R. v. D.(D.), 2013 ONCJ 134

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. COURT FILE No.: Regional Municipality of Durham: 998 12 Y18924 DATE: 2013·03·19 Citation: R. v. D.(D.) , 2013 ONCJ 134 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN — AND — D.D., a young person Before Justice J. De Filippis Heard on February 28, 2013 Reasons for Judgment released on March 19, 2013 Mr. K. Polley .................................................................................................. counsel for the Crown Ms C. Cahill ............................................................................................. counsel for the Defendant De Filippis J.:

Introduction [ 1 ] This case is about the relationship of intention and desire. The defendant recently became 18 years of age, but was a young person as defined by the Youth Criminal Justice Act three months ago when he was charged with threatening bodily harm. The complainant is a 16 year old young woman. The charge arises because of a conversation between the parties on the social network known as Facebook in which the defendant described his sexual fantasies. They are disturbing. The question is whether he also uttered the threat. [1] These reasons explain why I find him guilty.

Evidence [ 2 ] The defendant and complainant were members of a high school band. They met on December 4, 2012 during a performance at another school. The complainant testified that she considered the defendant to be a “nice guy” and was “interested in him. They exchanged telephone numbers and “Facebook names” and “talked on Facebook” later that day. They saw each other the next day at school and again “spoke on Facebook”. The parties told each other about themselves in these two exchanges.

The defendant revealed that he had masturbated while viewing a picture of the complainant, to which she responded, “lol” [laugh out loud]. The defendant also told the complainant that he had cut himself in the past and spent four months at “Whitby Shores” [a psychiatric facility]. [ 3 ] The messages that are the subject of this charge occurred on the third day (December 6). The extract below is taken from that Facebook conversation. The complainant testified that at school earlier that day, the defendant confided that there was something he needed to tell her.

The discussion that evening began with the complainant asking about this and continued as follows: Defendant: Before I tell u, promise u will tell no one not ur bff, absolutely nobody Complainant: Yes Defendant: Especially not the police Complainant: Yes I promise Defendant: The reason I came from All Saints to this school, is cuz I got expelled Complainant: Why? Defendant: And here’s why Complainant: OK Complainant: Okall? Defendant: Did you read?

Complainant: Yeah Defendant: What does it say Complainant: Which part am I reading Defendant: Descript Complainant: Yes Defendant: And what does it say [Note: The complainant has been directed to a web link. The page contains numerous upside down crosses. Against this background is a picture of the defendant.

Beside the picture are the words below as “read” by the complainant.] Complainant: 17, male, depressed, some deviant sexual thoughts and some behaviours such as necrophilia and sadism (as said by my doctors) - this thread is about my thoughts, wtf is going on in my head, not to be taken seriously, as I said these are only thoughts, or fantasies. [Note: Following this description of the defendant, the web link displays several still pictures and a short video. The still pictures are these: The words, “I will follow you into dark”; A kitten; A woman in lingerie; A Nirvana T-shirt; and Pencil sharpeners.

The video clip shows the naked chest of a woman and an unknown person slitting her breasts with a knife.] Defendant: The reason I broke up with my ex three months ago, is cuz I was afraid for her safety Complainant: I’m not scared Defendant: I’m not telling u to be afraid of me Complainant: Then what? Defendant: Just cautious

Complainant: okaii Defendant: I have thoughts about u sexual ones that are in that category Complainant: LOL Defendant: I wanna cut ur stomach open and stick my dick in it Complainant: OK Defendant: Break ur legs and jerk on ur face Complainant: k calm down Defendant: Sorry Complainant: It’s fine..but I have to tell you some stuff Defendant: kk Complainant: I’ve had a abortion, I’m not like every other girl ud date I don’t do anything sexual big until I trust me and we’ve been dating a while..I’m sorry Defendant: U see that’s where ur wrong Complainant: Why?

Defendant: I don’t care if u want it to happen or not Complainant: OK? Defendant: And I don’t wanna hurt u so bye Complainant: sto - stop I do have feelings for you..but u can’t force me into shit Defendant: What do u mean I can’t Complainant: U can’t. I’m not like that. If u do then we can’t have anything between us. I don’t want to lose what we have but if u can’t respect me then..maybe we should just stay friends Defendant: That’s my point lol I don’t wanna rape u ok Complainant: U wouldn’t u have to respect me.. Defendant: I have before, charges were dropped though Complainant: Well u stop?

Why r u pushing me away and shit? Defendant: I’m not, I’m telling the truth I’m telling u who I am not many ppl know me, the ppl I trust know about by depression, and once ur closer, u get to know this Complainant: As long as u can control yourself then I’m not afraid but u have to control yourself please Defendant: I get no sexual gratification then though like can u take cry? With tears? Complainant: Yeah? Defendant: If I hurt u, but not badly, are u ok with that? Complainant: What do you mean? Defendant: Like if cut u?

