All in the blogosphere who read Barbados Free Press and Kelruth blogs are very familiar with the close interest which these blogs have placed on the long running Kinglands Estate legal matter. Truth be told we have found the matter very intriguing if for no other reason that persons named in a law suit in Canada reads as the Who is Who of Barbados. Many people who have discussed this matter seem to believe that this is a law suit which has created nuisance value even though we should not discount that they are some issues about the Kingsland land deal which need to be resolved.

Barbados Free Press and Kelruth blogs have published tapes of conversations allegedly connected with the trial, interesting indeed. Of late however we have read the articulate rebuttals by a commenter who operates using the moniker Black Woman Who Reads (BWWR). We have read the voluminous information which Keltruth and BFP blogs have posted but we appear to be still missing the ‘hook’ of the argument. We have reposted (unedited) a submission from BWWR et al who continues to rebutt the argument which have been put forward by both BFP and Kelruth. Perhaps BU can take a provocative position in this matter.

David – BU

My mother uses the name of BWWR, or Black Woman Who Reads to comment on various matters. Most recently, because of her legal training, she has been commenting on the Kingsland Estates matter and the case before the Ontario Courts. She has now been banned on BFP because her comments are not consistent with the wishes of BFP and Keltruth and because they reveal a fraud that has been practiced on the people of Barbados by certain parties. (BWWR please note that both BU and BFP periodically place our blogs on moderation which will result in comments posted being held in the moderation queue until they have been cleared)

Today, I send you on behalf of Black Woman Who Reads the Reasons of the Ontario Superior Court is Justice that contain extracts and conclusions on alleged “threats” uttered by Mr. Peter Simmons to parties supporting the Plaintiff in the action. I have published this in Keltruth’s comments as well. An attempt to publish on BFP has been met with the ususal comment that the message is being “moderated”.

REASONS FOR DECISION ON MOTIONS

[1] The Plaintiff issued a claim in the proceeding on February 9, 2007 (and subsequently amended). The Statement of Claim states that this proceeding relates to Kingsland Estates Limited, “a company pursuant to the Companies Act of Barbados having its head office at Bridgetown, Barbados and with property and business dealings in Barbados.

[2] There are numerous claims advanced in the Statement of Claim. In brief compass the allegations are that the defendants conspired with one another to benefit themselves and thereby caused past, present and future economic loss and damage to the Plaintiff.

[3] The Plaintiff pleads as against the “Country of Barbados” that it is involvement and that the Plaintiff is unable “to enforce or collect any judgment payable by Barbados in Barbados because of the facts stated herein [in the statement of claim] including that some of the co-conspirators are members of the judiciary and governing party.

[4] There are three contested motions which are argued before this Court:

(a) The plaintiff’s motion for directions respecting the location of the cross examinations of the defendant affiants who are resident in Barbados or alternatively an order that the defendants pay for personal security for the cross-examinations.
(b) The Plaintiff’s motion for an order to compel Cable & Wireless (Barbados) Ltd. to collect and produce information found on the Internet.
(c) The defendant Price Waterhouse Coopers (Barbados) motion which is supported by most of the defendants for an order for directions relating to the conduct of the cross-examinations.

OVERVIEW

[5] The affidavit material field by the Plaintiff provides lengthy and detailed background information relating to the genesis of this lawsuit. In summary form I will outline briefly the relevant background information.

[6] John Knox is the principal affiant however he is not a party to the proceeding. Mr. Knox relates that his grandfather Estwick Ebeneezer Deane and his wife Ilma Kathleen Ashby made a series of land acquisitions in Barbados. The Deans had 7 children one of whom is the defendant Marjorie Ilma Knox, who is the mother of John Knox.

[7] In 1949 Estwick Ebeneezer Deane made all seven children and his wife tenants in common in all lands which he owned which was approximately 700 acres. Subsequently more land was acquired by the family as tenants in common including valuable beachfront property.

[8] In 1958 the family, as tenants in common, incorporated Kingsland Estates Limited and which purportedly had land holdings in excess of 1,100 acres at that time.

[9] The affiant John Knox states that the shares of Kingsland Estates Limited are physically located in Canada “as part of security arrangements”. I interpret this to mean that the shares of his mother Marjorie Knox are lodged in Canada. He further alleges in his affidavit that the conspiracy alleged in the amended statement of claim includes “the persons and companies that had the intention and plan to take control of the lands and develop them in such a way that the value would be stripped from the company and the shares would be rendered worthless while others benefited.”

[10] It is the contention of John Knox that, upon the death of his grandparents, three of their sons, the siblings of his mother Marjorie Knox sold off and disposed of lands in a manner that did not provide compensation to Kingsland Estates Limited. Further, the alleged conspiracy that is the subject matter of this action involves a number of transactions whereby the various defendants have transferred shares in Kingsland Estates Limited to themselves or others.

[11] A corporate search of the Plaintiff Corporation indicates that it was incorporated in Ontario on November 15, 2005. The director of the corporation is Donald Best and the head office is given as the same address as the Plaintiff counsel’s law firm in Orillia, Ontario.

History of the Litigation

[12] Following service of the Statement of Claim, various defense counsel forwarded correspondence to advise Plaintiff’s counsel that they would be bringing a preliminary motion pursuant to Rules 21.01(3) and 17.06

[13] On August 10, 2007, at the direction of the Regional Senior Judge, a number of counsel for the parties attended before me at which time orders respecting service were made and the date of the substantive motion concerning jurisdiction was set to be heard on January 14 & 15 2008.

[14] On August 14, 2007, Mr McKenzie, Counsel for the Plaintiff forwarded correspondence to all defense counsel advising that:

Vicious and specific threats have been communicated to me about my participation as counsel in this action. Of more concern is that similar threats have been made regarding the participation of the affiant John Knox.

[15] John Knox is not a party to these proceedings, but he is the principal affiant on behalf of the Plaintiff.

[16] Many of the counsel responded to Mr. McKenzie’s correspondence of August 14, 2007 requesting particulars of the allegation of threats. Mr. McKenzie did not respond to these requests at that time.

[17] On September 4, 2007 Jessica Duncan, a lawyer at Mr McKenzie’s law firm sent correspondence to all defense counsel that she had “taken charge of the threats directed to Mr. McKenzie. Ms. Duncan’s correspondence also stated that an expert had been retained to review “the specific communications in question and the ramifications of them in the overall circumstances of this file…” and that particulars would be provided once the expert completed his review. Several defense counsel responded to Ms. Duncan’s letter advising that without particulars of the alleged threats, they were unable to address the actual facts and concerns. These counsel also enquired whether the matter had been reported to the police. There was no further response to this correspondence. On the same day, September 4, 2007, Mr McKenzie forwarded a letter to defense counsel proposing a schedule for the cross-examinations of the various affiants in advance of January 14 & 15, 2008 return date
for the jurisdiction motion. Mr. McKenzie’s correspondence was silent on the place of the cross-examinations. At least two defense counsel responded to Mr. McKenzie’s September 4, 2007 correspondence requesting confirmation that the examinations would be held in Barbados and noting that the time proposed for the cross-examinations of the of the various affiants (two days each) was excessive.

