FAQ's Cases - Stewart McKelvey

When viewed in that light, it is far more probable that Mr. Keen’s frustration and angerhad boiled up and caused him to attempt to intimidate Mr. Birch by way of a death threat.Another consideration is that Mr. Keen never corrected Mr. Wallace when thelatter was explaining the Grievor’s concerns to Mr. Mutter or again when Mr. Mutterreiterated them to Mr. Birch. Mr. Keen simply allowed what he now says were his badlystated concerns to Mr. Wallace to remain uncorrected. As a result, it appears that eitherhe is now lying about that or that he was so emotionally upset he was not engaged in theconversation at all. Either conclusion places the reliability of Mr. Keen’s testimony infurther jeopardy.The next relevant factor is the absence of any attempt by Mr. Keen to clarify hisremark. If the Grievor had truly meant the comment as merely one of a concern forsafety, it would be reasonable to have expected him to react to Mr. Mutter’s comment inthe office that the statement was inappropriate and immediately state that there had beenno threat intended. As well, he could have spoken with Mr. Mutter after they left theoffice and were in the process of leaving the building. Again, on the following Mondayand Tuesday, the Grievor spoke twice with Mr. Wallace and he did not take thoseopportunities to attempt to clarify his intention. This lack of any attempt on Mr. Keen’spart to clarify or explain his meaning is a significant indication that he had intended theremark in the meeting on August 20 as a death threat against Mr. Birch: Alcan Smeltersand Chemicals Ltd., supra. To borrow a well-used phrase, Mr. Keen’s silence after theremark was made was deafening.In a similar vein, the Grievor has never shown any remorse. Mr. Keen did notapologize to anyone which should have been the case if he had genuinely felt his remarkhad been misinterpreted. The lack of apology is not being used here as evidence of theabsence of a mitigating factor under the second Wm Scott question, but rather as anindication that Mr. Keen meant the words exactly as they had been taken by Mr. Mutter,Mr. Wallace and Mr. Birch, and that he was content to leave the perception of the threatto linger beyond August 20.In conclusion, based on all the above evidence, I conclude, on the balance ofprobabilities, that Mr. Keen did utter a death threat against Mr. Birch in Mr. Mutter’s2011 CanLII 85129 (BC LA)14