IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           In this prosecution it is alleged by the Crown that an off-duty police officer made threats to cause death or bodily harm to two individuals.

[2]           On Saturday, January 6, 2018 the accused, Deepak Kumar Sood (“Mr. Sood”), placed multiple telephone calls to Muse & Merchant Home Collection and ScanDesigns Home Furnishings (collectively, “M&M”)—related furniture retailers carrying on business together out of shared premises at 1400 United Boulevard, Coquitlam, B.C.  Mr. Sood was an M&M customer who had purchased furniture the preceding November, one item of which was a child’s dresser (the “Dresser”).  He rang in to M&M on January 6, 2018 to report that the Dresser had that day tipped partway over onto his four-year-old son.  Believing it to be unsafe, he insisted that M&M send a truck straightaway to his home in Surrey to retrieve the Dresser. 

[3]           Given the deployment of all of its delivery trucks on previously booked assignments for the entirety of Saturday, January 6^th, M&M advised Mr. Sood that the earliest it could pick up the Dresser was the following Monday (January 8^th).  This proposed action on his complaint did not satisfy Mr. Sood. 

[4]           It is common ground that in the course of multiple follow-up calls to M&M, Mr. Sood expressed voluble displeasure with M&M’s proposed response to his complaint.  During those calls he pressed more and more forcefully for same-day removal of the Dresser from his home.  While doing so he became increasingly angry, agitated and emotional. 

[5]           When speaking with M&M representatives Mr. Sood employed a very aggressive tone and a great deal of foul and profane language.  Indeed, he volunteered more than once when giving defence evidence that he behaved “like an asshole” (his words) toward the M&M representatives to whom he spoke over the course of the afternoon.

[6]           M&M eventually reported the escalating situation it was facing with Mr. Sood to the Coquitlam detachment of the RCMP.  Cst. Brian Madge attended to investigate.  Ultimately Mr. Sood was charged with uttering threats to cause death or bodily harm to two M&M representatives, namely, Gert Knudsen and his son Jesse Knudsen.  (Because those representatives share the same surname, I shall refer to them, individually, as “Gert” and “Jesse”.  By doing so I mean them no disrespect.)

[7]           While he acknowledges that he was loud, angry and profane during calls with Gert, Jesse and one other M&M management employee (“Ms. Tiernan”), Mr. Sood is nevertheless adamant that he did not make any threats to anyone in the course of those calls.  By contrast, Gert and Jesse are each equally adamant that he did make threats against them.  Gert’s evidence was that Mr. Sood told him more than once that if he didn’t get satisfactory action from M&M he would come down to the store and “bash his  fucking head in.”  Jesse’s evidence was that Mr. Sood told him a number of times that he would come down to the M&M store and “bash his fucking face in” and once that he would “punch him in the fucking face.”

[8]           Count 1 of Information 99557-1 accordingly alleges that Mr. Sood uttered threats to Gert to cause him death or bodily harm and count 2 alleges that he uttered such threats to Jesse.

[9]           Like all persons in Canada accused of committing criminal offences, Mr. Sood is entitled to the benefit of the presumption of innocence.  He can only be convicted on any of the counts on Information 99557-1 if all of the essential elements of those counts are proven by the Crown to the criminal standard of “beyond a reasonable doubt.”  Anything short of that must result in acquittal.

[10]        In a case of this kind, where the accused has given defence evidence that contradicts the evidence given by the Crown witnesses on key facts, the court must, among other things, undertake a credibility assessment of those conflicting accounts. That assessment must conform to the well-known requirements laid down by the Supreme Court of Canada in R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, as augmented by the B.C. Court of Appeal in R. v. H. (C.W.), (1991), 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146 (C.A.).  Applying that combined protocol to the present case, on each of the two counts:

[11]        I acknowledge that in these Reasons for Judgment I have not made reference to all of the testimony given by the witnesses who testified, or to every item of the documentary evidence that was received and marked.  I have, rather, referred to evidence that I consider it necessary to mention in connection with my factual findings and the legal conclusions that flow from them.  In places I have made mention of evidence that I have been unable to accept, and of the reasons why I have been unable to accept it.  If evidence is not mentioned in this decision, both Crown and defence may take comfort that the omission is not the result of my not having taken note of it.  I have considered all of the oral testimony.  I have read all of the documentary exhibits.  If witness testimony or documentary evidence do not come up for specific mention in these Reasons, that is because:

[12]        That it is an acceptable practice for a trial judge to confine him or herself, in Reasons for Judgment, to a compressed and somewhat selective canvassing of the evidence heard at trial is well established on the authorities.  The law is clear that where there is substantial support in the record for a trial judge's findings and the inferences drawn from them, the trial judge does not make a reversible error by failing to refer to every item of evidence that was adduced: see, for example, R. v. Tse, 2013 BCCA 121 at para. 56; R. v. Blacklaws, 2012 BCCA 2017 at para. 50 (aff’d, 2013 SCC 8); and R. v. Dinardo, 2008 SCC 24 at para. 30.

[13]        The Crown and Mr. Sood are not in meaningful disagreement with respect to many of the facts that underlie this dispute.  Indeed, in some areas, those facts are the subject of formal admissions marked as Exhibit 1 at trial.  I shall therefore first briefly outline the relevant uncontroversial facts in order to set in context the facts that are in dispute.

[14]        The subject events occurred in Coquitlam, British Columbia on January 6, 2018, and per Exhibit 1 (the formal admissions exhibit) it was Mr. Sood who made “all telephone contact with staff at [M&M] relating to [the Dresser].”  Thus, jurisdiction, location, date and identification of the accused are all admitted.  Similarly, there is no dispute that the words allegedly uttered by Mr. Sood to Gert and Jesse—that is, to “bash [Gert’s] fucking head in,” to “bash [Jesse’s] fucking face in” and to “to punch [Jesse] in the fucking face” amount to “threats to cause death or bodily harm” in law.  Rather, the real dispute in this prosecution surrounds whether Mr. Sood actually uttered those alleged words to Gert and to Jesse during his telephone contact with them.

[15]        Mr. Sood is a police constable and a member of the Vancouver Police Department assigned to patrols in Vancouver’s Downtown East Side.  He lives in Surrey with his wife and young children—a boy who is now five and a girl who is now two years of age. 

[16]        On November 24, 2017, Mr. Sood and his wife purchased various pieces of furniture from M&M and had them delivered to their home.  Among those furniture items was a Corsica Double Dresser for their (then) four-year-old son’s bedroom (the item previously defined in these Reasons as the “Dresser”).  The Dresser has six drawers and weighs approximately 200 lbs. 

[17]        Typically, such furniture comes with a mounting kit that the customer can use to attach it to the wall for safety reasons.  M&M takes responsibility for getting items like the Dresser from the store to the purchaser’s home, removing and taking away all packaging materials and placing the items in the locations and positions within the home where the customer indicates they should be placed.  M&M does not however take responsibility for any installation work beyond that and, in particular, the company does not take responsibility for securing items like the Dresser in place with the mounting kits that generally accompany such items.

[18]        Neither M&M nor Mr. Sood secured the Dresser in place at the time of its delivery in November, 2017.  Thus, on January 6, 2018, at the time it tipped, the Dresser was not fastened to the wall by the installed components of a mounting kit.  Mr. Sood did not realise when the Dresser was first delivered (in November, 2017) that it had come with a mounting kit.  He also mistakenly assumed that mounting and installation functions were the responsibility of M&M’s delivery staff and that any such functions germane to the Dresser had been performed by them.

