R. v. Roussin (B.), 2014 MBCA 30

Citation: R. v. Roussin (B.), 2014 MBCA 30 Date: 20140313 Docket: AR 10-30-07352 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Mr. Justice William J. Burnett BETWEEN : ) C. L. Antila HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) N. P. Steen ) for the Respondent - and - ) ) Appeal heard and ) Decision pronounced: BJARNE ROUSSIN ) February 28, 2014 ) (Accused) Appellant ) Written reasons: ) March 13, 2014 BEARD J.A. I. THE ISSUES [ 1 ] On March 11, 2010, the accused was convicted of two counts of uttering threats and one count of dangerous driving.

Sentencing submissions took place the next day, immediately following which the accused was sentenced to one year in custody on the dangerous driving conviction and concurrent sentences on the other counts, to be served consecutively to the 12-year sentence that he was then serving for convictions related to 15 robbery and weapons-related offences.

He is now appealing his two convictions for uttering threats and his sentence in this matter. [ 2 ] While the accused raised four grounds of appeal in his written material, he is only proceeding on one of those grounds, being that the trial judge erred in his assessment of the mens rea of the offence of uttering threats. II. THE FACTS [ 3 ] The charges now before this court arise from evidence obtained by the police while monitoring the accused’s telephone conversations pursuant to a wiretap authorization and the movements of his vehicle pursuant to a global tracking device authorization.

Both were authorized in relation to a police investigation into a string of convenience store robberies in late 2005 and early 2006. [ 4 ] While monitoring the wiretaps at around noon on March 17, 2006, an officer overheard an argument between the accused and his girlfriend (Ms J.) about her infidelity and what the officer believed to be threats by the accused against her. The accused and Ms J. were driving around St. Boniface in his vehicle, sometimes erratically, and eventually left the city, driving east on the Trans- Canada Highway.

The officer monitoring the conversation was concerned about their safety on the highway, so he dispatched an officer in an unmarked truck to follow them. The accused eventually turned off the highway and became stuck in a snow bank. When he left to get help, the officer approached and pulled the car out of the snow. When the accused came back to the vehicle, he and Ms J. returned to Winnipeg.

The officer did not identify himself as being a police officer and Ms J. made no complaint about the accused’s behaviour or any threats. [ 5 ] Upon their return to Ms J.’s apartment, the accused showed her a gun that he had in a “Safeway-type” plastic bag. [ 6 ] Later that same day, Ms J. and two friends went to the bar. She told a male friend Mr. Fontaine about the threats that the accused had made, and, when the accused arrived at the bar, there were words exchanged between the two men. The accused left the bar but later telephoned Ms J., threatening to shoot Mr.

Fontaine with a real gun and telling her to let him know. These phone calls, as well, were being monitored pursuant to the authorization. The accused returned to the bar later and there was a further altercation with

Mr. Fontaine, which started in the bar and continued outside. The accused was holding his hand inside his jacket, and Mr. Fontaine feltthreatened. [7] These events led to the laying of charges against the accused of uttering threats to Ms J. to harm her, uttering threats toMs J. to harm Mr. Fontaine, forcible confinement of Ms J. and dangerous driving (the utter threats charges).

The trial judge acquitted theaccused of the charge of forcible confinement and convicted him on the remaining three charges. [8] The accused was charged with a number of robbery and weapons-related offences (the robbery charges) together withthe utter threats charges. Separate trials were held and the accused was convicted in both matters. The accused appealed aspects of theconvictions and sentences related to both the robbery charges and the utter threats charges, with three of the grounds of appeal in theutter threats appeal also being raised in the robbery appeal.

The panel hearing the robbery appeal has released its reasons for dismissingthat appeal and we have the benefit of those reasons, in which the three common grounds of appeal were all dismissed. It was thosefindings dismissing the three common grounds of appeal that led the accused to abandon those grounds in this appeal. III. ANALYSIS – The Trial Judge Erred in his Assessment of the Mens Rea of the Offence of Uttering Threats [9] The accused’s position is that the mens rea for the offence of uttering threats was recently considered by this court in R.v.

O’Brien (K.J.), 2012 MBCA 6, 275 Man.R. (2d) 144 (O’Brien C.A.), which decision was upheld by the Supreme Court of Canada (R.v. O’Brien, 2013 SCC 2, [2013] 1 S.C.R. 7) (O’Brien S.C.C.). He argues: (

i) that the trial judge in this matter released his reasons for conviction before having the benefit of the reasons of either this court orthe Supreme Court of Canada in O’Brien; and (ii) that, as regards the threats against Ms J. to cause harm to her, this case is factually similar to O’Brien, in that, in both cases, it wascommon for the parties to threaten each other – his position is that Mr.

O’Brien was acquitted, and that he, as well, should be acquitted. [10] This ground of appeal alleges an error in the application of the law to the facts which, in a criminal case, is to bedetermined on the standard of correctness.

The trial judge’s findings of fact and the inferences to be drawn from those facts are factualfindings and any errors are to be reviewed on the standard of palpable and overriding error. [11] Regarding the accused’s first argument, while it is correct that the two decisions in O’Brien were released after the trialjudge delivered his decision in this matter, they did not change the law regarding the mens rea for uttering threats. The mens rea foruttering threats requires that the accused intends that the recipient of his words feels intimidated by his words or that he intended that thewords be taken seriously.