[18] On September 19, 2007 there was a conference call with all counsel and me primarily to address issues of substitutional service and which was dealt with by way of a Court Order. There was no mention of any security concerns or related concerns about having a number of the affiants examined in Barbados where they reside.

[19] On November 5, 2007, Mr. McKenzie forwarded correspondence to all defense counsel to advise that he would be delivering a motion for directions as to the timing for the delivery of further materials and the place and scheduling of cross-examinations. This would appear to be the first time that counsel for the Plaintiff indicated that there was an issue respecting the location of the cross-examinations despite the fact that several counsel had raised the issue two months earlier on September 5 and 6 2007. At the time that the November 5, 2007 letter was sent, counsel for the Plaintiff had in his possession the affidavit of Stuart Heaslet sworn September 12, 2007 as well as a 122 page security report prepared by Mr. Alan Bell dated November 2, 2007. The significance of the Stuart Heaslet affidavit and the Alan Bell report will be discussed in detail later in these Reasons. The November 5, 2007 correspondence from Mr. McKenzie did not mention threats or security issues . The last
communication of any threat was Ms. Jessica Duncan’s letter of September 4, 2007.

[20] On November 7, 2007 Mr. McKenzie forwarded unsolicited correspondence to counsel for the defendants “to dispel the rumours and set the record straight.” Mr. McKenzie advised inter alia, that he had no direct or indirect interest in the plaintiff or in the outcome of the lawsuit. One of the defense counsel, Mr Ranking, responded to this correspondence by a latter dated November 9, 2007 as follows:

It concerns me that you felt compelled to write your letter. I don’t know if I speak for other counsel, but I have no idea who made allegations as to your having a personal interest in this action, the nature of the allegations, when they were made or why. What is going on? Please elucidate and provide particulars.
Also you continue to make claims as to alleged threats which, of course, are of the utmost concern. However, you still have not provided any details. That too is disquieting. If, as you say, threats have been made, it is only appropriate that you disclose the details of such threats to the extent they are within your knowledge or the knowledge of your client.

[21] On November 19, 2007 counsel for the plaintiff delivered a motion record which among other things included an affidavit by Stacey Ball attaching transcripts of telephone conversations between the defendant Peter Simmons and Stuart Heaslet which were surreptitiously recorded on August 10 and 13 2007. In the same motion record is a security report of Mr. Alan Bell delivered to Ms. Jessica Duncan on November 2, 2007. It is in this motion record that counsel for the defendants for the first time learned of the particulars of the alleged threats against Mr. William McKenzie and Mr. John Knox. The Plaintiff’s motion material also contained a lengthy affidavit of John Knox sworn November 12, 2007.

[22] There was a conference call with all counsel and I for the purpose of scheduling the motions as well as the logistical issues flowing from the motion record delivered. An Order was made directing a timetable for the delivery of materials responding to the threat allegations that had been particularized in the November 19, 2007 motion record. In the conference call Mr. McKenzie indicated that there were further security threats but he declined to give particulars. Following the conference call, counsel for various defendants confirmed that they had consulted with their respective clients and that none were aware of the threats beyond those that Mr. McKenzie had alleged.

[23] Subsequent to the conference call on December 3, 2007 Mr McKenzie forwarded several letters containing purported excerpts of “blog” entries posted in the months of November and December 2007. The blog is owned by “Keltruth Corp” and is administered by Kathleen Davis who is the sister of the plaintiff’s affiant John Knox and the daughter of the defendant Marjorie Knox. John Knox swore a further affidavit on January 11, 2008 wherein he indicates that his sister Kathy Davis resides in Miami, Florida and that she is “the administrator, contributor and constant reader of the Keltruth Blog. His affidavit goes on to state that this blog “entertains public opinion about general matters and including matters relating to her homeland, Barbados, and the interest our family has in Kingsland Estates Limited.” The affidavit details that on November 14, 2007 there was posted on Keltruth Blog a “vicious and unwarranted threat that came from Barbados that threatened bodily harm and death against our mother” (the defendant Marjorie Knox). The words of the blog message are found at page 7 of the affidavit of John Knox and they can be fairly characterized as vulgar, vicious and threatening to Marjorie Knox. John Knox relates that he brought the blog messages to the attention of Mr. McKenzie who “promptly wrote letters not only to counsel in this case but also to the Barbados Commissioner of Police, Mr. Dottin, as well as Cable & Wireless (Barbados) Limited”. Mr. McKenzie’s correspondence is dated December 10, 2007 and it is noteworthy that this correspondence was posted on the Keltruth Blog on January 4, 2008.

[24] On December 14, 2007 an unknown person or persons posted a poem on the Keltruth Blog which purportedly is a threat against a Barbados hotelier, Adrian Loveridge and his wife. The content of the message is a threat to burn down Mr. Loveridge’s hotel and thereby endangering his life. When asked by the Court to explain the relevance of this information Mr. McKenzie advised that Mr. Loveridge is a person that he had dealings with in Barbados.

[25] In correspondence dated December 21, 2007, Erskine J. Holmes, Legal Advisor to Cable & Wireless (Barbados) Limited acknowledges receipt of Mr. McKenzie’s letters. Mr. Holmes indicates that Cable & Wireless (Barbados) Limited has initiated an investigation of the messages on the Keltruth Blog and “is awaiting formal communication from the Royal Barbados Police Force.” It is the Plaintiff’s information that Cable & Wireless (Barbados) Limited owns the Internet Service Provider through which the postings on the Keltruth Blog originate.

[26] On December 20, 2007, Mr. McKenzie forwards a letter to defense counsel advising that he is going to examine a Mr. Nitin Amersey in Bay City, Michigan, U.S.A. on January 10, 2008. Counsel for most of the defendants objected on several grounds including the fact that there had been no prior consultation or arrangements. None of the defense counsel attended on the examination. I have reviewed the transcript of the examination of Nitin Amersey as conducted by Mr. McKenzie. I find that it is replete with unsubstantiated allegations of fraud and corruption concerning various individuals, the police and the government of Barbados which are unreliable and not relevant to the issues on this motion or the jurisdictional motion. Mr. Nitin Amersey has no connection direct or indirect to the subject matter of this litigation.

PLAINTIFF’S MOTION IN RELATION TO CABLE & WIRELESS (BARBADOS) LIMITED

[27] The Plaintiff seeks an Order directing Cable & Wireless (Barbados) Limited to preserve and produce to counsel for the plaintiff the data and information detailed in a lengthy letter dated January 2, 2008 from counsel for the plaintiff. Alternatively the plaintiff seeks an Order requiring that Cable & Wireless (Barbados) Limited and Cable & Wireless PLC attend an examination for use on a motion and to bring data and information as referred to in Mr. McKenzie’s letter of January 2, 2008 for every IP address identified in several affidavits. It is further advanced as alternative relief that if it is found that the examination is to be outside Ontario, the an Order is requested providing for a commission authorizing the taking of evidence before a named commissioner and “a letter or request directed to the judicial authorities of the jurisdiction in which the person is to be found, requesting the issue of such process as is necessary to compel the person to attend and be examined before the Commissioner”. There is also a request that the Commissioner “pose oral questions and receive answers in accordance with the Ontario Rules of Practice.

