R. v. Myers, 2019 ONCJ 628

Her Majesty the Queen v. Myers [Indexed as: R. v. Myers] Ontario Reports Ontario Court of Justice Rabley J. July 10, 2019 147 O.R. (3d) 796 | 2019 ONCJ 628 Case

Summary Criminal law — Uttering death threat — Mens rea — Accused seeking counselling for anxiety during marital separation —Accused telling counsellor that he was having thoughts about stabbing his wife — Accused acquitted of uttering death threat —Accused intending his words to be taken seriously but not for purposes of intimidating or instilling fear in his wife — Mens rea ofoffence not made out. While he and his wife were separating, the accused called a crisis line and then spoke to a counsellor in person about his anxiety. He toldthe counsellor that he was having thoughts about stabbing his wife.

The counsellor called the police, and the accused was charged withuttering a death threat. Held, the accused should be acquitted. Looked at objectively, the accused's words would convey a threat to a reasonable person. The actus reus of the offence was proven.However, the mens rea of the offence was not made out. The accused intended his words to be taken seriously, but for the purpose ofseeking help for his anxiety, not for the purpose of intimidating or instilling fear in his wife or any other person. R. v. Clemente, (SCC), [1994] 2 S.C.R. 758, [1994] S.C.J.

No. 50, 168 N.R. 310, [1994] 8 W.W.R. 1, J.E. 94-1146, 95Man. R. (2d) 161, 91 C.C.C. (3d) 1, 31 C.R. (4th) 28, 24 W.C.B. (2d) 122, 1994 CCAN para. 10,027, apld [page797] Other cases referred to R. v. McCraw, [1991] 3 S.C.R. 72, [1991] S.C.J. No. 69, 128 N.R. 299, J.E. 91-1496, 49 O.A.C. 47, 66 C.C.C. (3d) 517, 7 C.R. (4th)314, , 14 W.C.B. (2d) 61, EYB 1991-67627 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 264.1(1) TRIAL on the charge of uttering a death threat. Mr. Iaquinta, for the Crown. Ms. Ruosso, for George Myers.

[1] RABLEY J.: — Should a man who is suffering from an emotional or mental crisis and is seeking help, be convicted of uttering adeath threat when he discloses to a crisis counsellor that he has "bad thoughts" in his head which include killing his wife? In thecircumstances of this case, I would find that he should not. The following are my reasons for making such a finding. [2] George Myers and his wife were in the midst of going through a separation when he felt the need to attend at a hospital and speak to acrisis counsellor for help.

Although they were still living in the same house, they were no longer living together as partners. Mr. Myerswas woken up while he was asleep and told by his wife that she had spoken to a lawyer and that the children would be living with herand that she might leave the country. Mr. Myers then went back to sleep. [3] When he awoke, Mr. Myers was anxious. He was having thoughts about stabbing his wife. To deal with his anxiety, Mr. Myers wentto a martial arts class. That did not calm him. He then went to his favourite restaurant. That too did not clear his thoughts.

Finally, hereached out and called a crisis line and then attended at a hospital to speak to a counsellor. [4] Mr. Myers told the counsellor that he knew that killing was wrong and that he wanted help. The counsellor was concerned becauseMr. Myers was oriented and was matter of fact in the manner in which he spoke. He did not appear to be suffering from a psychosis orhallucinations. The counsellor became fearful that Mr. Myers might carry out his intentions and decided to call the police. Mr. Myerswas kept in the hospital for the night and then arrested by the police. [5] Mr.

Myers' wife was called as a Crown witness. She was aware of the statements made by her former spouse once the policecontacted her. The statements did not cause her to be fearful and she believed that her husband was suffering from anxiety at the time thathe made them. According to Ms. Gonsalez, Mr. Myers had never threatened her in the past, was not suicidal and [page798] had seen hisdoctor on an earlier occasion because of anxiety that he had experienced as a result of a confrontation at work with a fellow employee.Ms. Gonsalez was clear in her evidence that she did not take Mr.

Myer's comments seriously and did not feel threatened by them. [6] The Crown's position is that Mr. Myers should be found guilty of threatening his wife because the words spoken by him were a threatand they were meant to be "taken seriously". The Law [7]

Section 264.1(1) of the Criminal Code, R.S.C. 1985, c. C-46 provides: 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[.] [8] In R. v. McCraw, [1991] 3 S.C.R. 72, [1991] S.C.J. No. 69, , the Supreme Court set out the purpose of s. 264.1(1) asfollows [at para. 24]: Parliament, in creating this offence recognized that the act of threatening permits a person uttering the threat to use intimidation in orderto achieve his or her objects. The threat need not be carried out; the offence is completed when the threat is made. It is designed tofacilitate the achievement of the goal sought by the issuer of the threat.

