R. v. Kontuk, 2012 NSSC 204

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Kontuk, 2012 NSSC 204 Date: 20120605 Docket: Pic CRA 370752 Registry: Pictou Between: Her Majesty the Queen Appellant v. Michael Douglas Frederick Kontuk Respondent Judge: The Honourable Justice Patrick J. Duncan Heard: April 5, 2012, in Pictou, Nova Scotia Counsel: Patrick Young, for the Appellant Michael Kontuk , Respondent, self-represented By the Court : Introduction [ 1 ] Michael Douglas Kontuk was charged that: On or about the 23rd day of July 2011 at, or near Westville, Nova Scotia he did through his actions and verbal utterances knowingly convey a threat to Bramwell George Avery to cause bodily harm to Bramwell George Avery, contrary to

section 264.1(1) (

a) of the Criminal Code .

Following a trial in Provincial Court, Mr. Kontuk was found not guilty. The Crown appeals against the verdict. Background [2] Mr. Kontuk lived in a common law relationship with Heather Crossman for approximately 17 years. During their yearstogether, Mr. Kontuk fulfilled the role of a step father to Ms. Crossman's sons. The relationship ended in January 2011 when Ms.Crossman entered into a new relationship with Bramwell Avery. [3] At some point in the week of July 17, 2011, Mr. Kontuk learned that one of Ms. Crossman's sons was to be married on July23, 2011, and that Mr. Avery would be attending with Ms. Crossman.

This information greatly upset Mr. Kontuk as he was not invitedto the wedding. It precipitated a series of events on July 22 and 23 that culminated in the arrest of Mr. Kontuk upon allegations that hethreatened to cause bodily harm to Mr. Avery. [4] Ms. Crossman, Mr. Avery and the responding police officer, Sgt. Robert Stewart, were called as Crown witnesses at thetrial. Each was subjected to cross examination by Mr. Kontuk, who has represented himself throughout. Mr. Kontuk testified on hisown behalf. The Crown attorney elected not to cross-examine Mr.

Kontuk. [5] The witnesses gave very similar accounts of the contact between the parties during the relevant time frame; however therewere differences in recounting the words Mr. Kontuk used, and in the

interpretation of his intentions at the time. [6] The trial judge concluded that he was not satisfied beyond a reasonable doubt that a threat was made. He found that he had areasonable doubt as to the intention of Mr. Kontuk, and that the Crown had failed to satisfy the burden of proof. Ground of Appeal [7] The Crown submits that the learned trial judge erred in law in finding that the Respondent's conduct and words did notconstitute a threat to cause bodily harm.

Standard of Review [8] The Crown argues that the determination of whether an utterance made in specified circumstances constitutes a threat to dobodily harm is a question of law. For support of this position, the appellant referred me to R. v. Baptista (2008) 2008 ONCA 804, 238 C.C.C. (3d) 97 (Ont.C.A.), and R. v. Felteau 2010 ONCA 821. [9] Fichaud J.A. writing for the court in R. v. C.J. 2011 NSCA 77 , 2011 NSCA77 stated: [19] Questions of law are reviewed for correctness. Factual issues are reviewed for palpable and overriding error.

The judge'sapplication of the law to the facts is reviewed as a question of fact unless there is an extricable legal error. R. v. Vander Peet, (SCC), [1996] 2 S.C.R. 507, para 81; R. v. Buhay, 2003 SCC 30 , [2003] 1 S.C.R. 631, para 45; R. v. Mann, 2004SCC 52 , [2004] 3 S.C.R. 59; R. v. Couture, 2007 SCC 28 , [2007] 2 S.C.R. 517.

[10] To the same effect is R. v. Timmons, 2011 NSCA 39: [17] For questions of law, the standard of review is correctness. For questions of fact, it is overriding and palpable error. For questions ofmixed law and fact, it is also palpable and overriding error, unless a question of law is readily extricable. In that situation, the standard ofcorrectness applies to that question of law. See, Housen v.

Nikolaisen, 2002 SCC 33. [11] The appellant has not raised a challenge, per se, to the findings of fact made by the trial judge, but as will become apparent theargument does rely on the premise that the trial judge failed to adequately consider the testimony that the Crown says was important tothe determination of whether certain words uttered by the respondent should have been held to be a threat. To the extent that theargument requires a review of the trial evidence, I rely for guidance on R. v.