[28] The Plaintiff’s position is that the Order is required as “there are continuing issues in this case with respect to threats and their relevance to the place of examinations and ultimately the hearing of the jurisdiction motion”.

[29] The Defendants’ position is that correspondence received from Cable & Wireless (Barbados) Limited dictates the appropriate legal process to be followed. The Defendants also express a valid concern that the scope and nature of the proceedings (the jurisdictional motion) will be “high-jacked” by a multitude of applications which will significantly impede the hearing of the central issue, namely jurisdiction.

[30] Attached as an exhibited to the affidavit of Stacey Ball sworn January 11, 2008 is a copy of a fax communication dated January 8, 2008 from Rebecca Bell, legal counsel for International Business of Cable & Wireless U.K. Miss Bell indicates that the company is following up on Mr. McKenzie’s correspondence “internally and in conjunction with Cable & Wireless (Barbados) Limited.” This is followed by a letter to Mr. McKenzie which states:

“Pursuant to the Telecommunications Act , Cable & Wireless can only produce information upon the production of a Court Order from the High Court of Barbados. Under Section 107(4) of the said Act, a licensee, like Cable & Wireless, is prohibited from using or disclosing any information or document that relates to the content of any message or the private affairs or personal particulars of any person, that comes into the licensee’s knowledge or possession in connection with its business of providing telecommunication services. Such a licensee is only permitted to disclose information to the High Court of Barbados in connection with a Court Order made in civil proceedings under Section 107(5) (f) of the Act.

[31] The argument advanced by Counsel for the Plaintiff is that the Superior Court of Ontario ought to issue an Order directing Cable & Wireless to produce the information requested. Mt McKenzie states that the Plaintiff will probably get what it wants simply on the strength or an Order of this Court. He also asks that this Court make a determination that the Keltruth impugned blogs are relevant to an issue in this proceeding, namely threats and he suggests that this Court issue an Order for the production of data and information and “see what happens”. Mr. McKenzie also argues that this Court can assume jurisdiction for the purposes of this application and make an Order under Rule 34.07 , based on the reasoning of Justice Arbour in the case of United States v Cobb (2001) 152 C.C.C. (3d) 270 (SCC). Finally, Mr. McKenzie submits that there is comity between the Superior Court of Justice and the High Court of Barbados such that if this Court finds that the requested information is necessary and relevant then it is unlikely there will be resistance to an Ontario Superior Court Order.

[32] Mr. McKenzie in his argument attempts to connect the threats on the Keltruth Blog to the alleged threats in the Heaslet-Simmons taped conversations. I do not accept this suggestion. There is no evidence before this Court that would demonstrate any relevant of the Keltruth blogs to the Heaslet-Simmons telephone conversations. Further, I find that United States v Cobb has no relevance to the issue at hand. The Cobb case involved extradition proceedings and the interplay of the Charter of Rights and Freedoms and it is a case where the facts were largely not in dispute. I reject the suggestion that in these circumstances this Court can simply assume what counsel refers to as a “micro jurisdiction” and make Orders referring to corporations in a foreign jurisdiction. Further, the defendants have not attorned to this jurisdiction and therefore it would be inappropriate at this stage with the jurisdictional issue squarely before this Court, to issue an Order under Rule 34.07 of the
Ontario Rules of Practice.

[33] I reject completely the suggestion that this Court, without any juridicial basis, make an Order directing Cable & Wireless (Barbados) Limited or any of its affiliated companies to produce any information that is regulated by the Telecommunications Act of Barbados. This Court cannot and will not issue Orders as against foreign persons or corporations simply on the basis “to see what happens”. To do so would seriously undermine the respect, deference and comity that this Court enjoys internationally.

[34] I am also troubled by the lack of procedural fairness at play in the Plaintiff’s position in relation to Cable & Wireless Barbados Limited. This corporation seeks to act in a manner which is in compliance with the Telecommunications Act of Barbados. To accede to the Plaintiff’s position would be to leave the corporation in an untenable position under the laws of the country in which it is conducting business. Such a result is to be avoided. I would also note that there has been no attempt by the Plaintiff to seek the relief requested in the High Court of Barbados.

[35] There is no evidence that the Keltruth blogs are relevant to other alleged threats in this proceeding. The information presently before this Court is that anonymous and unknown threats have been posted on a blog that relate to the defendant Marjorie Knox and to an unrelated hotelier, Adrian Loveridge who apparently has some association with Mr. McKenzie. It does not escape the notice of this Court that Marjorie Knox is represented in these proceedings by Mr. Sheppard, a lawyer practicing in Barbados. It is confusing as to why Mr. Sheppard has taken no position on this motion and why Mr. McKenzie sends correspondence relating to the Keltruth blog to the Commissioner of Police in Barbados on behalf of Marjorie Knox.

[36] There is no evidence before this Court that any of the defendants in this proceeding are implicated in the Keltruth blog statements. It should also be noted that Defense counsel has advised Plaintiff’s counsel that they and their respective clients have no involvement or knowledge as to the sender of the blog messages.

[36] Therefore I dismiss the application to compel Cable & Wireless (Barbados) Limited to produce to Counsel for the Plaintiff the data and information described in the correspondence dated January 2, 2008 attached as Exhibit “A” to the Notice of Motion. I also dismiss the ancillary and alternative relief requested in the Notice of Motion. This application is dismissed on the basis that the appropriate forum for this application is the High Court of Barbados.

MOTION FOR DIRECTIONS BY THE PLAINTIFF

[37] The Plaintiff brings an application for an Order directing that cross-examinations of the defendants who reside in Barbados and who have filed affidavits challenging the jurisdiction of this Court, be held at the Courthouse in Barrie, Ontario.

[38] The argument of Mr. McKenzie on this applications is somewhat confusing and inconsistent. There is filed on this application voluminous material by the Plaintiff that details the alleged threats to the safety of Mr. McKenzie as well as the Plaintiff’s affiant John Knox. Also filed in this application are the materials relating to the Keltruth blog referred to above. This material would suggest that foundation for the Order requested is based on the alleged serious threats to the life of Mr. McKenzie and John Knox and to some extent on the anonymous threats on the Keltruth blog relating to Marjorie Knox. However in submissions Mr. McKenzie stated that this Court should “not make a decision on the risk issue” and that I should “finesse” around the issue of “threats”. Mr. McKenzie next suggested that the “threats” are an issue to be tried before this Court following the cross-examinations of the affiants. When asked if he wished to adjourn this motion Mr.McKenzie indicated that he wanted to proceed with this motion without delay. He then proceeded to argue the threat issue at some considerable length.