[19]        At the time the Dresser tipped forward, all of its drawers were already open and Mr. Sood’s son was standing in such a position in front of it that one of those open drawers came to rest on his foot, in effect pinning him in place.  That, together with the fact that the boy was holding it back, prevented the Dresser from falling further forward. 

[20]        When he heard his son’s cries, Mr. Sood found the boy and the Dresser in the above-described position with the Dresser tipped toward the boy at a 45-degree angle.  When Mr. Sood got it upright again and freed his son, he noted that the boy’s foot had a red mark where an open drawer had come to rest on it.  He also noted that his son was upset, fearful of the Dresser and expressing reluctance to return to his bedroom for that reason.

[21]        An hour or so following this incident Mr. Sood determined that it was imperative that the Dresser be removed from his home that day (a Saturday).  Accordingly, he called M&M by telephone in the early afternoon and was put through to Ms. Tiernan.  He explained to her that the Dresser had tipped over onto his young son and asked that someone from M&M come and pick it up.  Ms. Tiernan first inquired after the boy’s condition and was told by Mr. Sood that he was “fine”.  She apologised to him for what had happened and then told him that she would look into what could be done and call him back. 

[22]        Upon making inquiries Ms. Tiernan learned that M&M’s fleet of delivery trucks was wholly committed for the rest of the day and could not retrieve the Dresser until two days later, i.e., the following Monday (January 8, 2018).  When she called Mr. Sood back she reported that information to him and told him, again apologetically, that that was the best M&M could do.  (At trial, Mr. Sood testified he thought he could remember Ms. Tiernan promising to arrange for pick-up the following week, saying he could not recall her specifically referring to the Monday; however, he conceded both in direct and in cross that it was “possible” that she promised that the Dresser could be picked up on the Monday.  Because Ms. Tiernan was clear and unshakable on the point and because Gert testified that he too told Mr. Sood that that was the best timeline M&M could manage—evidence that Mr. Sood did not deny outright  but couldn’t “recall"—I have found that Ms. Tiernan told Mr. Sood that the Dresser could be picked up on Monday, January 8, 2018.)

[23]        Mr. Sood was dissatisfied with Ms. Tiernan’s proposed solution.  He therefore continued to insist that the Dresser be picked up that day (the Saturday when the tipping event occurred and when he began calling M&M demanding its immediate removal).  His anger quickly mounted and his tone and language when speaking to Ms. Tiernan degenerated into a loud and angry fusillade of profanities and intensifying demands.

[24]        After some minutes of trying to de-escalate the situation, Ms. Tiernan found herself incapable of saying anything more in response to Mr. Sood’s profane and increasing demands.  She broke down in tears and told Mr. Sood that she could not any longer continue on the call.  Both parties hung up.

[25]        Shortly thereafter Gert came into Ms. Tiernan’s office for an unrelated reason and noticed that she was upset.  Ms. Tiernan told him briefly what had happened.  Gert said that she needn’t speak further to Mr. Sood and that he would speak with him.  Not long after that another call came in from Mr. Sood.  It was put through to Ms. Tiernan who explained briefly that her boss Gert would speak to him.  She passed the phone to Gert and stayed in her office with him while he spoke to Mr. Sood.  Though the phone was not put on its speakerphone setting, Ms. Tiernan could hear enough to recognise that the tone and content of Mr. Sood’s words to Gert were much the same as they had been when Mr. Sood had spoken to her.  After that call ended, Gert asked Ms. Tiernan to retrieve the invoice for Mr. Sood’s purchases.  He explained to her that the police had to be called and that he needed to get Jesse involved in handling the situation.

[26]        Numerous calls came in from Mr. Sood after that.  Ms. Tiernan picked up one of them and Mr. Sood told her “not to fucking hang up” on him, that he was going to call the police and that he was going to come down to the store.  Ms. Tiernan asked him to please stop calling and then put the call through to Jesse who, in the meantime, had been tasked with answering the phones so that the other sales staff, who were frightened, would not have to take any of Mr. Sood’s repeated calls.

[27]        I pause to interrupt this narrative here in order to record two somewhat tangential, but nevertheless relevant, uncontroversial facts:

[28]        Returning to the narrative, both Gert and Jesse spoke with Mr. Sood on multiple further occasions as his calls kept coming in.  Mr. Sood admitted that he called M&M as many as 25 times (although M&M witnesses estimated the number was much higher, possibly as high as 50).  In the course of one of those calls Mr. Sood said to Gert, among other things, that he was planning to come down to M&M’s premises and throw the Dresser through the store’s front window.  He also said that M&M might as well close the store for the day because he wasn’t going to stop calling until he got the resolution he was seeking.  While on some of these calls, Gert and Jesse each referred to their intention to call the police.  Mr. Sood’s responses conveyed the fact that Mr. Sood was a member of a police force himself. 

[29]        M&M did, indeed, call the police.  It was Jesse who placed the call, resulting in the eventual attendance of Cst. Madge of the Coquitlam Detachment of the RCMP.  While Cst. Madge was at M&M interviewing Gert, Jesse and Ms. Tiernan, two more calls came in from Mr. Sood.  Jesse put both on the speakerphone without Mr. Sood knowing so that the officer could hear for himself the kinds of things Mr. Sood was saying.  The content of those two calls was representative of the content of calls that Jesse had been receiving, repeatedly, from Mr. Sood that afternoon.  Eventually Cst. Madge picked up the phone, identified himself as a police officer and provided Mr. Sood an opportunity to give him his side of the story, off speaker.  He also said some calming things to Mr. Sood and advised him to stop calling.

[30]        After speaking with Cst. Madge, Mr. Sood did not call M&M again. 

[31]        Cst. Madge left M&M with no plan to follow-up on the complaint that had brought him there.  Indeed, he only resumed activity on the matter at the instigation of a superior at his detachment who was concerned about the references Mr. Sood had made during some of his calls to his being, himself, a member of a police force.  At his superior’s request, therefore, Cst. Madge returned and took statements from Gert, Jesse and Ms. Tiernan. 

[32]        Charges of threatening Gert and Jesse were laid thereafter against Mr. Sood.

[33]        Some of the telephone conversations between Mr. Sood and Gert occurred in the presence of Jesse and Ms. Tiernan.  Some of the telephone conversations between Mr. Sood and Jesse occurred in the presence of Gert.  Gert, Jesse and Ms. Tiernan had discussions amongst themselves about what had transpired during some of Mr. Sood’s calls.  Gert, Jesse and Ms. Tiernan were also present during the calls that came in from Mr. Sood that were placed on speakerphone so that Cst. Madge could hear what Mr. Sood was saying.  Moreover, Gert, Jesse and Ms. Tiernan were all interviewed, together, by Cst. Madge about Mr. Sood’s calls before he left the M&M store.

[34]        Mr. Sood ultimately decided to keep the Dresser.  A mounting kit that he found in a companion piece of furniture (a night stand) broke when he attempted to install it but he was able to fashion a mounting device employing components of his own.  Mr. Sood used that to secure the Dresser to the wall of his son’s bedroom.

[35]        There was no evidence led to prove that any medical follow-up was done to ascertain the state of Mr. Sood’s son’s foot after the tipping incident or to obtain or provide any treatment for it.

[36]        The Crown contends, based largely upon Gert’s own evidence, that in the course of the above-described events, Mr. Sood threatened to cause death or bodily harm to Gert.  As has been noted previously, during Mr. Sood’s testimony for the defence, he resolutely denies having made any threats to Gert.  Accordingly, the conflicting evidence regarding that alleged threat must be analysed within the context of the evidence as a whole and with particular regard to the requirements of the augmented test in R. v. W.D.