Complainant: I stopped that shit for a reason, if u do it its fine idc but not me Defendant: Bruise u Complainant: No Defendant: No, not cut myself, I want to cut u Complainant: No I know, and no, u can’t. U can to yourself idc but not me you cannot physical harm me Defendant: Why not? Complainant: Because I don’t want to be harmed by a guy..sorry

Defendant: I want to so why can’t I? Complainant: Because I don’t want you too Defendant: Can I slap u then? Like kiss u slap u, then kiss u again Complainant: What?? Defendant: Just read it again. Complainant: No u ca kiss me and u can only slap my ass Defendant: How did u get prego anyways? U didn’t use a condom Complainant: Sex? And no..didn’t have one at the time Defendant: Then go to the store lol Complainant: Lol Defendant: I wanna get nude for u Complainant: …were not dating.. Defendant: we almost kissed today lol Complainant: We did? Can u text me???

I have to get off the computer Defendant: Nope sorry Complainant: OK well talk later then bye Defendant: Bye don’t u understand I only want u for sex I have no feelings for u Complainant: k. Defendant: lol sorry besides u only know me since Tuesday, so there can’t be much of a feeling [ 4 ] The complainant explained that her several uses of “lol” and “ok” in responding to the defendant were due to her discomfort and “not knowing what else to say”. She stated that by the end of the conversation she felt “a little creeped out and scared….scared that he’d act out and cut me and rape me”.

The complainant agreed with the suggestion that the defendant was asking her what would be acceptable in a sexual relationship. She also admitted that she became angry when the defendant said he only wanted her for sex. She insisted that on re-reading the Facebook conversation the next morning she became frightened by what the defendant might do to her. The next day at school the complainant sought the advice of a friend and brought this Facebook conversation to attention of her teacher. The police were called by the vice-principal. [ 5 ] Cst. Browell arrested the defendant at school on December 7.

She searched the defendant and a knapsack in his possession. In the latter she found a two sided document. At the top of the page, printed in large block letters, are the words “KILLER RAPE DEATH”. This is followed by a hand written note: I can only get pleasure, sexual pleasure, if the female is undergoing extreme pain, being raped, abused, tortured, or simply crying. Love is very different. I would do anything to keep the person I love safe, sex and love are two different worlds. I would kill to get that. I will kill. I want a girl. Physically attractive to me.

Start by taking off all her clothes and tie her up. At this point she will be feeling extremely uncomfortable at this point. If not crying. I will beat her not hard just to make her cry. Then masturbate on her. Come back a couple hours later and untie her, feed her if she wants, but right after go back to my sexual behaviours with her. And cut her for the first time, prob. Thigh, let the blood drip down a bit then lick it off of her. Then leave but before kick in her knees, breaking them, as she cries and screams fuck her.

Then leave but lock the door of whatever room she is in, probably the sound proof music room. Submissions [ 6 ] The Crown argues that since common sense dictates that a person intends the natural consequences of their action, the words spoken by the defendant show that he uttered a threat of bodily harm.

Counsel relies, in particular, on these utterances during the course of the conversation: “I wanna cut ur stomach and stick my dick in it….break ur legs and jerk in ur face”…. “I don’t care if you want it to happen or not”….I don’t wanna rape u ok….I have before, charges were dropped though, “I want to cut u....so why can’t I”.

These comments, the Crown points out, are interrupted by the complainant protesting that he cannot do such things and she will not allow a man to harm her. [ 7 ] Defence counsel submits that the defendant’s remarks must not be considered in isolation and that he also stated “I don’t want to hurt u”. Counsel suggests it is significant that after the complainant rebuffs him, he tried to end the conversation only to have the complainant declare, “Stop, I do have feelings for u but u can’t force me into shit”; Later the defendant repeated that he does not want to harm her and

asks “can I slap u then, like kiss u, slap u, kiss u again”, to which the complainant responded “u can kiss me and u can only slap myass”. According to the Defence, when taken in context, the defendant’s utterances were not threats; he simply conveyed his fantasies –that is, his desires, not his intended action. Applicable Legal Principles [8] The standard of proof beyond a reasonable doubt is inextricably linked to the presumption of innocence. This does not mean proof toan absolute certainty but it does require more than proof that the defendant is probably guilty.

A reasonable doubt is one that is logicallyconnected to the evidence or absence of evidence. The defendant did not testify or call other evidence and there is no onus on him to doso. The burden of proof rests on the prosecution. [9] I consider the document found in the defendant’s possession upon his arrest to be admissible and relevant: R v Caccamo (SCC), [1976] 1 S.C.R. 786.

