Decision Content
R. v. Rabesca, 2019 NWTTC 13
Date: 2019 09 04
File: T-1-CR-2018-001217
IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES
BETWEEN:
Her Majesty the Queen
- and -
JEAN LOUIS RABESCA
REASONS FOR DECISION
of the
HONOURABLE JUDGE DONOVAN MOLLOY
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Heard at: |
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Behchokǫ̀ and Yellowknife, NT |
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Date of Decision: |
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September 4, 2019 |
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Date of Trial: |
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April 24 and July 3, 2019 |
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Counsel for the Crown: |
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B. Wun |
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Counsel for the Accused: |
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L. Moore |
[Sections 129, 264.1 and 270 of the Criminal Code]
R. v. Rabesca, 2019 NWTTC 13
Date: 2019 09 04
File: T-1-CR-2018-001217
IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES
BETWEEN:
HER MAJESTY THE QUEEN
- and -
JEAN LOUIS RABESCA
REASONS FOR DECISION
of the
HONOURABLE JUDGE DONOVAN MOLLOY
A. INTRODUCTION
[1] It is common to hear from witnesses with conflicting versions of the same events. Occasionally the contrast is so stark that witnesses could be describing different events. In this case, the Crown’s evidence is that the accused resisted a routine arrest by a police officer working alone, assaulting the officer in the process and subsequently uttering threats to the officer. The Defence’s evidence is that two officers were involved in the accused’s arrest and that the arrest involved deploying firearms, injuring the accused and conspiring to cover up those details. In these circumstances primary issues include:
1. Was the arrest lawful?
2. Did the accused utter threatening words that he intended to be taken seriously?
3. How does R. v. W.(D.), [1991] 1 S.C.R. 742 apply in this case?
B. THE EVIDENCE PRESENTED AT THE TRIAL
[2] The Crown called two witnesses, Constable Blake Chursinoff and Roman Lamouelle, a civilian employed as a holding cell guard at the Behchokǫ̀ RCMP detachment. Mr. Rabesca testified on his own behalf.
Crown Evidence
[3] Cst. Chursinoff testified that he was the sole officer on duty in the community of Behchokǫ̀ on the night of June 18, 2018. At around 11:30 pm he was dispatched to Mr. Rabesca’s house. On attending, Mr. Rabesca was absent. His wife and son confirmed that they called for assistance as Mr. Rabesca was intoxicated and aggressive. They did not want to provide further details or have him charged. Cst. Chursinoff left to look for Mr. Rabesca, advising them to call him if Mr. Rabesca returned to the home.
[4] Shortly after commencing a patrol in his police vehicle he located Mr. Rabesca yelling at an unknown female. Cst. Chursinoff stopped and approached Mr. Rabesca. Mr. Rabesca called him a racist asshole. Cst. Chursinoff advised him he was under arrest for causing a disturbance and mischief.
[5] Cst. Chursinoff placed his hand on Mr. Rabesca’s arm. Mr. Rabesca pulled his arm away from the officer’s grasp. Cst. Chursinoff had to wrestle Mr. Rabesca into the back seat of the police vehicle. In the course of doing so, Cst. Chursinoff says Mr. Rabesca kicked him in the face. On arrival at the detachment, Mr. Rabesca continued to be uncooperative but was eventually placed in a cell, under the immediate supervision of Roman Lamouelle. Cst. Chursinoff stated that at no point did he attempt to handcuff Mr. Rabesca.
[6] Mr. Lamouelle testified that after Cst. Chursinoff left the cells area, Mr. Rabesca yelled about raping and killing. On his advising Cst. Chursinoff what Mr. Rabesca said, Mr. Lamouelle was told by Cst. Chursinoff to record the threat in his paperwork. He was cross-examined as to how he knew Mr. Rabesca was threatening the officer, and not him. Mr. Lamouelle advised that he and Cst. Chursinoff were the only other persons in the detachment, and the threats referenced your white ass. Mr. Lamouelle, in reference to his own Indigenous heritage, stated …He wasn't pointing at me because, like, I don't have a white ass, I guess.