[37]        Gert is the founder, owner and CEO of M&M.  He works out of the building located on United Boulevard in Coquitlam where the events in issue in this prosecution unfolded.

[38]        Gert’s testimony was that over the course of the afternoon of January 6, 2018, when Mr. Sood was placing telephone calls repeatedly to M&M in an effort to have the Dresser taken away from his home, he took approximately three of Mr. Sood’s calls.

[39]        Like Ms. Tiernan, Gert recalled that Mr. Sood was very upset and demanding on the calls, that he was “extremely rude” and that he was using “a lot of four-letter words.”  He told Mr. Sood during the first call that if that continued, he wouldn’t be able to continue to speak with him.  Eventually, Gert hung up.

[40]        Gert testified that, at a certain point during the second of the calls he took, Mr. Sood said that if he (Gert) didn’t comply with his demands, he would “come down and bash our fucking heads in.”  Jesse arrived partway through that call but did not hear that threat himself.  Gert testified further that when he responded that if he made threats like that, the police would have to be called, Mr. Sood replied by saying, at least once, “Don’t bother.  I am the fucking police.”

[41]        Gert’s evidence was that Jesse did eventually call the non-emergency line for the Coquitlam detachment of the RCMP about 30 to 45 minutes after he (Gert) received the threat.  Jesse did so, Gert said, because Gert asked him to, having told him about the threatening words Mr. Sood had uttered to him.  After Jesse placed the call, he put Gert on the line so that Gert could describe the threat he’d received from Mr. Sood to the police call-taker directly.

[42]        A transcript of that call to police is found at tab 2 of Exhibit 1 (the formal admissions exhibit) and it confirms that when speaking with the Coquitlam detachment call-taker, Gert explained that Mr. Sood had told him “I’m coming down to bash your fucking head in.” It also confirms that Gert also related the part of the call where Mr. Sood told him “I am the fucking police.”  While Gert was on the phone with the call-taker, Jesse took another call from Mr. Sood on a different phone and, when it ended, he reported to Gert that he, now, had received a threat from Mr. Sood.  This exchange between Jesse and Gert, where Jesse reports the new threat, is visible on the face of the transcript: Jesse mentions the threat to Gert who, in turn, mentions it to the call-taker.

[43]        Gert acknowledged in his testimony that he discussed what Mr. Sood had said to him, and what Mr. Sood had said to others, in the presence of Jesse and Ms. Tiernan.  Indeed, he confirmed that those subjects were covered in discussions that Cst. Madge had with all three together in the same room after the time when Mr. Sood rang in and Jesse placed the phone on speaker so Cst. Madge could hear Mr. Sood for himself.

[44]        While Gert’s memory was not faultless during his direct examination, it was weaker during cross-examination.  For example, he wasn’t “exactly sure” whether—after having little success in managing the situation with Mr. Sood—he handed responsibility for dealing with it over to Jesse.  That he did so is something that he volunteered in his direct testimony only minutes earlier.  After making the point that the subject events occurred a year earlier, Gert added, perhaps somewhat in jest, that he sometimes has difficulty remembering things that occurred just a week earlier.

[45]        Gert confirmed that he, Jesse and Ms. Tiernan had “de-briefing” discussions about what Mr. Sood had been saying to them—including during a discussion led by Cst. Madge—and that during such discussions Jesse told him about threats he said Mr. Sood had made to him.

[46]        Gert admitted under cross-examination that during his telephone conversations with Mr. Sood he referred to the mounting kit and the customer’s obligation to use it to secure furniture pieces, like the Dresser, in place.  He also admitted that one thing he wanted to do was to convey to Mr. Sood that the tipping of the Dresser was not M&M’s fault.

[47]        In a similar vein, Gert was asked questions during cross-examination about whether other things he had said, or omitted to say, to Mr. Sood during their conversations might have had the effect of escalating the tension in the calls.  He responded by saying he couldn’t remember.  Thus, for example, when asked whether—in response to Mr. Sood’s suggestion that he would return his entire order—he said “good luck with that” and chuckled, Gert replied that he didn’t recall.  As well, when asked whether he pressed Mr. Sood for information about what his son was doing with the Dresser when it tipped, he doubted that but he wasn’t sure.

[48]        Jesse testified in direct that he was present for part of the call that Gert took from Mr. Sood where he says he was threatened; however, Jesse did not hear the threat himself.  Rather, Gert simply told him he’d been threatened.

[49]        In cross, Jesse acknowledged that Gert, he and Ms. Tiernan had discussed “the details” of Mr. Sood’s calls together and in particular the things that Mr. Sood had said during those calls.

[50]        Cst. Madge testified that he was dispatched by radio to attend at M&M to investigate a complaint that a disgruntled customer who wanted some unsatisfactory furniture picked up had made “verbal threats” to M&M staff.

[51]        Upon arrival at M&M, Cst. Madge went first to meet with Gert.  He testified that he spoke with Gert for “quite a while”.  In his direct testimony he did not make any specific mention of Gert reporting that he had been threatened by Mr. Sood.  When he described a later meeting he had with Jesse, Gert and Ms. Tiernan, he did however refer to Gert’s demeanour as being “in shock” and that he appeared to be “fearful for his staff.”

[52]        After having persuaded Mr. Sood to stop calling and after having completed most of his interviews with Gert, Jesse and Ms. Tiernan, Cst. Madge consulted with his superior and concluded at that point that all of the M&M representatives, including Gert, “didn’t want to pursue [the matter]” criminally and that the issue concerning the tipping of the Dresser would best be pursued civilly.

[53]        On cross-examination, that latter evidence was confirmed when Cst. Madge testified that he left M&M on January 6^th “not contemplating criminal charges.”  Cst. Madge went on to say that he had decided he would conclude the file and that he only re-activated it at the request of his superior.  Cst. Madge thus returned to M&M two days later and took statements from Gert, Jesse and Ms. Tiernan.  He explained that he did so because his superior wanted him to “thoroughly document” M&M’s complaint, given Mr. Sood’s reference in the course of his dealings with Gert and Jesse to his own status as a police officer.

[54]        As has already been mentioned, Mr. Sood concedes that he was angry and foul-mouthed in his phone conversation with Gert (just as he concedes that he was angry and foul-mouthed in his phone conversations with other M&M representatives), but he did not waver in his testimony, in direct and under cross-examination, that he stopped short of making any threats.  He denied saying anything to Gert along the lines of “I’ll come down and bash your fucking heads in.”

[55]        The evidence given by Gert at the trial of Mr. Sood was not perfect.  As has been shown in the summary above, his memory was somewhat shaky and some inconsistencies were revealed in the accounts he gave in direct- and under cross-examination.  That said, any witness who claims to have a perfect recollection of events that occurred a year or more earlier when he or she is giving testimony can rightly expect to face some scepticism from a trier of fact.

[56]        Gert’s testimony furnished less-than-perfect Crown evidence in other respects as well.  He revealed in his testimony a tendency toward glibness and argumentativeness.  The ways he testified he sought to handle Mr. Sood’s upset, in the moment, did not appear to have been particularly tactful or effective; they may, indeed, even have served to increase some of the unwelcome tension that was building as Mr. Sood became more and more insistent and upset.  When speaking with Mr. Sood, perhaps Gert could have paid greater attention to the well-being of his four-year-old son and shown less apparent concern with getting out ahead of a situation that carried the risk of potential civil liability for M&M.  However, even if Gert was inept and insensitive in some respects in dealing with the crisis that had landed in his lap, that ultimately lies to one side of the question of whether he gave the court a truthful and reliable account when he testified that Mr. Sood threatened to cause him death or bodily harm.

