Her Majesty the Queen - v. -, 2013 SKPC 19

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 019 Date: February 12, 2013 Information: 43822174 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - George E. Weinmeyer Appearing: T. B. Macnab For the Crown W. P. Langen For the Accused JUDGMENT Q.D. AGNEW , J [ 1 ] The accused, George E. Weinmeyer, is charged that on or about July 2, 2012, at or near Saskatoon, he knowingly uttered a threat to cause bodily harm to Sylvia Williams, contrary to s. 264.1(1) (

a) of the Criminal Code . [1] He admits that the words he spoke constitute, on the face of them, a threat as outlined in the

section and therefore the actus reus of the offence; the question to be decided is whether or not he had the necessary intention, or mens rea . That decision involves a close review of the language used by the Supreme Court of Canada when it specified the mens rea of the offence: in the particular circumstances before me, it is not immediately clear whether the accused, although he intended to speak the words which in plain meaning constitute a threat, had the intention which the Supreme Court says is required for conviction.

[ 2 ] First, some background. The accused and Ms. Williams were involved in a common-law relationship for 25 years. Both are quite elderly. On the date in question, they were residing together in a mobile home in a trailer park in Saskatoon. Their relationship had for some time been in difficulty and apparently deteriorating. The complainant had recently ceased speaking to the accused; he testified that she had not said a word to him for a week.

Although I am not prepared to conclude that this is literally true, I accept that it is at least substantially true. [ 3 ] I find that alcohol was not a factor notwithstanding that both parties had been drinking some wine prior to the incident. The police officer who attended the scene, Constable Siebert, found the accused to be cooperative and calm and did not note any signs of impairment. [ 4 ] According to Ms. Williams, she was in the trailer and the accused was on the back deck.

He came in and said to her “if you don’t shape up I’m going to kill you and throw you over the front deck.” She testified that when he said that, she was frightened, believed him to be sincere and still believes him to be sincere. She immediately called the police. [ 5 ] The accused confirmed a great deal of Ms. Williams’ testimony and where it varied, it was often only in insignificant detail. Crucially, with respect to the statement quoted above, the accused states that he said to the complainant, “This is crazy. This is no way to live.

If you don’t shape up in the next few days, you’re liable to make me mad enough that I’ll grab you and throw you over the railing in the backyard.” [ 6 ] With any “threat” charge, the wording used is important. I must therefore decide what the accused actually said. [ 7 ] I am not satisfied that the accused threatened to “kill” Ms. Williams, as she alleges. Immediately after the threat was made, she called the police; they arrived shortly thereafter. She gave a written statement to them at that time. In two different places in that statement, she repeats the threat made by the accused.

Both times, she stated that the accused told her that he would “throw [her] over the front deck”: crucially, in neither place is there a reference to the accused threatening to “kill” her. That aspect of the threat seems to arise for the first time in Ms. Williams’ testimony at trial. [ 8 ] I accept that the statement made by the accused was as he described it. [ 9 ] He concedes that the statement constitutes the actus reus of the offence. The question that remains is whether or not he had the mens rea for the offence.

The accused testified, and I accept, that he said those words “to get her attention”, to get her to start talking to him, to “shake her up a little bit so’s [sic] maybe she’ll want to start talking to me and maybe work something out”, “maybe she’ll talk then, say something, even a couple of words then we could carry on, to see if we can come to some arrangement”. I find that he made his statement not idly or in jest, but deliberately and with the intention that by so doing, he might influence Ms.

Williams to change her conduct: to stop giving him the “cold shoulder”, talk to him and attempt to work out their relationship problems. [ 10 ] While this may seem to be an odd way to approach communication difficulties in a relationship, this Court is not in the business of marriage counselling. There are undoubtedly a number of techniques which may be employed to attempt to break a deadlock in communication; some no doubt have a higher probability of success than others. It may be that a professional would not have recommended this approach to the accused.

Nonetheless, I am satisfied that this was his motive in making the statement which I have found he made. [ 11 ] The Supreme Court of Canada in R. v.

Clemente [2] set forth two tests for the mens rea for the offence of uttering threats. “[I]n the absence of any explanation by the accused”, the test is an objective one, namely whether or not the words would “convey a threat of serious bodily harm to a reasonable person”. [3] Where, as in the case before me, the accused has credibly testified as to his actual intention, the test is whether the words “were meant to intimidate or to be taken seriously.” [4] The Supreme Court recently reaffirmed the latter test in R. v. O ’Brien [5] : it is not an essential element of the offence under s. 264.1(1)(

a) that the recipient of the threats uttered by the accused feel intimidated by

them or be shown to have taken them seriously. All that needs to be proven is that they were intended by the accused to have that effect . [6] (emphasis in original) [ 12 ] The test for the present accused, therefore, is whether or not he intended that Ms. Williams feel intimidated by his words, or take them seriously. It seems clear that these are alternatives. In other words, there are two ways in which the mens rea may be found: firstly, that the accused intended that the victim be intimidated by the words; secondly, that the accused intended that the words be taken seriously.

