R. v. O’Brien, 2012 MBCA 6

Citation: R. v. O’Brien, 2012 MBCA 6 Date: 20120126 Docket: AR 11-30-07555 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Holly C. Beard Mr. Justice Alan D. MacInnes BETWEEN : HER MAJESTY THE QUEEN ) R. N. Malaviya ) for the Appellant Appellant ) ) M. P. Cook ) for the Respondent - and - ) ) Appeal heard: ) November 4, 2011 KELLY JOSEPH O’BRIEN ) ) Judgment delivered: (Accused) Respondent ) January 26, 2012 BEARD J.A. I.

THE ISSUE 1 The Crown has appealed the acquittal of the accused on two counts of uttering threats and two counts of breach of probation, all arising out of statements that the accused made to his ex-girlfriend, Ms W, during a telephone call. 2 There was no disagreement between the parties as to the applicable law. Further, the defence has admitted that the words spoken by the accused are sufficient to constitute the actus reus of the offence. The two grounds of appeal raised by the Crown are: 1. Did the Learned Trial Judge err in assessing the mens rea requirement for Uttering Threats? 2.

Did the Learned Trial Judge err in finding that the evidence of the complainant negated the mens rea of the Respondent? II. THE STANDARD OF REVIEW 3 Both parties take the position, and I agree, that the appeal involves only questions of law, being the application of the law to the undisputed facts of the case, and that the standard of review is that of correctness. See R. v. Mabior (C.L.) , 2010 MBCA 93 at para. 37 , 258 Man.R. (2d) 166 , and R. v. McCaughan (C.J.) , 2009 MBCA 14 at para. 31 , 236 Man.R. (2d) 188 . III.

THE FACTS 4 At the time of the events that led to the charges, the accused was incarcerated at Headingley Correctional Centre (Headingley). Prior to his incarceration, he had been in a relationship with Ms W, but, by the time of these events, that relationship had broken down. 5 The accused made a telephone call to Ms W from Headingley and, early in that conversation, she accused him of having had an affair with another woman, which he denied. She then advised him that she had made arrangements to abort his baby, she then being 20 weeks’ pregnant.

He was upset that she was planning an abortion and tried to talk her out of it, at points begging her not to kill his baby. She continued to insist that she was going through with the procedure, several times taunting him with her plan to send him the ultrasound pictures of the baby, whom she described as “6 inches long and it weighs one pound and it’s a girl and it has a full set of hair and fingers and I seen ‘em on the ultrasound.” At one point when he asked her why she was doing this, she responded, “Why not? Why not hurt you, hey? Maybe you should hurt?”

6 The accused eventually responded with an explicit description of what he was going to do when he got out of jail. This included the following: …. I’ll be on the 25 th …. On the 25 th you’re getting a bullet in your fucking head you fucking little whore, man, o.k.? O.k. And the guards just heard me so I’ll probably going to get charged for that. So I’m going to fucking kill you you little bitch when I get outta here man. O.k., you fucking hear me? You’re dead, you fucking whore. I mean it man. Watch your windows. I’m going to shoot your windows out, bitch. 7 Later in the conversation he said: ….

I’ll put a bullet right in your fuckin’ head, you, fuckin’ little worm, man, don’t fuckin’ be stupid, man. You kill my baby, I mean it, man. Watch. You’ll be …. You won’t even get a chance to get skinny, man. You won’t even get a chance. Watch man. I fuckin’ mean it. Who’s gonna stop me from killin’ you, man? Who’s gonna stop me? 8 On a couple of other occasions during the conversation, the accused said that he was going to kill her. 9 The call was recorded at Headingley and a copy of the recording was filed with the court.

While no official transcript was prepared, this court had access to the recording, which was played in court, and the Crown attorney prepared her own transcript, which was filed at the appeal with the consent of the defence. 10 The complaint to the police was made by the staff at Headingley, not by Ms W. When the police attended to interview her, she refused to make a statement and did not want the accused to be charged. 11 Ms W was called to testify by the Crown.