Nickerson, 1999 NSCA 168 , [1999] N.S.J. 210(NSCA) where it is stated: 6 The scope of review of the trial court's findings of fact by the

Summary Conviction Appeal Court is the same as on appeal againstconviction to the Court of Appeal in indictable offences: see sections 822(1) and 686(1)(a)(

i) and R. v. Gillis (1981), (NS CA), 60 C.C.C. (2d) 169 (N.S. C.A.) per Jones, J.A. at p. 176. Absent an error of law or a miscarriage of justice, the test to beapplied by the

Summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot be supported bythe evidence. As stated by the Supreme Court of Canada in R. v. B. (R.H.), [1994] 1. S.C.R. 656 (S.C.C.) at 657, the appeal court isentitled to review the evidence at trial, re-examine and reweigh it, but only for the purpose of determining whether it is reasonablycapable of supporting the trial judge's conclusions. If it is, the

Summary Conviction Appeal Court is not entitled to substitute its view ofthe evidence for that of the trial judge. In short, a

summary conviction appeal on the record is an appeal; it is neither a simple review todetermine whether there was some evidence to support the trial judge's conclusions nor a new trial on the transcript. [12] Cromwell J.A., as he then was, in R. v. Barrett, 2004 NSCA 38, outlined the scope of appellate review of evidence relied uponto support a verdict as follows: [15] This Court may allow an appeal in indictable offences like these if of the opinion that "... the verdict should be set aside on theground that it is unreasonable or cannot be supported by the evidence.": s. 686(1)(a)(i).

In applying this section, the Court is to answerthe question of whether the verdict is one that a properly instructed jury (or trial judge), acting judicially, could reasonably haverendered: Corbett v. The Queen, (SCC), [1975] 2 S.C.R. 275 at 282; R. v. Yebes, (SCC), [1987] 2S.C.R. 168 at 185; R. v. Biniaris, 2000 SCC 15 , [2000] 1 S.C.R. 381 at para. 36. [16] The appellate court must recognize and give effect to the advantages which the trier of fact has in assessing and weighing theevidence at trial.

Recognizing this appellate disadvantage, the reviewing court must not act as if it were the "thirteenth juror" or giveeffect to its own feelings of unease about the conviction absent an articulable basis for a finding of unreasonableness. The question isnot what the Court of Appeal would have done had it been the trial court, but what a jury or judge, properly directed and acting judicially,could reasonably do: Biniaris at paras. 38 - 40. [17] However, the reviewing Court must go beyond merely satisfying itself that there is at least some evidence in the record, howeverscant, to support a conviction.

While not substituting its opinion for that of the trial court, the court of appeal must "... re-examine and tosome extent reweigh and consider the effect of the evidence.": Yebes at 186. As Arbour, J. put it in Biniaris at para. 36, this requires theappellate court "... to review, analyse and, within the limits of appellate disadvantage, weigh the evidence...". Analysis The evidence at trial [13] Mr. Kontuk testified that he felt "bad" upon learning that one of Ms. Crossman's sons was getting married and that he had not

heard from him. On the evening of Friday, July 22, 2011, he decided that he wanted to see the boys. He believed they would be at the home of their father, a Mr. Weatherbie, and drove there. Upon arriving at the residence he observed Mr. Avery's truck parked beside it. [ 14 ] Mr. Weatherbie was outside and approached the respondent saying that he didn't "want any trouble". They discussed that Ms. Crossman had an affair with Mr. Avery while she was still living with Mr. Kontuk, that he hadn't heard from the boys for several months and that "they sided with their mother". At that point, Mr.

Kontuk said he wanted to speak to Mr. Avery. One of the boys came out and told Mr. Kontuk to leave, and that "The cops have been called." Mr. Kontuk got in his car and left but was upset so he returned to the Weatherbie property. As he arrived he was approached aggressively by a male neighbour. Mr. Kontuk decided he didn't want it to "get out of hand", so he left again. [ 15 ] Mr. Avery did not give any evidence pertaining to the events of the 22nd, but Ms. Crossman did. She indicated that it was a family gathering the night prior to her son's wedding. [ 16 ] Her version differed from that of Mr. Kontuk.

