R. v. Barbosa, 2019 ONCJ 50

ONTARIO COURT OF JUSTICE CITATION: R. v. Barbosa, 2019 ONCJ 50 DATE: 2019 01 22 COURT FILE No.: 18-5246 BETWEEN: HER MAJESTY THE QUEEN — AND — KEVIN BARBOSA Before Justice A.L. McLeod Heard on January 22, 2019 Reasons for Judgment released on January 22, 2019 Kristen Smyth...................................................................................... counsel for the Crown Eginhart Ehlers................................................. counsel for the accused Kevin Barbosa McLeod J.: Introduction [ 1 ] Mr. Barbosa and Ms.

Amaral dated for approximately one year, commencing when she was just 17 years of age. [ 2 ] Their son Julian was born on May 10, 2014. The couple broke up one month later. [ 3 ] The relationship between the parties was acrimonious. Mr. Barbosa’s mother had physical custody of young Julian. Mr. Barbosa lived with his mother. The specific details of access, or denial of access to Julian for Ms. Amaral will not be outlined here, and is better addressed in the on-going family law proceedings. Suffice it to say, the past four years have been difficult. [ 4 ] In June of 2018, Mr.

Barbosa apparently took Julian and drove around with him for a period of two weeks. Police were called by Ms. Amaral. Eventually, Mr. Barbosa was located and Julian was then placed into the temporary care of Mr. Barbosa’s sister. [ 5 ] Mr. Barbosa is charged with uttering a threat to Ms. Amaral on July 23, 2018. The issues to be decided [ 6 ] The defence does not take issue with the credibility or reliability of the testimony of the sole witness in this case; Ms. Amaral. As such, I accept that Mr.

Barbosa uttered words to the effect, “I am going to find you…I have people looking for you…I am going to hurt you and your boyfriend….do you know what happened on the Danforth?, that is what is going to happen to you”. [ 7 ] The Danforth reference is in respect of a well-publicized shooting. [ 8 ] As per counsel’s submissions, the only issue for me to decide is:

(1) What are the essential elements of the offence;

(

a) If the defence is correct that the reasonable person test is applicable, would a reasonable person in all the circumstances take thethreat uttered as viable The law [9] Mr. Barbosa is charged under

section 264.1(1)(a). The

section reads, Everyone 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. [10] The Supreme Court of Canada has considered the offence of utter threat in R. v. McCraw, (SCC), [1991] 3S.C.R. 72, R. v. Clemente, (SCC), [1994] 2 S.C.R. 758, R. v. O’Brien, 2013 SCC 2 , [2013] 1 S.C.R. 7, and R. v.McRae, [2013] S.C.R. 931. [11] The court outlined the actus reus in McRae: The Prohibited Act (Actus Reus) 10 The prohibited act of the offence is "the uttering of threats of death or serious bodily harm" (Clemente, at p. 763). The threats canbe uttered, conveyed, or in any way caused to be received by any person.

The question of whether words constitute a threat is a questionof law to be decided on an objective standard. Justice Cory put it this way in McCraw: The structure and wording of s. 264.1(1)(

a) indicate that the nature of the threat must be looked at objectively; that is, as it would be bythe ordinary reasonable person.... The question to be resolved may be put in the following way. Looked at objectively, in the context of all the words written or spoken andhaving regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to areasonable person? [pp. 82-83] 11 The starting point of the analysis should always be the plain and ordinary meaning of the words uttered.

Where the words clearlyconstitute a threat and there is no reason to believe that they had a secondary or less obvious meaning, the analysis is complete.However, in some cases, the context reveals that words that would on their face appear threatening may not constitute threats within themeaning of s. 264.1(1)(a) (see e.g. O'Brien, at paras. 10-12). In other cases, contextual factors might have the effect of elevating to thelevel of threats words that would, on their face, appear relatively innocent (see e.g. R. v. MacDonald (2002), (ONCA), 166 O.A.C. 121 (Ont.

C.A.), where the words uttered were "You're next"). [12] The court goes on to confirm that it is in fact a reasonable person test at play, and explains the test as follows: 13 Thus, the legal question of whether the accused uttered a threat of death or bodily harm turns solely on the meaning that areasonable person would attach to the words viewed in the circumstances in which they were uttered or conveyed.

The Crown need notprove that the intended recipient of the threat was made aware of it, or if aware of it, that he or she was intimidated by it or took itseriously: Clemente, at p. 763; O'Brien, at para. 13; R. v. LeBlanc, (SCC), [1989] 1 S.C.R. 1583 (S.C.C.) (confirming thetrial judge's instruction that it was not necessary that "the person threatened be ever aware that the threat was made": (1988), (NB CA), 90 N.B.R. (2d) 63 (N.B. C.A.), at para. 13). Further, the words do not have to be directed towards a specificperson; a threat against an ascertained group of people is sufficient: R. c.

Rémy-Mercier (1993), (QC CA), 82 C.C.C.(3d) 176 (Que. C.A.), at p. 185, leave to appeal refused, [1993] 4 S.C.R. vii (note) (S.C.C.) (threat against "police officers" generally); R.v. Upson, 2001 NSCA 89, 194 N.S.R. (2d) 87 (N.S. C.A.), at para. 31 (threat against "members of the black race" generally). 14 The reasonable person standard must be applied in light of the particular circumstances of a case. As the Court of Appeal forOntario explained in R. v. Batista, 2008 ONCA 804, 62 C.R. (6th) 376 (Ont.