She stated that the accused’s words did not cause her any fear, that she was not “worried about it” and that “[t]hat’s the way he normally talks.” On cross-examination, she agreed that he “runs at the mouth a lot” and he “says a bunch of garbage sometimes.” She also agreed that she “dismiss[es] a lot of what he says because that’s just the way [the accused] is, he runs at the mouth” and that she “accepted that [the accused] was just being loud and belligerent with [her], and that’s all it was.” IV.

THE TRIAL JUDGE’S DECISION 12 Following a brief adjournment, the trial judge gave the following oral reasons: The actus, as we call it, or the act of uttering threats is the actual speaking or uttering of the threats of death or serious bodily harm. The mens rea, or what we call the mental element of the offence, is that the words are meant to be conveyed to be a threat. In other words they are meant to intimidate. Now, what the case law says is that one must consider the nature of the comments.

One must consider the context in which the comments were made, not just in terms of the actual conversation where the threats were made, but the context of the relationship as a whole. The court wants to, and the Code wants to, criminalize and prevent people from threatening each other. It does not want to catch words that are spoken in jest or jokingly or not intended to be a threat.

This is a somewhat unusual situation in the sense that your lawyer has conceded, and I agree, that when one listens to the tape objectively the words are quite concerning, both in the context of which they are spoken, the tone of voice, the fact that they are repeated, so that is a factor for the court to take into account, and certainly when one looks at the actus one sees that those words really form the basis of a threat.

I am going to put a bullet in your head, et cetera, et cetera, and I am not going to repeat all of the words, we have heard them, and they were made in the context of a lengthy conversation, but as I say I have to consider the context as a whole to satisfy myself that the Crown has proved this case, and all elements of the case beyond a reasonable doubt. So I have to consider the evidence of Ms. [W] when I consider the mental element or the mens rea.

Normally the mens rea is taken from the words of the accused, absent any explanation from the accused, and as I pointed out at the outset you have chosen not to testify, as is your right. But the evidence in this case is somewhat unusual in the sense that Ms. [W] has told the court that she was not concerned about the threats, that you shoot your mouth off, if I can use the vernacular, that she did not want you charged, she did not take the threat seriously.

And so it is incumbent, and the court is required, to consider the words in the context of the evidence of Ms. [W], and when I do so, despite the fact that I am actually quite concerned about the actus of the offence, the comments, the words, I must say that I do have a reasonable doubt about the mental element of the mens rea of the offence because of the evidence of Ms. [W], the fact she did not take them seriously, and as I pointed out at the outset it is incumbent upon the Crown to prove all elements of the case beyond a reasonable doubt.

So despite my concerns I am entering an acquittal on the charges of utter threats, …. V. THE POSITIONS OF THE PARTIES The Crown’s Position 13 The Crown’s position regarding the first ground of appeal is that, to determine whether the mens rea of the offence has been proven, the court must look at whether a reasonable person would consider that the words, when considered objectively, were uttered as a threat.

The person who was the subject of the threat does not have to actually fear for his or her safety, or even know that the words were spoken. 14 The Crown argues that the trial judge relied exclusively on the evidence of Ms W and did not assess the words objectively as to their obvious meaning and

interpretation by a reasonable person, which constituted an error in law. She argues that, on a proper application of the test, the threatening nature of the comments is self-evident and that the accused should be convicted.

15 On the second ground of appeal, the Crown’s position is that, in the absence of testimony from the accused, the question ofwhether he has the intention to intimidate will usually be determined by the words used, the context in which they were uttered and theperson to whom they were directed. 16 She argues that, in this case, the trial judge gave too much weight to the testimony of Ms W and failed to consider the factthat the words were uttered in the context of a domestic relationship, to take into account the realities of domestic violence, or to considera court’s obligation to pursue domestic violence matters even where the victim of domestic violence was unwilling to participate in courtproceedings.

The Defence’s Position 17 The defence’s position is that the law requires that, for the words to constitute a threat, they must be meant to intimidate or tobe taken seriously.

