2020 QCCQ 12874, 2020 QCCQ 12874

LSJPA — 2030 2020 QCCQ 12874 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] TOWN OF [...] Criminal Division No: 610-03-000918-201 DATE: December 17, 2020 ______________________________________________________________________ BY THE HONOURABLE PEGGY WAROLIN J.C.Q. ______________________________________________________________________ THE CROWN Applicant v.

X Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused is charged with two offences: 1- Between January 9, 2020 and January 23, 2020, in Town A and Town B, district A, did knowingly convey to Y a threat to cause death or bodily harm to the persons present to the mall, committing thereby the indictable offence provided by

section 264.1 (1) a) (2)

a) of the Criminal Code . 2- Between January 9, 2020 and January 23, 2020, in Town A and Town B, district A, did knowingly convey to his history class a threat to cause death or bodily harm to the persons present at school, committing thereby the indictable offence provided by

section 264.1 (1) a) (2)

a) of the Criminal Code . [ 2 ] The Crown presents the testimony of three witnesses and two police officers. The accused testified for his defence and his step- father also. [ 3 ] The accused admits the threats, but pleads that those threats were made in a sarcastic context. Evidence of the Crown [ 4 ] The first witness, Ms. Z was a student at School A in Town A during the school year 2019-2020. She was in the same class as the accused. During the month of January, the students of this class, including the witness and the accused had a party in a house of Town A. There was consumption of alcohol and weed.

The witness reminds that at some point, the accused made some jokes and progressively during the evening, his attitude became worrisome. He was speaking alone and he hurt his head on a table. Everybody was worried about his behaviour and the party ended. Some people called their parents to come to pick up them and one of the fathers, upon his arrival, had to physically restrain the accused because he was assaulting another youth. [ 5 ] A few days after the party, during the History class, the accused said that he idealized the serial killers.

It appeared to be jokes, but according to the witness, it was not so obvious that it was really a joke. The witness confirms that it could have been done in a sarcastic tone, but, according to her, the situation was questionable. [ 6 ] She is aware that he has difficulty to make friends and that he has some social difficulties. [ 7 ] The second witness, Ms. Y, was also a schoolmate during this school year. She reminds that she had some exchanges on social media with the accused and particularly one exchange in which the accused send her a picture showing two firearms.

She is not able to give the model of the firearms, but she recognized the pictures presented to her on which we can see two long firearms. With this picture, she receives a message saying, “Do not go to the Mall today.” She understood that he was speaking about the [Mall A]. At the beginning, she thought that it was a joke. [ 8 ] She also reminds that, at school, the accused threatened to shoot on the school. According to her, all the classmates heard those words. [ 9 ] Ms. Y was also at the party held in January, but she left when Mr. X’s behaviours changed. [ 10 ] For Ms.

Y this accumulation of worrisome events scared her and, like the previous witness, she is concerned by Mr. X’s well- being. [ 11 ] The third witness was Ms. A, the History teacher. She had asked to her students to make a presentation about a date of their choice and to explain what important event happened on that date. While a student was making his presentation, the accused said that it was also the date of the execution of a serial killer and added “my idol.” He spoke about shooting the school. Ms. A explained with a lot

of emotions that she was very surprised hearing that and that she had to change the topic. Despite this event, she has only good words for Mr. X. In cross-examination, Ms. A confirms that it could have been done on a sarcastic tone, but as the other witnesses, she considers the situation very questionable and worrisome. [ 12 ] Ms. Renaud, a police officer, started her investigation at the end of January 2020, after that the police was called at school by Ms. B, the school principal. Her colleague, Ms. C had met Ms. B about the event in the History class. Ms. B was made aware of this event by the students and Ms.

A. The students told her about the previous events and told her being scared considering the accumulation of the accused behaviours. [ 13 ] When Ms. Renaud took the file, she already had the information coming from the school. She also knows that the accused had been suspended from school because of the threats he made in class. Ms. Renaud communicated with the accused’s mother. The mother said that X is frustrated not being able to go to school.

