Courts Martial

 

COURT MARTIAL

 

Citation: R. v. Parent, 2018 CM 4003

 

Date: 20180208

Docket: 201754

 

Standing Court Martial

 

Canadian Forces Base Kingston

Kingston, Ontario, Canada

 

Between:

 

Her Majesty the Queen

 

- and -

 

Corporal D.W.F. Parent, Accused

 

 

Before: Commander J.B.M. Pelletier, M.J.

 

REASONS FOR FINDINGS

 

(Orally)

 

Introduction

 

[1]               Corporal Parent is charged under the Code of Service Discipline with two counts under section 130 of the National Defence Act, contrary to paragraph 264.1(1)(a) of the Criminal Code in relation to allegations that on 21 October 2016 he made two distinct sets of threats to cause death to Sergeant Duncan, a supervisor at Canadian Forces Base (CFB) Kingston. It is alleged in the first charge that a threat was knowingly uttered verbally, at the Junior Ranks Mess, in the presence of colleagues. The second charge alleges a threat contained in text messages sent that same afternoon by Corporal Parent to Corporal McGarvey, a friend and colleague.

 

The evidence

 

[2]               The evidence consists of the oral testimony of five witnesses called by the prosecution during the trial as well as four witnesses called by the defence. There was one document introduced as exhibit, a letter from Corporal Parent’s therapist dated 2 November 2017. The Court took judicial notice of the facts and matters covered by section 15 of the Military Rules of Evidence.

 

[3]               The evidence from the first two witnesses called by the prosecution, Corporal Stevens and Private Northrup-Smith, related to what Corporal Parent said on the afternoon of 21 October 2016 at the CFB Kingston Junior Ranks Mess, where they were then attending a mess meeting. In addition to providing evidence as to the words that had been spoken with respect to the first charge, these witnesses provided elements of context on the circumstances in which the words attributed to Corporal Parent were uttered. They also explained what they did in the following hours. Corporal Stevens drove to building C-36 immediately after her conversation with Corporal Parent at the mess meeting. She met with the supply officer to complain about how Corporal Parent was treated by his chain of command, reporting the words she heard him say. This meeting lead to actions from the supply officer.

 

[4]               Master Corporal Ishmael testified to provide context as to events that followed the meeting between the supply officer and Corporal Stevens, including the decision of the supply officer to summon Corporal Parent to meet with him at the unit. As a result of that meeting, Master Corporal Ishmael decided to inform Corporal Parent’s immediate supervisor and, as a result, obtained information relating to disturbing text messages Corporal Parent would have exchanged with Corporal McGarvey that afternoon, relevant to the second charge. He went to the military police station as he thought that the police should obtain these text messages.

 

[5]               For his part, Master Corporal McGarvey testified on the text messages he exchanged with Corporal Parent on 21 October 2016, the subject of the second charge. Warrant Officer Duncan was the last witness called for the prosecution. She provided context for a meeting she had with Corporal Parent just after lunch on 21 October 2016, having him ordered back to the unit from the Junior Ranks Mess, where he had gone, in her view, without having been given permission to be absent from his desk for the short period between the end of lunch and the time he had to be attending the mess meeting.

 

[6]               Witnesses called by the defence provided no information on the words constituting the alleged threats made. Rather, they provided context as it pertains to the work environment at the unit where Corporal Parent was serving at the time of the offence and since, including the way the situation was handled by unit authorities, both on the day of the alleged offences, Friday, 21 October 2016 and on the subsequent Monday, 24 October 2016, when Corporal Parent was set to come back to work following a visit to consult with medical professionals.

 

[7]               The testimony of Master Warrant Officer Grondin, for the defence, was useful to the narrative. He is the person who advised the supply officer to meet with Corporal Parent upon having been informed by Corporal Stevens of the words allegedly said at the mess. Master Warrant Officer Grondin attended the unit after receiving a call from the supply officer to the effect that Corporal Parent was agitated in his office. Upon observing Corporal Parent on that occasion, Master Warrant Officer Grondin concluded that there was no immediate threat. In consultation with the supply officer, he decided that he would address the situation raised by Corporal Stevens by speaking to Corporal Parent on Monday 24 October. Shortly after Corporal Parent had left the unit, Master Warrant Officer Grondin learned that Corporal Parent had weapons in his residence on base. He decided to attend the military police station to inform them of that fact and Corporal Parent’s agitated state and alleged threats spoken at the mess. He suggested that the military police obtain those weapons as an additional measure of safety and because he believed that possession of personal weapons was not authorized in private quarters on base. After he had provided a statement, he ran into Master Corporal Ishmael at the military police station. He was, at that point, informed that Corporal Parent had exchanged disturbing text messages with Corporal McGarvey. By then, the military police had taken over the investigation and were in the process of taking action.