Defence Evidence
[7] Mr. Rabesca testified on his own behalf as the only witness for the defence. Mr. Rabesca recounted his movements on June 18, 2018, maintaining that he was hunting with his brother and did not consume any alcohol that day. As he was walking home at approximately 8:00-9:00 pm he encountered a drunken woman, Christine Washie, yelling and cursing at a young child. While he was chastising Ms. Washie, a police vehicle pulled up occupied by two police officers. Those officers were Cst. Chursinoff and an unknown female officer.
[8] The officers both exited the police vehicle, with Cst. Chursinoff approaching Mr. Rabesca and the female officer approaching Ms. Washie. Mr. Rabesca says that after he heard Ms. Washie say he threatened her, the female officer returned to the police vehicle and started using the vehicle’s computer. After the female officer told Cst. Chursinoff that Mr. Rabesca had a record, both officers pulled their firearms and held him at gunpoint.
[9] Cst. Chursinoff grabbed his arm, slamming him down on the asphalt, causing injuries to the left side of his face. After being handcuffed behind his back, Mr. Rabesca says Cst. Chursinoff wrestled him into the police vehicle. While he was trying to lever his legs in, Cst. Chursinoff was slamming the door on his legs. In an effort to prevent injuries to his leg, Mr. Rabesca says that he was kicking at the door and did not kick Cst. Chursinoff in the face. Mr. Rabesca also said the handcuffs left marks on his wrists.
[10] While Mr. Rabesca maintained that he sought medical treatment for his injuries, no medical record or other evidence was tendered.
[11] Mr. Rabesca maintained that the male guard on duty was unknown to him but that it was not Mr. Lamouelle. He also maintained there was a male, blonde receptionist that he observed in the detachment.
Browne v. Dunne, 1893 CanLII 65
[12] The majority of Mr. Rabesca’s allegations and assertions were not put to Cst. Chursinoff or Mr. Lamouelle on cross-examination, offending the rule in Brown v. Dunne. In R. v. Lyttle, 2004 SCC 5 the Supreme Court of Canada Court explained the rule in Brown v. Dunne as requiring counsel to give notice to those witnesses whom the cross-examiner intends later to impeach. In R. v. Henderson, 1999 CanLII 2358 (ON CA), the Court described notice as follows, the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box.
[13] The Court raised this issue at the end of Mr. Rabesca’s testimony in terms of very few of Mr. Rabesca’s assertions having been put to the Crown’s witnesses. Counsel requested an adjournment to consider their options. At the next appearance, it was agreed that at the trial continuation, the Defence could recall Mr. Rabesca and tender any available medical records or other evidence. The Crown, after closure of the Defence’s case, would be permitted to recall Cst. Chursinoff and tender any evidence as to the scheduling of officers or otherwise at the Behchokǫ̀ detachment on June 18, 2018.
Additional Defence Evidence
[14] On resumption of the trial, Mr. Rabesca testified that medical staff at the correctional center refused to treat his injuries. On his release from custody on bail (four days later) he attended at the health centre in Behchokǫ̀. Medical records relating to those visits, including pictures, were tendered regarding the treatment he received on June 22 and June 27, 2019.
[15] The pictures show a number of fresh scabs on the left side of Mr. Rabesca’s face. The injuries to his face are described as Skin Abrasion Traumatic. His limbs, knees and wrists were noted to have several bruises and contusions.
[16] The medical records however also state that Mr. Rabesca told medical staff on two separate occasions that he was under the influence of alcohol at the time of his encounter with Cst. Chursinoff. Mr. Rabesca was adamant despite being pressed on cross-examination that he was sober. With the exception of the notes as to his impairment, Mr. Rabesca maintained that the remainder of the medical records were accurate.
[17] Mr. Rabesca also told the medical staff that he lost consciousness, something he had not mentioned when he first testified. The medical records also note that he attempted to have his injuries attended to by a nurse at the correctional center.
Additional Crown Evidence
[18] The Crown tendered an affidavit of Corporal Earl Hutchison with attached personnel records confirming that Cst. Chursinoff was the only RCMP officer on duty in Behchokǫ̀ from 6pm to 4am on June 18-19, 2018. Cst. Chursinoff denied using handcuffs, a firearm/taser and injuring Mr. Rabesca. Cst. Chursinoff was pressed on cross-examination as to whether he deployed a conductive energy weapon (TASER) which he denied. Cst. Chursinoff acknowledged that deployment of a firearm or other weapon would require that he report the usage to his supervisors. I note that in his evidence, Mr. Rabesca explicitly stated that the officers pointed their firearms at him.