Words spoken in jest or in such a manner that they were not to be taken seriously could not lead a reasonable personto conclude that they conveyed a threat. 18 Defence counsel argues that due deference must be shown to the decision of the trial judge, who is in the best position toassess the context in which the words were spoken. 19 He argues that Ms W did not feel that she had received a threat, as evidenced by the fact that she was not scared, did notcontact the police, did not provide the police with a statement and did not feel threatened by any of the comments made by the accused.

He points out that Ms W knows the accused, knows the way he normally speaks and was not intimidated by his comments.

He arguesthat, while her subjective view of the words is not, on its own, determinative of whether there was an offence, it is relevant todetermining the accused’s intent, in that her non-fearful response casts doubt on whether the accused actually meant to intimidate her orhave his words taken seriously. 20 He argues that the trial judge applied the correct test and was entitled to conclude that, in the context of this particular case,and given the history of the relationship between the parties, the offence has not been made out. VI.

THE LAW 21 The accused has been charged with uttering threats under ss. 264.1(1)(

a) and (

b) of the Criminal Code, which state asfollows: 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; … . . . . . 22 As noted above, the accused has acknowledged that the Crown has proven the actus reus of the offence; it is the proof of themens rea that is at issue. The mens rea for the charge of uttering threats was described by this court in R. v. K.W.B. (1993), (MB CA), 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 mere use ofwords which constitute a threat is not consequently enough.

The accused must also intend the words to instill fear in someone: see R. 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 intent willoften have to be based to a large extent upon a consideration of the words used by the accused.” Nonetheless, a trier of fact must find theaccused 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 be considered inthe context of the circumstances in which they were uttered. The specific intent to instill fear can only be inferred if the circumstancespermit. …. [emphasis added] 23 See also this court’s decision in R. v. Noble (P.D.J.), 2010 MBCA 60 at paras. 8-9, 255 Man.R. (2d) 144. 24 It can be difficult to determine specific intent where the accused exercises his right to silence and does not testify as to hisintent when he uttered the words in question.

The Supreme Court of Canada addressed this issue in R. v. Clemente, (SCC), [1994] 2 S.C.R. 758, in which Cory J., for the court, stated as follows (at p. 762): …. 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. 25 He also stated as follows (at p. 763): ….

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 tointimidate or to be taken seriously. 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 whomthey were addressed.

Obviously words spoken in jest or in such a manner that they could not be taken seriously could not lead a reasonable person to concludethat the words conveyed a threat. 26 The issue of whether a reasonable person would consider that the words were uttered as a threat is one consideration for thetrier 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. 27 This test was explained correctly by the trial judge, when she stated as follows: ….

The mens rea, or what we call the mental element of the offence, is that the words were meant to be conveyed to be a threat. Inother words they are meant to intimidate. Now, what the case law says is that one must consider the nature of the comments. One must consider the context in which thecomments were made, not just in terms of the actual conversation where the threats were made, but the context of the relationship as awhole. The court wants to, and the Code wants to, criminalize and prevent people from threatening each other.

It does not want to catchwords that are spoken in jest or jokingly or not intended to be a threat. [emphasis added] 28 It is clear that the test is not whether the person who is the subject of the words uttered by the accused felt threatened, as it isnot necessary for the Crown to prove that that person even had knowledge of them. Thus, evidence that the subject of the alleged threatswas not scared does not, in itself, result in an acquittal. See R. v. Carons (1978), 1978 ALTASCAD 206 , 10 A.R. 300(S.C. (A.D.)), and R. v.

MacDonald (D.) (2002), (ON CA), 166 O.A.C. 121 at para. 27. 29 That said, it is also clear that, where the subject of the alleged threats is aware of the alleged threat, his or her evidence is notto be ignored. His or her testimony forms part of the context within which the words were uttered and must be considered as part of thecircumstances that will determine whether a reasonable person would find that the words were meant to intimidate or to be takenseriously. VII.