 

[8]               The defence called three other witnesses in the course of the trial: Corporal Dunford, a friend of Corporal Parent who was serving with the same unit in October 2016; Sergeant Miles, who became Corporal Parent’s supervisor at Base Clothing Stores a short time after the events; and Mrs. Erin Merry, who has been involved as therapist/social worker for Corporal Parent since 2014. These witnesses were not directly involved in the events of 21 October 2016. They related information of context as it pertains to the stress Corporal Parent was experiencing at the time and since, as well as events and actions by military authority following the incidents of October 2016.  This included a lockdown procedure undertaken at the unit on Monday, 24 October as Corporal Parent could not be located even if he was where he said he was going to be, that is obtaining assistance on base. I find this evidence to be of limited relevance to the analysis I need to make to arrive at findings on the charges.

 

The law

 

Essential elements to be proven

 

[9]               The law relating to the offence of uttering threats is well settled and particularly well explained by the Supreme Court of Canada in R. v. McRae, 2013 SCC 68. The essential elements of a charge under section 130 of the National Defence Act for uttering threats contrary to paragraph 264.1(1)(a) of the Criminal Code are as follows:

 

(a)                identity of the accused;

 

(b)               date and place of the offence;

 

(c)                the prohibited act (actus reus): that the accused knowingly uttered or conveyed a threat of death or bodily harm; and

 

(d)               the fault element (mens rea): that the words uttered were meant to convey a threat. This element is proven either by establishing that the accused:

 

                                                i.                     intended to intimidate; or

 

                                              ii.                     intended that the threat be taken seriously.

 

The prohibited act

 

[10]           The elements of identity, time and place of the offence are common to every offence. As for the prohibited act, the question of whether the words attributed to Corporal Parent constitute a threat is a question to be decided on an objective standard, meaning that the nature of the threat must be looked at as it would be by the ordinary reasonable person in the circumstances in which the words were uttered. That reasonable person is one who is objective, fully informed of the circumstances of the case, right-minded, dispassionate, practical and realist. The prosecution is not required to prove that the intended recipient of the threat was aware of it, that he or she was intimidated by it or took it seriously. Further, the words do not have to be directed towards a specific person; a threat against an ascertained group of people is sufficient.

 

The fault element

 

[11]           For its part, the fault element is subjective. What matters is what Corporal Parent actually intended: did he intend, by the words he uttered, to intimidate or to be taken seriously? This question will be determined based on inferences drawn from all of the circumstances. The circumstances from which to infer the accused’s intention include the perception of those who heard the words. It is not necessary to prove that the accused intended that the words be conveyed to the object of the threat or that the accused intended to carry out the threat. It is important to remember that whether the accused specifically intended to intimidate anyone is not required for the fault element to be made out, as long as he or she intended the threats to be taken seriously.

 

[12]           Therefore, even threats uttered in the course of a private conversation or exchange that an accused person may have expected to remain confidential can constitute an offence under subsection 264.1(1) of the Criminal Code as the confidential nature of the words uttered does not preclude a finding that both the prohibited act and the fault element of the offence have been made out. Indeed, as stated at paragraph 24 of McRae:

 

Threats are tools of intimidation and violence. As such, in any circumstance where threats are spoken with the intent that they be taken seriously, even to third parties, the elements of the offence will be made out.

 

Proof beyond a reasonable doubt

 

[13]           Underlying the analysis of those issues and, indeed, any charge by a court is the constitutional requirement for the prosecution to prove its case beyond a reasonable doubt. Indeed, the accused enters penal proceedings presumed to be innocent. The burden of proof rests on the prosecution throughout the trial and never shifts to the accused. The standard of proof beyond a reasonable doubt is inextricably intertwined with a principle fundamental to all criminal trials: the presumption of innocence. This means that before an accused can be convicted of an offence, the judge must be satisfied beyond reasonable doubt of the existence of all of the essential elements of the offence.