[57]        Importantly, Gert’s most important evidence—his recollection of the alleged threat itself—was clear and wasn’t shaken on cross-examination.  Gert was consistent regarding its precise content—i.e., that Mr. Sood told him that if he didn’t get satisfaction he would come down and “bash his fucking head in”.  Perhaps it should not be too surprising that a naturally fallible memory would nevertheless better retain particularly harsh and fear-inducing words—words whose message content is inherently memorable.  Thus, while it is true that Gert’s memory showed some weaknesses in other areas, with respect to this especially important particular, I find his recollection was strong and reliably portrayed in his testimony.

[58]        Counsel for Mr. Sood placed heavy emphasis in her submissions upon the effects of witness tainting upon the Crown evidence in this prosecution.  She was right to do so.  Witness tainting is indeed a live issue here.  There is plenty of evidence before me to show that Gert, Ms. Tiernan and Jesse discussed among themselves what Mr. Sood had said to them during their respective telephone conversations with him while events were unfolding and during “debriefing” sessions.  Moreover, the tainting potential was amplified when Cst. Madge, then a junior and somewhat inexperienced RCMP officer, led a discussion with all three about what Mr. Sood had been saying to them rather than interviewing them separately.  All of this raises the spectre of individual witnesses’ own recollections becoming merged in their own minds with what they heard others say about closely related events such that their own, unalloyed individual recollections become less recoverable and reliable.

[59]        However, with respect to Gert and his contention that he was threatened by Mr. Sood, I conclude on the evidence that the tainting risk is negligible.  Recall that, while Mr. Sood was markedly hostile and profane in his dealings with Ms. Tiernan, she was clear that Mr. Sood did not threaten her.  The first threat alleged to have been made by Mr. Sood is the threat to Gert to “bash his fucking head in” and Gert’s evidence was that that threat came early in the chronology.  It came in fact in the course of the first of the two or three calls that Gert took from Mr. Sood after Ms. Tiernan found herself emotionally incapable of dealing further with him.  Recall as well that on the Crown’s uncontroverted evidence it was not until during the non-emergency call placed by M&M to the Coquitlam detachment of the RCMP—i.e., the call that Jesse initially placed and then quickly handed off to Gert so he (Gert) could relay the threat that he had received—that a second threat was made.  That second threat was made to Jesse at the very time Gert was on the line to the RCMP telling the non-emergency call-taker about what Mr. Sood had said to him.

[60]        The foregoing chronology is important for the purposes of the tainting analysis.  On the Crown evidence, Gert told the police call-taker in precise terms the threat he says he received from Mr. Sood before any threat was made to Jesse or to anyone at M&M.  Thus, the account Gert gave of the threat to the call-taker—captured in Exhibit 1, tab 2, p. 4, lines 77-79—cannot have been shaped or influenced by discussions with Jesse or others about threats made by Mr. Sood to anyone else that came later.  This deprives the tainting submissions made on Mr. Sood’s behalf with respect to Gert of most of their force.

[61]        While it is a subsidiary point, I will say here that for the same reasons I have given above that I also consider as credible and believable Gert’s untainted testimony to the effect that when he made mention to Mr. Sood of his intention to call the police, Mr. Sood responded by saying words to the effect of, “Don’t bother. I am the fucking police.”  Ms. Sood admitted having made mention of his status as a police officer and the specific wording Gert recalled is in line with the general character of the foul forms of expression that Mr. Sood admitted to using throughout the day.

[62]        Correctly anticipating arguments to be advanced by her learned friend for the Crown, counsel for Mr. Sood also cautioned me against placing reliance on any suggestion from the Crown that Gert had no motive to lie when telling the police and the court that Mr. Sood had threatened him.  

[63]        This submission, too, must fail in my respectful view.

[64]        It is true that I do not discern in the evidence before me any motive that might have propelled Gert to lie about having been threatened by Mr. Sood.  It was plain from the evidence he gave that his overarching desire on January 6, 2018 was for Mr. Sood to stop his verbal onslaught and for the sense of peril it brought on for everyone at M&M to lift.  (Indeed, as Cst. Madge testified, he formed the impression that neither Gert nor Jesse wanted to pursue the matter criminally.)

[65]        Quite apart from the threat he said he had received from Mr. Sood, there was much about Mr. Sood’s conduct that, objectively, would give rise to Gert’s sense of peril and to his wish for it to end.  Recall that Mr. Sood acknowledged in his own testimony at trial:

[66]        In other words, there was plenty on the uncontested facts for Gert and his colleagues to complain about (and be fearful about).  I do not see anything in the evidence to suggest that, when testifying at trial that he was threatened, Gert sought to “gild the lily” by embellishing his account to include false references to threats, thereby increasing the likelihood of conviction of Mr. Sood.  Quite the contrary.  Thus, while I do not give it a place of undue prominence in my analysis, neither do I shrink from noting that the evidence does persuade me that Gert lacked a motive to lie when he testified that Mr. Sood threatened to “bash [his] fucking head in”. 

[67]        That this factor occupies a rightful place, alongside other factors, in a court’s assessment of a witness’s credibility was recently affirmed by the B.C. Court of Appeal in R. v. Rahimi, [2017] B.C.J. No. 367 (C.A.) where Frankel J.A. (Saunders and Dickson JJ.A., concurring) stated at para. 18:

[68]        I turn now to a closer analysis of Mr. Sood’s defence evidence, including his staunch denials of having made any threats to Gert that he would “bash his fucking head in”.  Mr. Sood’s counsel is correct to say that he showed contrition and that he conceded a great deal in his testimony that reflects poorly upon him.  He admitted for example to having engaged in deeply uncivil and uncivilised behaviour toward M&M representatives on January 6, 2018, in the course of his repeated efforts to have M&M bend to his will and retrieve the Dresser from his home.  This, his counsel argued, shows that he is willing to acknowledge his own failings in some areas—a factor that is, indeed, often cited as being favourable to witness credibility.

[69]        Counsel for Mr. Sood also reminds the court, again correctly, that Mr. Sood is not on trial for conducting a grossly profane, aggressive and unmannerly telephone campaign against M&M, or for behaving like “an asshole” (his words) toward M&M representatives when doing so.  Rather, he is on trial for having allegedly made threats to Gert and Jesse to cause them death or bodily harm.

[70]        But does Mr. Sood’s testimony regarding what he did and did not say to Gert withstand scrutiny?  Does it have an “air of reality”?  In my respectful view, the answers to these questions—notwithstanding counsel’s able contrary submissions—are “No” and “No”.

[71]        The essence of Mr. Sood’s account of the relevant events is that in the course of conducting an admittedly unrelenting, highly profane and insistent tirade seeking to have M&M retrieve the Dresser from his home straightaway, he brought himself up very close to an important line but, through the exercise of self-control, succeeded in preventing himself from ever crossing it.  His evidence is that he said, over and over again, many grotesque things to M&M representatives, including Gert, but that he nevertheless kept his words in check and never crossed into the realm of threatening to cause anyone death or bodily harm.

[72]        To be accepted, Mr. Sood’s account requires the court to believe that while engaging generally in behaviour toward M&M representatives that many might describe as “unhinged,” Mr. Sood nevertheless retained a substantial degree of self-control and exercised that control effectively so as to keep himself reined in and keep his words within lawful limits. 

[73]        This evidence from Mr. Sood is very difficult to reconcile with the evidence of the general character of his telephone tirade that was given at trial.  Quite apart from the alleged threats he is alleged to have made, the picture of Mr. Sood’s prolonged succession of abusive telephone calls that emerges from the testimony of Crown witnesses and from Mr. Sood himself presents a picture of a man in the grip of an unstoppable and uncontrollable rage.  Importantly, Mr. Sood agreed with Crown counsel, when she put to him during cross-examination, that “his behaviour was threatening, even if we disagree about your words”. The evidence as a whole and that damaging admission about his behaviour on January 6, 2018 thus belies his contention that, as distinct from having lost his grip, he in fact retained throughout enough of a cool head to exercise the self-control needed to regulate his own behaviour so as effectively to keep it within legal limits.