She testified that Mr. Kontuk wanted to see Mr. Avery, and was told by Mr. Weatherbie "that wasn't going to happen". She said that Mr. Kontuk refused to leave when he was told to and so he was advised that the police had been called. She confirmed that her sons told Mr. Kontuk to leave. Ms. Crossman stated that she only heard Mr. Kontuk ask to talk to Mr. Avery, not the boys. She alleged that Mr. Kontuk "was screeching his car and scaring the children in the neighbourhood … " when leaving and that he did this before the police responded to the call. [ 17 ] The following morning, Ms.

Crossman observed the respondent sitting in his car, drinking coffee, parked across the street from her home. She called the police and Sgt. Stewart responded to the call. Ms. Crossman testified that she feared that Mr. Kontuk would "come in and do something to Bram", or "crash" the wedding, or "make a scene." She did not leave the house until after Sgt. Stewart and Mr. Kontuk left the area. [ 18 ] Sgt. Stewart testified that the complaint he received from Ms.

Crossman was that because of the "nasty breakup" and the incident on the night before, that "she feared that there was going to be some problems from him … that the accused would attend [the wedding] and cause further problems." [ 19 ] The officer patrolled to the area, met Mr. Kontuk and explained Ms. Crossman's concerns. Mr. Kontuk provided a story that he was thinking of going to a yard sale near Ms. Crossman's house. Mr. Kontuk volunteered to go to the police station where he and the officer had a conversation about the wedding. It was understood that Mr. Kontuk was not going to attend.

He formed the opinion that Mr. Kontuk wanted to "have his say" with Mr. Avery. Mr. Kontuk left. The officer felt the situation was defused. [ 20 ] Mr. Kontuk confirmed his contact with Sgt. Stewart. He repeated for the court his explanation of his intention to go to a yard sale near Ms. Crossman's, and that when he left the police station he had no intention of having further contact with the complainants. After a trip to Canadian Tire, he was on his way to visit with his own son when he observed a longtime friend working on a vacant garage property.

He stopped, got out and was talking to him, when he observed Ms. Crossman and Mr. Avery drive past him in a truck. At that point he got into his car and followed Mr. Avery and Ms. Crossman. What transpired in the next few minutes was the subject of the offence charged. [ 21 ] Mr. Kontuk's version is that he followed them until they arrived at a Holiday Inn parking lot. Sgt. Stewart estimated the distance between these two locations as about 2 miles. Once at the Holiday Inn, Mr. Kontuk pulled alongside the Avery vehicle, exited his own car and approached the driver's side where Mr. Avery was seated.

The respondent testified that he pulled the car door handle once, but it was locked. The windows were up. Ms. Crossman was using her cell phone. He then described the events: I said: "Get out of the vehicle. Be a man. Get out of the vehicle. I got something I wanna say to ya". I realized he wasn't even going to make eye contact with me so I started to tell him what I think of him. … I said: "Mr. Avery … you are a slimy fellow. You're a slime ball. ... I raised those two boys since they were five years old and went to every hockey game and they were in two different leagues.

I would leave one rink and go to the other … And I don't even get an invite to the wedding and you're going in my place? … Why don't

you go back to that rock where you came from and crawl back under it …" What did I say exactly next? It wasn't very long before the police officer was there because he was on his way. I did not threaten Mr. Avery . [ 22 ] Ms. Crossman, he says, grinned and said that she called the police and he was going to be arrested. He made some unflattering comments to Mr. Avery about Ms.

Crossman's past "affairs", and then continued: I stepped to the side of the vehicle or stepped back towards the back of the vehicle, just a side step to get her out of my view and I said: "I don't even want to look at you, let alone speak to you. I then, again, gestured for Mr. Avery to get out of his vehicle with my left hand and I went like this: "Get out of the vehicle" And my ring struck the window. That's the only time that I struck … Mr. Avery's vehicle was when my ring struck the window.

