Amiram Kotler

The Court held that defence evidence about an unknown third party suspect is governed by general admissibility principles: relevance plus a balancing of probative value against prejudicial effect.

The trial judge erred by requiring proof on a balance of probabilities that the similar incident occurred and by treating the issue as known third party suspect evidence.

The appeal was dismissed and the order for a new trial was upheld.

The Crown appealed as of right to the Supreme Court of Canada from the Manitoba Court of Appeal's decision upholding the respondent's acquittal on a charge of uttering threats to cause death contrary to s. 264.1(1)(a) of the Criminal Code.

The accused had repeatedly told his ex-girlfriend he would kill her if she proceeded with an abortion.

The trial judge found a reasonable doubt as to whether the accused intended his words to intimidate, considering the recipient's testimony that she did not take the threats seriously.

The majority (4-3) held the trial judge correctly stated the law and properly considered the recipient's evidence as context for assessing mens rea.

The dissent would have allowed the appeal, finding the trial judge erred by making the recipient's perception the determinative factor in assessing intent.