 

[14]           A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. It is not sufficient for me to believe the accused is probably guilty or likely guilty. In those circumstances, the accused must be given the benefit of the doubt and acquitted because the prosecution has failed to satisfy me of the guilt of the accused beyond a reasonable doubt. On the other hand, I must keep in mind that it is virtually impossible to prove anything to an absolute certainty and the prosecution is not required to do so.

 

Analysis of the first charge – Threats at the Junior Ranks Mess

 

The particulars

 

[15]           The first charge of uttering threats has been particularized as follows:

 

“In that he, on 21 October 2016, at or near CFB Kingston, Ontario, knowingly uttered threats to cause death to Sgt Duncan.”

 

The facts

 

[16]           As mentioned earlier, two witnesses provided evidence on the words uttered as it pertains to the first charge.

 

[17]           Corporal Stevens testified that she attended the Junior Ranks Mess at CFB Kingston on 21 October around 1300 hours, in anticipation of a mess meeting which she believed was to start at 1330 hours. She said that shortly after her arrival, Corporal Parent arrived and ordered a beer from the bar. She knew him as they had been co-workers. After Corporal Parent had taken his first sip of the beer that he ordered, he got a message on his phone to return to his workplace at building C-36 and meet with his supervisors. He left and came back to the mess at around 1400 hours. Upon his return, he was visibly upset. He said that he was very displeased with his supervisor, Sergeant Duncan. He said he hated her.

 

[18]           Following the mess meeting, Corporal Stevens testified that Corporal Parent still had significant anger bubbling. He said he would like to get drunk but could not as he had to pick up his son. Then the venting by Corporal Parent about his chain of command escalated to the point where he said that he wanted to kill them all; that he wanted Sergeant Duncan to feel as much pain and suffering as possible. Upon hearing these words, Corporal Stevens said she tried to calm and reason with Corporal Parent, mentioning that he may not be able to see his son again if he does things like that. His reply was that he would have visits from his son in prison. Corporal Parent advised Corporal Stevens not to be in the vicinity of building C-36 on Monday morning. He said he did not want her to be caught in the crossfire given that he would go in the field with a rifle and shoot them “one by one.” She interpreted these words as meaning that he would shoot those belonging to the supervisory staff at the unit, including Sergeant Duncan. Corporal Stevens told the Court she was in shock upon hearing these words and feared for the safety of the people, in her view, targeted, including Sergeant Duncan. However, she also feared for Corporal Parent, realizing that he felt he was running out of options. He needed help and his threatening words were a way to call for help.

 

[19]           Corporal Stevens testified that, after attending the mess, she became agitated because of what she had heard and was angry as she perceived that Corporal Parent was not getting the help he needed from his chain of command. She got in her car and drove directly to building C-36 to speak with a senior member she knew from that chain of command. That master warrant officer was absent, but she was able to speak to the supply officer and reported what she had heard at the mess hoping to get some help for Corporal Parent. She testified that she, herself, suffered from mental health issues and had gotten good support from her chain of command.  She sought the same thing for Corporal Parent and was quite emotional on his behalf.

 

[20]           On cross-examination, it was suggested to Corporal Stevens that Corporal Parent was expressing, at the mess, a desire to do certain things as opposed to stating that he was going to do them. She replied that the words spoken were threatening to Sergeant Duncan as Corporal Parent referred to causing pain and suffering to her specifically. As he was specific as to how he wanted to do it and had consequently advised her not to be near the building on Monday, she said she believed the worse could have happened and decided to report the fact that these words were spoken. Even if she was not sure if Corporal Parent was going to do it, she asked herself what would happen if the threats materialized and she had failed to say something. Confronted with her testimony to the effect that she saw the words as a call for help, she confirmed that it was a call for help, albeit a dangerous one.

 

[21]           Private Northrup-Smith also provided evidence on words uttered as it pertains to the first charge. At the time, he was renting a room in Corporal Parent’s house on base and was spending considerable time with him chatting and playing videogames. The evidence reveals that Corporal Parent would leave his young son in Private Northrup-Smith’s care at the house if he had to go away for short periods of time. I conclude their relationship was more than the typical landlord-tenant relationship. Private Northrup-Smith said that, on the afternoon of 21 October 2016, he was present at the Junior Ranks Mess for the mess meeting. He witnessed Corporal Parent receiving a message to go back to work and observed, when Corporal Parent returned, that he was visibly frustrated and angry. He heard Corporal Parent state that he hated Sergeant Duncan and did not want to work for her and go back to his workplace anymore.