[19] Cst. Chursinoff was pressed as to whether he was alone when he first encountered Mr. Rabesca and called the female officer for backup. The Defence suggested that the RCMP personnel records would not confirm her overtime unless she claimed it. Ultimately, it was suggested that the female officer and Cst. Chursinoff conspired to hide her involvement in an effort to conceal from their supervisors that they had deployed weapons in arresting Mr. Rabesca.
[20] Cst. Chursinoff denied all of the allegations and also advised that there were no male receptionists employed at the Behchokǫ̀ detachment and further, at that time of day, no receptionists are on duty.
C. THE ONUS AND STANDARD OF PROOF
[21] Like all persons charged with an offence, Mr. Rabesca is cloaked with the presumption of innocence until such time as the Crown proves his guilt. Assessing whether guilt is proven requires consideration of the whole of the evidence, as opposed to scrutinizing individual items on a piecemeal basis (R. v. Kennedy, 2015 NLCA 14; R. v. Abramoff, 2018 SKCA 21).
[22] While the beyond a reasonable doubt standard does not require proof to an absolute certainty, it is much closer to that standard than it is to the balance of probabilities (R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. Starr, [2000] 2 S.C.R. 144).
[23] Reliability must be considered in assessing the evidence in this case if I accept that the consumption of alcohol may have diminished the abilities of Mr. Rabesca to observe and remember what occurred. The need to consider the truthfulness and accuracy of witnesses’ testimonies is important. The testimony of a truthful witness may not be reliable where circumstances detract from that witness’s ability to observe, remember and communicate recollections of the events in question.
D. PARTIES’ POSITIONS
Crown
[24] The Crown maintains that a routine arrest went awry as a result of Mr. Rabesca immediately resisting his arrest by Cst. Chursinoff. It maintains that in resisting Mr. Rabesca also kicked Cst. Chursinoff in the face and subsequently threatened Cst. Chursinoff with serious death and serious bodily harm once lodged in the holding cells.
[25] In terms of whether I should either believe Mr. Rabesca’s evidence or be left in doubt by it, the Crown points to the fact that Mr. Rabesca’s own family reported him as being intoxicated. Their advising Cst. Chursinoff that they did not want him charged with any offence points to a lack of animus by his family.
[26] His claims of sobriety are undermined by Cst. Chursinoff’s observations of his impairment. Cst. Chursinoff knew Mr. Rabesca from other interactions with him in the community and encounters where he was sober and others when he was impaired.
[27] Specific discrepancies in his evidence, including his testimony about losing consciousness and the statements to medical personnel about his impairment, are cited by the Crown as reasons why I should entirely disbelieve Mr. Rabesca.
Defence
[28] Cst. Chursinoff acknowledged that his standard practice is to handcuff arrestees prior to placing them into a police vehicle. The Defence says Cst. Chursinoff’s lack of explanation for not following that practice with Mr. Rabesca undermines the officer’s credibility. The Defence points to Mr. Rabesca’s facial and other injuries as confirming that the arrest was not affected as described by Cst. Chursinoff. Further, if the arrest did not occur as Cst. Chursinoff described, it is possible that Mr. Rabesca kicked the door as he was afraid that Cst. Chursinoff was going to hurt his legs by slamming them in the police vehicle’s door cage. Despite the acknowledged inconsistencies in his evidence, the Defence maintains that Mr. Rabesca’s evidence and the medical records should give rise to a reasonable doubt as to his guilt.
[29] The Defence also points to its cross-examination of Mr. Lamouelle as demonstrating that, even if Mr. Rabesca uttered the threatening words, Mr. Lamouelle did not think Mr. Rabesca was being serious at the time. Ultimately, the suggestion is that Mr. Lamouelle would not have even written down what Mr. Rabesca said if Cst. Chursinoff had not directed him to do so.
E. ANALYSIS
Was the arrest lawful?
[30] Addressing this issue does not require assessing credibility. The parties did not spend much time addressing the lawfulness of Mr. Rabesca’s arrest. An officer must have reasonable grounds (credibility-based probability) that an offence was committed in order to effect a lawful arrest (R. v. Kang-Brown, 2008 SCC 18.)