ANALYSIS The First Ground of Appeal 30 The Crown’s first ground of appeal is that the trial judge erred in relying exclusively on the testimony of Ms W when shetestified that she was not concerned about the threatening comments, without assessing the words objectively as to their obvious meaningand

interpretation by a reasonable person. 31 The trial judge did not say that “a reasonable person would not have taken the words seriously,” but that is not what Clementerequires. The court, in Clemente, stated that “[o]bviously words spoken … in such a manner that they could not be taken seriously couldnot lead a reasonable person to conclude that the words conveyed a threat” (at p. 763).

In other words, to determine whether a reasonableperson would consider that the words were uttered as a threat, the trial judge must look at the words objectively and in the context inwhich they were spoken. 32 That is what the trial judge did. After explaining the actus reus and mens rea of the offence, the trial judge stated that,listening to the recording objectively, there were several factors that made the words quite concerning, including the context in whichthey were spoken, the tone of voice and the fact that they were repeated.

This was said shortly after she listened to the recording beingplayed in court. She repeated the gist of some of the alleged threats and then stated that she had to consider the context within whichthey were spoken. 33 The context of the words was provided by the recording, which disclosed the tone of voice and the surrounding conversation,and by Ms W, as the only evidence in the case was the recording and the testimony of Ms W.

Thus, after considering the words spokenas they were recorded, and acknowledging their effect, viewed objectively, the trial judge went on to consider the remaining context, asfound in Ms W’s testimony. She accepted that Ms W knew the accused, knew his manner of speaking as he did, such that he was simplyrunning off at the mouth, and that Ms W did not take him or his words seriously. 34 The defence has admitted that the words, considered on their own, appear to be threatening.

While Ms W’s reaction to thosewords would, doubtless, seem unusual to many people, that was her evidence which the trial judge accepted, as she was entitled to do. This left the trial judge with a reasonable doubt as to the accused’s subjective intention, which is what constitutes the mens rea of thisoffence. This is a conclusion which, in my view, was open to her. 35 Thus, I would not find that the trial judge erred by relying exclusively on Ms W’s testimony without assessing the wordsobjectively as to their obvious meaning and

interpretation by a reasonable person. The Second Ground of Appeal 36 The Crown argues that the trial judge erred in finding that the evidence of Ms W negated the mens rea of the offencebecause she failed to take into account the domestic nature of the relationship between Ms W and the accused, and, particularly, thatMs W was the victim of domestic violence.

37 The trial judge was aware of the relevance of the relationship, as she stated that “[o]ne must consider the context in which the comments were made, not just in terms of the actual conversation where the threats were made, but the context of the relationship as a whole ” (emphasis added). While the trial judge did not undertake an analysis of whether the domestic nature of Ms W’s relationship with the accused affected Ms W’s testimony or her perception of the accused’s words, she must have been aware that there had been a domestic relationship.

The entire trial occurred in one day and the trial judge gave her decision on that same day, so the evidence was very fresh. The whole conversation that gave rise to the charges revolved around Ms W’s accusation that the accused had cheated on her and her threat to abort his baby. Thus, the domestic nature of the relationship was front and centre. 38 That said, the issue of the domestic nature of the relationship, domestic violence and whether those factors were affecting Ms W’s testimony were never raised by the Crown or by Ms W, and it did not form any part of the Crown’s argument at trial.

As a result, it is not surprising that they were not addressed in further detail by the trial judge. 39 The nature of the relationship, which would include domestic violence, is part of the context in which the words were uttered – so, in this case, what is the relevance of these factors to Ms W’s testimony? 40 As I said earlier, the fact that the accused and Ms W were in a domestic relationship means that she knew the accused intimately and was well placed to understand how he normally talked and, more importantly, how he responded when he was upset.

She was in a good position to tell the court whether his words reflected how he usually talked or whether he meant what he said when he uttered them. 41 What, then, was the evidence regarding violence and whether it affected Ms W’s testimony or her perception of the events at issue?

