ONTARIO COURT OF JUSTICE

DATE: 2021 03 24 COURT FILE No.: 4817-998-19-75002436-01

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

RICHARD JASON BOSWICK

Before: Justice J. W. Bovard

Heard on: August 4,5,10,17

Reasons for Judgment released on: March 24, 2021 ¹

Counsel: Ms. A. Nagra........................................................................................ counsel for the Crown Mr. R. Boswick............................................................................................. on his own behalf

Bovard J.:

1These are the court’s reasons for judgment after the trial of Richard Jason Boswick on the charge of threatening to cause bodily harm to Kevin Metcalf between the 26th and 31st of March 2019.

Introduction

2Mr. Boswick and Mr. Metcalf, who are on opposite poles of the political spectrum, participate in many street demonstrations and rallies in Toronto. They often film the activities and post them online with commentary about the demonstrations and the persons that were present.

3After a demonstration in March 2019, Mr. Boswick and two friends made a 90-minute video of themselves drinking and expressing their political views and opinions on various subjects. The Crown alleges that in a 2.5-minute segment of the video Mr. Boswick threatened to cause bodily harm to Mr. Metcalf when he referred to shooting him with a rubber coated marble.

4Mr. Boswick denies that his comments were aimed at Mr. Metcalf. He says that he was speaking in general about a group to which Mr. Metcalf belongs. He argues that if the 90-minute video is considered in its entirety it is clear that he did not threaten Mr. Metcalf. He was just going on a general drunken rant.

5The Criminal Code of Canada states that:

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;

Issue

6The issue is whether Mr. Boswick’s statements in the 2.5-minute segment of the 90-minute video constitute a threat to cause bodily harm to Mr. Metcalf.

7In order to decide this question, I will do the following:

1. examine all the evidence presented during the trial;
2. consider the Crown and Mr. Boswick’s arguments;
3. analyze the law as it is stated in the Criminal Code and in the jurisprudence;
4. apply the law to the facts as I find them.

8I remind and direct my self that the Crown bears the burden of proving beyond a reasonable doubt that Mr. Boswick is guilty. Mr. Boswick does not have to prove that he is not guilty.

9In this regard, although Mr. Boswick did not testify, he called evidence. Therefore, out of an abundance of caution, I will apply the directions of the Supreme Court of Canada in the case of R. v. W. (D.) ², to the evidence that he called.

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 the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

The Evidence

10Next, I will consider the evidence that I heard in the trial. I heard a lot of evidence but not all of it was relevant to the issues that I must decide. It is important to understand that although evidence may be important and relevant to other issues in the dynamic between the parties and in general, that does not mean that it is relevant for the purpose of this trial, which is solely to decide whether the Crown proved beyond a reasonable doubt that Mr. Boswick threatened to cause bodily harm to Mr. Metcalf during the time period in question.

11The witnesses that testified did so with the genuine intention of helping the court to decide the case. I want to thank them and make it clear that if I find that any part of their evidence is not relevant, or I do not mention it in my judgment, I am not casting aspersions on them, or saying that what they said is not important. I am simply finding that what they said is not legally relevant to the issues in the case.

12My sole function is to examine all the evidence, consider the Crown and Mr. Boswick’s submissions, apply the law, and focus solely on what is relevant to the issue of whether the Crown proved beyond a reasonable doubt that what Mr. Boswick said in the 2.5-minute portion of the 90-minute video was a threat to cause bodily harm to Mr. Metcalf. I do not to pass judgment on anything else.

13Before I get to the witnesses, I would like to mention that Mr. Boswick agreed to certain things. First, he agreed that it is him in the video in question. Second, he agreed that he posted the video online. These admissions become part of the evidence.

14Mr. Metcalf was the Crown’s first witness. He did not know Mr. Boswick personally, but he recognized him from seeing him online, in videos, pictures, and in person at protests and rallies in Toronto, Ottawa and other locations.

15On March 25, 2019 Mr. Metcalf attended a rally in Toronto. Afterwards, between March 25th and 31st several persons told him that someone had posted on social media a video that was of concern. He looked at the video and was disturbed by what he saw. This is the 90-minute video that contains the alleged threat to Mr. Metcalf. ³

16He described it as showing Mr. Boswick and two others at someone’s home. They were drinking and consuming cannabis. They spoke about politics, their experiences at rallies, and their views on the world.

17The trio was angry at Mr. Metcalf because he filmed the rally and posted a segment that contained the picture of an underaged person. They told Mr. Metcalf in the video that they were coming for him and that he was going to be taken care of in the style of a group that treats the objects of their ire in a “distinctly confrontational and threatening” manner as Mr. Metcalf described it.

18Mr. Metcalf said that what he saw and heard Mr. Boswick say disturbed him. He felt “deeply at risk”. He “Undoubtedly” believed that Mr. Boswick could hurt him. He took the threat seriously. He interpreted Mr. Boswick’s statements that “You’re done” and “We’re coming for you” as meaning that “my time on earth may soon be at an end”.