She recognized that her son is interested by everything related to firearms and the war, but she did not see any issue with that. [ 14 ] One year before the police did intervene again at school because X was watching school shooting videos. [ 15 ] Ms. Renaud took acknowledge about the facts that a police intervention had been needed at the party and that X had been brought up at the hospital that night. [ 16 ] Ms. Renaud went to the accused’s domicile. A man opened the door, and he was not very collaborative. At one point, the accused’s mother arrived and Ms.

Renaud told her about her concerns following the recent events at school. The mother accepted to come at the police station with her son. The accused, his mother and Mr. D, his step-father, arrived at the police station. [ 17 ] The accused received explanations about his rights. He had opportunity to speak with a lawyer, and he chose to have his step- father present with him. During all the interrogatory, X was very collaborative, but Mr. D intervened a lot and constantly repeated to X not to speak. Ms. Renaud notes that each time, X was to say something, Mr. D told him not to speak.

The two police officers had to intervene and to explain to Mr. D that X can decide by himself if he wishes or not to speak. [ 18 ] X finished saying that at the party, it was the first time he drank. He confirms having been suspended from school one year before for the same reason, and he explained his words by the facts that it was a joke. He said being interested by the serial killers and by the war. He would like to go into the Army. He adds that he had no bad intentions and admitted he went too far.

For each event, the accused justifies his words by the fact that his intention was only to make some jokes. [ 19 ] Questioned about the shooting at the Mall, X again, said that he went too far. [ 20 ] Ms. Renaud released the accused with the condition not to possess any firearms. Doing so, she went to his place and he gave her the firearms. [ 21 ] During the cross-examination, a lot of questions were asked to Ms. Renaud and to Mr. Desbiens, the other police investigator present, about possible threats that would have been made against Mr.

D to be charged with obstruction or to be evicted from the interrogatory room. Evidence on the part of the accused [ 22 ] The accused reminds that he went to the police station. The police officers would like to speak about what happened at school. He tried to explain to them his version, but his step-father constantly told him not to speak and he was very confused. [ 23 ] The accused explained that at one point, the police officers told Mr. D that he would be charged for obstruction if he does not let him speak.

The accused became scared that his step-father could be in trouble and he decided to speak. [ 24 ] The accused confirms that his intention was only to make jokes. He said that he has difficulty to connect with the other youths and he made jokes hoping that he could have friends, and he admits all the words reported by the witness during the hearing. [ 25 ] Mr. D also testifies and reported having been scared by the threats made by the police officers about the possibility to charge him for obstruction.

Parties’ position [ 26 ] The Crown attorney pleads that the words pronounced by the accused in various contexts to different persons constitute threat according to

section 264.1 (1)

a) Cr. C. As the accused recognized the facts, the only question is to know if a reasonable person would have thought that those words were threats. Saying that it was a joke is not enough. The Crown invites the Court to consider the entire context. [ 27 ] As mentioned, on the first count, the accused recognized having pronounced the words and doing so, the actus reus is admitted. Regarding the mens rea , the accused pleads that he had no bad intention because it was only jokes.

The accused’s lawyer insists on the fact that the persons who heard the words were not scared when they received the message or heard the comments, but became scared after a few events. The accused pleads that the Court had to consider the first feelings, but not the feelings after a few events. [ 28 ] On the second count, the accused pleads that the Crown did not prove the actus reus of the threats, because nothing can confirm that he really wanted to cause death or bodily harm to the persons present at school. Analysis [ 29 ] The accused is facing the charge of uttering threats under

section 264.1

(1) C. Cr.

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; (

b) to burn, destroy or damage real or personal property; or (

c) to kill, poison or injure an animal or bird that is the property of any person. [ 30 ] The Supreme Court of Canada rendered a few decisions [1] to give the principles to be taken into consideration to declare an accused guilty of this infraction. In McRae [2] , the Supreme Court describes as follows the actus reus : [11] The starting point of the analysis should always be the plain and ordinary meaning of the words uttered.