 

[22]           Corporal Parent left the table where people were gathered and Private Northrup-Smith went over to calm him down. At that moment, Private Northrup-Smith testified that he heard Corporal Parent say that he was going to shoot Sergeant Duncan in the face. He tried to reason with Corporal Parent by saying that he did not want to do that because if he did he wouldn’t be around to take care of his son. Corporal Parent would have then replied, “They won’t know it’s me. They will never find the body.” Private Northrup-Smith said he was shocked by this answer. When asked by the prosecutor if he thought, at that time, that Corporal Parent was serious, Private Northrup-Smith said that he didn’t know, that it could have been one of these things he said at the time, as when, a few weeks previously, he had warned people not to show up for work as he would bring a weapon with him. Private Northrup-Smith did not report that previous incident nor did he report the words he heard from Corporal Parent on 21 October 2016 until he was pulled aside by superiors at work the following Monday and summoned to a meeting with the supply officer. On that occasion, on 24 October 2016, he was advised to make a report to the military police concerning what he had heard. He was also advised to move out of Corporal Parent’s residence, which he did.

 

[23]           In cross-examination, Private Northrup-Smith provided details as to what occurred following his return home, Corporal Parent’s home, after the mess meeting. Corporal Parent’s son was present. At one point Corporal Parent was called to a meeting at work. Subsequently, the same evening, members of the military police attended the house. He acknowledged suggestions that the venting heard from Corporal Parent on 21 October was a call for help.

 

[24]           Counsel did not challenge the credibility of these witnesses, although the defence raised the possibility that the perception of the events by Corporal Stevens might have been affected by her consumption of one drink, a cider, at the mess, given that she was under medication at the time. I find there was no evidence that Corporal Stevens was in any way affected by alcohol, alone or in combination with medication, at the time. In fact, the evidence tends to establish she was quite sober and entirely capable of making observations and relate them to the Court. Despite the fact that she was nervous, Corporal Stevens testified in a straightforward manner, considered each question fully before providing thoughtful answers without exaggeration or inconsistency, admitting when her memory would not allow reaching firm conclusions and readily admitting potential failings on her part, for instance when she said she was emotional on behalf of Corporal Parent when she met with the supply officer. I find her to be a highly credible witness. Private Northrup-Smith was also a credible witness. I infer from his absence of complaints on 21 October 2016 that he was not overly concerned about the safety of Sergeant Duncan or anyone else as a result of the words he heard; a stance that was entirely reasonable on his part given that Corporal Parent was in his presence at home, with his son, following the mess meeting. Even if Private Northrup-Smith was invited by his superiors to provide a statement to the military police the next Monday, I have no reason to conclude that he was encouraged to exaggerate the severity of what he heard at the mess, either in his statement to police or before this Court.

Elements of identity, time and place of the offence

 

[25]           No issues were raised by counsel as to the date and place of the alleged offence: Private Northrup-Smith confirmed that the mess meeting was on 21 October 2016 and even if Corporal Stevens did not remember the exact date of the meeting, the events she described occurring at the Junior Ranks Mess in conjunction with a mess meeting leave me with no doubt that she was discussing events which occurred on the same occasion as the events described by Private Northrup-Smith. As for identity, defence counsel mentioned that although Private Northrup-Smith had offered an in-court identification of Corporal Parent as the person who had uttered the words he testified about, the same did not occur in the course of the testimony of Corporal Stevens. It is inferred that Corporal Stevens may have been referring to words of someone else. I don’t accept this argument. Even if Corporal Stevens did not provide in-court identification, the issue is one of recognition as she knew Corporal Parent and had been interacting with him for quite some time prior to the alleged offence. She was not referring to words uttered by some unknown person: she described words uttered by Corporal Parent on the same occasion described by Private Northrup-Smith. I am satisfied beyond a reasonable doubt that this element has been proven.

 

The prohibited act

 

[26]           In their testimony, the two witnesses called by the prosecution related different words said by Corporal Parent, but it is so simply by virtue that they related different conversations. This is not a case of conflicting testimony. Both witnesses related words that may constitute a threat. Corporal Stevens heard Corporal Parent say he wanted to kill them all, which included Sergeant Duncan whom he wanted to feel as much pain and suffering as possible. Private Northrup-Smith heard Corporal Parent say that he was going to shoot Sergeant Duncan in the face. As explained, in determining if the prohibited act was proven, the law requires that the nature of the threat be assessed objectively, as it would be by the ordinary reasonable person. At paragraph 11 of McRae, the Supreme Court of Canada stated that:

 

The starting point of the analysis should always be the plain and ordinary meaning of the words uttered. Where the words clearly constitute a threat and there is no reason to believe that they had a secondary or less obvious meaning, the analysis is complete.