C.A.): An ordinary reasonable person considering an alleged threat objectively would be one Informed of all the circumstances relevant to hisor her determination. The characteristics of a reasonable person were considered by the Supreme Court of Canada in R. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484 (S.C.C), in the context of the test for bias.

In that case, L'Heureux-Dubé and McLachlin JJ., atpara. 36, described such a person as a: reasonable, informed, practical and realistic person who considers the matter in some detail....The person postulated is not a "verysensitive or scrupulous" person, but rather a right-minded person familiar with the circumstances of the case.

Similarly, in R. v. Collins, (SCC), [1987] 1 S.C.R. 265 (S.C.C.), at p. 282, in the context of the test for bringing theadministration of justice into disrepute, Lamer J. for the majority describes a reasonable person as "dispassionate and fully apprised ofthe circumstances of the case": see also R. v. Burlingham, (SCC), [1995] 2 S.C.R. 206 (S.C.C), at para. 71.

It follows that a reasonable person considering whether the impugned words amount to a threat at law is one who is objective, fully-informed, right-minded, dispassionate, practical and realistic. [13] The court went on to identify the mens rea element as: 17 The fault element is made out if it is shown that threatening words uttered or conveyed "were meant to intimidate or to be takenseriously": Clemente, at p. 763. 18 It is not necessary to prove that the threat was uttered with the intent that it be conveyed to its intended recipient (Clemente, at p.763) or that the accused intended to carry out the threat (McCraw, at p. 82).

Further, the fault element is disjunctive: it can be establishedby showing either that the accused intended to intimidate or intended that the threats be taken seriously: see e.g. Clemente, at p. 763;O'Brien, at para. 7; R. v. N. (L.) (1993), (AB CA), 145 A.R. 311 (Alta. C.A.); R. v. Hiscox, 2002 BCCA 312, 167B.C.A.C. 315 (B.C. C.A.), at paras. 18 and 20; R. v. Noble, 2009 MBQB 98, 247 Man. R. (2d) 6 (Man. Q.B.), at paras. 28 and 32-35,aff'd 2010 MBCA 60, 255 Man. R. (2d) 144 (Man. C.A.), at paras. 16-17; R. v. Heaney, 2013 BCCA 177 (B.C. C.A.) , at para.40; R. c. Rudnicki, (QC CA), [2004] R.J.Q. 2954 (Que.

C.A.), at para. 41; R. v. Beyo (2000), (ONCA), 47 O.R. (3d) 712 (Ont. C.A.), at para. 46. 19 The fault element here is subjective; what matters is what the accused actually intended. However, as is generally the case, thedecision about what the accused actually intended may depend on inferences drawn from all of the circumstances: see e.g. McCraw, at p.82. Drawing these inferences is not a departure from the subjective standard of fault. In R. v.

Hundal, (SCC), [1993] 1S.C.R. 867 (S.C.C.), Justice Cory cites the following words from Professor Stuart which explain this point: In trying to ascertain what was going on in the accused's mind, as the subjective approach demands, the trier of fact may draw reasonableinferences from the accused's actions or words at the time of his act or in the witness box. The accused may or may not be believed. Toconclude that, considering all the evidence, the Crown has proved beyond a reasonable doubt that the accused "must" have thought in thepenalized way is no departure from the subjective substantive standard.

Resort to an objective substantive standard would only occur ifthe reasoning became that the accused "must have realized it if he had thought about it". 23 To sum up, the fault element of the offence is made out if the accused intended the words uttered or conveyed to intimidate or tobe taken seriously. It is not necessary to prove an intent that the words be conveyed to the subject of the threat. A subjective standard offault applies.

However, in order to determine what was in the accused's mind, a court will often have to draw reasonable inferences fromthe words and the circumstances, including how the words were perceived by those hearing them. Conclusion [14] The words uttered, taken in their plain and ordinary meaning constitute a threat. There is no secondary or less obviousmeaning.

This point was not argued by the defence. [15] The Crown need not prove that the intended recipient of the threat was made aware of it, or if aware of it, or that she wasintimidated by it or took it seriously. [16] The fault element is made out if it is shown that the threatening words uttered or conveyed "were meant to intimidate or to betaken seriously”. Further, the fault element is disjunctive: it can be established by showing either that the accused intended to intimidateor intended that the threats be taken seriously. I find that Mr. Barbosa intended his words to be taken seriously.

His tone, his expressedanger, and his need to exemplify his intentions by alluding to the tragedy of the Danforth shooting. It is not whether he intended or wascapable of carrying out the threat that is the issue, the issue is whether he intended to intimidate or threaten Ms. Armala with his words. [17] I find that a reasonable person, understanding all of the circumstances, would find that Mr. Barbosa had committed the actusreus – that is to say, he conveyed a threat to Ms.

Armala, by uttering the words “I am going to find you…I have people looking for you…I am going to hurt you and your boyfriend….do you know what happened on the Danforth?, that is what is going to happen to you”. [18] I find that his intention was solely to intimidate her, and to have his threats taken seriously. Mr. Barbosa will be found guilty ofthe offence of uttering a threat. Released: January 22, 2019

Signed: Justice A.L. McLeod