2012 QCCA 236, 2012 QCCA 236

Unofficial English Translation R. c. McRae 2012 QCCA 236 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002572-100 (110-01-000215-108) DATE: February 3, 2012 CORAM: THE HONOURABLE LOUIS ROCHETTE, J.A. LORNE GIROUX, J.A. JACQUES VIENS, J.A. (AD HOC) HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v.

STÉPHANE MCRAE RESPONDENT – Accused JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on September 24, 2010, by the Court of Quebec, Criminal and Penal Division, District of Gaspé (the Honourable Judge Jean-Paul Decoste), which acquitted the respondent of the charges laid against him, specifically, that of uttering threats to cause death or bodily harm (s. 264.1(1)( a ). Six counts were brought against the respondent. [1] [ 2 ] The judge summarized the facts of the case as follows: [translation] [2] In June of 2009, Stéphane McRae was awaiting trial on several charges relating to traffic in narcotics.

He was detained at the New Carlisle detention centre and the Rimouski detention centre. For a time, Louis-Joseph Comeau was also detained because of charges of traffic in narcotics. Both of them were greatly outraged over the charges laid against them; they bore grudges against the Crown prosecutors, the police officers, and especially against those who informed on them and/or signed statements incriminating them.

Édouard Collin and Patrick Cloutier were detained at the same detention centre during this time. [3] Comeau [2] and McRae conspired with each other to attack Mtre Lili-Pierre Trottier-Lapointe, the Crown prosecutor, Benoît Corriveau, an officer-investigator in the case, and Anthony Devouge, Armand Laflamme, Guillaume Bujold and Tony Gionest, who were all witnesses. At the Rimouski detention centre, the accused introduced Comeau to Patrick Cloutier as his [translation] "contract killer". [4] Knowing these facts, investigators decided to put a listening device on Patrick Cloutier, with his consent.

The purpose was to hear and adduce into evidence not only the words of the accused, but also those of the other participant in the conspiracy, Louis-Joseph Comeau (doctrine of overt acts). [5] Thus, the Crown adduced into evidence both the words of the accused and those of Louis-Joseph Comeau through the testimony of witnesses Patrick Cloutier and Édouard Collin. Patrick Cloutier explained that for some time he was in the same wing as Louis-Joseph Comeau and would pass his messages on to the accused. [6] It was also established that: (

a) during a visit by McRae to Édouard Collin's cell in the New Carlisle prison, he said that he [translation] "would take down the guys at the top to rearrange the face of prosecutor Lili-Pierre Trottier-Lapointe (the big cow) and Anthony Devouge's too because he thought that he was the one who snitched on him"; (

b) he informed Patrick Cloutier that he had hired a private detective to find the address of Mtre Trottier-Lapointe; (

c) he asked Patrick Cloutier to do what was necessary to find the address of the officer-investigator Benoît Corriveau; and (

d) he told Patrick Cloutier that once his trial was over he would kill the witnesses that had informed against him (snitched), including, Anthony Devouge, Armand Laflamme, Guillaume Bujold, and Tony Gionest. [ 3 ] The judge then posed the questions that appeared to him to be central and answered them:

[translation] [13] ... We find ourselves asking the following question: Has the prosecution proved the actus reus and the mens rea of the offence under

section 264.1(1) of the Criminal Code , or has it not instead proved a conspiracy to commit murder (465.1(

a) Cr. C. ), to commit assault, or to obstruct justice (139(2) Cr. C. ). Did the words of the accused spoken to Collin and/or Cloutier truly constitute threats, or did the accused merely relate his plans to them both? Or was the purpose of his approach to ask for help in achieving his plans? ... [14] We must decide whether Stéphane McRae did " knowingly utter, convey or cause any person to receive a threat ...".

In this case, the evidence does not establish that the words used by the accused when addressing Collin and Cloutier were intended to reach the ears of the possible or potential witnesses, but showed instead McRae's intention to seek revenge once the trial was over because they had informed on him. It would have been otherwise had we remained under the impression that his intent was to have a message delivered to these possible informers to dissuade them from presenting themselves in court to testify.

There is no "recipient" here; the fellow inmates Collin and Cloutier heard these words, but there is no evidence to suggest that they were supposed to, either implicitly or explicitly, convey this message to the persons concerned. [15] And this reasoning appears all the more obvious to us when we consider the words alluding to Crown prosecutor Mtre Trottier- Lapointe and to Investigator Benoît Corriveau.

It is unlikely that McRae could imagine that if Cloutier or Collin reported these words to one or the other there was a possibility that their attitude would change. [16] We interpret these words as being the expression of a criminal's frustration and outrage at being caught by the judicial system.

It does not express a threat to cause injuries or the death of the informant witnesses [translation] " if they testify", but it shows his anger: in fact, in one case he said that he would act once his sentence was served, and in another he asked for help in finding the address of a police officer. [17] If a conspiracy is established between Comeau and the accused (as the Crown argued to prove overt acts), we find that the evidence alludes to a "conspiracy to commit murder", a "conspiracy for the purpose of committing assault", or a "conspiracy to obstruct justice", rather than some threat. (Citations omitted) * * * [ 4 ]

Section 264.1(1)(

a) Cr. C. states: 264.1

(1) 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; [ 5 ] The purpose of this provision is explained as follows by the Supreme Court: Parliament, in creating this offence recognized that the act of threatening permits a person uttering the threat to use intimidation in order to achieve his or her objects. The threat need not be carried out; the offence is completed when the threat is made . It is designed to facilitate the achievement of the goal sought by the issuer of the threat. A threat is a tool of intimidation which is designed to instill a sense of fear in its recipient .