[39] The position of the Plaintiff is that directing the cross-examinations of the Barbadian take place in Ontario is based on “a balance of convenience” as well as concerns about “legal costs” and the “irreparable harm” that could come to Mr. McKenzie as well as his staff and a court reporter if they travelled to Barbados.

THE ALLEGED THREATS

[40] The Plaintiff delivered a motion record originally returnable on December 3, 2007 and including in the record the affidavit of Stuart Heaslet sworn September 12 2007 at the City of Hollywood in the State of Florida before Mr. McKenzie.

[41] Stuart Heaslet resides in the City of Summerland in the State of California. He states that he in an “environmentalist and construction project manager.” Mr Heaslet is employed by a “Canadian philanthropist Peter Allard to carry out the wish to endow the nation of Barbados with a world class nature sanctuary…..which is located in the Graeme Hall area on the south coast.” Peter Allard purchased the property at Graeme Hall in approximately 1993 and it encompasses 35 acres. The nature sanctuary opened in April 2004.

[42] Mr. Heaslet states in his affidavit that he is currently working on a National Park project involving land surrounding the Graeme Hall Nature Sanctuary. Once again Mr. Heaslet is working under the direction of Peter Allard. A citizens’ committee was formed to promote the interests of the National Park. The committee chose the defendant Peter Simmons as its spokesperson.

[43] Peter Simmons is a career diplomat and he was at one time the High Commissioner for Barbados in London, England. His brother, Sir David Simmons is also a defendant in this action. Sir David Simmons is a former Attorney General of Barbados and is now Chief Justice of the High Court of Barbados.

[44] The affidavit of Mr. Heaslet details that he and Peter Simmons had worked together to obtain support and funding to create and maintain the National Park project. He also states that there is a group of individuals who are opposed to the National Park and who wish to build a Theme Water Park called Caribbean Splash in the location that Mr. Heaslet states would present a “environmental hazard” to the Graeme Hall Nature Sanctuary and the proposed National Park. Mr. Heaslet relates that he became aware of this law suit some time in December 2006. He states that he was invited to the home of Peter Simmons on March 14, 2007 to meet his brother Sir David Simmons. At that meeting Peter Simmons had a copy of a document which Mr. Heaslet understood to be a “lawsuit” that named Sir David Simmons as a defendant. Mr Heaslet states that Sir David Simmons was upset at being named in the lawsuit and that he “let me know that the existence of the lawsuit could compromise…..the
creation of a National Park.

[45] Mr. Heaslet’s affidavit discloses that he knows Mr. McKenzie and that they share a common interest in environmental matters.

[46] At paragraph 14 of his affidavit sworn on December 12, 2007, Mr. Heaslet states:

In early August 2007, Peter Simmons contacted me by telephone. We discussed matters related to the National Park project and then he advised me that John Knox was at risk because of his apparent cooperation with the Plaintiff in this action. He told me that some of the defendants in the lawsuit were going to see to it that their contact, the president of the University of the West Indies where Mr. Knox works, would terminate Mr. Knox’s employment as a result of his cooperation (with Counsel for the Plaintiff). I relayed these comments to Mr. McKenzie.

[47] Mr. Heaslet states that on August 10, 2007 he had a second telephone conversation with Peter Simmons. Mr Heaslet states that Peter Simmons repeated the comments concerning John Knox and he also added that certain defendants wished to make it known “that McKenzie was in danger and should “watch his back” because there were people in Barbados very angry with Mr. McKenzie. I asked him if it was his intention that these comments be conveyed to Mr. McKenzie and Mr. Allard and he said yes so I did so (sic).”

[48] Mr. Heaslet states that he spoke with Peter Simmons a third time on August 13, 2007 wherein he states that he reviewed with Peter Simmons what he (Simmons) said on the two prior occasions in August. Mr. Heaslet states that he related Mr. Simmons’ comments to Mr. McKenzie and Mr. Allard.

[49] There are then three telephone conversations between Heaslet and Simmons and the dates of those calls are not in dispute, August 8, 10 and 13, 2007. The latter two telephone conversations were initiated by Stewart Heaslet and the conversations were surreptitiously recorded at a residence of Mr. Peter Allard in Vancouver, B.C.

[50] The Plaintiff has filed as exhibits to the November 7, 2007 affidavit of Stacey Ball,(a law clerk in the office of Mr. McKenzie) the CD recordings of the August 10 and 13, 2007 conversations as well as a transcript of those recorded conversations.

August 10, 2007 Recorded Conversation between Stuart Heaslet and Peter Simmons

[51] In the telephone conversation of August 10, 2007 Stuart Heaslet after exchanging pleasantries states:

On the last conversation that we had, you told me there were some angry people in Barbados and perhaps McKenzie should be careful about walking the streets or something like that but that I shouldn’t have anything to worry about.

[52] Peter Simmons responds:

I haven’t heard anybody say anything derogatory or otherwise about you Stuart —-they simply haven’t – I think people recognize that you are doing a professional job at the Sanctuary and that is that I haven’t heard anything adverse about you but as I said and I repeat again there are some people around Barbados who are very, very angry with Bill McKenzie — I mean even some of the members of the Deane family — one of them told me this morning that he has come here (to) drag John Knox into this thing. He’s made John Knox swear affidavits which contain information which is totally false and John Knox is going to have to end up having to carry the can because in addition to putting his job in jeopardy there are people who are prepared to sue John Knox including the Chief Justice of Barbados, and they are blaming McKenzie for this. They are saying that McKenzie came here and took the innocent boy and dragged him into this nasty legal thing and that John Knox is going to
be up the creek without a paddle and then Allard and McKenzie will have to be funding him like they are funding his mother and his aunt.

[53] Stuart Heaslet then asks, “what about the threats to McKenzie?” to which Peter Simmons responds:

Well all I would say to McKenzie is when he comes to Barbados HE MUST WALK GOOD AND HE MUST WATCH HIS BACK because there are a lot of people here that are extraordinarily angry with McKenzie and see him as a bit of a blood-sucker who is coming here, he is only interested in money, he has no morality and he has no character [emphasis added].

[54] In this telephone conversation Stuart Heaslet relates that he has been “charged” with the responsibility to coordinate any public goodwill on behalf of the National Park.” He states that when he and Peter Simmons first met they discussed how “there would be resources available from us to help make that (the National Park) happen…..it appears that’s out the window at least for the foreseeable future.” Peter Simmons responds that “all the goodwill has now evaporated……People feel that the National Park was an excellent idea and it was for the good of Barbados in the long term……But this recent development with this case, with McKenzie, and as I told you the last time we spoke people are not separating Peter Allard from Bill McKenzie — they see them as working hand in hand and the goodwill has evaporated in terms of the National Park. I myself am under tremendous pressure to make a public statement to say that I am no longer associated with the Friends of
Graeme Hall — I am under tremendous pressure. People feel that I have been used and that now Bill McKenzie is trying to get money from all of us and that I have got suckered into this at the last minute……So I must tell you frankly that all the goodwill has gone.”

