Her Majesty the Queen - v. -, 2017 SKPC 8

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 008 Date: February 13, 2017 Information: 24322194 Location: Melville _____________________________________________________________________________ Between: Her Majesty the Queen - and - Christopher James Hayes Appearing: Mr. B. Stricker For the Crown Mr. J. Seib For the Accused JUDGMENT R. GREEN , J I.

INTRODUCTION [ 1 ] Christopher Hayes is charged on or between March 6 and July 8, 2016, at or near Melville and by way of Facebook comments, with knowingly conveying a threat to Prime Minister Justin Trudeau to cause death to Prime Minister Justin Trudeau contrary to s. 264.1 of the Criminal Code . The Crown proceeded summarily. [ 2 ] This charge arose out of posts that Mr. Hayes admits to making on the Internet, on Facebook, on March 6, 2016 and on July

8, 2016. Copies of the posts he made on these days were filed as exhibits. [ 3 ] The post Mr. Hayes wrote and posted on Facebook on March 6, 2016 read: Imma buot to go shoot this mother fucker dead. Ya hearing this Facebook? RCMP whom troll Facebook lookn for threatening comments? Hear me now you dumb asses who voted Liberals into power. You have just started the war against all Canadians by our federal government... And I will not stand it.

And if the Canadian liberal voters won’t stand up for all fn Canadians and demand better conduct by the Trudeau government I’ll cut off the head if the snake myself and go down in the history books as the man who saves Canada. This asshole is a Muslim who stands against everything western culture in Canada has built and fought for for over a hundred years and I’m sick of watching Trudeau dismantle our country and plummeting into a debt our great great grandchildren will still be paying off.

This asshole hasent spent a real dollar in Canada except the millions of dollars to rebuild the PM’s residence, and for two nanny’s to look after his silver spoon fed kids. [ 4 ] The post Mr. Hayes wrote and posted on Facebook on July 8, 2016 at 8:46 p.m. read, in part: How can I express my opinion that Justin Trudeau should be shot dead asap without being thrown in jail? Hmmmm. Oh ya. So far in Canada, I can state my opinion.... Am I going to kill JT? Nope. Physically harm the guy? Nope. I do think however he should be shot dead.... and I would personally thank the person who did kill him.

Politically correct to say so? Yes actually it is.... [ 5 ] That post, followed another one made thirteen minutes earlier that day by Mr. Hayes on the same Facebook site, where he loudly criticized the government of Premier Rachael Notley of Alberta and said, in part: “Get the fuck off your asses and storm Notleys ndp house, legislative building, and any other provincial government building by force and overthrow the ndp for crimes against the people of Alberta...” He also wrote in that post: I will start the wheels of a revolution in Canada real fucking soon.

RCMP, if you have any balls at all, stop creeping my Facebook pages and start arresting not me but Notley and Trudeau for crimes against the Canadian people or its high time “someone” hold these scab, mofo’s, bloodsucking politicians accountable for their crimes as men under God, and not pussies under some bureaucratic wanna be called law ... [ 6 ] Two RCMP officers testified for the Crown. Cst. Robert Head took a statement from Mr. Hayes on April 11, 2016, just over a month after the first post was made by him on Facebook, and after he was directed to do so by Cpl.

Richard Pickering, who heads the National Security Enforcement

Section of the RCMP in Saskatchewan. Cpl. Pickering, as well, took a statement from Mr. Hayes on August 2, 2016, following the subsequent Facebook post by Mr. Hayes coming to his attention and following the arrest of Mr. Hayes. The defence admits that both of these statements were voluntary, and a copy of each statement, together with a transcript of each, were filed as exhibits. [ 7 ] The defence called no evidence at this trial. II. THE ISSUES [ 8 ]

Section 264.1(1) (

a) of the Criminal Code provides that every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat to cause death or bodily harm to any person. The Supreme Court of Canada in R v McRae [1] most recently considered this offence. The court broke the elements of the offence down into the prohibited act (the actus reus ) and the fault element (the mens rea ). [ 9 ] The Court described the prohibited act in these words:

Thus the legal question of whether the accused uttered a threat of death or bodily harm turns solely on the meaning that a reasonableperson would attach to the words viewed in the circumstances in which they were uttered or conveyed.