And I did say to him, I'm not sure if it's that point, "if I wanted to, I could break this window and pull you out, if I wanted to." [ 23 ] Heather Crossman testified that when Mr. Kontuk pulled out of the garage lot, he followed their vehicle very closely. At one point he attempted to pass but a highway island blocked him from doing so. Shortly thereafter, she said that Mr. Kontuk passed successfully, and then spun around sideways in front of their car. She panicked and called the police, who advised her to drive to the Holiday Inn, which they did. She describes the sequence of events, much as Mr.

Kontuk did, but in a more vivid account. As to the words and actions of Mr. Kontuk once at their driver's door: He starts screaming profanities at Bram, tells him to unlock the door, get out of the car. He's trying the handle. He can't get into the truck. He said: "You greasy slimeball, I'm going to smash the window out and pull you through it." And then he took his fist and he smashed it, his left hand. He just smashed as hard as he could. I thought he broke the window. … This whole time that this is going on, he's screaming at him: "That he's going to get him, that there's nothing that anybody can do.

He's not … he's not … he knows the police are coming. This is my territory. This is my turf. You go back to the rock. They can't protect you. You're mine. You're done." Ms. Crossman says that the police then came and that even as they were handcuffing Mr. Kontuk he was saying "you're done, you're done, you're mine". [ 24 ] Mr. Avery confirmed that Mr. Kontuk pulled behind his vehicle, followed closely, attempted on one occasion to pass him and then succeeded. He pulled ahead and swung his vehicle sideways so as to cut off Mr. Avery's line of travel. Mr.

Avery turned around and drove to the Holiday Inn parking lot on the advice of Sgt. Stewart, as conveyed to him by Ms. Crossman. He also told of Mr. Kontuk's approach to his vehicle at the parking lot. What he described then is a blend of what Ms. Crossman and Mr. Kontuk described: … when I parked in front of the Holiday Inn, he got out and came up and started ranting and raving for me to get out of the vehicle … . He told me to get out of the vehicle and he then proceeded to … he punched the windshield on the driver's side … Then he started bawling and screaming at me, told me to get out of the vehicle.

"Get out and take it like a man" and the whole bit and he told me that if he wanted to, and I knew it, that he could "punch this window out and he would haul me out through the window"… He said: "You know I could break this window". [ 25 ] In cross examination, he adopted an earlier statement to the police agreeing that Mr. Kontuk spoke of raising the two boys, taking them to the hockey rink, and that he called him a "greasy slimeball". [ 26 ] All three witnesses agreed that Mr. Avery essentially avoided eye contact with Mr. Kontuk throughout the time they were parked at the Holiday Inn. Mr.

Avery estimated that the entire incident from when they passed the vacant garage lot until the police arrived and arrested Mr. Kontuk was approximately a five to ten minute period. He thought they were at the parking lot for about 4 or 5 minutes of that time. [ 27 ] Mr. Avery, in direct examination, said that his reaction at the time was that he was feeling "a little bit of concern" because of Mr. Kontuk's rage. In cross examination he added that he feared for his safety at the time.

[28] Sgt. Stewart testified that he was called by Ms. Crossman while they were being followed and he suggested they go to theHoliday Inn parking lot where he would meet them. According to the officer, the complaint was that Mr. Kontuk was following "veryclose" behind the Avery vehicle. Upon arrival he made observations of the parties and concluded that all three were "worked up". Hehandcuffed Mr. Kontuk, and then spoke to Mr. Avery. Based on information received from Mr. Avery, he arrested Mr. Kontuk foruttering threats. Contrary to Ms. Crossman's suggestion that Mr. Kontuk threatened Mr.

Avery while the former was being handcuffed,the officer responded in cross examination that "Ah, no, I didn't hear you utter any threats but you were worked up." The Trial Judge's Decision [29] The trial judge correctly placed the onus on the Crown to prove the offence beyond a reasonable doubt. He identifieddifferences in the accounts provided by the witnesses and instructed himself as to the principles set out in R. v.

W.(D)., (SCC), [1991] 1 S.C.R. 742, which held: 28 … A trial judge might well instruct the jury on the question of credibility along these lines: ∙ First, if you believe the evidence of the accused, obviously you must acquit. ∙ Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. ∙ Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of theevidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

The trial judge recited this formula in less precise language than set out above but it has not been suggested, nor do I find, that he erred inhis legal approach to assessing credibility of the witnesses. [30] The trial judge accepted Mr. Kontuk's evidence as to the events of July 22. He concluded that the respondent did nothing thatwarranted the call to the police. In sum, he decided that the incident did nothing to assist the Crown's case. [31] As to the events of July 23, the trial judge noted Mr.