[31] On being asked by the Crown as to his reasons for arrest, Cst. Chursinoff advised Well, right in the moment, he was causing a disturbance, and he had caused mischief at the house, at the residence. As to what the disturbance consisted of, Cst. Chursinoff described it as He was -- he was yelling. He was going after this female. He was in the middle of the road trying to -- trying to, not chase this female down, but -- but going after, pursuing this female.
[32] In order to commit the offence of causing a disturbance pursuant to section 175, an accused’s conduct must give rise an externally manifested disturbance of the public peace (R. v. Lohnes, [1992] 1 S.C.R. 167). There was no evidence that Mr. Rabesca disturbed anyone. The only person close by was a lone woman who was simply walking away. There was no evidence as to anyone else being present or the proximity of residences or anything upon which to form the belief that Mr. Rabesca disturbed anyone. Nothing in Cst. Chursinoff’s evidence forms a basis to infer an externally manifested disturbance of the public peace. I note as well that Mr. Rabesca was not charged with the offence of causing a disturbance. I find that considering all of the evidence, Cst. Chursinoff lacked reasonable grounds to arrest Mr. Rabesca for the offence of causing a disturbance.
[33] Cst. Chursinoff also arrested Mr. Rabesca for public mischief in the sense that he interfered with his wife and son’s lawful use and enjoyment of the family home. In responding to the Crown, Cst. Chursinoff elaborated that He was at his house. He had -- Ethan and Sandra's enjoyment were obstructed. He was intoxicated; yelling at them; being aggressive, so much so that it caused them to fear enough to call the police to come help.
[34] Interference, in the context of offences pursuant to section 430(1)(c) or (d) is not limited to interfering with possession of property. Use can extend to using property for the purposes of cooking, eating, cleaning, resting, sleeping, listening to the radio and watching television (R. v. Maddeaux, 1997 CarswellOnt 1119).
[35] In terms of having reasonable grounds to arrest Mr. Rabesca for the offence of mischief, Mr. Rabesca’s wife and son said that they called the RCMP because Mr. Rabesca was pushing people around. It was unclear as to who he pushed and certainly no claim by them that Mr. Rabesca interfered with their use of the family home. Mr. Rabesca was not charged with the offence of mischief. I find that considering all of the evidence, Cst. Chursinoff lacked reasonable grounds to arrest Mr. Rabesca for the offence of mischief.
[36] Mr. Rabesca cannot be convicted of resisting Cst. Chursinoff in the execution of his duty given that Cst. Chursinoff’s arrest of Mr. Rabesca was unlawful. In fact, Mr. Rabesca was entitled to resist being arrested, including using force to defend himself within the confines of section 34. If Mr. Rabesca kicked Cst. Chursinoff self-defence would have to be considered.
Did the accused utter threatening words that he intended to be taken seriously?
[37] Resolving this issue does not require commenting on Mr. Rabesca’s credibility or veracity.
[38] Uttering threatening words is a component of the offence of uttering threats but something more is required in terms of subjective intent. The utterer must intend that his words are meant to be taken seriously. Reasonable inferences as to intent may be drawn from the words used and the circumstances in which they were uttered (R. v. McRae, 2013 SCC 68).
[39] If the words rape and kill were uttered by Mr. Rabesca they are unquestionably threatening. There were discrepancies however between Mr. Lamouelle’s testimony and his statement taken by Cst. Chursinoff before he left the detachment. According to the Crown’s timeline, this statement would have been taken about an hour after the alleged threats were made.
[40] Mr. Lamouelle’s statement made no reference to the word rape. He was also unclear as to who the words were directed towards. In his statement, Mr. Lamouelle replied to Cst. Chursinoff’s question of who Mr. Rabesca was referring to as follows, I don’t know, a guard, or like a police, he’s telling about police, like oh, I’m in here for no reason, all you police and all that.
[41] On further questioning by Cst. Chursinoff, Mr. Lamouelle states that Mr. Rabesca referred to officers generically but he did not refer to any specific officer. The statement contains no reference to Mr. Rabesca pointing at Cst. Chursinoff or any references to him saying white ass. These words are important as Mr. Lamouelle noted in his evidence he relied upon that designation to ascertain that Mr. Rabesca’s threatening words were not directed at himself but to Cst. Chursinoff specifically.