The circumstances that give rise to the suggestion that Ms W was the victim of domestic violence are as follows: - the accused stated, during the course of the telephone conversation, that he had “beat [Ms W] up”; - the accused has a criminal record that includes two prior domestic assault convictions on prior partners; - the accused’s tone of voice, as he uttered the words at issue, was loud, angry and threatening; and - the words were spoken in circumstances where the accused was angry with Ms W and, therefore, more likely to be threatening her. 42 The Crown argues that, by ignoring the evidence of domestic violence, the trial judge failed to consider the context and history of the relationship when she was assessing Ms W’s evidence, particularly when she was weighing Ms W’s testimony that she was not afraid when the accused uttered the words at issue.

The Crown argues that victims of domestic violence are often reluctant to report the violence to the police, and she points to several cases involving charges of uttering threats in the context of domestic violence to support her position that the court must take account of the effect of domestic violence on the victim. See MacDonald ; Carons ; R. v. Sanderson , 2004 ONCJ 329 (QL) ; and R. v. K.B. , 2004 YKCA 13 (QL) . 43 When dealing with the effect of domestic violence, the decisions are driven by the facts and evidence.

A review of the facts in the cases referred to by the Crown shows that, in MacDonald , Sanderson and K.B. , there was evidence of repeated domestic violence and the victims all made complaints to the police and gave statements.

In Carons , it is unclear who called the police or whether there was a history of domestic violence, but the complainant did testify and, while minimizing the importance of the exchange between her and the accused (with whom she was living at the time of the trial), did say that his words caused her to be concerned. 44 In considering the domestic violence in this case, the following facts are relevant: - apart from the accused’s comment, there was no evidence to suggest that Ms W was the victim of domestic violence or that she had any of the characteristics associated with repeated violence or being a battered wife; - Ms W did not testify about any domestic violence and she was never asked about that or about what the accused was referring to when he made the comment about having “beat [her] up”; - while the accused’s comment suggests physical violence, there was no discussion during the telephone conversation to explain what the accused meant or what had happened between him and Ms W – he went on to deny that he had cheated on her and to ask Ms W not to cheat on him, and her response was to laugh and say, “[Y]ou’re so busted, hey, husband” – which does not suggest that she was afraid of him; - Ms W’s tone of voice on the phone did not indicate any fear or hesitation, and she responded to his words immediately and in an equally aggressive and forceful manner when he made the statements, including telling him, towards the end of their conversation, that his mother was “a piece of shit”; - on several occasions, both before and after he uttered the words at issue, she was taunting him with the prospect of sending him the ultrasound image of his baby; and - there was no evidence to indicate whether she was aware of his criminal record or his past convictions for domestic assault, and she was not asked about this when she testified. 45 While domestic violence would be an important circumstance to consider in weighing Ms W’s evidence about the accused’s statements, in this case, there was no evidence to indicate the severity of the incident referred to by the accused, whether there was more than one incident of violence, or to explain what happened at the time of that incident.

Further, there was no evidence to suggest that Ms W was afraid of the accused, or that she was testifying as she did to protect herself or anyone else from future violence.

46 What is very unique about this case is Ms W’s testimony that “this is the way [the accused] normally speaks,” that he “runs at the mouth a lot,” that he “says trash talk like that,” that she did not take the threat seriously and that she “accepted that [the accused] was just being loud and belligerent with [her] and that’s all.” This is different from the evidence in Carons , where the complainant expressed a concern about the accused’s statements, or in the other cases where there was evidence of repeated domestic violence and concern or fear expressed by the complainants. 47 Ms W’s

interpretation of the accused’s words is consistent with other comments by the accused during that conversation.

I note, in particular, the following: - when Ms W accuses him of having slept with another woman, the accused denies that accusation and says that he is going to kill that woman; - later during the conversation, that woman is on the telephone in a three-way discussion in which she says that the accused is lying when he denies that he slept with her, and she is clearly mocking him – in response, he tells her that he is going to kill her (the Crown dropped charges in relation to this statement); - when Ms W says that “[i]t’s over and done with” and that she is going back to Chris, the accused says, “[W]hen I get out I’m gonna shoot Chris” (the accused was not charged in relation to this statement); and - the accused’s comments support the

interpretation that he does not mean what he said in that, towards the end, he said that he was sorry for what he said and that she was getting him frustrated. 48 While the evidence in this case could support the inference that Ms W’s testimony or her perception of the accused’s words were affected because she was the victim of domestic violence, it does not lead exclusively to that conclusion.