Kontuk's explanation of attending a yard sale, that he left immediatelyupon being asked to do so, and that he went to the police station when requested to do so. [32] The trial judge found no evidence that Mr. Kontuk's attendance at the vacant garage lot, and the Avery vehicle passing by, wasanything other than a coincidence. He also noted that there was no history of conflict among the parties from the establishment of theCrossman-Avery relationship in January 2011 to the date of the alleged offence. [33] All of these conclusions were open to the trial judge and depended upon his assessment of the evidence.

They were reasonableand consistent with the evidence. [34] The trial judge made adverse findings as to the credibility of Ms. Crossman, concluding that "she was overstating herevidence", "exaggerating her answers to some of the questions", was "not particularly direct in answering a lot of [questions]; and was"embellishing" the truth. He also found that she was moved by acrimony toward Mr. Kontuk. His assessment of what occurred at theHoliday Inn parking lot was unquestionably influenced by this determination. [35] The trial judge did not address the evidence of Mr. Kontuk's driving on the way to the parking lot.

He only briefly discussedMr. Avery's evidence. He acknowledged that Mr. Kontuk was in a "rage", but ultimately concluded that Mr. Kontuk did not want, nor

intend, to harm Mr. Avery. He decided that Mr. Kontuk "…wanted to confront Mrs. Crossman about not being invited to the wedding". With respect, even Mr. Kontuk made it clear that he wanted to speak to Mr. Avery and that it was he who Mr. Kontuk directed hiscomments toward, not Ms. Crossman. Further, the mens rea of the offence is not determined by whether Mr. Kontuk intended to carryout the threat. I will address the proof of the mens rea of the offence later. [36] As to punching the window, the trial judge accepted Mr.

Kontuk's version of how that happened and why. i.e., that it happenedonly once; that he hit the window when he "waved his hand … during his rage"; and that "it was not [Mr. Kontuk's] intention to break itor to get at Mr. Avery". [37] As to the words used the trial judge concluded: … Mr. Avery was wise not to get out of the vehicle but I don't think there was a threat made.

I don't think saying "I could, if I wanted to,smash the window and haul you out" was a direct threat. [38] In his concluding paragraph the trial judge found: 10 So all in all when I look at the totality of the evidence, I am at least satisfied that Mr. Kontuk has raised a reasonable doubt as tohis intentions. While I can perhaps understand, to some extent, why Mr. Avery and Ms. Crossman were concerned by Mr. Kontuk'sactions, I am not satisfied that the Crown has met its burden and find him not guilty.

Position of the Appellant [39] The Crown appeal asserts that the court must apply an objective test in determining whether the words uttered constituted athreat, that is, "whether a reasonable person would consider the words uttered, and the actions of the accused as being threatening." Theappellant says that the trial judge erred in law "by finding that the words and actions of the Respondent did not objectively constitute athreat".

In support of the argument, the Crown reviewed the evidence to demonstrate that the trial judge did not consider the wordsspoken in the context of all of the surrounding circumstances. Law [40] The offense with which Mr. Kontuk was charged is set out in the Criminal Code as follows: 264.1(1) Every one commits an offense 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; [41] The essential elements of this offense were outlined by the Supreme Court of Canada in the case of R. v. Clemente (SCC), [1994] 2 S.C.R. 758: 12 … the actus reus of the offense is the uttering of threats of death or serious bodily harm. The mens rea is that the words be spoken or

written as a threat to cause death or serious bodily harm; that is, they were meant to intimidate or to be taken seriously. 13 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 towhom they were addressed. [42] In reaching this conclusion, the court earlier considered, at paragraph 7, that "… the aim of the

section is to prevent 'threats' ",and cited the definition of "threat" from the Shorter Oxford English Dictionary as follows: A denunciation to a person of ill to befall him; esp. a declaration of hostile determination or of loss, pain, punishment or damage to beinflicted in retribution for or conditionally upon some course; a menace. The court continued: ... A serious threat to kill or cause serious bodily harm must have been uttered with the intent to intimidate or instill fear. Conversely, athreat uttered with intent to intimidate or cause fear must have been uttered with the intent that it be taken seriously.