It is not necessary that the recipient, himself or herself, actually feels intimidated or actually takes the wordsseriously.

The recipient’s reaction to the accused’s words is relevant only to the extent that it assists in understanding the accused’sintention in speaking the words at issue. (See O’Brien C.A. at paras. 22-29; and O’Brien S.C.C. at paras. 5-7, 13.) [12] The trial judge correctly stated the test for mens rea when he said “the required intent is did he intend to intimidate her orfor her to take him seriously.” [13] Regarding the accused’s second argument, his position is that, given that the relationships in both O’Brien and this casewere volatile and had, in the past, included mutual threats that were not intended to be taken seriously or to intimidate in spite of thewords spoken, the outcomes should be the same, that is, that the accused should be acquitted, as was Mr.

O’Brien. [14] First, we agree with the trial judge’s statement that “[t]he fact that they tend to escalate their discussions does not meanthat he cannot escalate to the point where he is threatening her in a criminal manner.” [15] Further, we do not agree that this case is at all factually similar to O’Brien. The majority of this court explained theunique circumstances in O’Brien C.A. as follows (at para. 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 themouth 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 justbeing loud and belligerent with [her] and that’s all”.

This is different from the evidence in Carons [(1978), 1978 ALTASCAD 206, 10 A.R. 300 (S.C. (A.D.))], where the complainant expressed a concern about the accused’s statements, or in the other caseswhere there was evidence of repeated domestic violence and concern or fear expressed by the complainants. [16] In O’Brien, the trial judge concluded, after looking at all of the circumstances including the recipient’s evidence as to theway the accused normally spoke and his intention as she understood it when he spoke the words, that she had a reasonable doubt that theaccused either meant that his words be taken seriously or intended that the recipient be intimidated by them.

It is important to note that,at the time that the words were spoken, Mr. O’Brien was in jail and speaking to the complainant on the telephone, which was beingrecorded. Further, the complainant, who was then pregnant with the accused’s baby, was laughing at the accused, taunting him with adescription of the ultrasound images of the baby and threatening to have an abortion. [17] That was not at all the evidence in this case.

While Ms J. did testify that her relationship with the accused couldsometimes be “over the top” and that they did threaten each other, she also testified that, while they were in the car on the afternoon ofMarch 17, 2006, things were different. In re-examination, she testified: Q In response to Mr. Sawchuk’s questions, you agreed with him that sometimes you threatened to hurt or kill [the accused]; is thatcorrect, during the course of your many arguments? A Yes.

Q And he threatened to hurt or kill you -- A Yes. Q -- in the course of your many arguments? A Yes. Q Was this particular argument that we were talking about on the 17th of March, 2006, the same or different from your other arguments? A It was different. Q How was it different? A Just by the -- his -- just the look on his face, the look in his eyes, I could tell. THE COURT: Just the what? THE WITNESS: The look in his eyes and his face, and the way he was talking. It was -- . . . . . Q Can you elaborate on that? A Just not really.

I mean, you, you would have had to have seen his face to have seen like how angry he actually was. Like I don’t think he’s ever been that angry with me, like ever before. [ 18 ] The conversation was, similarly, being recorded in this case. The police officer confirmed Ms J.’s testimony that she was often crying as they were driving around.

He described her voice as “extremely frightened, frantic, screaming” and “hysterical at times.” This is very different from the evidence in O’Brien , and in no way supports the argument that the accused in this case did not intend to intimidate Ms J. or intend that his words be taken seriously. [ 19 ] While there has been much focus on the reaction of the recipient to the words spoken, it is important to highlight again that it is not a requirement of the offence of uttering threats that the recipient feel frightened – the Crown must only prove that, objectively, the words are sufficient to threaten death or serious bodily harm and that the accused intended that they be taken seriously or that the recipient feel intimidated by them.

The reaction of the recipient is only relevant to the extent that it assists, if at all, in these determinations. [ 20 ] We find that the trial judge did not err in law in his assessment of the mens rea in this case.

He was correct in concluding that, based on the evidence in this case, the Crown had proven the required mens rea for uttering threats; thus, we are all agreed that this ground of appeal as regards the conviction for uttering threats to Ms J. to cause death to her should be dismissed. [ 21 ] While, in his written material, the accused does not mention an appeal of the utter threats conviction arising out of his statements to Ms J. about Mr.

Fontaine, he argued before us that that conviction should also be overturned on the basis that the accused did not intend that his words be taken seriously or that the recipient feel intimidated by them. [ 22 ] The facts are that the accused had shown Ms J. his gun earlier that day. Just hours earlier, he had been threatening Ms J. as they drove around, causing her to feel threatened and scared. She testified that she was scared when he made the statements about coming to the bar with a real gun to shoot Mr.

Fontaine. [ 23 ] We are all of the view that there were facts upon which the trial judge could find that the accused had the required intent, and that the trial judge was correct in so finding. [ 24 ] With respect to the sentence appeal, given that the accused has abandoned these grounds of appeal, we are all of the view that there is no arguable case and, as a result, leave to appeal the sentence should be denied. IV. DECISION [ 25 ] The accused’s appeal of his conviction is dismissed and his motion for leave to appeal his sentence is denied. J.A. I agree: J.A. I agree: J.A.