[74]        Recall also that Mr. Sood testified, during cross-examination, that while he was making his loud, profane and increasingly demanding and hostile telephone calls to M&M representatives, Mr. Sood’s wife and their two young children were “in proximity” to him.  She (and the children) were near enough that she “knew” what he was saying, he testified.  

[75]        Mr. Sood was embarrassed and apologetic at trial about the way he had spoken to M&M representatives on January 6, 2018, and used unflattering words to describe his own behaviour.  Yet that behaviour, on his own evidence, unfolded in the presence and within the earshot of his four-year-old and his two-year-old.  This is not how a man still in control of his emotions and his actions would be expected to behave in “proximity” to young and impressionable toddlers.  This is behaviour, displayed in the presence of one’s own children, which ordinary citizens would see, objectively, as being “unhinged’; as being emblematic of Mr. Sood having “lost it.”

[76]        This evidence of lost self-control of a particular kind on Mr. Sood’s part runs counter to his assertions that, whatever he said to Gert and Jesse, he still maintained a sufficient grip to stop himself from crossing over the line into threatening to cause those individuals death or bodily harm.

[77]        I also find it passing strange that an accused who is also a police officer would advert to his own status as a member of a law enforcement entity when raising a consumer complaint that is unrelated to his work.  Mr. Sood must have known that he had no standing or capacity to investigate an off-duty matter in which he was an involved party.  Mr. Sood’s references, in the course of his tirade, to his own status as a police officer were intimidating.  “I am the fucking police,” were his words on my factual finding.  Invoking that status to serve a private purpose could generate adverse professional repercussions for him, yet he pressed ahead.  I conclude that Mr. Sood strayed into this kind of behaviour—behaviour that carried meaningful risk potential for him personally and professionally—because he was so angry and upset that he was no longer exercising truly effective control over what he was saying.

[78]         During her closing submissions, counsel for Mr. Sood emphasised that her client was being tried on a charge under para. 264.1(1)(a) of the Criminal Code and not para. 264.1(1)(b).  The point she sought to make was that the threats that are the subject of the allegations Mr. Sood faces in this prosecution are threats “to cause death or bodily harm to any person” and not threats “to burn, destroy or damage real or personal property”.  This distinction is an especially important one inasmuch as Mr. Sood admitted during his testimony that one of the things he told Gert was that if M&M didn’t come to pick up the Dresser, he would bring it down to the store and throw it through the store window.

[79]        Those admissions, supported by Crown evidence, also do not comport at all well with Mr. Sood’s assertions that throughout, despite outward appearances, he exercised self-control, measured his words with care and made certain his words and actions stayed within legal limits.  As a policeman, Mr. Sood would know (better than most laypeople) that threatening to throw an item of furniture through the front window of a retail store’s premises carries the risk of attracting charges—charges, that is, under s. 264.1(1)(b) of the Criminal Code.  I conclude that Mr. Sood would only make that kind of threat in circumstances where whatever reserves of self-control he may have had were, at the time of this sorry incident, almost wholly depleted—so depleted, in fact, that his conduct degenerated to the point where even he admitted that his “behaviour” toward M&M representatives was threatening. 

[80]        Accordingly, I find that as a result of upset and anger, Mr. Sood took leave of his senses and his better judgment on January 6, 2018 and did, indeed, become “unhinged” in his dealings with M&M representatives.  In the vernacular, he “lost it”.  I reject as not credible, and as lacking an “air of reality,” Mr. Sood’s evidence that he maintained, or was then situationally capable of maintaining, a residue of self-control sufficient to prevent him from making threats to cause death or bodily harm to M&M representatives, including Gert.

[81]        Still other aspects of Mr. Sood’s testimony called his credibility further into question, and in so doing further undermined the trustworthiness of his staunch denials regarding the uttering threats charges.

[82]        For example, I return to the issue of the time Ms. Tiernan told Mr. Sood was the earliest that the Dresser could be picked up.  Ms. Tiernan was clear in her testimony that she told him that the earliest pickup possible was the following Monday (two days later).  She was not shaken on that point during cross-examination.  While it is true that in some online posts he made complaints about M&M suggesting that M&M only promised to do the pick-up “a few days” later (see Exhibit 1, tabs 4 and 5), Mr. Sood agreed with counsel during his examination-in-chief and during his cross-examination that it was “possible” that Ms. Tiernan had promised the pick-up for the following Monday.  Moreover, he did not testify that what Ms. Tiernan offered was definitely not Monday; rather, his evidence was that he simply “didn’t recall” it being Monday (just as he “didn’t recall” Gert telling him the same thing after hearing it from Ms. Tiernan).

[83]        Objectively and on its face, a two-day turnaround time to retrieve the Dresser from Mr. Sood’s home has the appearance of at least prima facie reasonableness.  But the tirade that followed an offer in those terms was premised on Mr. Sood’s contention that M&M was acting unreasonably when it failed to yield to his demand that the Dresser be picked up on the day of the tipping incident (Saturday, January 6, 2018) and that it was he (Mr. Sood) who was being the reasonable one, in the circumstances, in insisting on a same-day pick-up.  The stance that Mr. Sood adopted and then clung to in response to a prima facie reasonable resolution of his dispute with M&M reinforces my conclusions that, not long into his interactions with M&M representatives, almost all of his good judgment and self-control had taken leave of him.

[84]        Then there is the remarkable fact that none of the aforementioned evidence can be squared in any conceivable way with Mr. Sood’s astonishing testimony, given later during cross-examination, that “[he] would have been okay with Monday”. 

[85]        That evidence bears repeating: “[He] would have been okay with Monday”.

[86]        Those words resounded like a thunderclap in the courtroom.  If it is “possible” that Ms. Tiernan offered a Monday pick-up (as Mr. Sood conceded) and if he “would have been okay with Monday” (as he also said), then why did Mr. Sood make call after call after call in an escalating and increasingly forceful and profane pattern of insistence that the Dresser be picked up on the Saturday.  This evidence doesn’t hang together.  It doesn’t make sense.  It lacks an “air of reality”.  It highlights an inconsistency in Mr. Sood’s own story that is incapable of being explained or neutralised.  Indeed, his evidence that he “would have been okay with Monday” is incapable of being reconciled with the tenor of the entirety of the defence case.  As such, it casts a long and dark shadow across Mr. Sood’s credibility.

[87]        Based upon all of the foregoing, I have concluded that my credibility assessment regarding the alleged threat made by Mr. Sood to cause death or bodily harm to Gert falls to be decided on the third branch of the augmented R. v. W.D. formulation.  Under that branch, even if I am not left in reasonable doubt by the exculpatory evidence of Mr. Sood, I must ask myself—on the basis of the evidence I do accept—whether I am convinced beyond a reasonable doubt by that evidence of his guilt.

[88]        I disbelieve Mr. Sood when denies having made such a threat to Gert.  His denials are insufficient even to raise a reasonable doubt on that point.  And, having considered Gert’s evidence alongside the rest of the evidence I do accept, I am persuaded by that evidence, beyond a reasonable doubt, that Mr. Sood did tell Gert that he would “bash his fucking head in” and, thus, threatened to cause him death or bodily harm.

