fact with the presumption of innocence and the burden of proof on the crown in mind as we hear evidence we have those at the forefront of our mind when evaluating the evidence.
The section that Mr. Kouvalis is charged under is 264.1(1)(a) of the Criminal Code and it reads as follows, “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”.
The jurisprudence, the case law surrounding s. 264.1 makes it clear that there is no requirement that the intended victim, in this case Jeff Watson, that the intended victim of the threat be aware of the threat. That statement of law comes from the Supreme Court of Canada case R. v. Clemente, 1994 2 S.C.R. 758.
The facts of this case, just briefly, involved Mr. Kouvalis attending at a residence and going into the basement of that residence where Ms. Schnekenburger and Ms. Jonsson were working. They were being supervised in their work by Mr. Kouvalis and there was approximately a 30 minute conversation which took place down in this basement regarding political matters.
Mr. Kouvalis at the time was working for Mr. Fusci’s campaign or anticipated campaign and Ms. Schnekenburger and Ms. Jonsson were employed to assist in that as well. They had a conversation regarding an upcoming barbecue that was to take place That was at least one of the things discussed. It was during this conversation in the basement that Ms. Schnekenburger and Ms. Jonsson indicate that Mr. Kouvalis said that “If I could fucking kill Jeff Watson with my bare hands and get away with it I would”.
After Mr. Kouvalis left apparently one or both of these ladies attended the upstairs of the residence, spoke with Ms. Schnekenburger’s mother which ultimately led to speaking to other persons involved in the Schnekenburger family and Ms. Jonsson’s family, which ultimately leading to a discussion with Mr. Watson and his wife.
This all took place over a period of five days. On the fifth day a decision was made after all of these people met together in a residence to discuss the matter to call the police and that ultimately led to the charges against Mr. Kouvalis.
As stated in the Supreme Court of Canada decision of Clemente and also R. v. McCraw 1991, 66 C.C.C. (3d) 517, the aim of the section that Mr. Kouvalis is charged under is to protect the exercise of freedom of choice and action by preventing intimidation and fear. The actus reas of the offence is the uttering of the threats of death or bodily harm. The mens rea is that the words spoken, be spoken with the intent to intimidate or instill fear or put another way, to be taken seriously.
To be clear, the issue is not whether the statements intimidated or instilled fear or were taken seriously, but rather the issue is whether the accused Mr. Kouvalis uttered them with the intention to intimidate or instil fear.
When answering the question of whether the accused had the requisite intent I must regard the words uttered objectively and in the absence of any explanation by the accused, I must review them in light of the circumstances in which they were uttered, the context in which they were spoken and the person to whom they were directed.
Having applied that statement of law to the present case, I cannot conclude beyond a reasonable doubt that the words spoken were said to intimidate or strike fear or to be taken seriously within the purpose and aim of the section.
Many factors lead me to that conclusion, such as the young ladies’ actions, although their actions may have been guided by supposedly wiser and more experienced persons; persons who collectively ultimately decided to discuss the matter from a political perspective before deciding what to do about the statements of Mr. Kouvalis. That they took Mr. Kouvalis seriously within a criminal context of, or I should say and that they were intimidated, or struck with fear or about the political consequences for Mr. Watson, Mr. Kouvalis,Themselves, others or the conservative party as a whole.
Ms. Schnekenburger testified that the group, when they met before deciding to call the police, weighed the pros and cons of having Mr. Kouvalis arrested and then once the conclusion was reached by the group which included Mr. Watson, the young ladies sat down together at a computer and completed a recollection of what occurred between them and Mr. Kouvalis. They never told the officers of the statement they had prepared on the computer and the statement is no longer available at the time of the trial. Then three days prior to the trial the young ladies met at the Watson residence to discuss the case generally and parts of their evidence, more specifically the time lines. As I said, what am I to make of all of this.
The accused met with the ladies on that Wednesday as their boss. They discussed the work they were doing as well as the upcoming conservative barbecue and apparently while discussing that barbecue and who was or was not going to be there, that is when the words were uttered that brings this matter before the court.
I had to ask myself whether the statement that was made by Mr. Kouvalis was uttered with that criminal intent I spoke of earlier or was it simply a statement uttered by Mr. Kouvalis in the Heat or passion of the moment which is often part of politics. As Mr. Rohrer testified, “Politics seemed to intensify things”.
Ms. Schnekenburger herself testified she may have even said at a time or times that she was going to kill him, referring to Mr. Watson, as a result of different things that came up between the camps. The camps she was referring to was Mr. Watson’s and Mr. Fusci’s camps.
Context is extremely important in a case such as this. The usual context utter threat charges come before this court involve typically two parties who are about to engage in or are engaged in or have just finished engaging in, a physical altercation. Often the threat is made over the phone, after a breakup or over custody and access to children, or other similar emotional events.
My experience in life has also involved knowing of those words being said among co-workers, friends, teammates, about other co-workers, friends and teammates when in the heat of the moment and not really said with the criminal intent required by s. 264.1. They are said and all too often recklessly or carelessly by people who do not appreciate the quicksand they may find themselves in if others hearing the comments believe they mean them sincerely and therefore choose to get the police involved.
As I said, in this matter I have had to deal with the question of whether or not this matter was before the court because although the young ladies or Mr. Watson or others in the group are fearful of Mr. Kouvalis because of what he said, are they assessing what move to make and what evidence to give because they are concerned about political consequences for themselves or Mr. Kouvalis and/or the conservative party. I do not mean to imply that that is not a legitimate concern, certainly it is not unusual for people to consider before calling the police whether it is something they want to get involved in.
The facts I heard in this case and the length of time that it took for the matter to ultimately be brought to the attention of the police, and also being mindful of that head of the moment passion that may have existed, I am left with doubt in this matter and I return to the fundamental principles that I spoke of earlier; that the accused is presumed innocent until proven guilty beyond a reasonable doubt. In this particular case with the facts that I heard, the crown has not met its burden.
Therefore the accused is acquitted.