The aim and purpose of the offence is to protect against fear and intimidation. ... It is the element of fear instilled in the victim by the issuer of the threat at which the criminal sanction is aimed. ... . [3] [Emphasis added] [ 6 ] Pursuant to this provision, the actus reus is the act of uttering, conveying or transmitting threats to cause death or bodily harm, [4] whether present or future, regardless of the person at whom they are directed. The Supreme Court summarizes the question as follows: 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 and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person? [5] [ 7 ] This is an issue of law. [6] Do the words used by the respondent constitute threats? The trial judge did not limit himself to this question. He also addressed the mens rea . [ 8 ] The respondent is not accused of having uttered but of having [translation] "conveyed threats".

The words used by the respondent, considered objectively, may raise serious concerns that acts likely to cause death or bodily harm will occur at the respondent's behest. This is in fact what the respondent's fellow inmates understood him to mean. But when these words and comments are put in context, we can only find that they do not constitute a "threat" within the meaning of the relevant

section of the Criminal Code . [ 9 ] The comments transmitted or conveyed by the respondent to three fellow inmates cannot be likened to a "tool of intimidation which is designed to instill a sense of fear in its recipient"; rather, it is on par with a threatening letter that is never sent in the mail. These conversations took place in a closed circle. The mere expression of a thought is not enough to attribute a criminal act. As the trial judge rightly pointed out, there is no "recipient" here.

The comments made are [translation] "an expression of a criminal's frustration and outrage at feeling caught by the judicial system". [7] The element of fear instilled in a victim is therefore absent.

[10] This is not the only obstacle. The threat must be "knowingly" conveyed. [11] On the subject of the mens rea, in McCraw, Cory J. writes for the Supreme Court:

Section 264.1 provides that the threat must be knowingly uttered or conveyed by the accused. Thus the Crown is required to establishthat the accused intended to threaten the victim with serious bodily harm. However the determination as to whether there was such asubjective intent will often have to be based to a large extent upon a consideration of the words used by the accused. In those cases wherethe accused does not testify or call evidence the determination must be made on the basis of the words used. ... .[8] [Emphasis added] [12] A few years later, Cory J. added the following in Clemente: Under the

section the threat must be of death or serious bodily harm. It is impossible to think that anyone threatening death or seriousbodily harm in a manner that was meant to be taken seriously would not intend to intimidate or cause fear. That is to say, a serious threatto kill or cause serious bodily harm must have been uttered with the intent to intimidate or instill fear. ... .[9] ...

Whether the accused had the intent to intimidate, or that his or her words were meant to be taken seriously will, absent an explanation bythe accused, usually be determined by the words used, the context in which they were spoken, and the person to whom they weredirected.[10] [Emphasis added] [13] Cory J. then examined the question of the conveyance of threats to the potential victim: The trial judge seemed to think it was necessary to find that the threats were uttered with the intention that they be conveyed to thepotential victim. For this he relied upon the decision of the Ontario Court of Appeal in Henry v.

R. (1981), (ON CA),24 C.R. (3d) 261. With respect, that case was not applicable. It was a decision based on the former s. 331 (Criminal Code, R.S.C. 1970,c. C-34), which was the predecessor to s. 264.1.

Section 331 only applied to threats conveyed by certain methods. The discussion inHenry v. R. about whether the threats were intended to be conveyed to the potential victim was relevant to the method of conveying thethreats under the former s. 331. The amendment to the

section and the decision of this Court in R. v. McCraw, supra, make it apparentthat it is not a necessary element of the offence that the intended victim be aware of the threat. Under the present

section the actus reus of the offence is the uttering of threats of death or serious bodily harm.

The mens rea is that thewords be spoken or written as a threat to cause death or serious bodily harm; that is, they were meant to intimidate or to be takenseriously.[11] [Emphasis added] [14] In Rudnicki, Hilton J.A. wrote: [translation] [76] Nor is it necessary to prove the intent to convey the threats to the victims intended in the message or that the said victims hadknowledge of the threats.[12] [Citations omitted] [15] The intention to carry out the threat is irrelevant, but the intention of the accused to threaten must be established.[13] [16] The judge, however, concluded that the evidence [translation] "does not establish that the words used by the accused whenaddressing Collin and Cloutier were intended to reach the ears of the possible or potential witnesses", quite the contrary.[14]Furthermore, [translation] "there is no evidence to suggest that they [Collin and Cloutier] were supposed to, either implicitly or explicitly,convey this message to the persons concerned".[15] In the opinion of the judge, the respondent was frustrated and merely expressing hisintention of eventually getting revenge, without conveying a threat.

In short, in the context of this case, the words of the respondentcould not be perceived as [translation] "intending to intimidate". [17] These essentially factual findings reveal no palpable and overriding error. [18] The respondent did not present any evidence and he did not testify. It is difficult to know what he was thinking. Did he believethat his comments would be reported and could scare the persons contemplated in his plans?

The judge rejected this theory, deeming it tobe neither likely nor logical.[16] It may be that the judge speculated on this matter, but the fact remains that the burden of provingwrongful intent – that is, the respondent's intent to attempt to intimidate – rested with the Crown, who failed to discharge it. FOR THESE REASONS, THE COURT: [19] DISMISSES the appeal. LOUIS ROCHETTE, J.A.

LORNE GIROUX, J.A. JACQUES VIENS, J.A. (AD HOC) Mtre Josée Lemieux CRIMINAL AND PENAL PROSECUTOR For the appellant Mtre Kimon Kling For the respondent Date of hearing: December 15, 2011