R. v. Churchill, 2022 NLSC 56

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Churchill , 2022 NLSC 56 Date : March 29, 2022 Docket : 202001G5364 Her Majesty The Queen v. Kurt Churchill Before: Justice Glen L.C. Noel On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, dated the 14th day of September, 2020. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: February 11, 2022

Summary: The Provincial Court trial judge convicted the accused Kurt Churchill of one count of knowingly uttering a threat against a police officer. The police had detained Churchill under the Detention of Intoxicated Persons Act following his aggressive behavior on George Street. He was handcuffed in the back seat of the police car awaiting processing in the lockup, when he shouted to the officer sat in the driver’s seat: “I’m going to put my boot in your fucking head.” Churchill appealed his

summary conviction alleging that the trial judge made two legal errors: (1) treating intoxication as a defence requiring evidence of involuntariness as opposed to forming the requisite intent to prove the subjective fault ( mens rea ) element; and (2) failing to consider the proper contextual approach to satisfy proof of actual intent.

The Court held the trial judge did not err in assessing the impact of intoxication as a factor in the Crown proving intent; however, thetrial judge erred on a question of law regarding the contextual approach to the mens rea analysis. The conviction was set aside and anew trial ordered. Appearances: Michael G. Murray Appearing on behalf of the Crown Francis R. Addario and Robby D. Ash Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. McRae, 2013 SCC 68; R. v. O’Brien, 2013 SCC 2; R. v. Brake, 2022 NLCA 10; R. v. Clemente, (SCC), [1994] 2 S.C.R. 758; R v.

Bone (1993), (MB CA), 21 C.R. (4th) 218, 85 Man. R. (2d) 220 (C.A.);R. v. Moar (1995), 27 W.C.B. (2d) 508, 1995 CarswellMan 694 (Prov. Ct.); R. v. Jararuse, 2019 NLSC 2017; R. v. Daley, 2007 SCC 53;R. v. R.K.K., 2019 BCSC 1822, aff’d 2020 BCCA 17; R. v. McRae, 2010 BCSC 558; R. v. Standing, 2007 SKPC 102,; R. v Mullins, 2014BCPC 242; R. v. Koyina, 2014 NWTTC 11; R. v. Giancone, 2008 ONCJ 54; R. v. S. (B.K.), [2002] M.J. No. 543, 2002 CarswellMan 585(Prov. Ct; R. v. Watchmaker, [1994] A.W.L.D. 245, 1994 CarswellAlta 967 (Prov. Ct.); R. v. Ratt, 2021 SKCA 7; R. v. Nazir, 2022ONCA 176; R. v.

Stone, (SCC), [1999] 2 S.C.R. 290; R. v. Sceviour, 2010 NLCA 47; R. v. Smyth, 2019 NLCA 73; R. v.Roussin, 2014 MBCA 30; R. v. Knox, 2012 NLTD(G) 137; R. v. Churchill, 2020 NLSC 144; R v. Mohammad, 2018 ABPC 174; R. v.Desjarlais, 2016 ABPC 182 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Detention of Intoxicated Persons Act, R.S.N.L. 1990 c. D-21 REASONS FOR JUDGMENT Noel, J.: OVERVIEW [1] This

summary conviction appeal engages the mens rea (intent) element of the offence of uttering a threat to cause bodilyharm. The appeal involves the role the accused’s state of intoxication and the contextual circumstances played in the trial judge’sassessment of the accused’s requisite intent for a finding of guilt. [2] The police detained the Appellant, Kurt Churchill, because of his aggression and intoxication in a public place. Theyhandcuffed him and locked him in the back of a police car.

Churchill directed a constant verbal tirade of insulting language at theofficers, and he kicked at the protective glass separating him in the police car from the officers. [3] While parked outside the lockup, still handcuffed in the back seat of the police car, Churchill said, “I’m going to put my bootin your fucking head.” Churchill was charged with one count under

section 264.1(1)(

a) of the Criminal Code, R.S.C. 1985, c. C-46, andconvicted for uttering a threat to cause harm to the officer. [4] There was no dispute at trial about what Churchill said. The prohibited act (actus reus) of the offence – the uttering of thethreatening words was acknowledged. The question for the trial judge was whether Mr. Churchill intended his words to be threatening: Had the Crown proved beyond a reasonable doubt Churchill intended to intimidate the officer or to have the threat taken seriouslyconsidering all the circumstances?