Both of theseformulations of the mens rea constitute an intention to threaten and comply with the aim of the section. 8

Section 264.1 (1) (

a) is directed at words which cause fear or intimidation. Its purpose is to protect the exercise of freedom ofchoice by preventing intimidation. The

section makes it a crime to issue threats without any further action being taken beyond the threatitself. Thus, it is in the meaning conveyed by the words that is important. Yet it cannot be that words spoken in jest were meant to becaught by the action. 9 This court considered the provisions of

section 264.1 (1) (

a) in R. v. McCraw, (SCC), [1991] 3 S.C.R. 72. Themanner in which the court should approach charges of threatening was set out at pages 82-83 in these words: How then should the court approach the issue? The structure and wording of

section 264.1 (1) (

a) indicate that the nature of thethreat must be looked at objectively; that is, as it would be by the ordinary reasonable person. The words which are said to constitute athreat must be looked at in light of various factors. It must be considered objectively and within the context of all the written words orconversation in which they occurred. As well, some thought must be given to the situation of the recipient of the threat. The question to be resolved may be put in the following way.

Looked at objectively, in the context of all the words written orspoken and having regard to the person to whom they were directed would the questioned words convey a threat of serious bodily harmto a reasonable person? Thus, 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. [43] It is apparent that Mr. Kontuk's conduct generated some fear and apprehension in Ms.

Crossman and Mr. Avery. The trialjudge acknowledged the subjective reasonableness of their concerns. [44] There was some vagueness as to what utterance the Crown relied upon in proof of the offence. In closing arguments at trial,the Crown stated: Even, a lot of what the complainant and Mr. Avery said the accused told them while they were parked in the Holiday Inn, he admits to

Even, a lot of what the complainant and Mr. Avery said the accused told them while they were parked in the Holiday Inn, he admits to and says that he called him a "slime ball" and told him "To get out of the car, to be a man, get out of the vehicle, that you're a slimy fellow", and he even tried to open the door of the vehicle. [ 45 ] The prosecution submission was largely directed at Mr.

Kontuk's conduct and the totality of the utterances: He's charged with making a threat by his words and gestures and the Court, I think, viewing that objectively, words and gestures, can only come to the one inescapable conclusion, that the accused's words and gestures were used in order to instill a sense of fear in Mr. Avery. [ 46 ] The court found, as both Mr. Kontuk and Mr. Avery testified, that the respondent said that he "could" break the window and haul Mr. Avery out of the truck " if he wanted to". The trial judge focused on this language and concluded that it was not a "direct threat".

He then went on to conclude that Mr. Kontuk did not intend to break out the window or to get at Mr. Avery. [ 47 ] In R v. Batista , supra , the Ontario court of Appeal held: 18 Thus, the Crown is required to prove two elements essential to the offence of uttering a threat. These elements are described in Watt's Manual of Criminal Jury Instructions (Toronto: Thomson Canada Limited, 2005), at p. 507, which I summarize.

First, the Crown must establish that the appellant made a threat to cause the councillor's death; and second, that he made the threat knowing that it would be taken seriously. 19 To satisfy the first element, the Crown is required to prove that, when viewed objectively, an ordinary reasonable person would consider the appellant's poem amounted to a threat to cause Ms. Saito's death.

In considering whether a threat was made, the ordinary reasonable person would take into account all the circumstances, including the manner in which the words were communicated, the audience to whom it was addressed and the relationship between the writer and the subject of the alleged threat. 20 The determination of whether the poem constitutes a threat in law requires a reasonable person to consider the context or circumstances in which it was made.

Before arriving at a conclusion whether the impugned words or gestures constitute a threat, a court must consider all the circumstances both individually, and as a whole. [ 48 ] I agree with the Crown's view that the words spoken do not have to be a "direct threat" to satisfy the section, but having regard to the totality of the judge's decision, it is apparent that he did not consider the words he accepted to have been spoken to constitute a threat. It is important to recall that Mr.