The Crown need not prove 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 it seriously.[2] [10] The Court then, in part relying on its decision in R v Clemente[3], described the fault element in this way: [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 beestablished by 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. Neve (1993), (AB CA), 145 A.R. 311... [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... [11] Given this legal framework, the issues in this case are:

(1) Whether the words Mr. Hayes used in his posts on Facebook constituted a threat to cause the death of Prime Minister Justin Trudeau,given the meaning that a reasonable person would attach to these words viewed in the circumstances in which they were uttered orconveyed; and

(2) Whether Mr. Hayes intended his posts to be a threat, by either intending these words to intimidate or to be taken seriously. [12] Given that the defence did not call evidence, I shall determine these issues based on the contents of the posts, what Mr. Hayessaid to the police officers in his statements, and inferences I draw from this evidence together with all the circumstances of this case. III. THE STATEMENTS MR. HAYES GAVE TO THE RCMP Statement given by Mr. Hayes to Cst. Head on April 11, 2016 [13] This 23 minute statement was given by Mr. Hayes at the Melville RCMP detachment.

When asked what he had to say abouthis Facebook post on March 6, 2016, Mr. Hayes told Cst. Head that he was “tired of Trudeau” but that he “was not going to go and dothat, obviously”. Mr. Hayes claimed he was not a violent person, but said he had been working in the oil field for 20 years and, in effectregarding the Prime Minister, said that “he just doesn’t give a shit about oil field”. He admitted that he was worked up when he madethe first post, and said that he’d had a few drinks and was playing online video games and talking politics with his oil fields buddies.

Hesaid politics was worse to talk about than religion. [14] When Cst. Head asked him what lead to this post, Mr. Hayes said a couple of his friends lost the mortgage on their house andthat he was not making a living anymore. Further, he was angry that the Prime Minister spent money overseas to try to stimulate othereconomies when, in his view, he was not helping Mr. Hayes and his friends in the oil patch in this country. He said he had not beenpolitical in the past, except for “the last year or a bit”, but that the Prime Minister was, in his words, a “fucking idiot”.

[ 15 ] Cst. Head asked Mr. Hayes if the Prime Minister would have anything to worry about when he came into Saskatchewan, and Mr. Hayes said: “No”. He denied that he would seek the Prime Minister out and claimed he wrote the post out of frustration. [ 16 ] Cst. Head and Mr. Hayes then discussed the economic downturn in the oil field industry, and the economic hardship on people employed in that industry. There was then some general discussion about the political system and petitions and voting, which ended with Mr.

Hayes saying it was “definitely frustration” that lead him to make these statements on Facebook. [ 17 ] Cst. Head then asked Mr. Hayes what his intent was in making the post on Facebook, and whether he wanted to hurt the Prime Minister. Mr. Hayes responded: “No, I haven’t purchased a bus ticket to the East”. The discussion proceeded further about the political system in Canada, and Mr. Hayes indicated his further frustration about Canada’s investments abroad in comparison to domestic policy. Cst. Head then explained why the RCMP wanted to check into the Facebook post and asked Mr.

Hayes whether he was going to post anything else that was threatening. Mr. Hayes responded: “No”. [ 18 ] Cst. Head then read s. 264.1 of the Criminal Code , regarding uttering threats, to Mr. Hayes. The officer stressed to him that the victim in a threat did not have to be aware of the threat. The officer then asked him whether there were any other posts he should be aware of. Mr. Hayes responded that they all were in “regard to Trudeau or Obama”. When Cst. Head said threatening to cause bodily harm or death was where the line was crossed, Mr. Hayes responded: “I’ll stop those.” In effect, Mr. Hayes told Cst.

Head that he would stop writing such posts. [ 19 ] After the statement he took from Mr. Hayes was played in court, Cst. Head testified that, after speaking to Mr. Hayes, he believed that Mr. Hayes understood the mistake he had made and Mr. Hayes was saying he would not do it again. Cst. Head believed that Mr. Hayes had uttered a threat in his post, but used his discretion in not charging him at that point, as he was satisfied that Mr. Hayes would not do it again. Statement given by Mr. Hayes on August 2, 2016 to Cpl. Pickering [ 20 ] Cpl.