Churchill’s Grounds of Appeal [5] Churchill alleges the trial judge made two errors of law in concluding that the Crown had proven intent. [6] First, he says the trial judge misunderstood the relevance of intoxication to the analysis. The trial judge viewed intoxicationthrough the lens of voluntariness: was Churchill so intoxicated that his behaviour was outside of his control? This, Churchill says, wasthe wrong question. [7] Uttering threats is a specific intent crime. Intoxication was thus relevant to whether the Crown could prove mens rea.

Churchill claims the trial judge failed to consider whether his state of intoxication raised a reasonable doubt regarding whether he hadthe necessary intent.

[ 8 ] Instead, Churchill argues the trial judge required proof that he was so intoxicated that his actions were outside of his control. The voluntariness of Churchill’s actions was never at issue; the question for the trial judge was whether Churchill had the intent to threat, and intoxication was relevant to that analysis.

By failing to consider intoxication as relevant to whether the Crown had proved mens rea , the trial judge erred in law. [ 9 ] The second error of law, Churchill submits, is the trial judge did not consider the totality of the circumstances in determining whether he intended to intimidate the officers or have his threat taken seriously. In particular, the trial judge did not consider the fact that Churchill was completely under the control of the police officers: he was handcuffed and in the back of a locked police car with no means to kick anyone in the head.

The officer did not call for backup or assistance before moving Churchill to the lockup for processing. The trial judge was required to consider the contextual circumstances in assessing Churchill’s intent.

Crown’s Position [ 10 ] The Crown points out at trial, counsel for the defence advanced the argument that the threat made could be characterized as “mere bravado, mouthing off” and the whole incident could be attributed “to his level of intoxication” and that there was a “reasonable doubt as to whether the accused intended to intimidate or have his comment be taken seriously.” Counsel for the accused argued that Churchill’s utterances were merely the “mouthing off of an intoxicated person to a police officer.” (Transcript at 90) [ 11 ] The Crown submits the experienced trial judge, in his oral decision dealt with each of these issues.

Churchill was detained not because he was so intoxicated as to be incapable of acting with intent, but because his actions if released could be a danger to himself or others. The trial judge had to consider the level of Churchill’s intoxication and he made several findings of fact in that regard.

He found that Churchill was “aggressive and abusive,” but that he was able to walk, talk, and understand what was said to him and was in control of his behavior. [ 12 ] The trial judge concluded, on the totality of the evidence, that Churchill’s “words and actions were directed at all times were goal-directed, and … that the words that were spoken was an attempt to intimidate the officer.” Consequently, Mr. Churchill was found guilty of the offence.

Disposition of the Appeal [ 13 ] For the reasons that follow, I conclude the trial judge did not misunderstand the relevance of intoxication to the specific intent offence of uttering threats. However, the trial judge erred on a question of law in his failure to apply the correct legal test and contextual approach to satisfy proof of the mens rea of the offence. I set aside the conviction and order a new trial. background

Summary of the Evidence at Trial [ 14 ] The evidence was straightforward and only took a morning to present. The Crown called two on-duty police officers and a police cadet riding along with and shadowing one of the officers. Churchill did not testify or call any evidence. [ 15 ] Churchill is not contesting the trial judge’s factual findings. [ 16 ] Around 3:00 a.m. on Sunday, 24 March 2019, the police responded to a confrontation that started inside and continued outside near the entrance of a bar on George Street in downtown St. John’s. Two uniformed police officers, Cst. Dunphy and Cst.

Marshall, broke up the confrontation and detained a man (later identified as Churchill) because he was being aggressive and punching over the bouncers’ heads as they tried to remove him from the bar. The police put Churchill in the back of Cst. Dunphy’s police car. [ 17 ] After Cst. Marshall spoke to the bar staff, he advised Cst. Dunphy there was no criminal complaint, and Cst. Dunphy decided not to charge Churchill. Cst. Dunphy returned to the police car and began to question Churchill to ascertain his identity. He became belligerent and told the officer to “fuck off.” [ 18 ] At that point, Cst.