Kontuk specifically denied uttering a threat. [ 49 ] I do not agree with the Crown that the judge failed to consider the circumstances. Indeed he specifically addressed and rejected the events of July 22 as providing assistance in assessing the events of July 23. Similarly he was dismissive of the events up to the time of the respondent's statements made in the Holiday Inn parking lot. He did not adopt the evidence of Mr. Avery or Ms. Crossman as to the words used by Mr.

Kontuk. [ 50 ] Having considered the words spoken, in the context of the facts found by the trial judge, I cannot say that "could break the window and haul you out if I wanted to" would constitute a threat to a reasonable person. Mr. Avery was in the vehicle and though Mr. Kontuk had initially tried the door that was the only time he did so. [ 51 ] Even if the words spoken would amount to a threat in law, the judge did not rest his decision on that point, instead concluding that the Crown had failed to prove the requisite mens rea .

The Appellant's submission does not address the mens rea of the offence. [ 52 ] The Clemente decision looked at the surrounding circumstances to assess the existence of the mens rea , since there was no testimony from the accused. This case differs from Clemente in that the accused testified. As a result, the question of "whether the accused had the intent to intimidate, or that his words were meant to be taken seriously" was to be assessed against the totality of the evidence including that of Mr. Kontuk. That is what the trial judge did.

[53] In R. v. Noble 2010 MBCA 60, the court considered the legal effect of the term "knowingly" in the section. Chartier J.A.,writing on behalf of the court held: 8 As to the mens rea, the trial judge must be convinced beyond all reasonable doubt that the accused committed the offense"knowingly". Therefore, because of the inclusion of the word "knowingly", the mens rea carries a subjective intent component. It is notenough to merely utter the words which constitute the threat. The accused must utter the words with intent that the threat be takenseriously or to intimidate.

It does not matter whether the accused meant to carry out the threat. As a result, the trial judge must besatisfied that the accused meant that the words uttered would be taken seriously or would intimidate the complainant … 9 When the accused does not take the stand, as in this case, the intent of the accused can be inferred from:

a) the words used; b)the context in which they were spoken; and

c) the person to whom they were directed.. (Emphasis added) [54] Beard J.A. writing on behalf of the court in R. v. O'Brien 2012 MBCA 6 said this about proof of the mens rea for this offence: 22 … The mens rea for the charge of uttering threats was described by this court in R. v. K.W.B. (1993), (MBCA), 85 Man.R. (2d) 220, as follows (at paras. 16-18): Although no express purpose is required for the offence of uttering a threat, the offence must be committed knowingly. The mereuse of words which constitute a threat is not consequently enough.

The accused must also intend the words to instill fear in someone: seeR. v. McCraw, (SCC), [1991] 3 S.C.R. 72 … at p. 82. As was pointed out by Cory, J., in R. v. McCraw (at p. 82), "[T]he determination as to whether there was such a subjective intentwill often have to be based to a large extent upon a consideration of the words used by the accused." Nonetheless, a trier of fact mustfind the accused to have had the subjective intent, an intent which goes beyond the mere utterance of the words.

Although an inference can be drawn from the words used that the accused intended to instill fear in someone, they must beconsidered in the context of the circumstances in which they were uttered.

The specific intent to instill fear can only be inferred if thecircumstances permit. .... [Emphasis in original] ... 26 The issue of whether a reasonable person would consider that the words were uttered as a threat is one consideration forthe trier of fact in determining whether to draw the inference that the accused had the required intention that his words were to be takenseriously, but the objective reasonable person test is not the mens rea for this offence.

What is required, after considering all of theevidence and the circumstances, is that the trier of fact be satisfied beyond a reasonable doubt that the accused had the requiredsubjective intent, being that he meant his words to intimidate or to be taken seriously. (My emphasis added at para. 26) [55] So the question the trial judge was required to address was whether Mr. Kontuk "meant his words to intimidate or to be takenseriously." In this respect there is a "subjective intent component" that the appellant's argument fails to address.

[56] While it might be difficult to understand how, objectively speaking, Mr. Kontuk's words, when seen in the context of hisoverall conduct were not intended to intimidate, it was a determination that is inextricably linked to the judge's assessment of thecredibility of the witnesses, and the findings of fact. It is well understood that the trial judge is in the best position to make thoseassessments. [57] I acknowledge that there were aspects of the testimony, for example the evidence of passing the Avery vehicle and cutting itoff, that were not canvassed by the trial judge.