It was also open to the trial judge to find not only that Ms W was not scared by the accused’s words, in accordance with Ms W’s testimony to that effect, but, beyond that, that Ms W did not believe that the accused was threatening her at all; rather, that this was how the accused talked and that he did not intend to be threatening or intimidating when he made those statements, also in accordance with her evidence. 49 A determination of the appropriate inference to be drawn from the evidence of domestic violence, in this case, is very dependent on seeing and hearing Ms W testify.

The trial judge in this case is an experienced judge on a court that frequently hears evidence from victims of domestic violence and she would, doubtless, have been alive to any concern as to whether Ms W’s evidence was, or could have been, affected by being the victim of domestic violence such that she was not expressing her true

interpretation of the accused’s words. She saw and heard Ms W and accepted her evidence as expressing her

interpretation of the accused’s words. This finding was open to the trial judge and, not having seen or heard Ms W testify, I am not prepared to draw an inference that was open to this experienced trial judge when she, having seen and heard Ms W, obviously chose not to draw it.

Her acceptance of Ms W’s evidence certainly does not constitute an error. 50 For these reasons, I would find that the trial judge did not err in finding that the evidence of Ms W negated the mens rea of the offence because she failed to take into account the domestic nature of the relationship between Ms W and the accused and, particularly, that Ms W was the victim of domestic violence. VIII. CONCLUSION 51 The trial judge did not err, either in assessing the mens rea requirements for uttering threats or in finding that the evidence of Ms W negated the mens rea of the accused.

It was open to the trial judge, based on all of the evidence, to have a reasonable doubt that the accused intended to threaten or intimidate Ms W when he said the words at issue and, on that finding, to acquit the accused of the charges of uttering threats. 52 The breach of probation charges were premised on the accused having committed the two underlying offences of uttering threats. With the dismissal of those underlying charges, the trial judge correctly acquitted the accused on the breach of probation charges as well. IX.

DECISION 53 For these reasons, I would dismiss this appeal and confirm the acquittal on all charges. ____________________________ J.A. I agree:

___________________________ J.A. STEEL J.A. (dissenting) 54 The facts and law have been set out in the majority decision and I need not repeat them here. I agree that this appeal involvesa question of law. The question of whether the evidence of a complainant can be the determinative factor on the analysis of the mens reaof the accused is a question of law that can be separated from the facts.

That question of law is to be reviewed on the standard ofcorrectness. 55 Respectfully, I disagree with Justice Beard as to the trial judge’s assessment of the mens rea requirement for the charge ofuttering threats. 56 The Crown must prove that the accused intended the words to intimidate and to be taken seriously. The trial judge correctlystated that in determining whether the mental element of the offence has been proven, one must analyze the words in a contextual nature: …. … [N]ot just in terms of the actual conversation where the threats were made, but the context of the relationship as a whole.

Thecourt wants to, and the Code wants to, criminalize and prevent people from threatening each other. It does not want to catch words thatare spoken in jest or jokingly or not intended to be a threat. 57 However, the trial judge erred with respect to the legal effect of the evidence of the complainant.

The trial judge stated that: “But the evidence in this case is somewhat unusual in the sense that Ms. [W.] has told the court that she … did not want you charged, shedid not take the threat seriously.” 58 I agree with the Crown that the trial judge placed too much weight on the evidence of the complainant. 59 In determining whether the mental element is proven, the court must look at whether a reasonable person would consider thatthe words, when considered objectively, albeit in context, were uttered as a threat and meant to be taken seriously.

The person who wasthe subject of the threat does not have to actually fear for his or her safety, or even know that the words were spoken. In fact, where theaccused uttered the threat to a third party, the Crown did not need to prove that the accused intended that the threat be communicated tothe victim. See R. v. Tibando (M.) (1994), (ON CA), 69 O.A.C. 225, leave to appeal to S.C.C. refused, [1994]S.C.C.A. No. 208 (QL); R. v. MacDonald (D.) (2002), (ON CA), 166 O.A.C. 121 at para. 27; and R. v.