Dunphy determined that Churchill was so aggressive and intoxicated that he detained him under the Detention of Intoxicated Persons Act , R.S.N.L. 1990 c. D-21 . According to Cst. Dunphy, Churchill met the high standard for detention under the Act – that Churchill was a “danger to himself or others” – and was “clearly very intoxicated” (Transcript at 13-14). Cst. Dunphy read him his right to counsel, and Churchill continued to yell at him. [ 19 ] Cst. Dunphy drove Churchill to the lockup in his marked police car; a cadet, Langmead (now Cst.

Langmead), was sitting in the passenger seat. [ 20 ] Churchill was in the back of the police car, handcuffed. There was a barrier and safety glass between the back seat and the front seat of the police car. As is common with police cars, Churchill could not open the back doors from the inside of the car. [ 21 ] On the drive back to the lockup, Churchill was “running his mouth.” Cst. Dunphy testified, he “didn’t take a breath.” He continued to insult the officers and cause “a ruckus.” Cst.

Langmead affirmed on cross-examination that Churchill “appeared to be out of control at that point.” (Transcript at 17, 51, and 61). He called the officers derogatory names, including “faggot” without any knowledge of their respective sexual orientation. [ 22 ] Once they arrived at the lockup located in the basement of the Supreme Court building on Water Street – a two or three-minute drive from George Street – they parked out front on the sidewalk of Water Street waiting for another admission into the lockup to be completed. Cst. Marshall’s car followed behind Cst. Dunphy’s.

While waiting in the police car, Churchill was “screaming to the top of his lungs and shouting, yelling.” (Transcript at 63). [ 23 ] A couple of minutes after parking at the lockup and ten minutes or so after Churchill was first detained, he shouted, “I’ll put

my fucking boot in your head.” [ 24 ] Cst. Dunphy arrested Churchill for uttering threats and read Churchill his rights to counsel. Churchill gave the police the name of a lawyer he wanted to call. The police then brought Churchill into the lockup. He remained belligerent and aggressive throughout his admission into the lockup. [ 25 ] Because of Churchill’s aggressive behavior and officer-safety concerns, the police did not remove Churchill’s handcuffs when he arrived at the lockup, and Cst. Dunphy decided not to allow Churchill to call his lawyer until he calmed down.

In the normal course, the police would remove handcuffs before placing someone into the cell, but they put Churchill in a cell still handcuffed. Cst Dunphy, himself, sometime later called the lawyer to inform of Churchill’s detention and the charge. The Trial Judge’s Reasons [ 26 ] The trial judge heard the submissions of counsel and after taking a short recess gave brief oral reasons. (Transcript at 91-94). [ 27 ] He quoted from the Supreme Court of Canada in both R. v. McRae , 2013 SCC 68 ; and R. v. O’Brien , 2013 SCC 2 , stating the actus reus and mens rea of the offence.

He noted the police concluded Churchill was intoxicated and detained him under the Detention of Intoxicated Persons Act . [ 28 ] Dealing with Churchill’s intoxication, the trial judge made the following observations: • “There was little evidence provided about the overall condition of the accused as to the degree of his intoxication.” • “He appears to have been aggressive and abusive through his involvement with the police.” • “There was no evidence, however, that he was unable to walk or that his speech was incomprehensible; or he didn’t understand the officers when they were speaking to him.” [ 29 ] The trial judge remarked on the circumstances leading up to the uttering of the threatening words, “following a tirade in the police car in which Churchill abused the officers.” He noted the words were spoken while Churchill was in the back of the police car and immediately prior to being taken into the lockup. [ 30 ] He found Churchill guilty of the offence after considering his degree of intoxication, and that Churchill meant his words and actions to intimidate Cst.

