Her Majesty the Queen - v. -, 2013 SKPC 137

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2013 SKPC 137 Date: August 9, 2013 Information: 43963765 Location: Saskatoon ____________________________________________________________________________ Between: Her Majesty the Queen - and - C. (K.J.). Appearing: Ms. L. Morelli For the Crown Ms. N. Sim , Q.C.

For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________ JUDGMENT B.G. MORGAN , J _____________________________________________________________________________

Introduction [1] K.J.C. is charged with uttering a threat to an employee of the Red Willow Youth Centre to burn that property, contrary to s.264.1(1)(

b) of the Criminal Code, as the charge is more formally particularized in the Information. [2] The background is not in dispute. On March 11, 2013, K.J.C. and another young person were residents at the Red WillowYouth Centre, and were generally acting out and being disruptive, refusing to follow staff direction. The Defence puts in issue whetheror not the actus reus or the mens rea has been met in these circumstances. The Law [3] The law respecting death threats has been neatly summarized in R. v. Clemente, (SCC), [1994] 2 S.C.R. 758,and the logic applies equally to threats to property. At p. 763, the Court held: 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. To determine if a reasonable person would consider that the words were uttered as a threat the Court must regard them objectively, andreview them in light of the circumstances in which they were uttered, the manner in which they were spoken, and the person to whomthey were addressed. [4] The issue was recently revisited in R. v.

O’Brien, 2013 SCC 2 , 2013 SCC 002, in which it was argued that the trialjudge, in acquitting the accused, had placed too much reliance on what the recipient of the threats felt. The Court reiterated the law asfollows: [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. [5] I will examine the actus reus and the mens rea separately. The Actus Reus [6] Ms. Donna Geransky, a social worker at the Red Willow Youth Centre, testified that “things started to escalate” after lunch,and that K.J.C. said to Ms. Geransky “I may as well burn this place down”. Ms.

Geransky took that threat seriously saying “I thought shewould follow through with that threat”, based on the “level of anger” that K.J.C. was exhibiting at that time. [7] In cross-examination, Ms. Geransky agreed that what K.J.C. said was actually more accurately reflected in Ms. Geransky’sstatement to the police given shortly after the incident, and that she “clearly said that she should just burn this place down”. [8] TerriLynn Burwell, a social worker and part-time case worker at that location, was also present, and testified that K.J.C. said“she might as well burn this place down”.

She testified that at that time, K.J.C. was posturing aggressively, was being defiant, and thatshe was not complying with any direction by staff. As she put it, “we were trying to de-escalate the situation as therapeutically aspossible”, without success. After that threat was made, K.J.C. and another young person she was with started laughing and went toanother area of the residence.

[ 9 ] Both witnesses are consistent in that sometime shortly thereafter they could smell smoke, and subsequently the fire department and the police were called. The former discovered a cigarette butt in the residence, one I find was smoked by K.J.C. and her friend immediately after the alleged threat, and it is clear that the smell of smoke detected by the staff was this burning cigarette. In the circumstances, it was logical for the staff members to feel that K.J.C. may have been making good on her earlier threat. [ 10 ] Ms.

Burwell remained firm that it is not possible that K.J.C. said “I should just burn this down”, remaining adamant that she referred to “this place”. [ 11 ] K.J.C. testified, and acknowledged that she was acting out and was refusing to follow orders. Her evidence was that she had some papers with her, and said to her companion “I should burn this, hey, bro’”. She went on to say, referring to Ms.

Geransky, that “I didn’t think she heard whatever I said”, and in cross-examination, said that she “should burn”, then saw mid-sentence that the staff were perking up, at which point she mumbled the rest of what she said. [ 12 ] I am satisfied that the words stated by K.J.C. were that she should just burn this place down. The place she was referring to, I find, was the Red Willow Youth Centre. Where the evidence of K.J.C. conflicts with that of either Ms. Geransky or Ms. Burwell, I reject her evidence, and prefer and accept the evidence of the employees of the Red Willow Youth Centre, in particular that of Ms.

Geransky. I have a number of reasons for this. [ 13 ] First, I cannot accept that an individual could, in mid-sentence, notice the staff were perking up, and then change a sentence mid-stream, mumbling the remainder of it. [ 14 ] Further, I note that K.J.C. said that she did not think Ms. Geransky had heard “whatever I said”, which strikes me as strange wording to use. In any event, if she didn’t think the staff heard whatever she said, what then would be the need to mumble the rest? [ 15 ] Overall, I found K.J.C. to be quite evasive in cross-examination, and almost flippant during examination-in-chief.

I attribute some of this to her young age, but she mentioned many things in cross-examination that neither Crown witness had referred to, things I find were tailored in an attempt to put a harmless spin on what K.J.C. said. [ 16 ] I found Ms. Geransky to be very fair and forthright in her evidence, and quick to acknowledge that her words as to what was said in examination-in-chief, (“I may as well burn this place down”) were actually more accurately described as she referred to them in cross-examination (“she should just burn this place down”).

She was very clear on what had occurred, and when, and I accept her evidence. [ 17 ] Ms. Burwell confirmed the general tenor of the situation, stating that “the morning hadn’t gone very well” for K.J.C. or her companion. She confirmed that neither youth were complying with any direction and her evidence generally supported the evidence of Ms. Geransky. [ 18 ] I am satisfied the actus reus of this offence has been made out in that K.J.C. knowingly uttered a threat to burn real property. The Mens Rea [ 19 ] Were the words meant to intimidate or to be taken seriously?

Although the test is not whether or not each of the Crown witnesses thought that to be the case, their concerns and beliefs that such was the case are relevant in determining what a reasonable person would conclude in these circumstances. This was a situation where the young person was acting out, being disruptive, and failing to take any direction from staff members. She acknowledged that she “didn’t really like it there”. In these circumstances, a reasonable person would conclude that the words to “burn this place down” were meant to convey a threat.

I am satisfied the mens rea of this offence has been made out.

[ 20 ] Applying the McKenzie test, I do not believe the evidence of K.J.C., nor am I left in doubt by it. I then turn to whether or not, on the evidence which I do accept, being that of the Crown witnesses, in particular Ms. Geransky, I am convinced by that evidence of the guilt of the accused beyond a reasonable doubt. I am so convinced. [ 21 ] K.J.C. is guilty of the charge of uttering a threat to burn real property. ____________________________ B.G. Morgan, J