[55] Stuart Heaslet again proceeds to raise the issue of the effect of this lawsuit on the “National Park agenda.” Mr. Heaslet states that “at this point we have a lot invested” and that he has “to make some decisions about the role of my company in Barbados.” He states that he has a meeting arranged with Peter Allard and therefore he asks how Peter Simmons perceives “any personal threats to either McKenzie or myself or anyone else. Because I know you can’t be specific.” Peter Simmons responds: “I have heard nobody say anything adverse about you…..All the animosity is directed at Bill McKenzie and Peter Allard and John Knox…..” Peter Simmons then states that as a result of conversations he has had with people the National Park project is terminated. He states that it is “now very clear in my own mind that the government is not going to play ball with us on the National Park. I am very clear. There are some very, very angry people (and) I had no idea up to
last week that people felt so strongly about the lawsuit and about Bill McKenzie and Peter Allard…..people are saying that you cannot separate them—they are two peas from the same pod and whatever McKenzie is doing Peter Allard is behind it…..we have come to a very sorry pass-the anger is not going to go away.”

[56] Mr. Heaslet then makes the inquiry: “Do I need to be clear in my message, clear in a message to Peter Allard that McKenzie should not go to Barbados….? Mr. Simmons responds:

No he can come to Barbados. Barbados is a Commonwealth country and no one can stop him from coming to Barbados but once he gets to Barbados he needs to be very careful and also he must be aware that there is a perception that he’s (sic) taken John Knox and lead him up the garden path and, you know, that John Knox is going to be left carrying the can and that there are people who are very angry about that and about you know, nothing is stopping him (McKenzie) from coming to Barbados, but what happens after he gets here is another matter.

[57] Later in the same conversation Stuart Heaslet comments on the relationship between Bill McKenzie and Peter Allard and states: “I asked Allard yesterday again about the relationship and he reiterated that he had sold his upside to McKenzie’s firm.” (see Footnote #1)

(Footnote #1.) Exhibit “E” to the affidavit of Stacey Ball sworn November 7, 2007 is an e-mail from Stuart Heaslet to Bill McKenzie dated September 13, 2007 which states: “Some time ago I mentioned to Peter Simmons and Harry Roberts that I had heard from Peter Allard that he had sold his “upside” benefit in the Kingsland affair. Not knowing any details of the case, I assumed the “upside” had been sold to your firm and passed my assumptions on to Simmons and Roberts. In any case I wanted to let you know this and I will be letting Simmons and Roberts know of this.”

Reference is made in these Reasons to the unsolicited correspondence sent to all counsel by Mr. McKenzie dated November 7, 2007 in which he states that “in order to dispel rumours and set the record straight” he advises that he has no direct or indirect interest in the Plaintiff or in the outcome of the lawsuit. As detailed in these reasons, defense counsel states that this correspondence came “out of the blue”. As of Nov. 7/07 defense counsel had only received the August 14/07 correspondence from Mr. McKenzie about “serious and specific threats” made towards him by John Knox. Despite repeated requests Plaintiff’s counsel did not provide particulars. Ms. Jessica Duncan on behalf of the Plaintiff advised on September 4, 2007 that an expert had been retained and that particulars would be provided once the expert had completed his review. Not surprisingly, several defense counsel responded that without particulars of the alleged threats they were unable to address the
actual facts and concerns. They also inquired as to whether the matter had been reported to the police.)

THE AUGUST 13 2007 RECORDED TELEPHONE CONVESRATION BETWEEN STUART HEASLET AND PETER SIMMONS

[58] Stuart Heaslet makes yet another recorded telephone call to Peter Simmons on August 13, 2007. This conversation was recorded at a premise owned by Peter Allard in Vancouver B.C. Peter Simmons again is unaware that the conversation is being recorded.

[59] In this August 13, 2007 telephone conversation Stuart Heaslet advises that over the weekend he had an opportunity to meet with Peter Allard and that he had “delivered the message to him. I also delivered the message to Bill McKenzie.” Me. Heaslet goes on to state:

I wish you would all get into a room and just solve this thing because it has put a tremendous agenda at risk meaning the National Park agenda and I’m just sorry to see it happen. It’s also affecting my involvement in Barbados.”

[60] Stuart Heaslet comments that the National Park appears to be a casualty of the lawsuit. Peter Simmons states that it is “very difficult for anybody to separate out the National Park from what is going on with Bill McKenzie.” When Stuart Heaslet states that the National Park has nothing to do with the lawsuit, Peter Simmons responds:

…..the people are saying that they don’t want to see in the short term Peter Allard and Bill McKenzie being beneficiaries of anything which is in Barbados. McKenzie’s agenda is so much based on things like greed and avarice, which are obnoxious to the average Barbadian. If he says he is going to pursue his agenda to get money out of Barbadians by going to the law courts in Canada then let him do that. Let him see what he gets legally and everything else takes a back seat until that matter is resolved.

[61] In the course of this August 13, 2007 conversation Stuart Heaslet makes an unsolicited offer 4 times to Peter Simmons “to continue to facilitate any communication that you feel necessary should be done.”

E-MAIL FROM STUART HEASLET TO BILL MCKENZIE DATED AUGUST 10, 2007

[62] Filed as Exhibit “D” to the affidavit of Stacey Ball sworn November 7, 2007 is an edited copy of an e-mail from Stuart Heaslet to Bill McKenzie titled “Comments on Heaslet – Simmons conversation 08 1007 (sic) . The e-mail states:

1. I was in Peter Allard’s condominium at One Wall Centre in Vancouver when I made the call to Peter Simmons.

2. The conversation was made on a microcassette tape. Side A contains one missed call to Peter Simmons and a conversation between Heaslet and Harry Roberts, Manager of Graeme Hall Nature Sanctuary. Side B contains the conversation between Heaslet and Peter Simmons. Only Side B has been transcribed to date.

3. In regard Simmons’ view (sic) that there should be a personal safety threat against Bill McKenzie, Simmons acted more vehement on August 8, 2007 compared to the follow-up conversations on Wednesday August 8, 2007 (sic-August 10, 2007).

4. Simmons acted more vehement on August 8, 2007 when he described potential consequences to the livelihood and career of John Knox. During the August 10, 2007 conversation, Simmons softened his tone, suggesting that John Knox was being victimized by McKenzie and Allard.

[63] It is significant to note that the August 8, 2007 Heaslet – Simmons telephone conversation was not recorded. Further it is apparent from Stuart Heaslet’s affidavit of September 12, 2007 (paragraph 14 and see para. [46] above) that there is no reference to any threats to Mr. McKenzie in relation to the August 8/07 conversation rather the alleged threat appears to relate to the livelihood and career of John Knox. Yet this would appear to be contradicted by the Heaslet e-mail of August 10/07 (paragraph 3) where he states that in Simmons’ view “there should be a safety threat against Bill McKenzie.” Perhaps equally significant is Stuart Heaslet’s comment in the e-mail that Simmons softened his tone.” In assessing the significance of this statement I note that Stuart Heaslet and Peter Simmons have more than a passing acquaintance. They have worked together on projects in Barbados. I find that Mr. Heaslet’s recollection of this August 8/07 unrecorded conversation is
contradictory and unreliable and accordingly I afford it little weight.