[89]        It follows that the answer to the question posed at the beginning of this section of these Reasons regarding count 1—i.e., “Is there proof beyond a reasonable doubt that Mr. Sood threatened to cause death or bodily harm to Gert?”—is “Yes.”

[90]        As was the case with Gert, the Crown contends, based largely upon Jesse’s own evidence, that in the course of the above-described events, Mr. Sood threatened to cause death or bodily harm to Jesse.  As has been noted previously, during Mr. Sood’s testimony for the defence, he resolutely denies having made any threats to Jesse.  Accordingly, in the same way as was done with the allegations about the threatening of Gert, the conflicting evidence regarding the alleged threats to Jesse must be analysed within the context of the evidence as a whole and with particular regard to the requirements of the augmented test in R. v. W.D.

[91]        Because any discussion of the evidence and any analysis regarding the alleged threatening of Jesse must unavoidably travel over some of the ground covered in the foregoing survey of the evidence regarding the alleged threatening of Gert, this portion of these Reasons will be shorter and will incorporate by reference aspects of what has already been said above on certain issues, most particularly Mr. Sood’s credibility.

[92]        Jesse is Gert’s son and has worked in the family business for about 17 years, the last three, full-time.  He is currently an I.T. systems administrator and sometime floor manager for the related companies to which I have referred throughout, collectively, as “M&M”.  On the side of that employment he also did some community policing work as an auxiliary officer but, as of recently, the program in which he was involved in that capacity is no longer operating.

[93]        Jesse first became aware of a problem with a disgruntled customer when Gert got him involved and wanted his advice about how to handle the situation.  Jesse spoke with both Gert and Ms. Tiernan about their dealings with the customer.  He testified that he could see that Ms. Tiernan was very “concerned” and “shook up”.  In those discussions he learned some of the specifics of the customer’s complaint, the solution that had been proposed for it, that the solution was not considered acceptable by the customer and that the customer had made a threat to cause harm to Gert.

[94]        Jesse was present during a call that Gert took from Mr. Sood in which he said Gert’s efforts to resolve the customer complaint seemed to “fall on deaf ears” and that the customer “continued to repeat himself” and indicated he would be coming down to the store.

[95]        Jesse ultimately concluded that it was necessary to place a call to a police non-emergency number so that Gert could report the problem and, in particular, the fact that Gert had been threatened.

[96]        Jesse testified that he placed that call to the Coquitlam detachment of the RCMP and quickly passed the telephone to his father.  He did not remain nearby for the duration of Gert’s call however because, he said, he was called away to take a new incoming call from Mr. Sood.  This was the first of many calls, Jesse testified, that Mr. Sood made to M&M that he took and in which Mr. Sood renewed his complaint about the Dresser and his demand that it be retrieved by M&M straightaway. 

[97]        It was Jesse’s evidence that in that first call he took from Mr. Sood there was some substantive discussion about Mr. Sood’s complaint and M&M’s proposed resolution of it.  When Jesse repeated what he knew Ms. Tiernan had learned on her inquiry—i.e., that the soonest the Dresser could be picked up was the following Monday—Mr. Sood responded in a “frustrated and argumentative” manner.  The proposed solution “did not satisfy the customer,” he said. Jesse testified that he also told Mr. Sood that M&M would give him a full refund for the Dresser—an offer that he said went “above and beyond” what is usual in such situations.  However, he said that what was being proposed still did not bring calm to their conversation or deflect Mr. Sood from his insistence upon a same-day pick-up of the Dresser. 

[98]        Jesse described how, as Mr. Sood’s dissatisfaction with the proposed solution grew, he became increasingly voluble, profane and demanding, suggesting for example that he might put the Dresser outside his house in the rain.

[99]        There was, Jesse testified, some discussion during that initial call about the condition of Mr. Sood’s son.  His evidence was that Mr. Sood said, in answer to his inquiry, that the boy was “fine” but wondered how Jesse would feel if his child were to be “crushed”. 

[100]     It was Jesse’s evidence that eventually, during the course of that first call—which, as is noted above, he took while Gert was making his report to police—Mr. Sood ultimately threatened to “come and bash [Jesse’s] fucking face in”.  At that point Jesse said he told Mr. Sood that he wouldn’t permit himself to be threatened further, that he was going to have to advise the police about the matter and that their conversation could not continue.  At that point he hung up.

[101]     As is clear from the transcript of the call Gert placed to the Coquitlam detachment non-emergency call-taker, once he finished speaking to Mr. Sood, Jesse re-joined Gert and advised him, while he was still speaking with the call-taker, that he (Jesse) had just been threatened: see Exhibit 1, tab 2, p. 8, line 134.

[102]     Jesse testified that Mr. Sood continued calling during the afternoon of January 6, 2018 but that the subsequent calls he took consisted mainly of Mr. Sood repeating his demands in a hostile and profane way and saying sometimes that he would come down to the store and cause some havoc or harm.  His evidence was that Mr. Sood did not return to matters of substance.  Jesse’s estimate was that there were approximately 50 incoming calls from Mr. Sood in total.  He said that he repeatedly asked Mr. Sood to stop calling and told him that if he continued he would have to keep hanging up.

[103]     Jesse described his own mounting frustration at Mr. Sood’s continued calling and described an unsuccessful attempt he made to block further incoming calls from him.  He also referred in his testimony to the steady flow of calls having created upset amongst the sales staff, saying that one had begun crying and others were concerned. 

[104]     Jesse gave evidence about a tactic he employed at a certain point that he said—beyond creating a record of relevant evidence for police—he believed might lessen the likelihood of Mr. Sood continuing with his calls.  That tactic involved writing down the hostile statements, including threats, that Mr. Sood was making, telling Mr. Sood that he was “recording” them, and then reading them back to Mr. Sood.  This tactic, Jesse admitted, did not have the desired effect of curtailing Mr. Sood’s angry calls.

[105]     I have referred above to the first threat that Jesse says Mr. Sood made to him—to “bash his fucking face in”—in the course of the first call he took from Mr. Sood.  It will be recalled that that was the call that had the largest quantity of substantive content.  It was Jesse’s evidence that over the course of the remaining calls he took, Mr. Sood made two further threats to him in the same terms (for a total of three in those terms) and one further and slightly different threat, i.e., to come and “punch him in the fucking face” (for a grand total of four).

[106]     As has been noted above, toward the end of the sequence of events at issue, Jesse put Mr. Sood on speaker.  Gert, Ms. Tiernan and Cst. Madge were all present and Jesse testified that he activated the telephone’s speakerphone feature so that Cst. Madge could hear for himself the “tone and content” of what Mr. Sood was saying.  Jesse made no mention in his testimony of any threats being made by Mr. Sood in the course of those speakerphone calls.  It was Jesse’s evidence that when Cst. Madge ultimately made it known that he was present and listening, there was a marked change in Mr. Sood’s tone and demeanour and, after he and Cst. Madge finished their discussion, no further calls came in to M&M from Mr. Sood.

[107]     Defence counsel’s cross-examination of Jesse was much more brief than it was of Gert.  However, some important ground was nevertheless gained in the course of it.

[108]     Some of that ground related to weaknesses in Jesse’s memory and some to a tendency that was revealed on his part to fortify his evidence with previously unmentioned detail that was generally unfavourable to Mr. Sood.  Beyond that, Jesse showed a tendency (though less of a tendency than Gert) toward argumentativeness and toward fastening onto trivialities in some of the questions put to him.  