Pickering became involved in this investigation after an RCMP officer in Nunavut saw the Facebook post written by Mr. Hayes on March 6, 2016, and forwarded a copy of it to the RCMP in Ottawa. That post, in turn, was forwarded to Cpl. Pickering in Regina, who did background checks on Mr. Hayes, and directed Cst. Head to interview Mr. Hayes on April 11, 2016. [ 21 ] After reviewing, the Facebook post written by Mr. Hayes, and the interview Cst. Head did with Mr. Hayes, Cpl. Pickering said he considered what Mr. Hayes wrote in his first post to constitute a threat under the Criminal Code . Although Cpl.

Pickering was concerned about this, given the warning to Mr. Hayes by Cst. Head, he thought that this would be the end of the matter unless it happened again. [ 22 ] Then, on July 13, 2016, Cpl. Pickering was advised of another Facebook post made by Mr. Hayes on July 8, 2016. The officer believed, as well, that the second post was threatening in nature, and, as a result, drafted an application for a search warrant into Mr. Hayes residence. That search occurred on August 2, 2016 in Grayson, and Mr. Hayes was arrested that day for uttering a death threat to the Prime Minister. [ 23 ] After he was arrested, Cpl.

Pickering took a 35 minute statement from Mr. Hayes at the Yorkton RCMP detachment. Cpl. Pickering read the initial Facebook post from March 6, 2016 to Mr. Hayes, and Mr. Hayes repeated that what he had said was done out of frustration. Mr. Hayes then said to Cpl. Pickering: “Am I going to kill him? No, I am not going to kill him. I would challenge him to 12 rounds in the boxing ring any day of the week”. [ 24 ] Mr. Hayes again stated he was frustrated about the things the Prime Minister was doing in other countries that he thought he should be doing at home.

He then said: “Nobodies doing anything about it, somebody has to rally the troops”. [ 25 ] There was some general discussion about Quebec and Mr. Hayes’s frustration over the role of the Prime Minister in dealing

with that province. Mr. Hayes explained that it was his frustration over this issue that led to his Facebook post on July 8, 2016. [ 26 ] Cpl. Pickering asked him how many Facebook friends he would have on his profile, and he said a couple of hundred. On another profile, subtitled My Matter of Truth, Canadian Politics and Social Awareness, he said he had another hundred friends. [ 27 ] Cpl. Pickering asked whether Mr. Hayes could see why saying people should “storm Notley’s NDP house, legislature building and any other provincial government buildings by force and overthrow the NDP government” would be concerning.

Mr. Hayes responded: “Yes, because it was physically going onto government property”. [ 28 ] Mr. Hayes was then asked whether, if someone said this about him, he would have a reason to be concerned, and he responded that he would be camped out on his doorstep with a baseball bat. Cpl. Pickering told Mr. Hayes that it is difficult to know what is in someone’s head, after reading what was said openly, and Mr. Hayes responded that even his mother told him: “Chris, you’ve got to fucking stop”. [ 29 ] Cpl. Pickering then asked Mr. Hayes about the portion of his second post where he said “Am I going to kill JT? No.

Physically harm the guy? No”. When asked whether he was trying to skirt the Criminal Code , in effect based on his discussion with Cst. Head, Mr. Hayes responded: “Yes”. Mr. Hayes further said he would like to be in the boxing ring with the Prime Minister. [ 30 ] Cpl. Pickering then told Mr. Hayes that he thought the posts were threatening. He, in effect, asked Mr.

Hayes if someone were to say of his neighbour, his girlfriend, his mother, his father or his children that any of them should be shot dead as soon as possible, but without the person saying this being thrown in jail, whether he would find this threatening and whether he would want the police to do something about it. Mr. Hayes responded: “Yes”. [ 31 ] Cpl. Pickering then asked him about the statement “Am I afraid to go to jail? No”. Mr. Hayes confirmed that he spent time in jail before, and then, after some discussion about Mr. Hayes’s employment and how it was effected by the downturn in the oil industry, Cpl.