Dunphy. He concluded: “It’s clear to me that Mr. Churchill’s behavior was not so intoxicated as to be outside his control. It’s clear his words and actions were directed at all times were goal-directed, and it’s clear to me that the words that were spoken was an attempt to intimidate the officer.” [ 31 ] The Crown submits the trial judge’s subsequent sentencing decision can “illuminate the thinking that goes along with” the reasons for conviction. [ 32 ] The trial judge sentenced Churchill to a conditional discharge with a Probation Order for a period of 12 months.

In his sentencing decision (given orally on 5 November 2020), the trial judge held, “the accused should be placed on probation given his level of intoxication and his behavior surrounding it on that night.” Counsel for the Crown sought an ancillary order under s. 487.051, that the accused provide a sample of his DNA as this is a secondary designated offence. After considering and addressing the relevant factors, the trial judge granted the DNA Order. [1] The sentence and Orders imposed are not under appeal. ISsues [ 33 ] The issues for my determination on the appeal are: 1.

Did the trial judge err by treating intoxication as a defence as opposed to relevant to the mens rea analysis? 2. Did the trial judge err in failing to consider the entire contextual circumstances on proof of the requisite intent?

Analysis Powers of the Court and Standard of Review [ 34 ] On appellate review of the trial judge’s decision, I have the authority to set aside the conviction if I am of the opinion the trial judge made a legal error on a question of law: s. 686(1) (a)(ii) of the Criminal Code . [ 35 ] The Crown did not seek to rely on the curative proviso in s. 686(1) (b)(iii). [ 36 ] The standard of review for an error of law is correctness: R. v. Brake , 2022 NLCA 10 , at para. 4 .

Issue 1 – Did the trial judge err by treating intoxication as a defence as opposed to its relevance to the mens rea analysis? [ 37 ] I find no error in the trial judge’s treatment of intoxication as relevant to the mens rea analysis. The trial judge’s reasons reveal he considered Churchill’s level of intoxication on whether the Crown proved beyond a reasonable doubt that the accused had the requisite intent. The Fault Element (Mens Rea) [ 38 ] The mens rea of the offence is the subjective fault element.

The trier of fact is required to make inferences “drawn from all of the circumstances” on what the accused actually intended: McRae (2013), at para. 19. To prove the mens rea , the Crown must prove

that the threatening words were meant to intimidate or to be taken seriously: R. v. Clemente, (SCC), [1994] 2 S.C.R. 758,at para. 12. Intoxication as a Factor and the Case Law Authorities [39] Defence Counsel Mr. Robby Ash, in his able closing submissions at trial, referred to the case law authorities that establish thecharge of uttering treats is a specific intent offence, requiring consideration of the accused’s intoxication: (R v. Bone (1993), (MB CA), 21 C.R. (4th) 218, 85 Man. R. (2d) 220 (C.A.); R. v. Moar (1995), 27 W.C.B. (2d) 508, 1995 CarswellMan 694(Prov. Ct.); and R. v.

Jararuse, 2019 NLSC 2017).[2] The Crown takes no issue that the offence is one of specific intent, andintoxication is relevant to the mens rea analysis. [40] Churchill’s intoxication was a factor that the trial judge had to take into account. The failure of the trial judge to do so in Boneresulted in the Manitoba Court of Appeal ordering of a new trial. [41] Knickle J (now a justice of NLCA) considered the relevance of intoxication to the mens rea analysis in Jararuse. She stated (atpara. 129): “The level of intoxication of the Accused is a relevant consideration.

The offence of uttering threats is a specific intentoffence; that is, it is not enough to establish that the Accused intended to say the words, the Accused must also have intended that thewords be taken seriously or intimidate.” [42] After consideration of all the circumstances, including Mr. Jararuse’s intoxication, Justice Knickle found he possessed thenecessary mens rea and found him guilty of the offence of uttering threats. [43] The Supreme Court of Canada in R. v.

Daley, 2007 SCC 53 (at paras. 41-43) explained the three legally relevant degrees ofintoxication: “mild,” “advanced,” and “extreme.” Mild intoxication is never a factor in determining mens rea. Advanced intoxicationoccurs where there is intoxication to the point where the accused lacks specific intent. Extreme intoxication, akin to automatism, negatesvoluntariness and is a complete defence to criminal responsibility. [44] The defence of extreme intoxication, akin to automatism, is extremely rare and limited to non-violent crimes by s. 33.1 of theCriminal Code.