[109]     An important example of the latter arose when he was being questioned about his decision not to create an audio recording of Mr. Sood’s calls.  Counsel asked Jesse why he hadn’t used his iPhone to make such audio recordings and he responded by noting that his mobile is not of the iPhone brand.  This kind of manoeuvring did not impress the court.  Rather, it left the impression that Jesse was uncomfortable with the rather important substantive focus of the cross-examiner’s line of questioning and that he preferred to deflect and distract by giving answers that zeroed in on unimportant details rather than confront the questioning’s substance, directly and forthrightly.

[110]     Staying with the subject of the recording of incoming calls for a moment, Jesse ultimately gave what I consider to have been wholly unsatisfactory evidence when pressed on that point by cross-examining counsel.  After attempting (as noted) to avoid the questions by taking refuge in irrelevant detail, he conceded that his mobile did have the capacity to make audio recordings and that it would have been possible to record at least the calls that were played out on speakerphone.  In the end, his testimony regarding why he didn’t use the recording capabilities of his mobile to capture Mr. Sood’s troubling words in an audio recording—that is, the best evidence that could be obtained of those utterances—amounted to little more than a weak protestation that to do so wasn’t “realistic”.  The fact that Jesse did not make audio recordings of Mr. Sood’s alleged threats to him left the Crown without the most powerful weapon it could have had in its arsenal against Mr. Sood with respect to count 2.

[111]     Jesse revealed some confusion about how many calls he received that involved Cst. Madge.  While in his direct evidence he recalled only one, on cross-examination when taken to his police statement he agreed that two calls came in in the officer’s presence, both were put on speaker and that it was during the second of those that the officer picked up the receiver and concluded the call with Mr. Sood off speaker.  While that is not an inconsistency of great moment, it does show that Jesse’s memory has its frailties.

[112]     Jesse agreed with the proposition put to him that the calls from Mr. Sood that were put on speakerphone for Cst. Madge were the “same kind” that Mr. Sood had been making “all day”.  (This is important because Cst. Madge did not testify to having heard Mr. Sood make any threats in the course of those calls.)

[113]     When pressed on his estimate that Mr. Sood had made 50 calls to M&M, Jesse agreed on reflection while being cross-examined that the number could have been as low as 40.

[114]     Jesse’s evidence that Mr. Sood said to him, during some of his calls, that he would come down to M&M and cause “harm” or “havoc” was challenged on cross-examination.  When he was taken to his police statement he had to agree that he did not mention that detail when he gave his statement two days after the incidents in question.  It was, indeed, a grudging acknowledgement Jesse offered in that regard; all he was prepared to concede was that “it doesn’t say that here” (referring to his police statement).

[115]     Similarly, Jesse’s assertion during direct that Mr. Sood also said that he might leave the Dresser out in the rain if M&M didn’t come to pick it up conveys a detail that, similarly, was shown on cross to be altogether missing from his near-contemporaneous police statement.

[116]     The cross-examination of Jesse confirmed that he, Gert and Ms. Tiernan all conferred with one another during the day on January 6, 2018, that Cst. Madge discussed the situation with them all in the same room when he attended at the store and that he did not caution them against discussing matters amongst themselves when he left.  Jesse further agreed that there was some further discussion of Mr. Sood’s calls involving him, Gert and Ms. Tiernan after Cst. Madge left M&M that day.

[117]     Jesse confirmed under cross-examination his impression that Cst. Madge left the store on January 6^th after his investigation believing that the matter was a civil one that would likely be resolved through the return of the dresser.

[118]     Gert had no evidence of his own to give regarding the alleged threats made by Mr. Sood to Jesse.  He knew about Jesse having been threatened as a result of discussions he had with Jesse (sometimes in the company of others), but he had no first-hand observations of his own to report.

[119]     Importantly, as I have noted above, even though he had the opportunity to listen to Mr. Sood speaking to Jesse twice on speakerphone, Cst. Madge did not give any evidence to suggest that he himself heard Mr. Sood make any threats of any kind to Jesse (or to anyone).  He did, however, confirm that Jesse showed him his notes of what Mr. Sood had been saying on some other calls and that those notes referred in part to threats.

[120]     When describing the speakerphone calls from Mr. Sood to Jesse that he was present to hear, Cst. Madge recalled a degree of symmetry in the upset and the agitation that was displayed by both participants (i.e., Mr. Sood and Jesse).  There was “some excitement and raised voices” on both sides, he testified, but the content of those calls, including the one that he ultimately had with Mr. Sood off speaker, led him ultimately to conclude that the dispute was really a “civil matter”.

[121]     Thus, Cst. Madge testified that when he finished his investigation on January 6^th, he left M&M without any intention of carrying out a follow-up investigation, believing that at the end of the day what he had investigated was properly viewed as a civil matter and that it would be resolved as such.  It was only when his superior directed him to return to M&M and take statements (because of concerns about Mr. Sood having allegedly referred to himself in his dealings with some M&M representatives as having a police affiliation) that Cst. Madge resumed the investigation the following week.

[122]     I have mentioned more than once before in these Reasons that Mr. Sood concedes that he was angry and foul-mouthed in his phone conversation with Jesse (just as he concedes that he was angry and foul-mouthed in his phone conversations with Gert and Ms. Tiernan).  However, he did not waver in his testimony, in direct and under cross-examination, that he stopped short of making any threats.  In particular, he denied saying anything to Jesse along the lines of “I’ll come and bash your fucking face in” or “I’ll come and punch you in the fucking face”.

[123]     I referred, when carrying out my analysis of the evidence regarding Mr. Sood’s alleged threat to cause death or bodily harm to Gert, that the evidence given by Gert in that regard was not perfect.  As can be gleaned from the summaries above, the evidence of Jesse was less perfect still.

[124]     Jesse portrayed himself, throughout his testimony, as a calm and collected young man whose memory of relevant events at trial was solid and whose conduct at the time of those upsetting events was level-headed, steady and mannerly.  By his account he maintained a cool head throughout and pursued a diligent effort to de-escalate an unwelcome conflict with an M&M customer that was worsening and showing signs of degenerating, potentially, into physical violence.  Jesse made reference in his testimony to his policing background, both generally and in connection with the steps he took to write down notes of the things Mr. Sood was saying in the course of his many telephone calls to M&M on January 6, 2018.

[125]     However, the evidence taken as a whole persuades me that Jesse’s own behaviour during his many exchanges with Mr. Sood was not as composed and exemplary as he portrayed it to be.  In many ways I cannot fault him; he was responding in the moment to an unrelenting series of rude, crude and unreasonable demands from a very angry and hostile customer.  He had little time to think through options and strategies for bringing the incident to a peaceful conclusion.  But I am still left with the impression that he coloured his evidence somewhat in order to put himself in the best possible light and to draw a sharp contrast between his behaviour and the deplorable behaviour of Mr. Sood.

[126]     A more objective, if abbreviated, picture of Jesse’s handling of the matter emerges from Cst. Madge’s testimony.  The officer had the opportunity to hear Jesse and Mr. Sood engaged in a couple of their heated conversations on speakerphone without Mr. Sood knowing he was listening.  In those circumstances one would expect Jesse to be on his best behaviour given Cst. Madge’s presence.  In those circumstances one would expect Mr. Sood to carry on as he had been, having no idea that a police officer was listening in.  Yet, in describing those conversations, Cst. Madge drew no sharp distinction between the ways that Jesse and Mr. Sood conducted themselves.  Rather, he spoke somewhat symmetrically about a “raised tone” and about there being “some excitement and raised voices”—that is, voices plural—in the calls he heard.  I acknowledge again that these calls represent only a sample.  But I make the point mainly to say that when considering the credibility of Jesse’s evidence, I have reason to conclude on this point alone that he indulged a tendency to shade his evidence somewhat in his own favour and against the interests of Mr. Sood.  That requires that I approach Jesse’s evidence with extra caution.