JOHN KNOX AFFIDAVIT SWORN NOVEMBER 12, 2007

[64] The Plaintiff has filed the affidavit of John Knox sworn November 12, 2007 in support of the application for directions and the jurisdictional issue. In this affidavit Mr. Knox states that he has travelled to the United States to create, review and swear this affidavit because Mr. McKenzie “advised me of the threats made against him that prevent him from traveling to Barbados and also that there have been threats against me to deprive me of my employment at the University of the West Indies this year because of my willingness to give evidence in this action.” Mr Knox states that his employment at his former job as lecturer was not renewed for the 2007-2008 academic year. Apart from a vague reference to a Mr. Leonard Nurse no further particulars relating to the termination of his employment are provided. This affidavit provides considerable detail concerning his family’s involvement in Kingsland Estates Limited much of which has already been referenced and does not bear
repeating. Hi affidavit outlines the alleged conspiracy which is the subject matter of this proceeding.

JOHN KNOX AFFIDAVIT SWORN JANUARY 11, 2008

[65] The affidavit relates the detail pertaining to the Keltruth Blog and for reasons that are not clear it deals with numerous irrelevant matters. An example is paragraph 12 which is directed at the age of the Chief Justice of Barbados and the suggestion that he has stayed in Office beyond the mandated age to retire ( a fact which is disputed in a responding affidavit). In this affidavit Mr. Knox purports to argue the meaning and significance of the words used in the alleged threats as disclosed in the Heaslet – Simmons telephone conversation of August 10, 2007. Many of the paragraphs in this affidavit are irrelevant to the issue that this Court must decide namely: a) where the cross-examinations are to take place and b) the jurisdictional motion. Further this affidavit does NOT provide any details relating to the termination of his employment.

AFFIDAVIT OF PETER SIMMONS SWORN DECEMBER 12, 2007

[66] The affidavit of the defendant Peter Simmons is in response to the various affidavits filed by the Plaintiff.

[67] Peter Simmons states that in August 2007 he was shown a letter sent by Mr. McKenzie dated August 14 2007 that made reference to threats having been made against Bill McKenzie and John Knox. He states that he “never imagined that the alleged threats referred to were based on any statement that I had made to Heaslet in the course of our telephone conversation on August 10, 2007 and [I] was very surprised to learn this from Heaslet’s affidavit.”

[68] Peter Simmons acknowledges that he did state to Stuart Heaslet that there was animosity towards Bill McKenzie and that people were very angry for being dragged into a lawsuit. However he states that it was Stuart Heaslet who used the word “threat” and he (Simmons) did not mean to imply a threat. He further makes the statement that Stuart Heaslet’s conduct was “deliberately contrived to entrap [him] into saying anything that would work against having the case being heard in Barbados.” Peter Simmons also makes the unchallenged statement that Peter Allard “has long had an interest in the Kingsland litigation.”

[69] Mr. Simmons in his affidavit states to this Court “unhesitatingly that I made no threat to Mr. McKenzie nor would I threaten anyone.” He further states that he did not suggest nor even mean to suggest that Mr. McKenzie would be in personal danger in Barbados. “I have no reason to believe that any harm would Mr. McKenzie, his family or staff should they come to Barbados.”

[70] In his affidavit Peter Simmons comments on the words he used in the telephone conversation of August 10, 2007. He states that “walk good” is “a common colloquial Caribbean phrase of good wishes usually expressed at the end of a meeting between people.” He cites Peter Allsop in his work “Dictionary of Caribbean English Usage” which states that “walk good” is a “sending off phrase.” Peter Simmons also says that the words “watch your back” is innocuous and “means to be careful.” This court does not accept these self-serving explanations. In the Heaslet-Simmons August 10, 2007 “walk good” was certainly not used in the context of a “sending off phrase.” Likewise the words “watch your back” in the context of the conversation is not innocuous. However, these words, even in the context that they were used, do not necessarily lead to the conclusion that Mr. McKenzie, his family and his staff or John Knox are endangered if they attend or remain in
Barbados. Peter Simmons references the various positions he has held including that of High Commissioner for Barbados to the United Kingdom and states that “violence and/or threat of violence are anathema to everything I believe in.”

AFFIDAVIT OF STACEY BALL SWORN NOVEMBER 15, 2007: THE HENDERSON AND O.B.N. SECURITY REPORT AND THE ALAN BELL REPORT

[71] Following the August 14, 2007 correspondence, Mr. McKenzie does not provide details of the threats but he does state that his preliminary impression is that “the threats will mean that cross-examinations will have to take place in Toronto.” Apart from a letter sent by Jessica Duncan on September 4, 2007 (previously referred to) the next communication from the Plaintiff concerning the alleged threats is the motion record returnable December 3, 2007 and the Heaslet-Simmons CDs and transcript.

[72] Stacey Ball then swears another affidavit on November 15, 2007which attaches as an exhibit a letter dated August 24, 2007 from Mr. William Henderson of O.B.N. Security and Investigative Consultants Inc. His correspondence addressed to Jessica Duncan states:

Upon review of the documents presented to O.B.N. Security and Investigative Consultants Inc. and research conducted we believe there is a real threat poised (sic) to the safety of your client William (Bill) McKenzie.
This threat is apparent in a conversation dated August 10th, 2007 between Mr. Stuart Heaslet and Mr. Peter Simmons (sic), although it isn’t coming directly from Mr. Simmons (sic) it is apparent that he Simmons has knowledge of this issue and has participated in discussions which discuss the matter.
Furthermore, other persons are described as being very angry with Mr. McKenzie, the Deane family and the population of Barbados in general.
It is our advice presently that your client William McKenzie not travel to Barbados W.I. to conduct business of any nature until a complete risk assessment is completed.

[73] This is the entire report of Mr. Henderson on August 24, 2007.

[74] Also attached to Stacey Ball’s affidavit of November 15, 2007 is the O.B.N. Security and Investigative Consultants Inc. report prepared by Ken Soederhuysen. The objective of the report is to assess the risk “posed to William McKenzie and members of his legal team.” This report relates that Mr. McKenzie before filing this lawsuit “personally researched the above matter for 20 months which included 40 trips to Barbados.”

[75] The O.B.N. Risk Assessment Report prepared in November 2007 under the heading of “Intelligence” states that “it is generally accepted in the print media, on-line media and anonymous on-line blogs that there is an element that there is an element of corruption between the Barbados government officials and various development enterprises.” This report then proceeds to cite an exchange with an anonymous user of the blog as supportive of the underlying proposition that the government and officials of Barbados are corrupt. This same report applies a risk assessment tool by employing what is described as a 3X3 matrix to demonstrate the probability of the risk and its priority. The report states that the “matrix format is considered to be an industry standard for risk presentation and organizations.” This later statement is challenged by Dr. Sharon S. Smith whose report will be reviewed later in these Reasons.