Pickering said to Mr. Hayes: “You know, you’re threatening the man and you know, I think like I said before, I think you crossed a line”. Mr. Hayes responded: “I’ll agree”. IV. ANALYSIS The prohibited act (the actus reus ) [ 32 ] Mr. Seib, for the defence, argued that considering the context in which these words were written and posted by Mr. Hayes, a reasonable person would not find these words to be a threat to cause the death of the Prime Minister. I disagree. [ 33 ] I am satisfied, considering the entire post Mr. Hayes wrote and posted on March 6, 2016, that it was Prime Minister Justin Trudeau Mr.

Hayes was speaking about when he said: “Imma buot to go shoot this mother fucker dead”. Further, I am satisfied that in his post on July 8, 2016, Mr. Hayes expressed the opinion that the Prime Minister should be shot dead, and while he would not do it personally, he would personally thank the person who did. [ 34 ] The defence cited in argument the case of R v Batista [4] . In that case, Mr. Batista was upset with the performance of a counsellor in his city, including a reported comment she had made about potholes in the community.

He wrote a poem that he posted on five mail and newspaper boxes in his neighbourhood, which included a reference to digging a pothole, for the counsellor’s body, that was six feet long, three feet wide and five feet deep. [ 35 ] The Ontario Court of Appeal, in Batista , noted that in his poem Mr. Batista made a number of attempts to rhyme and mimic

nursery rhymes [5] , and further that the accused testified at his trial that it was never his intention to threaten the counsellor but simply to express his view to the community that the counsellor was not doing her job [6] . The Court noted that words spoken in jest were not meant to be caught by s. 264.1 [7] , and that, at Mr. Batista’s trial, the judge appeared not to have taken note of the “mocking tone and cadence” of the poem, or considered whether Mr.

Batista’s “purpose may have been to mock the councillor for concentrating her efforts on potholes at the expense of other issues important to her constituents”. [8] In conclusion, the Court of Appeal found that “no reasonable person, fully informed, could interpret the appellant’s poem as a threat that could be taken seriously”. [9] [ 36 ] I, however, find that the Batista case can be distinguished from the case before me. Nothing in the words he used in either post, or in either statement he gave to the RCMP, suggest to me that Mr.

Hayes’ words were spoken in jest, or as a joke, or as any attempt to mimic some other literary work, in a way which could not be taken seriously by a reasonable person. [ 37 ] The posts in this case, were conveyed by a person, Mr. Hayes, who was politically opposed to the Prime Minister, angry about decisions taken by the Prime Minister’s government and frustrated by the perceived effects these decisions had on his own financial situation. These posts were, as well, made on the Internet to a Facebook group which included some persons who were of a similar political viewpoint to Mr. Hayes.

However, even with these considerations and as well no evidence that the Prime Minister was made aware of the posts, I have no hesitation in finding that a reasonable person would find both posts, in the circumstances they were written and conveyed, to constitute a threat conveyed on the Internet to or towards the Prime Minister as an intended recipient - legally the same thing - to cause his death.

While the post he wrote on July 8, 2016 was less direct than the earlier one, I am nevertheless satisfied that a reasonable person, aware of the circumstances in which it was made, would as well find this to be a threat to cause the death of the Prime Minister which could be taken seriously. The fault element (the mens rea ) [ 38 ] The defence further argues that it is clear from the context within which these posts were written - based on Mr. Hayes’s frustration and in his attempt to rally others to political action - that he did not intend to utter a threat, but only to express an opinion.

For the reasons that follow, I disagree. [ 39 ] The Supreme Court in McRae stated that the fault element for this offence will be made out if it is shown that threatening words uttered or conveyed “were meant to intimidate or to be taken seriously”. That is disjunctive, which means it is sufficient if the words were meant either to intimidate or to be taken seriously. That said, I am satisfied that the words Mr. Hayes used, in both posts, were intended by him to intimidate and to be taken seriously, and, as a result, these words were intended to be a threat. That is because:

(1) In his statement to Cst. Head, when Cst. Head said threatening to cause bodily harm or death was where the line was crossed, Mr. Hayes responded: “I’ll stop those.” This clearly suggests that he knew what he had said about the Prime Minister in his March post was intended to be a threat;

(2) Mr. Hayes repeated a similar threat to his first post about three months after being warned by Cst. Head about the potential legal consequences of doing so, and that uttering a threat to cause the death of a person was illegal under the Criminal Code . As a result, it was clear that Mr. Hayes knew full well what he was saying when he wrote his post in July, whether or not he as well was frustrated and speaking about his political views;