If either is found, the mens rea has been established. [ 13 ] To examine the first branch of the test, what does it mean to ask if the accused’s words were meant to intimidate? [ 14 ] The meaning of the word “intimidate” was considered by the British Columbia Supreme Court in R. v.

Little . [7] Quoting the Shorter Oxford English Dictionary , 3 rd ed. at page 1102, the Court found the meaning to be, “to render timid, inspire with fear; to overawe, cow, now esp. to force or to deter from some action by threats or violence.” [ 15 ] Although the case did not involve a criminal act, the Saskatchewan Court of Appeal in 1938, in Fuller v.

Stoltze , said the following in reference to the tort of intimidation: any menacing action or language, the influence of which no man of ordinary firmness or strength of mind can reasonably be expected to resist if used or employed with intent to destroy the freedom of will in another, and to compel him through fear of such menaces to do that which it is not his will to do . . . amounts to an attempt to intimidate and coerce. [8] [ 16 ] Although it too refers to the tort, The Dictionary of Canadian Law [9] defines intimidation as: A tort in which one person, by threatening to do something unlawful, compels someone else not to do something that person wants to do or to do something which that person does not want to do so that the threatened party agrees to avoid the threat being executed, with the result that some person, whether it is the threatened person or a third party, is likely to be or is condemned by agreeing to act. [ 17 ] The Oxford Online Dictionary currently defines “intimidate” as “frighten or overawe (someone) especially in order to make them do what one wants”. [ 18 ] Based on these authorities, I conclude that the essence of intimidation is the use of action or language to overawe or frighten another, with the intention of causing that person to change their course of action against their will.

This change may be to undertake an action which they would not otherwise have done, or to refrain from doing something which they would have done in the absence of such action or language, but in either case the intimidator intends that the recipient not act in accordance with their own wishes, but rather in accordance with the intimidator’s wishes; and the intimidator employs menacing, violent or frightening acts or language to cause such change. [ 19 ] Were the accused’s words meant to frighten or overawe? The words, it must be noted, are words of physical violence.

They were chosen by the accused specifically for their shock value. He did not use words of persuasion, logical argument or emotional commitment in his attempt to change Ms. Williams’ mind. I find that he used those words specifically for their impact, for their forcefulness, and with the intention that she be frightened or overawed by them. The first branch of the definition of “intimidation” is met. [ 20 ] Can it be said that the accused spoke those words in order to make Ms. Williams do what he wanted?

By his own testimony he intended that his words should cause her to change from the course of action which she had chosen, namely of not speaking to him, and instead embark upon a course of action which the accused wished her to choose, namely to communicate with him. The second branch of the definition is also met.

[21] I therefore find that the accused intended his words to intimidate Ms.

Williams, and that he thus had the requisite mens rea. [22] In the event that I am incorrect, I will also examine the other aspect of the Supreme Court’s test. [23] Does the requirement that the accused intended his words “to be taken seriously” mean that he intended them to be takenmore or less literally, or does it simply mean that he intended them to have some serious or significant impact on the complainant? [24] The Oxford Online Dictionary currently defines “take someone/thing seriously” as “regard someone or something asimportant and worthy of attention: such threats have to be taken seriously.” When the Supreme Court referred to the mens rea beingthat the words were intended “to be taken seriously”, did it mean that the accused had to have intended the words to be regarded as“important and worthy of attention”?

Did the Supreme Court instead mean that the accused had to have intended the words to be taken,if not literally, at least near-literally: that is, the words were not necessarily a promise to carry out precisely the act described, but at leasta promise to carry out that act or one of a fundamentally similar nature? [25] The Supreme Court defined the mens rea as intending the words “to intimidate or to be taken seriously” [emphasis added]. Although there are two different means of finding the mens rea, in my view they are nonetheless related.

The Oxford definition,“important and worthy of attention”, does not sit well beside the meaning of “intimidate”. The Oxford definition does nothing to capturethe undertone of fear, menace or violence which is found in “intimidate”, and which I therefore consider necessary for the mens rea testof a threat offence. [26] Accordingly, I conclude that when the Supreme Court said that the accused has to have intended that his words “be takenseriously”, they meant that the accused has to have intended to convey a promise to carry out the act described or one of a generally-similar nature.

I have found that this was not the intention of the accused in the present case, and I would accordingly not find therequisite mens rea under this branch of the test. [27] As indicated above, I have found that the accused intended to intimidate Ms. Williams by his words, and accordingly I findhim guilty. ______________________ Q.D. Agnew, J [1]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; [2] (SCC), [1994] 2 S.C.R. 758; 168 N.R. 310; [1994] 8 W.W.R. 1; 91 C.C.C. (3d) 1; 31 C.R. (4th) 28; 95 Man. R. (2d)161, 24 W.C.B. (2d) 122. [3]Paragraph 9. [4]Paragraph 12. [5]2013 SCC 2 [6]Paragraph 13. [7]2002 B.C.J. No. 2554 at paragraph 29. [8] (SK CA), [1938] 1 W.W.R. 241, 70 C.C.C. 129, [1938] 1 D.L.R. 635, at para. 33, quoting Allan v. Flood, [1898]

A.C. 1 at 17, 67 L.J.Q.B. 119 . [9] Carswell, 1991