[76] I find that the underlying assumptions of this O.B.N. report are based on very unreliable and unverifiable information and to premise a risk assessment on blogs and anonymous sources leaves much to be desired. The report states as a premise that the “Barbadian police” will not be cooperative in investigating the threats and that the possibility exists that “McKenzie may be arrested, jailed or held without bail while in Barbados cannot be eliminated.” The report goes on to state that “the lawsuit may require that McKenzie travel with a Court clerk, Court Reporter and a personal assistant. The probability that these individuals are exposed to multiple risk items listed above is high.” There is no reliable or verifiable evidence to support these statements. Indeed, there appears to be little or no restraint in terms of the length this report will go to support its very subjective and unsubstantiated conclusions. An example of this is found under the heading Economic
Risk where is states:

Close Protection (sic) for McKenzie and his family will reduce the risk of attempted kidnapping and threats which do not only represent a physical threat but also an economic threat. It should be noted that David Simmons is the Chief Justice of the Barbadian Court and head of the Caribbean Court of Appeal. David Simmons is also the brother of Peter Simmons who made the telephone call quoted in sections 1 and 3 of this risk assessment.

[77] Ignoring for the moment that it was Stuart Heaslet who initiated the August 10/07 telephone conversation, there is no credible or reliable evidence that the Chief Justice of the Barbados poses either a physical or economic threat to Mr. McKenzie or anyone else for that matter.

[78] I find this O.B.N. Risk Assessment report is neither objective nor fair and its analysis is flawed by the assumptions it makes without reservation. Accordingly I give it little or no weight.

[79] The Plaintiff also relies on a Location Risk and Cost Assessment report prepared by Edward Frivalt of O.B.N. Security and Investigative Consultants Inc. dated November 2007. The report details the “risk scoring” for various locales in Markham, Barrie, Orillia and Toronto. The report states that the Holiday Inn Barrie Hotel and Conference Centre is the most appropriate secure location in the survey. There is a cost analysis for security in Ontario contained in this report.

AFFIDAVIT OF ALAN BELL

[80] Alan Bell is the President of Globe Risk International Inc. which provides security consulting and training to companies and individuals. Mr. Bell indicates in an affidavit sworn November 8, 2007 that he has more than 22 years of Special Forces experience, including twelve years with Britain’s elite Special Air Services (SAS) which he states is “recognized as the world’s foremost Special Forces unit.” Attached to Mr. Bell’s affidavit is his report dated November 2, 2007.

[81] Mr. Bell’s report states that a “threat risk, vulnerability assessment” was carried out in Barbados from October 10 to October 14, 2007. His report states that the assessment was performed to determine the Plaintiff’s legal team risk profile and to assess potential or anticipated threats that could be directed against Mr. McKenzie and his legal team while in Barbados or to their families residing in Canada. Mr. Bell’s report states:

extensive research was necessary, as this assessment review had to be completed without the direct knowledge of the government or any of its agencies. The high profile of several of the defendants precluded a traditional approach to this engagement, which would normally have involved interviews with government, police or other pertinent agencies in the consulting process. As such, the consultant worked independently to identify vulnerabilities that could effect the safety of the legal team.

[82] The key conclusions in Alan Bell’s report are:

(a) the vulnerability of the legal team from external hostile agents is assessed as high,
(b) the legal action is high profile and the legal team should consider themselves to be potentially at risk both within Canada and particularly while deployed in Barbados,
(c) in the absence of a well-trained professional security team, it would be difficult to provide the necessary level of protection and effective response to any event or crisis incurred by the legal team,
(d) it is anticipated that the threat level will increase significantly as the legal action proceeds,
(e) the interest of domestic and international media will heighten the public profile of the team and may expose them to an increased threat from criminal and/or hostile agents,
(f) DIRECT AND INDIRECT THREATS HAVE ALREADY BEEN DELIVERED TO ONE MEMBER OF THE TEAM RAISING SERIOUS CONCERNS ABOUT PERSONAL SECURITY AND THAT OF THE EXTENDED FAMILY, (emphasis added),
(g) current crime trends within Barbados indicate that the vulnerability of the legal team operating in an insecure security environment (sic) could become a major concern, particularly with the number of criminal assaults and drug dealing activities.

[83] The Bell Report concludes that at this time “the safety and security of the legal team while conducting examinations in Barbados has been rated as “unsatisfactory” GIVEN THE PROFILE OF THE DEFENDANTS BEING EXAMINED ” (emphasis added). Attached to this report as appendices are copies of blog commentary accusing the police and judiciary of being corrupt. Mr. Bell states in his affidavit that he did not base his opinion on press or blog reports listed in his report however he states “that their content does cause some concern.” I note however in Mr Bell’s report that on July 19, 2007, Canadian Prime Minister Steven Harper visited Barbados. “Prior to the Prime Minister’s arrival, his RCMP protection team completed a comprehensive risk assessment and determined that there were no direct threats and elected not to carry firearms.”

[84] The Alan Bell report relies on comments of various individuals employed at the Canadian High Commission in Barbados. The difficulty for the Court in assessing this information is that there is no affidavit by the person alleged to have made the comment. The Court is then left with hearsay statements when asked to judge alleged threats and security risks. This is most unsatisfactory when the purported comments go to the heart of the issue.

[85] Mr. Bell’s affidavit and report is unsatisfactory for a number of reasons:

(a) Mr. Bell’s affidavit states that he has reviewed the tape recordings and transcripts of the Heaslett-Simmons telephone conversations and that in his opinion there are “threats that have been made against Mr. McKenzie and, by extension, members of his team who would travel with him to Barbados.” However, neither the affidavit nor his report provides any analysis of how he arrives at this conclusion. There is simply the bald statement that there have been threats. His report at 2.11.3 states:
The Chief Justice of Barbados is a defendant in the legal action. His brother, Peter Simmons, has uttered threats to Mr. Stuart Heaslett, a witness in the proceedings, during a telephone conversation. It is expected that these threats would be carried out, particularly if the legal team deploy to Barbados.
(b) It is not a given fact that threats have been made let alone that they would be acted upon. There is no rational basis or analysis provided in this report by which this Court can understand or accept Mr. Bell’s conclusions.
(c) While the tenor of Mr. Bell’s report suggests that he has relied only on objective criteria in his analysis nevertheless close scrutiny of his comments suggests otherwise. Under the topic of “Key Observations and Findings” his report states that “RUMOURS of corruption at the highest level in Barbados within government are rife.” It is obvious that Mr. Bell has not provided an objective report that is grounded on fact but rather has underlying assumptions based on rumour, speculation and innuendo.