In this regard, it is not necessary to decide whether he wrote the document – although, as will bedescribed below, having regard to the fact that it contains sadistic sentiments similar to those uttered by him in the Facebookconversation, I find this as a fact. [10] The law with respect to threatening was recently reviewed by the Supreme Court of Canada in R v O’Brien 2013 SCC12: While in jail, the accused had a telephone conversation with his ex-friend in which he said several times that he would kill her if shewent through with her plan to have an abortion.

The complainant testified that she did not fear the accused because he often said suchthings. The trial judge found that the Crown had failed to prove the accused intended his words to be taken seriously or intimidate. TheSupreme Court of Canada upheld the acquittal. The majority judgment includes the following: 7 Speaking for the Court in R. v. Clemente, (SCC), [1994] 2 S.C.R. 758, at p. 763, Cory J. stated: 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. See, to the same effect, R. v.

McCraw, (SCC), [1991] 3 S.C.R. 72, at p. 82. 9 At no point in her reasons did the trial judge state, as the Crown contends, that she was acquitting the accused solely because therecipient of the threats did not take them seriously. 10 Rather, after setting out the law correctly, the trial judge quite properly felt bound "to consider the words [uttered by Mr. O'Brien]in the context of the evidence of [the person to whom they were directed]".

That evidence was relevant and therefore admissible for thepurpose of assessing the context in which the words were spoken. 11 As Cory J. explained in Clemente, at p. 762: ... the question of whether the accused had the intent to intimidate, or that his words were meant to be taken seriously will, in theabsence of any explanation by the accused, usually be determined by the words used, the context in which they were spoken, and theperson to whom they were directed. 12 Manifestly, the trial judge asked herself the right question. Her answer was that the evidence left her with a reasonable doubtwhether Mr.

O'Brien had acted with the requisite mens rea of the offence with which he was charged. And she entered an acquittal forthat reason. 13 I agree with the Crown that it is not an essential element of the offence under s. 264.1(1)(

a) that the recipient of the threats utteredby the accused feel intimidated by them or be shown to have taken them seriously. All that needs to be proven is that they were intendedby the accused to have that effect [emphasis in original]. [11] In R v Batista 2008 ONCA 804, the Court of Appeal for Ontario noted that: 14 McCraw, at pp. 82-83, instructs that whether the impugned words constitute a threat, which it describes as a question of law ratherthan one of fact, should be approached looking at the matter objectively from the perspective of the ordinary reasonable person: 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 words which are said to constitute a threat must be looked at in light of various factors. They mustbe considered objectively and within the context of all the written words or conversation in which they occurred. As well, some thoughtmust be given to the situation of the recipient of the threat. [12] A threat means an avowed present determination or intent to injure presently or in the future. If there is no present orfuture intent expressed in language there is no threat.

Also if words, however, hostile speak to what might have occurred in the past thereis no threat: R v D.T. [1997] O.J. No. 688. [13] It has been said that the central issue in the debate about the nature of intentionally committing an offence turns on therelationship between intending and desiring: Rethinking Criminal Law (1978; Little, Brown & Company), p. 440.

This point is taken upby in a commentary on the decision by the Supreme Court of Canada in R v Khawaja 2012 SCC 69 in Mixed Messages on the Meaningof Intention, Purpose and Desire, Criminal Reports (Articles), 6th Series, 2013:[2] The basic meaning of intention is also well understood. In R. v. Buzzanga, Martin J.A. famously wrote that there were two alternativeways in which a person could be said to possess the intent to cause a prohibited consequence: (1) if causing such a consequence is the

person's conscious purpose or desire in acting; or (2) if the person acts while foreseeing that the consequence is certain or morally certain to result…. There's a reason the courts have consistently adopted a broad view of intention that encompasses both a desire to effect a consequence and a knowledge that one's action will effect that consequence, irrespective of one's desire. Consider the seminal decision that spawned this approach: Buzzanga .

In that case, which concerned the intentional promotion of hatred, the accused were two French Canadian activists who made the ill-conceived decision to circulate leaflets denigrating their own community. At the time, there was considerable controversy over the possible construction of a French language high school, and the objective behind the leaflet was to expose what the accused saw as prejudice against them and in the process unify the local French-Canadian community in favour of the new school. The example demonstrates why it is useful to have two

definitions of intention. Clearly, neither Buzzanga nor Durocher desired or were motivated by the need to promote hatred against themselves and members of their community. But assuming they knew that such hatred was certain to result from their actions, they were properly liable of wilfully promoting hatred. Where a person acts with the knowledge that a prohibited consequence will result, they are acting intentionally. The law is designed to stop people from knowingly committing harmful actions — whatever the person's desire or motivation is in so acting .