Section 264.1(1)(

a) is an offence involving threatened violence and falls within the scope of that section. Automatism,would have afforded Churchill no defence (Desjarlais, at para. 148), and Churchill never purported to advance it as a defence. [45] My review of the Moar and Bone authorities, where intoxication was relevant to the mens rea analysis on charges of utteringthreats, confirms the evidence must demonstrate a high degree of advanced intoxication to negate specific intent. [46] Other case law authorities also confirm this point. Acquittals were entered in R. v.

R.K.K., 2019 BCSC 1822[3], see paras. 120-121; Desjarlais at paras. 97 and 150; R. v. McRae, 2010 BCSC 558, at paras. 112,113. and 143; and R. v. Standing, 2007 SKPC 102, atparas. 19-21. Convictions were entered in Mohammad at paras. 55-56; R. v Mullins, 2014 BCPC 242, at paras. 15 and 25-26; R. v.Koyina, 2014 NWTTC 11, at para. 18; R. v. Giancone, 2008 ONCJ 54; R. v. S. (B.K.), [2002] M.J. No. 543, 2002 CarswellMan 585(Prov. Ct.), at 8-9; R. v. Watchmaker, [1994] A.W.L.D. 245, 1994 CarswellAlta 967 (Prov.

Ct.), at para. 21. [47] Giancone is most relevant, as the accused in that case was arrested for public intoxication, but yet convicted after the trialjudge considered all the circumstances (at para. 12) and concluded that the Crown had proved the threats to kill the police officers weremeant to intimidate. [48] In Moar, the trial judge acquitted the accused because he did not have the requisite mens rea to commit the offence of utteringthreats. Devine Prov. Ct. J in coming to that conclusion (at para. 25), commented on the accused’s “extreme state of intoxication throughsolvents.” [49] The evidence revealed Mr.

Moar was continually giggling for two and a half hours while in the company of the police officers;the police officers testified that he was too drunk to comprehend the charge and caution; and the officers concluded that he was toointoxicated to take before a magistrate. [50] The Moar decision also noted how the accused was sitting peacefully in the hallway of an apartment building before beingpepper-sprayed, hit with a baton, and dragged out to the police car.

The police hosed him down at the police station, and Judge Devineremarked, he “was undoubtedly in a state of considerable annoyance with the police officer in question.” [51] In Bone, the accused gave evidence that he had been heavily drinking for several days. The accused was so intoxicated that hecould not be woken until the fourth attempt.

The Crown conceded on the appeal that the trial judge erred in treating the offences,including the uttering threats charge, as general intent offences without considering the accused’s drunkenness. [52] Two recent appellate authorities also shed light on the degree of intoxication necessary to negate the mens rea. TheSaskatchewan Court of Appeal in R. v. Ratt, 2021 SKCA 7, overturned the trial judge’s acquittal and ordered a new trial for the trialjudge’s failure to properly consider the role of intoxication on the mens rea element of threatening.

The court stated (at para. 36), thetrial judge “did not turn his mind to the question of whether, notwithstanding [the accused’s] anger and level of intoxication, Mr. Rattintended for his words to be taken seriously.” [53] Finally, the issue in R. v. Nazir, 2022 ONCA 176, on convictions, among others, for attempted murder and uttering threats waswhether the trial judge erred by focusing exclusively on capacity to form intent rather than actual intent.

The court upheld theconvictions, concluding that it was open to the trial judge to find that the accused was able to appreciate the consequences of his actionsdespite a high blood alcohol concentration level. [54] The Ontario Court of Appeal in Nazir specifically endorsed (at para. 14) the trial judge’s findings that the accused’s speechwas not slurred; his gait was not impaired; and he related lucid, cogent, and detailed particulars to the officer. The court commented,“[t]his was indicative of an operating mind.”

Churchill’s Submissions on Intoxication [55] Churchill submits the trial judge used language consistent with automatism. Justice Bastarache in R. v. Stone, (SCC), [1999] 2 S.C.R. 290, at para. 156, defined automatism “as a state of impaired consciousness, rather than unconsciousness, inwhich an individual, though capable of action, has no voluntary control over that action.” [emphasis added] [56] Churchill argues the trial judge applied the automatism definition to assess the impact of intoxication, and consequentlyrejected the relevance of intoxication to the mens rea.