FORENSIC PSYCHOLINGUISTICS REPORT OF SHARON S. STONE PHD. DATED JANUARY 14, 2008

[86] Mr. G. Ranking, who is counsel for the defendant Price Waterhouse Coopers (Barbados), on November 29, 2007 consulted and engaged Dr. Smith to evaluate the allegation that threats were made, represented or discussed by Peter Simmons in the two telephone conversations of August 10 and 13, 2007.

[87] Dr. Smith was asked to review the transcripts of the Heaslet-Simmons conversations, the CDs and other exhibits and documents in Volume 1 & 2 of the Plaintiff’s motion record as well as a separate supplementary record containing the affidavit of William Henderson sworn November 20, 2007. Dr. Smith was subsequently provided with the affidavit of Peter Simmons sworn December 12, 2007. Dr. Smith states that she relied only on the material detailed. In particular, she did not speak with Peter Simmons or his legal counsel, Mr. Schabas.

[88] Dr. Smith’s curriculum vitae indicates that she has a Ph.D. from Georgetown University, Washington D.C. with specialized training in psycholinguistics. From 1978 to 2003 Dr. Smith was a member of the F.B.I. She was also an instructor in the Behavioural Unit of the FBI Academy from 1995 to 2003 wherein her duties included analyzing cases involving threats, detection of deception, authorship identification, rapes, child molestation and homicides. For four months in 1995, she was assigned to the FBI Head Quarters Congressional Affairs Office where she worked with the Intelligence Division on briefing U.S. Congressional Representatives, Senators and their staffs on intelligence and counterterrorism matters. She also received training with the FBI in Linguistic Analysis, Risk Assessment for Violence as well as many other programs. Dr. Smith has had many of her works published including, “From Violent Words to Violent Deeds” and “Risk Assessment of Threatening Communications
from FBI files…..” At the present time Dr. Smith is employed as a consultant in intelligence and security related matters. Her work also involves criminal behaviour analysis including the language used in conducting threat assessment and analysis of risk as to potential for harm.

[89] The conclusion in Dr. Smith’s report is that the Heaslet-Simmons conversations show that Mr. Simmons did not communicate threats from himself or others toward Mr. McKenzie or about Mr. McKenzie’s participation as counsel in this action. Further her report concludes that Mr. Simmons did not communicate threats about or toward John Knox, Peter Allard or any legal staff.

[90] The Smith report states that the focus of the assessment is “the risk of Peter Simmons and other unknown individuals acting out inappropriately, recklessly, even violently towards William McKenzie and John Knox.” The report notes that “sometimes threats are inferred by the hearer when the actual language used by the speaker does not imply such.”

[91] Dr. Smith provides a very thorough and detailed analysis of the Heaslet-Simmons conversations. A summary of Dr. Smith’s key findings are as follows:

(a) SUMMARY OF ANALYSIS OF ALLEGED THREATS RELATING TO JOHN KNOX
The report concludes that Peter Simmons statements in the August 10, 2007 conversation contain not threats of physical harm against John Knox. According to Peter Simmons, John Knox has sworn affidavits which are false. Dr. Smith notes that Mr. Knox’s actions have already occurred and cannot be reversed. “At worst Mr. Knox’s actions may provide the impetus for his being blamed for something he may or may not have done, and for losing his job and for possibly being sued.

(b) SUMMARY OF ANALYSIS OF ALLEGED THREATS AGAINST WILLIAM MCKENZIE
Dr. Smith’s analysis is that in the August taped telephone conversations Mr. Heaslett asks Mr. Simmons about personal threats and bona fide threats during the conversation. Dr. Smith states that Mr. Simmons not only never details any threat of physical harm he also denies hearing “anybody say anything.”

Far more significantly, Dr. Smith makes the point that “calling something a threat and repeating this over and over again does not make it a threat.” Dr. Smith illustrates this point by making reference to the report of William Henderson of O.B.N. Security and Investigative Consultants and his belief that there “is a real threat” posed to the safety of William McKenzie and that it is apparent that Peter Simmons “has knowledge of this issue and has participated in conversations which discuss this matter.” Yet an analysis of Peter Simmons’ conversation indicates that he denies the proposition being advanced.

Dr. Smith’s analysis is that the phrases of Peter Simmons that William McKenzie “must walk good” and “watch his back” are not threats. She states that from the language found in the two recorded conversations we learn that Mr. McKenzie is held with animosity and anger by unspecified “people”. As noted by Dr. Smith these “people” are never specifically identified and they are never associated with any future action that threatens anyone’s physical welfare.

[92] Dr. Smith’s report also analyses the Heaslet-Simmons conversations by what she describes as “the entire discourse structure of the conversations.” She states that under this analysis “those who surreptitiously tape record their conversations with targets have one goal in mind – to capture on tape something the target says that will be of advantage to the person tape-recording the conversation (the “taper”) or someone associated with or known to the taper and to the disadvantage of the target or someone associated with or known to the target.” In the course of a very detailed analysis Dr. Smith relates what she characterizes a 8 Heaslet fishing efforts which fail to solicit information from Peter Simmons about threats, employing conversational strategies that “when identified illuminate the direction of the conversation.” Dr. Smith notes and Mr. Heaslet “recycles requests for information on personal, specific and bona fide threats, even asking about
“the” threats as though it had already been established that such threats actually exist.”

[93] There are several other conclusions based on analysis in Dr. Smith’s report that are newsworthy:

(a) there are no threatening statements in the August 13, 2007 conversation whatsoever,
(b) the contention in Mr. Henderson’s letter of August 14, 2007 that the conversation between Mr. Heaslet and Mr. Simmons contains a real threat apparent in the conversation is predicated for the O.B.N. threat risk assessment,
(c) the O.B.N. report “Comprehensive Risk Assessment for K. William McKenzie” uses a 3X3 matrix. Dr. Smith states that decision matrixes are a “decision and support tool allowing decisions makers to solve problems by evaluating, rating and comparing different alternatives based on multiple criteria.” Dr. Smith notes that “risk assessment matrixes are limited in that they don’t facilitate an in-depth analysis. They are intended as a guide and quick reference……I have not encountered the use of 3X3 matrix in my years of experience with assessing threatening communications. Additionally my literature review of assessing risk of violence for my doctoral dissertation did not reveal such use as an accepted standard in the analysis of language.”
(d) the stated objective of the O.B.N. report “is to assess the risk posed to K. William McKenzie and members of his legal team arising from the threat made against him.” Dr. Smith notes that this report “does not begin with an unbiased objective of determining whether or not threats actually exist. It assumes from the beginning and specifically states that threats have been made against Mr. McKenzie.”
(e) Dr. Smith notes that in the 3X3 matrix applied in the O.B.N. report that:
“any of the possibilities, should they occur, might range in impact and in probability. These scores appear to be assigned arbitrarily without adequate or convincing support for the choice of scores.

[94] Dr. Smith in her report indicates that she reviewed the exhibits of Peter Simmons affidavit of December 12, 2007 wherein Mr. McKenzie in two letters made reference to a mes