[127]     There are other examples that emerge from Jesse’s cross-examination which amplify the court’s concern.  As the summaries above show, Jesse also tended to add detail to the accounts of relevant events that he gave at trial which reflected poorly upon Mr. Sood but which did not figure in his earlier police statement.  I am thinking here of his reference, for example, to Mr. Sood having said during his calls that he intended to come down to the store and cause “harm” or “havoc”.  These references surfaced for the first time at trial a year later; they did not figure in his recollection of events two days after the subject events occurred (i.e., when he gave his police statement).  Jesse added other detail to his testimony at trial that was also not included in his near-contemporaneous police statement.  That other detail included his testimony that Mr. Sood had told him that if M&M didn’t pick up the Dresser he would leave it out in the rain. 

[128]     Such embellishments and elaborations must inevitably diminish the court’s confidence in Jesse’s testimony to a degree.

[129]     As was defence counsel, I too find myself entirely unsatisfied by Jesse’s answers given during cross-examination on the subject of his failure to use his mobile phone to record Mr. Sood’s offensive words.  Jesse referred to his experience as an auxiliary policeman in the course of his testimony.  That experience made him a somewhat more sophisticated witness than most who work in retail environments and find themselves caught in ugly and frightening exchanges with disgruntled customers.  That policing experience, apparently, led him to make some effort to preserve a record of Mr. Sood’s offensive statements.  Yet the best record of those statements—an audio recording of Mr. Sood’s intemperate language, threats and all—is nowhere to be found because Jesse didn’t make one.  His failure to do so has not been satisfactorily explained.

[130]     Recall that Jesse confirmed on cross-examination that he had with him at all material times a mobile phone capable of making audio recordings but he didn’t use it to capture the best evidence there could be of what Mr. Sood said.  I consider that his contention that it was “unrealistic” for him to do so rang hollow, particularly so coming as it did after his attempts to dodge this important line of questioning by taking refuge in irrelevancies.  Jesse testified that he sought to write down what Mr. Sood was saying, including his threatening words, but he couldn’t keep up.  Why not just switch on the recording feature on his mobile?  It is plain that some of Mr. Sood’s unwelcome calls were put on speaker without Mr. Sood realising that fact.  And there is no evidence before me to suggest that one couldn’t still audio record conversations that weren’t played over the speakerphone.  Jesse’s failure to use what he had at his disposal to capture evidence of Mr. Sood’s offensive words, especially in light of his preoccupation with making a record of those words in some way, does not accord with common sense and, thus, tells somewhat against the credibility of his evidence overall.

[131]     Cross-examination of Jesse revealed another source of concern.  It relates to the representativeness of the incoming calls from Mr. Sood that Cst. Madge was able to hear on speakerphone.  Recall that Jesse testified that Mr. Sood made four threats to him in total—three that he would “bash his fucking face in” and one that he would “punch him in the fucking face”.  These are said to have occurred over the course of the calls that Mr. Sood made and that Jesse answered.  Plainly, the threatening content is the most important and salient feature of the calls that Mr. Sood placed to M&M when voicing his complaint about the Dresser.  Yet there is no evidence from anyone, and most importantly Cst. Madge, that the calls from Mr. Sood that he heard on the speakerphone contained any threats to Jesse (or to anyone, for that matter).  Beyond that, and just as importantly, Jesse agreed with counsel during cross-examination that what Cst. Madge heard on speaker was “representative”—i.e., that the things Mr. Sood said within Cst. Madge’s hearing on speaker were the same kinds of things he had been saying all day.  The omission of any threats from the only words spoken by Mr. Sood to Jesse that anyone else was able to hear, perforce in generally representative calls, casts further doubt upon Jesse’s credibility and the evidence he gave.  This perhaps helps to explain in part at least why, following his initial investigation, Cst. Madge reached the conclusion that the matter called for no more police action and thus he left M&M believing that its resolution lay in the civil realm.

[132]     The issue of tainting—essentially inoperative with regard to Gert, given the fact that he had received the first threat before discussing threats with anyone—is very much on foot when Jesse’s evidence comes under the microscope.  There is evidence aplenty to show that Jesse, Gert and Ms. Tiernan discussed Mr. Sood’s complaint and what he was saying during his telephone calls between and amongst themselves over the course of the day.  They discussed Mr. Sood’s threat to Gert before and after Mr. Sood made threats to Jesse.  Moreover, they discussed these matters again when they were interviewed, together, by Cst. Madge near the end of the day.  The possibility that in the course of a stressful and fluid situation, things Gert said about threats made by Mr. Sood to him may have become “co-mingled” (as counsel put it) or perhaps conflated with what Jesse remembered about what was said by Mr. Sood to him directly cannot be ruled out.  And could Jesse’s elaborations in his testimony about Mr. Sood having threatened to come to the store to cause “harm” or “havoc” be echoes of something Gert told him about Mr. Sood saying to him that he would come down to M&M and throw the Dresser through the store’s window?  We can never know for certain but tainting and conflation could be an explanation.  As has been argued, tainting is an aspect of this case that impairs the credibility of Jesse’s evidence and, thus, the ability of that evidence to carry the Crown’s case over the high threshold it must clear in order to justify a conviction on count 2.

[133]     Everything I have to say to this point in my analysis of the evidence regarding the charge that Mr. Sood threatened to cause death or bodily harm to Jesse has focused upon the character and quality of the Crown’s evidence and particularly the evidence of Jesse himself.

[134]     There is little that needs to be said here about Mr. Sood’s defence testimony denying any such threats that has not been said before in these Reasons.  When discussing the exculpatory evidence Mr. Sood sought to give regarding the threats he allegedly made to Gert, I provided a full and detailed account of why I found that exculpatory evidence to be false and unworthy of belief.  All of that reasoning applies equally here.  Mr. Sood contended that while he admits to having been intemperate and uncivilised in his dealings with M&M representatives, nevertheless he stopped short of making threats to anyone to cause them death or bodily harm.  I rejected that exculpatory evidence in connection with the alleged threats against Gert and I reject it equally and for the same reasons in connection with the alleged threats against Jesse.

[135]     Based upon all of the foregoing, I have concluded that my credibility assessment regarding the alleged threat made by Mr. Sood to cause death or bodily harm to Jesse once again falls to be decided on the third branch of the augmented R. v. W.D. formulation.  Under that branch, even if I both disbelieve the evidence of Mr. Sood (which I do) and even if that evidence does not raise a reasonable doubt in my mind about his guilt (which it does not), I must ask myself—on the basis of the evidence I do accept— whether I am convinced beyond a reasonable doubt by that evidence of his guilt.

[136]     I disbelieve Mr. Sood when denies having made such threats to Jesse.  His denials are insufficient even to raise a reasonable doubt on that point, just as they were with regard to Gert.  But, that notwithstanding, the Crown’s evidence supporting its contention that Mr. Sood made threats to “come and bash [Jesse’s] fucking face in” and “punch [Jesse] in the fucking face” is, for the reasons I have given, insufficient to discharge the Crown’s burden.  Because of its frailties and because of the credibility concerns I have identified with respect to Jesse’s testimony, the evidence I do accept falls short of persuading me, to the high threshold of “beyond a reasonable doubt,” that Mr. Sood threatened Jesse in the manner alleged.

[137]     It follows that the answer to the question posed at the beginning of this section of these Reasons regarding count 2—i.e., “Is there proof beyond a reasonable doubt that Mr. Sood threatened to cause death or bodily harm to Jesse?”—is “No.”

[138]     For all of the foregoing reasons I find the accused, Deepak Kumar Sood:

[139]     Orders accordingly.