Noble(P.D.J.), 2010 MBCA 60 at para. 7, 255 Man.R. (2d) 144. 60 When conducting an analysis to determine whether the words were intended to be taken seriously, the trial judge shouldconsider the person to whom the words were addressed. However, the court should also consider the words spoken, the circumstances inwhich they were uttered and the manner in which they were spoken. See R. v. Clemente, (SCC), [1994] 2 S.C.R. 758 at763, and Noble. 61 The accused here was not intoxicated or confused as were the accused in the cases of R. v. Standing (S.G.), 2007 SKPC 102,301 Sask.R. 266, or R. v.

Gervais (J.), 2002 NBBR 369 , 2002 NBQB 369, 255 N.B.R. (2d) 51, cited by defence counsel. InStanding, the police officer testified that with one or two more drinks, the accused would have been sleeping or unconscious. In Gervais,the accused had been drinking beer all day. The court in both cases specifically referred to drunkenness as a factor in determining thatthe accused, in those cases, did not have the appropriate mental element. 62 In this case, as acknowledged by the trial judge, the accused’s tone of voice was angry and threatening.

There can be noquestion that the threats were not spoken in jest or by way of a joke. Indeed, the accused acknowledged that he knew the seriousness ofhis comments since he stated, “… [T]he guards just heard me so I’ll probably going to get charged ….” The threat was not simply anexplosion of anger resulting in a throw-a-way line of “I’m going to kill you.” The words were not ambiguous or uttered in a carelessmanner. 63 Instead, the accused repeatedly explained, and in quite a bit of detail, how he was going to kill the complainant. Forexample, he stated: ....

On the 25th you’re getting a bullet in your fucking head you fucking little whore .... You’re dead, you fucking whore. I mean itman. Watch your windows. I’m going to shoot your windows out, bitch. You’re going to fucking be dead when I get outta here if you fucking keep talking shit. I fuckin’ mean it. I’ll put a bullet right in your fuckin’ head, you fuckin’ little whore .... 64 It is true that the complainant taunted him with her plan to abort her pregnancy, but provocation is not a defence to a chargeof uttering threats.

The law does not sanction threats to kill as a method to convince a woman to carry a pregnancy to term.

65 There are also certain other issues that form part of the fabric of a contextual analysis of mens rea in this situation. It does not surprise me that the complainant refused to give police a statement and did not want the accused to be charged. This accused has a significant criminal record for both violence and property offences. That record includes two prior domestic violence convictions on previous partners for uttering threats, assault and assault with a weapon. He was incarcerated at the time of the telephone call, but told the complainant he could be getting out in a few months.

He admitted that he had beaten this particular complainant before and as he put it, in chilling fashion: “Who’s gonna stop me from killin’ you, man? Who’s gonna stop me?” 66 The words were uttered in the context of a domestic relationship.

The context and history of such a relationship, along with all of the above factors, must be considered in assessing the complainant’s statement that she was not afraid when the accused told her “I’ll put a bullet right in your fuckin’ head.” 67 Moreover, in my opinion, it does not matter if this particular accused is an individual with an explosive temper who often makes threats that are not then carried out. The fact “[t]hat’s the way [the accused] normally talks” does not legitimate the threats. It does not matter whether the accused intended to carry out his threats.

It does not matter if the recipient of those threats did not in fact feel intimidated. If the accused intended to intimidate the complainant or instill fear in her when he uttered the threats, then he intended them to be taken seriously and should be sanctioned accordingly. See Clemente at p. 763 and Noble . 68 In this case, the trial judge erred in determining that “because of the evidence of Ms. [W.], the fact she did not take them seriously” the accused did not have the specific intent necessary for the charge.

The trial judge erred in the application of the legal principle of the mens rea requirement for uttering threats to the facts of the case. I would allow the appeal. J.A.