A person charged with uttering threats does not need to be in an automatic orinvoluntary state to avoid conviction.

The accused’s intoxication may raise a reasonable doubt as to whether they intended their words tobe threatening or to be taken seriously. [57] Churchill points to the positive evidence showing he was severely intoxicated: • The police used the extraordinary power under the Detention of Intoxicated Persons Act to detain him because he was sointoxicated that he was either a danger to himself or others; • The police decided that he could not exercise his constitutional right to consult with counsel because of his behavior andaggression; • Cst.

Dunphy testified that Churchill was “clearly very intoxicated” and more intoxicated than other drunk people on George Streetthat night; • Cst. Marshall felt Churchill was “impaired, certainly” (Transcript at 43); • Langmead observed Churchill’s signs of intoxication while waiting outside the lockup and once inside the locked he was stilldisplaying signs of being extremely intoxicated; and • The police deviated from standard protocol and left him handcuffed in his cell.

Assessment of the Intoxication Factor [58] Despite the trial judge using language arguably consistent with the definition of automatism, I am satisfied he did not treatintoxication as a defence and convict Churchill because the evidence failed to show his intoxication was to such a degree to deprive himof the capacity to form intent. [59] I accept the Crown’s position that the trial judge’s choice of words in considering Churchill’s level of intoxicationdemonstrates that he was alive to intoxication as a factor in the consideration of the mens rea; i.e., whether the Crown proved thatChurchill “knowingly” (as the wording in

section 264.1(1) stipulates) intended his comment to Cst. Dunphy to be threatening.

The trialjudge’s reasons, as a whole, reflect he considered evidence of intoxication in determining Churchill actually had the requisite intent. [60] I must, however, reject the Crown’s submission that I can rely on the sentencing reasons to support any ambiguity in the trialjudge’s use of the phrase, “so intoxicated as to be outside his control.” An accused is entitled to know, at the time the conviction isentered, the reasons for conviction. [61] The trial judge’s phraseology “outside his control” was simply one expression used to assess the degree of Churchill’sintoxication.

He made other references in assessing the degree of intoxication, including there was no evidence to indicate Churchill wasunable to walk, or that his speech was incomprehensible, or he did not understand the officers when they were speaking to him. In fact,Churchill understood his right to counsel when Cst. Dunphy charged him with the offence, and he provided the name of the lawyer hewanted to call. [62] It was open to the trial judge to make the factual findings he did on the nature and extent of Churchill’s intoxication and whatimpact it had on Churchill forming the necessary intent.

Churchill exercised his right not to testify or call any evidence, so there was noevidence on how much alcohol he consumed that day or night. It is not my role to reassess and reweigh the evidence that led the trialjudge to conclude that the state of Churchill’s intoxication did not raise a reasonable doubt regarding the requisite intent.

Issue 2 – Did the trial judge err in failing to consider the entire contextual circumstances on proof of the requisite intent? [63] The trial judge failed to consider the proper contextual analysis in assessing whether Churchill intended to intimidate Cst.Dunphy or have his words taken seriously. The context in which threats are uttered are critical in determining the accused’s intent.

Words uttered in a serious manner are not necessarily uttered with an intention to intimidate or be taken seriously. [64] An essential consideration is Churchill’s state of mind from the perspective of how the words were perceived by the officer. Crown’s Submissions on Context [65] The Crown submits the fact that Churchill was not physically able to carry out the threat is legally irrelevant. [66] The Crown relies on the context in which Churchill said the offending words. Churchill’s behavior demonstrated he was verydispleased at the decision of the police to detain him.

He was abusive in the police car the whole time of his detention on George Streetto the lockup. Cst. Dunphy testified Churchill made what he considered “vague threats” before they parked outside the lockup. It wasonly after Churchill said he was going to put his boot in the officer’s head that Cst. Dunphy laid the charge. [67] The Crown argues the trial judge made a reasonable inference from all the evidence that Churchill’s words were meant tointimidate the officer or to be taken seriously.

