r v. Nyssa LE, 2014 QCCQ 12216

R. c. Le Seelleur 2014 QCCQ 12216 JP 2213 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N° : 500-01-104212-144 DATE: December 12, 2014 BEFORE THE HONOURABLE YVAN POULIN, J.C.Q. HER MAJESTY THE QUEEN Prosecutor v. Nyssa LE SEELLEUR Accused REASONS FOR JUDGMENT [ 1 ] The accused stands charged with uttering threats and criminal harassment as a result of a comment she posted on Twitter on February 6, 2014. There is no dispute that the posted message constitutes a threat under s. 264.1(1)

a) of the Criminal Code . It is also undisputed that the message was posted by the accused through her personal Twitter account on the afternoon in question. The sole issue on the count of uttering threats is whether the element of fault, or the mens rea , has been established beyond a reasonable doubt. The issue on the count of criminal harassment is whether the prosecution has established beyond a reasonable doubt that the accused engaged in a prohibited conduct that amounts to criminal harassment. FACTS [ 2 ] On February 6, 2014, the accused was a 19 year old student. Upon reading a CTV

article which was entitled “ Pauline Marois ready to call an election ”, she reposted the

article in question through her Twitter account with the following comment of her own: “ Good get the bitch out of there before I bomb her ”. According to the evidence, the police promptly learned that this message – that targeted the Prime Minister of Quebec - was on social media over the internet. The message was rapidly found by the police and subsequent inquiries confirmed that it came from the accused’s Twitter account known as @[...].

The accused was soon after met by the police at her parent’s house and was later charged for uttering threats and criminal harassment. [ 3 ] The accused testified at trial for her defense. She has no criminal record. She said that she wrote the message “ without thinking about it clearly ”. She said that the repercussions of her post came to her mind when the police called. She said that she “ had no intention of anything ” and that she is a very good and non-violent kid. She explained that she wrote this post in a moment of anger following one of the Prime Minister’s comments.

She acknowledged that she wrote something that she shouldn’t have written and claimed that she has regretted it everyday since. She mentioned that she had no intention of anything towards Mrs. Marois and that she fully cooperated with the police when they came to her parents’ house regarding her post. [ 4 ] According to the accused, she had more than a hundred followers on Twitter when she posted the tweet in question. Most of them were friends of hers.

In cross-examination, the accused stated that after reading the CTV article, she was frustrated about various things the Prime Minister was doing and that she vocalized it the wrong way. She claimed that she wrote it without thinking and that she did not mean what was written. She never went back on Twitter to see how many “likes” she had about this specific post. She basically continued her activities of the day until the police called. She then realized that it was wrong and illegal.

Although she had more than a hundred followers, the accused said, in cross-examination, that she did not expect anyone to read that. She did not realize the implications of what she was writing. She stated as well that her post was not proper English. ISSUES [ 5 ] This case raises two issues: ➢ First, whether the element of fault has been established beyond a reasonable doubt on the count of uttering threats?

➢ Second, whether the evidence establishes beyond a reasonable doubt that the accused engaged in a prohibited conduct that amounts to criminal harassment? ANALYSIS The presumption of innocence and issues of credibility [ 6 ] It is well established that every person charged with a criminal offence is presumed to be innocent until the Crown proves his or her guilt beyond a reasonable doubt. The accused does not have to prove that he or she is innocent. The Court may only find an accused guilty if, after considering all the evidence, it is satisfied that the Crown has proven its case beyond a reasonable doubt.

If a reasonable doubt as to the guilt of the accused arises from the credibility or reliability of the witnesses, the Court must find the accused not guilty. [1] [ 7 ] The test for assessing reasonable doubt when credibility is in issue was defined by the Supreme Court in R. v. W. (D.) [2] . First, if the Court believes the evidence of the accused, and if this evidence is exculpatory, the Court must find him or her not guilty. Second, if the Court does not believe the evidence of the accused, but is still left by this evidence with a reasonable doubt, the Court must find him or her not guilty.