 

This is the case here as the words, in my view, clearly constitute a threat.

 

[27]           I acknowledge that sometimes the context in which the words were uttered may reveal a less serious meaning: apparently threatening words may not constitute threats within the meaning of the Criminal Code. However, there are no elements of context that would diminish the seriousness of the words spoken here. The context relevant on the facts of this case is one where Corporal Parent comes back to the Junior Ranks Mess following a difficult meeting with a supervisor he dislikes and who has been a source of stress for him for a while. He vents about that supervisor to colleagues, no doubt unhappy about the circumstances which obliged him to go back to his unit for a meeting immediately after taking the first sip of a beer he ordered. There is no other element of context in evidence that may be relevant to assess the nature of the words spoken. Consequently, I conclude that the prohibited act has been proven. Corporal Parent knowingly uttered a threat of death.

 

The fault element

 

[28]           Turning now to the fault element, which I consider to be the real issue in this case as it pertains to the first charge, I must determine if the words uttered were meant to convey a threat of death, either because Corporal Parent intended to intimidate or intended that the threats be taken seriously. It is important to remember that the intention that the threats be taken seriously is different than an intention to carry out the threat. Corporal Parent may have intended that his threats be taken seriously even if he had no intention of carrying out these threats. In law, it does not matter whether the accused meant to carry out the threat.

 

[29]           I doubt that, on the facts of this case, Corporal Parent intended to intimidate those he was speaking to on 21 October 2016. Corporal Stevens and Private Northrup-Smith were friendly colleagues of his. The question is whether he intended his threats to be taken seriously. Corporal Parent did not testify so I must infer his intent from the circumstances, especially the context in which the words attributed to him were spoken. Defence counsel invites me to consider the actions of the two persons to whom the words were spoken as actions speak louder than words. I accept this invitation, but I reach a different conclusion than the one suggested.

 

[30]           Indeed, the actions taken by both Corporal Stevens and Private Northrup-Smith upon hearing the threatening words spoken by Corporal Parent were to the effect of speaking with him and trying to calm him down, using the argument of Corporal Parent’s responsibilities towards his son. They did not laugh at these words nor attempt to change the subject. They took action, trying to convince Corporal Parent that it would be a bad idea to carry out his threats given the consequences. On both occasions, Corporal Parent responded by making remarks to minimize these consequences, thereby enhancing the severity of the threats. Corporal Parent told Private Northrup-Smith they would not “find the body” of Sergeant Duncan. He told Corporal Stevens to stay away from his workplace, building C-36, on the Monday as he would be shooting them all, “one by one.” In my view, these are the words of a person who intends to be taken seriously.

 

[31]           I acknowledge that both of these witnesses testified that they did not know or were not sure if Corporal Parent was serious. I infer from their testimony that they were not sure if Corporal Parent had the intention to carry out his threats. Yet, Corporal Stevens said she feared for the safety of the people, in her view, targeted, including Sergeant Duncan. Private Northrup-Smith did not express such concerns in testimony, but as alluded to earlier, he was in the privileged and unique position in assessing the risk posed by Corporal Parent as he lived with him and was in his company almost immediately after attending the Junior Ranks Mess. I also recognize that both of these witnesses said that they interpreted Corporal Parent’s words as a call for help. Yet, for such a call for help to be effective, the threats had to be taken seriously, otherwise no action would have been taken. In my opinion, Corporal Parent made sure he would be taken seriously. The evidence reveals that he was: Corporal Stevens took the extraordinary step to getting in her car to meet with a senior member of the unit, even if she was a private at the time, to advocate emotionally on behalf of Corporal Parent.

 

Conclusion on the first charge

 

[32]           As a result and for those reasons, I find that all elements of the first charge of uttering threats have been proven beyond a reasonable doubt. Corporal Parent must be found guilty of that first charge.

 

Analysis of the second charge – Threats via text message

 

The particulars

 

[33]           The second charge for uttering threats has been particularized as follows:

 

“In that he, on 21 October 2016, at or near CFB Kingston, Ontario, did by text message, knowingly convey threats to Cpl McGarvey to cause death to Sgt Duncan.”