(3) In his statement to Cpl. Pickering, Mr. Hayes was asked whether, if someone said comments directed at him similar to what he said about storming the Alberta legislature as part of his July 8 th Facebook post, he would have a reason to be concerned, and he responded that he would be camped out on his doorstep with a baseball bat. As a result, Mr. Hayes was in my view accepting that he would take the words from this post seriously, and feel intimidated by them, if they were said to him by another person;

(4) In his statement to Cpl. Pickering, he agreed with the notion that if someone were to say of his neighbour, his girlfriend, his mother, his father or his children that any of them should be shot dead as soon as possible, but without the person saying this being thrown in jail, he would find this to be threatening and he would want the police to do something about it;

(5) Mr. Hayes agreed with Cpl. Pickering’s suggestion that he was threatening the man - which I am satisfied was the PrimeMinister - and that Mr. Hayes had crossed the line. This clearly shows he intended what he said to be a threat to the Prime Minister;

(6) In his statement to Cpl. Pickering, he admitted that he was trying to avoid culpability under s. 264.1 of the Criminal Code by theway he phrased the post on July, 8, 2016, which in my view shows that his intent - to threaten the Prime Minister - remained the same asin his first Facebook post in March; and

(7) Although Mr. Hayes said that he would not kill the Prime Minister, that the Prime Minister had nothing to fear from him if hevisited Saskatchewan and that he acted out of frustration, nowhere in either statement to the police does Mr. Hayes say that he did notintend to threaten the Prime Minister or that he did not intend his words to intimidate or to be taken seriously. [40] In submitting that there was insufficient proof that Mr. Hayes intended his Facebook posts to be a threat, the defence cited the case of R v Sather[10]. In that case, Mr.

Sather made threatening comments on his Facebook page directed both at a local Children’s AidSociety and employees of that Society, whom he blamed for the death of his son. While satisfied that a reasonable person would findthese posts to be a threat of serious bodily harm, the judge in Ontario found that the Facebook posts were not meant to intimidate. Thatwas because: (1) expert evidence was called to explain how people use Facebook to embellish their character and create a false persona;(2) the posts were expressions of emotion directed to people who might be sympathetic to Mr.

Sather’s anger over the loss of his son; (3)Mr. Sather had numerous direct contacts with employees of the Society and never said anything that might instill fear; and

(4) Mr.Sather’s testimony at his trial was accepted by the judge, including his evidence that he made these posts to blow off steam as he hadbeen taught to do in an anger management course. [41] I, however, am satisfied that the Sather case can be distinguished from that of Mr. Hayes, as no evidence was presented at thetrial, either by Mr. Hayes or by an expert on his behalf, to suggest what he intended in making the posts or how he used Facebook or thathe had a false persona on Facebook. Nor was there any evidence of any ongoing dialogue between Mr. Hayes and the Prime Minister.

While his comments may have been directed on the Internet to a group which included people who shared his political views andfrustration, nevertheless it is clear to me that the best evidence of Mr. Hayes’ intent in making these posts is that contained in his twostatements he gave to the RCMP, which I have referred to above. [42] I accept that Mr. Hayes did not intend to kill the Prime Minister, and I further accept that he was frustrated by the economicproblems he was facing when he made the posts on Facebook.

But for the reasons stated above, I am satisfied that he intended thethreatening words he used in both of his posts, regarding causing death to Prime Minister Justin Trudeau, to intimidate and to be takenseriously. V. CONCLUSION [43] Because I am satisfied beyond a reasonable doubt that the Facebook posts Mr.

Hayes made on March 6, 2016 and July 8,2016 constituted a threat conveyed to Prime Minister Justin Trudeau to cause death to Prime Minister Justin Trudeau and because I amsatisfied to that standard that he intended these posts to be a threat, he is found guilty as charged under s. 264.1. ______________________ R. Green, J [1] 2013 SCC 68 [2] At para 13 [3] (SCC), [1994] 2 S.C.R. 758

[4] 2008 ONCA 804 [5] At para 31. [6] At para 7. [7] At para 17, referring to the words of Cory J. in Clemente (at p. 762). [8] At para 31. [9] At para 44. [10] 2008 ONCJ 98