[ 68 ] I will explain why I disagree with the Crown’s submission that this ground of appeal “is in substance nothing more than an appeal to this Court to make its own factual findings and substitute these for the trial judge’s.” Churchill’s Submissions on the Contextual Approach [ 69 ] The trial judge was required to consider the contextual approach as framed by Cory J for the unanimous Supreme Court of Canada in Clemente (at para. 9 ): “the question of whether the accused had the intent to intimidate, or that his words were meant to be taken seriously will, in the absence of any explanation by the accused, usually be determined by the words used, the context in which they were spoken, and the person to whom they were directed.” [ 70 ] Churchill submits the trial judge focused on the contextual factor of intoxication to the exclusion of others.

The trial judge did not consider the context in which the words were spoken, or to whom they were directed. Churchill specifically points to the evidence that the trial judge failed to consider: • Churchill was handcuffed in the back of a police car; • The police car had a protective barrier between the back and front of the car; • Cst.

Dunphy did not ask for assistance from other officers or lockup staff, and proceeded normally into the lockup following Churchill’s comment; • The police had complete control over Churchill’s movements; and • Churchill’s statement was directed at a uniformed police officer who was carrying a firearm and a Taser. [ 71 ] Churchill’s submission has a lot of merit because the trial judge’s reasons refer only to the fact that “[t]he words were spoken while Mr.

Churchill was seated in the back of the police car immediately prior to being conducted into the lockup.” [ 72 ] To be clear, Churchill is not saying the trial judge’s reasons are insufficient, but that the failure to consider the entire contextual circumstances is an error of law. I agree. It is settled law to apply a contextual approach to the mens reas analysis. The Application of the Law to the Evidence [ 73 ] There was no evidence in this case that Cst. Dunphy felt intimidated. While this is not an essential element of the offence, it is a relevant factor to consider when assessing the mens rea element.

How a person reacts to the alleged threat is “relevant evidence of the accused’s intent”: McRae (2013), at para. 20. [ 74 ] A failure of a trial judge to consider evidence relevant to the mens rea of an offence constitutes an error of law: R. v. Sceviour , 2010 NLCA 47 , at para. 30 . It is not enough for the trial judge to reference the mens rea of the offence without applying the law to the facts and argument before him: R. v.

Smyth , 2019 NLCA 73 , at para. 37 . [ 75 ] The Supreme Court in McRae (2013) clearly expressed (at para. 23) that a subjective standard of fault applies to whether the accused intended the words uttered to intimidate or to be taken seriously: “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 .” [emphasis added] [ 76 ] The Manitoba Court of Appeal subsequently reaffirmed in R. v.

Roussin , 2014 MBCA 30 , at para. 11 , “[t]he recipient’s reaction to the accused’s words is relevant only to the extent that it assists in understanding the accused’s intention in speaking the words at issue (See O’Brien , [2012 MBCA 6], at paras. 22-29 ; and O’Brien S.C.C. at paras. 5-7, 13 .).” [ 77 ] It can be difficult to determine specific intent where the accused exercises his right to silence and does not testify as to his intent when he uttered the words in question. It was within the purview of the trial judge “to draw reasonable inferences” on whether the accused had the requisite intent.

The trial judge’s reasons fail to demonstrate he considered the entire contextual circumstances, including “how the words were perceived” by Cst. Dunphy to determine what was on Churchill’s mind. [ 78 ] After Churchill told Cst. Dunphy he was going to kick him in the head, Cst. Dunphy charged Churchill and continued processing him. He did not call for additional backup. He carried on as he would have in any other case, except he denied Churchill his right to counsel and left him in the cell handcuffed because of his aggressive behavior. [ 79 ] R. v .

Knox , 2012 NLTD(G) 137 (at paras. 8-10) is an instructive case. In that case, Mr. Knox was accused of threatening a sheriff’s officer with the Department of Justice. Mr. Knox was leaving a peace bond hearing; an unknown female told the sheriff’s officer that she was scared Mr. Knox was following her. The officer told her to go to her car. The officer then approached Mr. Knox and asked him where he was going. Mr. Knox said he was going to the parking garage for a cigarette. The officer told him he could go outside but not to the parking garage. At that point, Mr.