 

The facts

 

[34]           In relation to that charge, the testimony of the recipient of the text messages sent by Corporal Parent, Corporal (now Master Corporal) McGarvey, is capital to relay what was written and the context of the text message conversation that occurred. In direct examination, Master Corporal McGarvey did not have independent memory of the details of that text conversation. What he did remember is that some of the texts transmitted by Corporal Parent came across as threatening to certain individuals and alarming as it pertains to Corporal Parent’s safety. Master Corporal McGarvey said that he had been texting back and forth with Corporal Parent all day and that his own health was a factor that had prompted Corporal Parent to engage in the conversation, which also included a number of exchanges regarding Corporal Parent’s difficult personal situation at the time. Having been shown a document which contained a printout of texts exchanged between him and Corporal Parent on 21 October 2016, Master Corporal McGarvey stated that the document before him was showing only a portion of the texts exchanged at that time. Master Corporal McGarvey does not know the details of what is missing, but stated that only the threatening texts were included in the document. No explanation was provided as to how the document came to be made or who decided what would be included on the document and when. On occasion, Master Corporal McGarvey was unable to ascertain the meaning of what appeared as the text was cut off. It is the case for a text from Corporal Parent which read, “I am going to kill…,” Master Corporal McGarvey being unable to state if those words were referring to Sergeant Duncan, the chain of command or himself.

 

[35]           Master Corporal McGarvey did say that the issue of a meeting between Corporal Parent and Sergeant Duncan had come up at one point in the text message conversation and that Corporal Parent was expressing frustration at what had occurred. Master Corporal McGarvey also said that the exchange took a turn for the worse at 1400 hours, the approximate time when Corporal Parent was observed returning to the Junior Ranks Mess for the mess meeting in an agitated state. Master Corporal McGarvey said he received a text in which Corporal Parent mentioned a “308 lobotomy” which he interpreted as meaning that Corporal Parent intended to shoot himself. When prompted by the prosecutor to refer to a specific portion of the document before him, Master Corporal McGarvey read a text from Corporal Parent which stated, “She is lucky she is making it to four o’clock.” In direct examination, he said that, in his opinion, “she” meant Sergeant Duncan and that he thought this text meant that Corporal Parent would harm her in some way. He testified that he then asked Corporal Parent if he was serious. Corporal Parent replied, “Yes.” He said that, at that point, he was concerned so he wrote back to the effect that if that was the case he would have to contact Corporal Parent’s immediate supervisor. The reply was affirmative so Master Corporal McGarvey called that supervisor. As that person was not at work, the conversation was turned over to Master Corporal Ishmael.

 

[36]           In cross-examination, Master Corporal McGarvey agreed that although he did not know exactly what was edited from the printout of text messages exchanged between him and Corporal Parent, there was a discussion about ways for Corporal Parent to use the administrative mechanisms such as harassment complaints, grievances and release to mitigate the unfortunate situation he stated he was experiencing at work. As for the text message to the effect that, “She is lucky she is making it to four o’clock,” Master Corporal McGarvey agreed that it could mean she is not going to be hurt. At the end of cross-examination, Master Corporal McGarvey agreed to the suggestion put to him that his concerns were for Corporal Parent, that he was only mildly concerned that someone else might get hurt. He concluded by acknowledging that his take-away message was that Corporal Parent was calling for help and he was to get him that help, arguably, by engaging Corporal Parent’s immediate supervisor.

 

[37]           No issues were raised as to the credibility of Master Corporal McGarvey. He did his best to recall the events.  His testimony rests, as it pertains to the precise words allegedly used by Corporal Parent to convey threats, on the content of a document that includes only a portion of the text messages he exchanged with Corporal Parent on 21 October 2016. I note that his general impressions that the texts came across as threatening for some individuals were significantly toned down in cross-examination.

 

Elements of identity, time and place of the offence

 

[38]           No issues were raised by counsel as to the date and place of the alleged offence: Master Corporal McGarvey confirmed that the text exchange occurred on 21 October 2016 and the content of the exchange matches the sequence of events on that day, as related by other witnesses. I find that the identity of the author of the text messages has been established beyond reasonable doubt by the testimony of Master Corporal McGarvey who stated that he was texting with his friend Corporal Parent. This is confirmed not only by the originating phone number associated with Corporal Parent, but also by the fact that the extensive conversation covered very personal details that make it implausible that a person other than Corporal Parent was using his phone.