And third, even if the Court is not left with a reasonable doubt by the evidence of the accused, it must still ask itself whether, after considering all the evidence, it is satisfied beyond a reasonable doubt that the accused is guilty. The count of uttering threats [ 8 ]

Section 264.1(1)

a) of the Criminal Code states that: 264.1

(1) Uttering threats - Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (

a) to cause death or bodily harm to any person; […] [ 9 ] As already mentioned, it is undisputed that the message posted by the accused in the present case constitutes a threat within the meaning of this section. Given the clear and unambiguous words written by the accused and the context in which they were uttered and conveyed, it is obvious that any reasonable person fully aware of the circumstances would have perceived them to be a threat of death or bodily harm to the Prime Minister of the province. [3] [ 10 ] Concerning the fault element, the evidence establishes that the accused had a full operating mind when she uttered those words. She posted her tweet right after reading the CTV

article that mentioned that the Prime Minister was ready to call an election. She knew that she had more than a hundred followers at the time. In her testimony, she admits that she was frustrated and angry concerning a variety of decisions or positions taken by the Prime Minister during that period. Although she claims that she wrote the post “ without thinking clearly ” and “ without meaning what was written ”, it is clear from the evidence that it came from an operating mind that was angry and frustrated. Her frustration was unmistakably vocalized in a serious threatening and intimidating manner.

Although it might have been written in a “ split second ”, it was still a conscious act which was clearly intimidating and threatening. [ 11 ] In the leading case of R. v. McRae , at paragraph 17 , the Supreme Court mentions the following on the requisite mens rea : [17] The fault element is made out if it is shown that threatening words uttered or conveyed “were meant to intimidate or to be taken seriously” ( Clemente , at p. 763). [4] [ 12 ] According to the Supreme Court, in any given case, it is not necessary to prove that the threat was uttered with the intent that it be conveyed to its intended recipient.

Nor is it necessary to establish that the accused intended to carry out the threat. The fault element, which is disjunctive, can be established by showing either that the accused intended to intimidate or intended that the threats be taken seriously. [5] [ 13 ] That being said, it is true that in the case at bar, the accused undoubtedly showed regrets and remorse after posting the message when the police called her. It is also true that she did not intend to carry out her threat to bomb the Prime Minister.

However, after considering all the evidence, including the testimony of the accused, the Court is convinced beyond a reasonable doubt that at the precise moment the message was posted, the accused – who was angry and frustrated at the Prime Minister – had the requisite intention to be taken seriously. Her ensuing regrets, which are without a doubt genuine and sincere, do not set aside her state of mind at the time of the commission of the offence.

In addition, her claim that she did not expect anyone to read her post, considering that she had more than 100 followers, is neither plausible nor believable. [ 14 ] After considering all the evidence, the Court concludes that the accused had the requisite fault element when the message in question was posted. For all these reasons, the accused is found guilty on count 2. The count of criminal harassment [ 15 ] The guilt of the accused on the count of uttering threats does not automatically mean that the same result should follow on the count of criminal harassment.

On the whole of the evidence, the Court still needs to determine whether all the essential elements have been established beyond a reasonable doubt. [ 16 ]

Section 264 of the Criminal Code states that: 264.

(1) Criminal harassment - No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) Prohibited conduct - The conduct mentioned in subsection (1) consists of

(

a) repeatedly following from place to place the other person or anyone known to them; (

b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them; (

c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or (

d) engaging in threatening conduct directed at the other person or any member of their family. [ 17 ] In R. v. Sillipp [6] , at paragraph 18, the Court of Appeal for Alberta describes the elements of this offense in the following way: 1) It must be established that the accused has engaged in the conduct set out in s. 264 (2) (a), (b), (c), or (

d) of the Criminal Code . 2) It must be established that the complainant was harassed. 3) It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed; 4) It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and 5) It must be established that the complainant’s fear was, in all of the circumstances, reasonable. [ 18 ] In R. v. Lamontagne [7] , the Court of Appeal for Quebec adopts these five essential elements.

At page 188, the Court also states that: “Harassment" was not defined by Parliament in s. 264 . In Ryback and Sillipp , supra , the courts agree to give this word a contextual

interpretation.

These cases point out that it is not sufficient that the complainant be "vexed, disquieted or annoyed", rather it must be demonstrated that the prohibited conduct "tormented, troubled, worried continually or chronically, plagued, bedevilled and badgered. [ 19 ] While a single threatening incident could amount to criminal harassment [8] , it is always imperative, before a conviction be entered for this offense, that all the essential elements be proven beyond a reasonable doubt. [ 20 ] In the present case, given the very limited evidence presented at trial, the prosecution neither established that the Prime Minister of Quebec was harassed, nor that the conduct of the accused caused her to fear for her safety or the safety of anyone known to her.

Consequently, in view of the facts already described, the Court concludes that the evidence of criminal harassment is insufficient. CONCLUSION For all those reasons, the accused is acquitted of criminal harassment and found guilty of uttering threats. __________________________________ YVAN POULIN, J.C.Q. Me François Allard For the prosecution Me Patrick Cozannet For the accused Date of hearing: November 14, 2014