Knox said the allegedly threatening words: “You think you’re some fucking tough, don’t ya, you with your badge? When I see you out around, you’re fucking getting it.” [ 80 ] The trial judge considered whether Mr. Knox intended to threaten the officer. As part of that analysis, the trial judge considered the fact that Deputy Sheriffs are frequently in contact with people involved in the context of their jobs; it was important to look at the complainant’s job in assessing whether Mr. Knox had the requisite intent.

Of course, police officers and sheriffs can still be threatened, but the nature of their job is an important contextual factor. Based in part on that contextual factor, the trial judge was left with a reasonable doubt as to whether Mr. Knox meant his comment to be taken seriously. This conclusion was upheld on a

summary conviction appeal. [ 81 ] Although the acquittal in Moar turned substantially on the factor of the accused’s extensive degree of intoxication, the trial

judge in that case considered the entire context (at paras. 26-27). Mr. Moar made threatening comments about shooting a police officer and cutting off an officer’s head. Mr. Moar made one of these comments while he was sitting in the back of the police car with his hands handcuffed, and the other when he was in a holding cell. The trial judge considered this context and concluded that Mr. Moar’s comments were “nothing but bravado in those circumstances.” [ 82 ] A contextual analysis of this nature was absent from the trial judge’s reasons. The fact that Cst.

Dunphy was a police officer, detaining Churchill in the manner he was, is a relevant factor that must be considered in assessing whether the Crown has proved intent beyond a reasonable doubt. The trial judge was required to consider it, along with the other contextual factors Churchill identified in his submissions (para. 70, above). “Goal-directed” Nature of Words and Actions [ 83 ] Further, the trial judge’s conclusory comment on the “goal-directed” nature of Churchill’s words and actions also falls short of any contextual analysis.

The trial judge stated, “[i]t’s clear his words and actions were directed at all times were goal-directed” without anchoring that conclusion in the context of the evidence. [ 84 ] Justice Knickle in Jararuse explained the contextual circumstances and the accused’s purpose for the utterances he made to both the police and the victim directly. The accused uttered the words, “I will kill her,” “I will kill you,” and “I will kill her if you don’t leave,” while brandishing a knife and holding the victim hostage in his bedroom (at para. 126).

Knickle J stated (at para. 131), “[i]n my view, these utterances were the very means by which he could accomplish having the police leave his home and avoid going back to jail.” [ 85 ] She also considered that there were periods of calm, when the police complied with Mr. Jararuse’s directions and wishes.

Accordingly, she concluded: “When I considered this conduct with his conduct in which he uttered the threats in anger, I have no difficulty in being satisfied beyond a reasonable doubt the Accused possessed the necessary mens rea that his words be both taken seriously and to intimidate both R.M.F. and the police.” [ 86 ] On finding the utterances to R.M.F. directly that he would kill her, and asking if she wanted to die, were intended to be taken seriously by her, Knickle J accepted the victim’s testimony that she was scared, and she thought the accused was going to murder her. [ 87 ] A contextual approach warrants some explanation from the trial judge on the purpose or connection Churchill’s words had on influencing the actions of the officers.

Without the proper contextual analysis required by law, the trial judge’s decision cannot stand. Remedy for Error of Law [ 88 ] Churchill concedes this is not an unreasonable-verdict case, and there was evidence on which a judge could find a threat to be taken seriously or intended to intimidate. [ 89 ] The legal error that I have identified does not lead inevitably to an acquittal. It is a legal error that requires a trier to apply the correct analysis to the undisputed evidence. A new trial is the proper remedy: Sceviour , at para. 34 ; and Smyth , at para. 43 . CONCLUSION and disposition [ 90 ] I conclude: 1.

The trial judge did not err in assessing the impact of intoxication as a factor in the Crown proving intent; 2. The trial judge erred on a question of law regarding the contextual approach to the mens rea analysis. [ 91 ] The appeal is allowed, conviction set aside, and a new trial ordered. _____________________________ Glen L.C. Noel Justice