 

The prohibited act

 

[39]           The evidence of Master Corporal McGarvey is accepted as to what was said by Corporal Parent. However, it was impossible for the witness to ascertain whether the “I am going to kill…” text, which was apparently cut off, was aimed at anyone or referred to Corporal Parent himself. Consequently, the Court is left with the “She is lucky she is making it to four o’clock” text as the only possible threat aimed at Sergeant Duncan. The prosecution submits that these words clearly constitute a threat to cause death. Referring to paragraph 11 of McRae, to the effect that the starting point of the analysis should always be the plain and ordinary meaning of the words uttered, the prosecution submits there is no reason to believe that these words had a secondary or less obvious meaning. Therefore, it is submitted that the analysis as it pertains to the prohibited act should be complete.

 

[40]           I disagree with that submission. The words conveyed in relation to this charge do not offer the same level of certainty of meaning than the words uttered in the first charge. On the basis of the evidence related at trial, there is no expression of a means by which death could be caused to Sergeant Duncan, in contrast with the first charge. The most Master Corporal McGarvey could say about how he interpreted this text was that Corporal Parent would hurt Sergeant Duncan in some way. Yet, the second charge is particularized as “convey threats to Cpl McGarvey to cause death to Sgt Duncan.” The evidence, even in direct examination, falls short of that mark.

 

[41]           I acknowledge that Corporal Parent was asked if he was serious and answered affirmatively. Yet, I am not convinced on all of the evidence that what Corporal Parent texted he was serious about was a threat to cause death to Sergeant Duncan and not something else, for instance a threat to cause death to himself.

 

[42]           On cross-examination, Master Corporal McGarvey agreed that the text “she is lucky she is making it to four o’clock” could mean that she – Sergeant Duncan – is not going to be hurt. Given that the time that text was sent was not in evidence, it is an interpretation that cannot be dismissed outright. I do believe that accepting the words conveyed in the course of the text message exchange as a threat to cause death without further analysis could lead to an injustice for the accused. On the evidence or absence thereof, the words “she is lucky she is making it to four o’clock” are not unambiguous. This is a case where the context may reveal that words that would, on their face, appear threatening may not constitute threats within the meaning of the Criminal Code.

 

[43]           The difficulty with the evidence, as it pertains to the context, is that there is a potentially significant portion of the text message exchange that is missing. The threatening words were plucked out of a private exchange of texts between friends which spanned several hours throughout the day. That exchange covered many issues, including the difficult situation Corporal Parent was experiencing at work, generally and specifically on that day. It also included references to legitimate means to alleviate these concerns, including initiating a formal grievance and/or harassment complaint which would arguably cite Sergeant Duncan as the respondent. In that context, I am of the view that this may be a case where the context could reveal that words which would, on their face, appear threatening may not constitute threats within the meaning of paragraph 264.1(1)(a), as envisaged at paragraph 11 of McRae.

 

[44]           The evidence as tendered does not allow the Court to fully evaluate that context as the complete, unredacted conversation thread has not been made available to me. It is true that the statement, “She is lucky she is making it to four o’clock” was probably meant to convey a threat but, as I explained earlier, I am bound by law to assess this case on the basis of proof beyond reasonable doubt, not on the basis of probabilities of guilt. The lack of evidence on the entire text exchange has concerned the court since the evidence was entered, and that concern remains. It is the prosecution’s burden to prove the case in a manner that does not leave the trier of fact with a doubt about sufficiency of the evidence.

 

Conclusion on the second charge

 

[45]           The lack of evidence leaves me with a reasonable doubt as to whether a reasonable person aware of the context of the text conversation during which Corporal Parent conveyed the words attributed to him would have perceived them as a threat to cause death. Consequently, I find that the prohibited act of the second charge has not been proven beyond a reasonable doubt. There is no need to analyze the fault element, but if there was, I would not have been convinced that Corporal Parent intended to convey threats to Corporal McGarvey to cause death to Sergeant Duncan in light of the evidence tendered. Consequently, Corporal Parent cannot be found guilty of the second charge.

 

FOR THESE REASONS, THE COURT:

 

[46]           FINDS Corporal Parent guilty of the first charge and not guilty of the second charge.

 

Counsel:

 

The Director of Military Prosecutions as represented by Major M.L.P.P. Germain and Captain K. Lynch

 

Major A.H. Bolik, Defence Counsel Services, Counsel for Corporal D.W.F. Parent