A threat is a tool of intimidation which is designed to instil asense of fear in its recipient. The aim and purpose of the offence is to protect against fear and intimidation. [9] In R. v. Clemente, (SCC), [1994] 2 S.C.R. 758, [1994] S.C.J. No. 50, the Supreme Court further defined the essentialelements of the offence [at para. 12]: 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. [10] Justice Cory relied upon the test set out in McCraw to determine the manner in which a court should approach the words uttered byan accused to determine if they constitute an offence. In McCraw, the court said [at paras. 26-27]: How then should a court approach the issue? The structure and wording of s. 264.1(1)(

a) indicate that the nature of the threat must belooked at objectively; that is, as it would be by the ordinary reasonable person. The words which are said to constitute a threat must belooked at in light of various factors. They must be considered objectively and within the context of all the written words or conversationin which they occurred. As well, some thought must be given to the situation of the recipient of the threat. [page799] 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 andhaving regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to areasonable person? Analysis [11] In this case, Mr. Myers explained to the crisis worker that he had made a decision to kill his wife. He was not suffering from apsychosis or immediately identifiable mental illness. He had just learned that his spouse had taken the next step in a separation and thathis ability to have access to his children was being compromised.

In my view, looked at objectively, a reasonable man would concludethat the words spoken by Mr. Myers in these circumstances would "convey a threat of serious bodily harm to a reasonable person".Therefore, the actus reus of the offence has been proven. [12] The Crown submits that as the words were meant to be taken seriously by Mr. Myers, he is therefore guilty of the offence. Withrespect I disagree.

[ 13 ] There is no question that the statements by Mr. Myers to the crisis worker were meant to be taken seriously, but not for the purpose of intimidation or instilling fear in another. Rather they were meant to explain what was going on in his head, relay that he knew that these thoughts were wrong and to seek help in dealing with them. It may be the case that a victim may never know that a threat was uttered, but in my view, the intention of the

section requires that at least some thought be given by the accused person that his words might be conveyed to the victim directly or indirectly or some other person who might conclude that he was trying to intimidate someone. [ 14 ] The context of the conversation is important. In this particular case, Mr. Myers knew that something was wrong. He had tried to address it himself. He called the crisis line and then attended at the hospital to speak to a crisis worker.

It is logical to believe that he would have done so understanding that such words were confidential and were the starting point for getting the help that he was seeking. [ 15 ] In my view, the words spoken by Mr. Myers were not a "tool of intimidation" intended to instil fear in his wife. She clearly did not see them that way and although her view of the matter is not determinative of the issue, I think it reflects the common sense approach set out by the Supreme Court. Mr. Myers was not a person "uttering the threat to use intimidation in order to achieve his or her objects". He was seeking help.

As Cory J. stated in Clemente [at para. 13] : [page800] To determine if a reasonable person would consider that the words were uttered as a threat the court must regard them objectively, and review them in light of the circumstances in which they were uttered, the manner in which they were spoken, and the person to whom they were addressed. [ 16 ] In this case, Mr. Myers was seeking crisis counselling. I find that he did so without anger or an intention to instil fear in his wife. He was seeking the assistance of a trained professional to deal with his own anxiety issues.

When Cory J. included the words "or to be taken seriously" in Clemente , in my view, he recognized that they would be considered in the context of the word "intimidation". [ 17 ] Therefore, if the words spoken were intended to be taken seriously with the intention that they would instil fear or intimidation to an intended recipient or victim, then the mens rea of the offence has been established. However, if they were spoken and intended to be taken seriously for a different purpose, such as an attempt to get help, then the intention to commit a criminal act may not have been proven.

It will depend on the circumstances of each individual case. [ 18 ] It is my view, for the reasons given, that although Mr. Myers uttered words to the crisis counsellor that were intended to be "taken seriously", he did not intend to cause fear or intimidation towards his wife or any other person. Therefore, he did not commit the offence of Uttering a Death Threat and he will be found not guilty of the charge before the court. Accused acquitted. End of Document