Analysis [ 14 ] Crown counsel argued that the plain meaning of the defendant’s words about cutting and breaking legs constitute threats to cause bodily harm. That is correct insofar as the actus reus is concerned but this does not necessarily resolve the issue of mens rea. Defence counsel submitted that these words should not be considered in isolation but within context of the entire conversation. That is also correct but I note the danger of being distracted by a conversation such as the one in question such that details are not fully appreciated.

As will be explained, this is what, I believe, initially happened to the complainant. [ 15 ] This is not a case in which the reliability of the evidence is in issue. There is no doubt about who said what. Moreover, apart from the question of whether and when the complainant became frightened, this case is not about credibility. [ 16 ] It is clear the defendant desired to cause bodily harm to the complainant. He did not speak in jest; this is manifest by the conversation as a whole, including his admission that he can only experience gratification by inflicting pain.

Any doubt about his seriousness is erased by the video clip he sent to the complainant (depicting breasts being sliced) and his possession of the document seized upon arrest. [ 17 ] The fact that the defendant is sexually aroused by thoughts of causing bodily harm does not end the matter. His desire, however distressing, is not a crime. He can only be condemned if he acts upon his thoughts. He is charged with threatening bodily harm. Did he foresee this consequence? Did he know his words would be taken seriously or intimidate?

What would the reasonable person conclude in light of all circumstances? [ 18 ] Much of the Facebook conversation was about the defendant’s desire to inflict pain. On several occasions he asked the complainant to submit to his wishes – but, he also stated he did not consider this necessary. He said: “I wanna cut ur stomach open and stick my dick in it” and “break ur legs and jerk on ur face”. After the complainant told him to “calm down” the defendant responded as follows; “I don’t care if u want it to happen or not”. Later he said, “I want to cut u....so why can’t I”.

Having regard to the context, it is reasonable to conclude the latter is not a question but a declaration. I find these statements were meant to be taken seriously. Although these words are a few among many written by the defendant, they are clear and unequivocal. Moreover, the sequence of events is significant; the defendant described violent desires, he is asked to calm down, and he responded that he did not care if the complainant shared his wishes.

I make this finding notwithstanding that following these utterances, the complainant continued the conversation, during which, the defendant clarified that he needs to hurt her to obtain sexual gratification and she eventually agreed to let him slap her buttocks. This conclusion is supported by the conversation as a whole, the relationship of the parties and the document seized from the defendant. [ 19 ] It is significant that the parties had only known each other for three days. This is not a couple with a history of sexual practices. Indeed, the brevity of their relationship is just as relevant to intent.

Since the defendant could not know how the complainant would respond to his statements, it is reasonable to conclude that he was serious when he said he did not care if she consented to being harmed. As previously noted, it does not matter if the complainant felt threatened by the defendant’s words. Nevertheless, O’Brien stands for the principle that the complainant’s reaction may be considered as part of the context as can, obviously, her participation in the conversation. I accept that the complainant was, on reflection, frightened by what the defendant told her.

That is why she discussed the matter with her friend the next morning and reported it to school authorities. What she initially found “creepy” later caused her to be intimidated. This also explains her participation in such a conversation with a person she barely knew. I accept that she was startled and “did not know what to do”. It is also reasonable to conclude she was intrigued by the discussion of private sexual fantasies and distracted by it. What later alarmed her is the realization she had also been threatened.

In these circumstances, the complainant’s role in the conversation does not trouble me or make the defendant’s utterances non-threatening. [ 20 ] The document seized from the defendant is closely linked to his conversation with the complainant: Both refer to sexual

pleasure through bodily harm so that the woman is “extremely uncomfortable” and sheds tears. Both mention cutting a woman and kicking or breaking her knees. Finally, it is noteworthy that the document asserts that love and sex are different and describes a man masturbating on his female victim. I do not consider it a coincidence that the defendant told the complainant he only wanted her for sex and had masturbated while viewing a picture of her. [ 21 ] I find that the defendant is a sadist. The Facebook conversation reflects his need to cause bodily harm as a source of sexual gratification.

He described the violent nature of the acts contemplated and sought the complainant’s submission to his desire. He also said he did not care if she consented. I have no doubt these words were meant to be taken seriously and that they intimidated the complainant. Indeed, I am confident he derived pleasure from the threats themselves. I conclude that the actus reus and mens rea have been established. Result [ 22 ] The Crown has met its burden of proof. The defendant is guilty of threatening bodily harm. Released: March 19, 2013 Signed: “Justice J. De Filippis”