[42] While demeanour is of limited use, Mr. Lamouelle presented as a witness that was trying to be honest but struggled to remember what occurred that morning in the holding cells. He was also clearly susceptible to suggestion and appeared to be easily influenced.
[43] Mr. Lamouelle’s sequencing of what occurred was also very unclear. In all, due to concerns with Mr. Lamouelle’s reliability and his limitations in communicating his recollections, I am unable to conclude what words were used by Mr. Rabesca. Further, even if he used threatening words, based on Mr. Lamouelle’s testimony, there is no way to determine that they specifically referenced Cst. Chursinoff as is alleged in the uttering threats charge.
[44] Further, while it need not be decided, there are ample grounds to find that Mr. Lamouelle did not believe Mr. Rabesca intended his words to be taken seriously. Mr. Lamouelle regarded Mr. Rabesca’s comments as drunken babble from an intoxicated prisoner and that he would not have actioned them had Cst. Chursinoff not directed him to do so. While Mr. Lamouelle’s characterization of Mr. Rabesca’s comments is in no way determinative, it is part of the surrounding circumstances that may be considered in assessing Mr. Rabesca’s intent.
How does R. v. W.(D.), [1991] 1 S.C.R. 742 apply in this case?
[45] A Court may reject all, part or none of a witnesses’ evidence. While Mr. Rabesca appears to genuinely believe that the events occurred as he remembers them, it could not have possibly happened that way. There were no other officers on duty on the evening of July 18, 2018. There was no conspiracy to cover up deployment of firearms. Mr. Lamouelle was clearly the guard on duty that evening and there was no receptionist in existence who resembled Mr. Rabesca’s description of that person. Even if another officer had been present, there was no need to look Mr. Rabesca up on any RCMP database as Cst. Chursinoff was personally familiar with Mr. Rabesca and his background.
[46] I am not required to determine whether Mr. Rabasca’s adamance as to his version of events stems from his impairment, a potential head injury or any other reason. With one exception, I neither believe nor am I left in doubt by Mr. Rabesca’s testimony. The exception relates to his injuries, which were recorded by medical personnel. Those injuries are consistent with the force that Mr. Rabesca says was used. They also are consistent with an arrest that was occasioned by the application of far more force that Cst. Chursinoff said was used.
[47] I appreciate that the medical personnel cannot verify that Cst. Chursinoff inflicted those injuries on Mr. Rabesca during the arrest. I find however that Mr. Rabesca’s seeking of medical attention at the correctional center and immediately on his release, together with the consistency of those injuries with the description of being slammed to the pavement and manhandled, form a sufficient basis to infer that Cst. Chursinoff inflicted the injuries on Mr. Rabesca.
[48] In terms of W.(D)., even where much or all of an accused’s evidence is rejected, the Court must still be satisfied that the Crown has proven the accused’s guilt. In finding that Mr. Rabesca’s injuries resulted from force applied during the arrest, I obviously reject Cst. Chursinoff’s evidence as to the lack of force used by him in arresting Mr. Rabesca. Based solely on Cst. Chursinoff’s evidence, I am unable to conclude, on the beyond a reasonable doubt standard, that Mr. Rabesca kicked Cst. Chursinoff in the face. There was also no evidence of any injuries or markings on Cst. Chursinoff resulting from the alleged kick to the face.
[49] Finally, while it need not be decided, I believe that any force used by Mr. Rabesca to resist the unlawful arrest may well have fallen within the ambit of self-defence as set out in section 34.
F. CONCLUSION
[50] For the reasons provided Mr. Rabesca is acquitted on the charges of resisting arrest, uttering threats and assaulting a police officer.
[51] Judgement accordingly.
_________________________
DONOVAN MOLLOY, T.C.J.
Dated at Yellowknife, Northwest Territories,
this 4th day of September, 2019.
R. v. Rabesca, 2019 NWTTC 13
Date: 2019 09 04
File: T-1-CR-2018-001217
IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES
BETWEEN:
HER MAJESTY THE QUEEN
- and -
JEAN LOUIS RABESCA
REASONS FOR DECISION
of the
HONOURABLE JUDGE DONOVAN MOLLOY
[Sections 129, 264.1 and 270 of the Criminal Code]