It would have been helpful to have some additional analysis. It also would have beenpreferable if the trial judge more clearly distinguished between the intent to intimidate and the intent to carry out a threat. The former, ifpresent, is culpable; the latter is not necessary to the proof of the mens rea of this offence. [58] In S.R. v.

Nova Scotia (Community Services), 2012 NSCA 46 Bryson J.A., reviewed the necessity of sufficient reasons in ajudicial determination: [17] In a series of cases, the Supreme Court of Canada has recognized the importance of reasons in various settings: e.g., Baker v.Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39; R. v. Sheppard,2002 SCC 26; R. v. Braich, 2002 SCC 27; R. v. Walker, 2008 SCC 34; F.H. v. McDougall, 2008 SCC 53; R. v. R.E.M., 2008 SCC 51. Their import can be summarized thusly: (

a) the need for, and adequacy of reasons, is contextual and depends upon the adjudicative setting, (Sheppard, para. 19); (

b) reasons inform the parties - and especially the losing party - of why the result came about, (R.E.M., para. 11); (

c) reasons inform the public, facilitating compliance with the rules thereby established, (Sheppard, para. 22); (

d) reasons provide guidance for courts in the future in accordance with the principle of stare decisis, (R.E.M., para. 12); (

e) reasons allow both the parties and the public to see that justice is done and thereby enhance the confidence of both in thejudicial process, (Baker, para. 39); (

f) reasons foster and improve decision-making by ensuring that issues are addressed and reasoning is made explicit, (Baker,para. 39; Sheppard, para. 23; R.E.M., para. 12); (

g) reasons facilitate consideration of judicial review or appeal by the parties, (Baker, para. 39); (

h) reasons enhance or permit meaningful appeal or judicial review, (Sheppard, para. 25; R.E.M., para. 11).ed. [19] At common law, the inadequacy of reasons does not automatically trigger appellate intervention. "Poor reasons may coincide with ajust result" (Sheppard, para. 22). As Chief Justice MacDonald said in McAleer v. Farnell, 2009 NSCA 14 , 2009 NSCA14,citing R.E.M.: [15] For this reason, our role on appeal is not to criticize the level of detail or expression.

Instead it is to determine if the functionsnoted above have been fulfilled to the point where a meaningful appeal is available: 53 However, the Court in Sheppard also stated: "The appellate court is not given the power to intervene simply because itthinks the trial court did a poor job of expressing itself" (para. 26). To justify appellate intervention, the Court makes clear, there must be

a functional failing in the reasons. More precisely, the reasons, read in the context of the evidentiary record and the live issues on which the trial focused, must fail to disclose an intelligible basis for the verdict, capable of permitting meaningful appellate review. [ 59 ] The trial judge made findings of fact that were adverse to the position taken by the Crown and favourable to Mr. Kontuk's position. I cannot say that those findings were unreasonable or unsupportable by the evidence. It was clear that credibility was at the heart of the case and his findings favoured the version offered by the respondent. Similarly his

interpretation of whether the respondent intended to threaten or intimidate was founded on his views of the evidence. [ 60 ] This was a short trial. The evidence was uncomplicated. The trial judge is experienced. The trial decision canvassed most of the evidence and made findings as to that which the trial judge accepted and that which he did not. His conclusion that the words spoken were not a threat and that the Crown failed to prove the requisite intent were stated plainly and were conclusions that he was entitled to draw from the evidence which he accepted.

While more legal analysis would have assisted, the absence of that discussion does not render the decision so lacking as to inhibit meaningful judicial review. Conclusion [ 61 ] I find that the trial judge committed no legal error in concluding that the words uttered by the respondent, as identified by the trial judge, did not constitute a threat to cause bodily harm. [ 62 ] I find that even if the respondent's utterances did constitute a threat, the trial judge found that he had a reasonable doubt as to the respondent's intention at the time of making the utterances.

The appellant has not challenged that finding. Having reviewed the law and the evidence I conclude that the judge made no error in law that can be reviewed by this Court. [ 63 ] In accordance with sections 822 (1) and 686 (4) (

a) of the Criminal Code , I dismiss the appeal. Duncan J.