Where the words clearly constitute a threat and there is no reason to believe that they had a secondary or less obvious meaning, the analysis is complete. […] [16] To conclude on this point, the prohibited act of the offence of uttering threats will be made out if a reasonable person fully aware of the circumstances in which the words were uttered or conveyed would have perceived them to be a threat of death or bodily harm. [ 31 ] In the same decision, the Supreme Court describes as follows the mens rea of the infraction: [17] The fault element is made out if it is shown that threatening words uttered or conveyed “were meant to intimidate or to be taken seriously” (Clemente, at p. 763). [18] […] Further, the fault element is disjunctive: it can be established by showing either that the accused intended to intimidate or intended that the threats be taken seriously […] [19] The fault element here is subjective; what matters is what the accused actually intended.

However, as is generally the case, the decision about what the accused actually intended may depend on inferences drawn from all of the circumstances. Drawing these inferences is not a departure from the subjective standard of fault. [23] To sum up, the fault element of the offence is made out if the accused intended the words uttered or conveyed to intimidate or to be taken seriously. It is not necessary to prove an intent that the words be conveyed to the subject of the threat. A subjective standard of fault applies.

However, in order to determine what was in the accused’s mind, a Court will often have to draw reasonable inferences from the words and the circumstances, including how the words were perceived by those hearing them. [ 32 ] In the present situation, the accused admits having send the message with the picture of the firearms and with a message saying not to go at the mall.

The accused also admits the words pronounced during the History class regarding his idealisation of serial killers and the shooting at school. [ 33 ] On the two counts, the non-contested evidence leads to conclude that the Crown proved the actus reus of the infraction. Indeed, there is no possible confusion in the plain and ordinary meaning of the words. There is no reason to think that those words could have a secondary meaning. [ 34 ] Regarding now, the mens rea , the accused pleads that those words were pronounced in a sarcastic tone and that each event has to be considered individually.

Moreover, according to him, each witness confirms that it could be pronounced in a context of a joke. [ 35 ] As mentions by the Supreme Court, “in order to determine what was in the accused’s mind, a court will often have to draw reasonable inferences from the words and the circumstances, including how the words were perceived by those hearing them.” [ 36 ] It is obvious that the Court has to consider the entire context of the situation. And the context is the following.

During a relatively short period in the month of January, a few situations occurred in which the accused send pictures, messages and pronounce words related to firearms, to shooting and also regarding his high interest by the way of thinking of the serial killers. During one event, he became physically violent, maybe due to his alcohol and drugs consumption, and he had to be restrained and hospitalized. [ 37 ] The witnesses being present during those events, or close enough to him to be aware of the whole situation, became concerned by the situation to the point to inform the school principal.

Once informed of this situation, the school principal judged necessary to call the police and to suspend the accused from school. [ 38 ] This context obviously has to be considered because it is possible that no intervention would have been made for an isolated event.

But it is reasonable to conclude, in the presence of such accumulation, that the accused intended to be taken seriously and, moreover, it was impossible for him to think that it could not be taken seriously. [ 39 ] The Court noted that the three witnesses (the two students and the teacher) said that it is possible that those words were pronounced in a sarcastic context, but the Court also noted their reserve by saying “it’s possible” and their discomfort when the question was asked to them. Also, it is important to consider the measures those persons took at the time of the event.

They immediately went to the school principal’s office. If they really had thought that it was only a joke, the school principal would have never been informed of the situation. [ 40 ] For all those reasons, the Court concludes that the Crown proved beyond reasonable doubt the infraction of uttering threats on the two counts. FOR THOSE REASONS, THE COURT: [ 41 ] DECLARES the accused guilty on counts 1 and 2.

__________________________________ PEGGY WAROLIN J.C.Q. Me Mélanie France Tourigny, attorney for the Crown Me Antoine Meunier, attorney for the accused Date of hearing: November 5, 2020