19He considered Mr. Boswick’s statement about shooting “one of them” in the forehead with a marble to refer to “subsonic paintball” ammunition. These are metal balls covered in rubber that are called “skull breakers”. Mr. Metcalf said that Mr. Boswick’s statements in this regard were:

… quite explicit, the use of that terminology and the promise to shoot one of us in the head – us being – being more of this undefined group, of which I am purportedly a member, based on the content of that speech – I took that to be a threat, and again certainly – I started wearing helmets at rallies. ⁴

20Mr. Metcalf said that around the time that the video came out “Known associates of Mr. Boswick” told him that his home address “was known”. Someone published his address online. Consequently, the threats on the video and this information about his address caused him to move because he feared for his safety.

21He made a complaint to the police regarding the video.

22In court, Mr. Metcalf viewed the 2.5-minute segment of the 90-minute video that contains the alleged threat. He said that it accurately reflects the threats that he reported to the police. The segment contains “the totality of the case”.

23Mr. Metcalf agreed that he probably said in a video published after the alleged threat that he wanted Mr. Boswick to be punished for threatening him.

24Mr. Metcalf acknowledged that as far as he knows, Mr. Boswick has never shown up at a protest with a weapon.

25Regarding his interactions with the police, Mr. Metcalf said that he was arrested at a protest on September 29, 2019 for breaching the peace. He was charged with obstructing a peace officer, but the charge was withdrawn.

26He has been taken aside by the police at protests and questioned regarding being involved in a scuffle. At a rally on March 29, 2019, he was cautioned by a police officer to move back. He has only been arrested once.

27After Mr. Metcalf testified, the Crown closed her case. The Crown’s case consists of the 2.5-minute segment of the 90-minute video, plus Mr. Metcalf’s testimony.

28Mr. Boswick called Mr. Jack Reynolds to testify. He knows Mr. Boswick from the various protests that they attend. He knows Mr. Metcalf from seeing him at various protests in Toronto. He considers him as one of the leaders of the group to which Mr. Metcalf belongs. Mr. Reynolds is on the opposite side of the political spectrum from Mr. Metcalf.

29Mr. Reynolds gave general evidence about Mr. Metcalf and Mr. Boswick’s involvement in protests, but I did not find his evidence relevant to the charge.

30Ms. Sandra Solomon was Mr. Boswick’s second witness. They have known each other for many years. They met through their political activities and through social media. They have worked together a lot, for example, producing videos. She said that he is looked upon in their community as a peaceful, respectful person.

31Ms. Solomon does not know Mr. Metcalf.

32Mr. Ed Jamnisek was Mr. Boswick’s next witness. Mr. Boswick asked him questions about a rally that took place a few days before his 90-minute video was broadcast.

33Mr. Jamnisek was at the rally. He said that there was a group there trying to get its message out. Also, at the rally were members of another group that Mr. Boswick identifies with Mr. Metcalf. Mr. Jamnisek said that there was a problem leaving the protest for the persons that were trying to get their message out. The police and members of the group that Mr. Boswick identifies with Mr. Metcalf kettled them.

34Mr. Jamnisek said that he would be surprised if Mr. Metcalf was not at this event. However, he did not testify that he saw him there.

35Mr. Boswick played a video tape of the rally for Mr. Jamnisek who said that he sees Mr. Boswick and Mr. Metcalf in the video. But he did not see them interact “Directly or immediately”.

36Mr. Jamnisek did not consider that Mr. Metcalf was being loud. Nor was he being violent. After a very leading question, Mr. Jamnisek said that Mr. Metcalf and the “mob” were threats. He did not say to what or to whom they were threatening, however. ⁵

37Next, Mr. Kevin Johnston testified. He said that Mr. Metcalf was part of a large group that assaulted him in 2017. Mr. Metcalf also sued him in March 2017.

38That was all the evidence.

Crown Submissions

39The Crown submits that she proved beyond a reasonable doubt that the words that Mr. Boswick uttered in the 2.5-minute segment of the 90-minute video constitute a threat to cause bodily harm to Mr. Metcalf.

40The Crown mainly relies on paragraphs 10-23 of R. v. McRae ⁶ to support her argument.

41Regarding the actus reus (whether threatening words were uttered), the Crown submits that there is no dispute regarding what Mr. Boswick said to Mr. Metcalf. The parties submitted an agreed statement of facts that stipulates what Mr. Boswick said:

Cory Scott: Rick, Who's that guy that posted my picture and shit? You know the photographer guy Derek Storie: It's ah,.. ah,.. Rick Boswick: Oh, Kevin Gou, ah Kevin, no.. Derek Storie: METCALF Rick Boswick: METCALF Cory Scott: Metcalf? Derek Storie and Rick Boswick together: Metcalf Cory Scott: Metcalf, Guess what? Rick Boswick: YOU ARE DONE. Cory Scott: We're coming for you bro. Rick Boswick: YOU'RE DONE, YOU'RE DONE BUD. Cory Scott: We're coming for you Rick Boswick: You're done bud, Creep catchers. Only political (Derek Storie interrupts- "you doxxed, hold on. and again"hold on") without the child sex and maybe it is with the child sex you fuck. Derek Storie: I got to put my hand on that. You doxxed a seventeen your old girl Rick Boswick: Yah,... You're done bud, you're done bud. Derek Storie: You probably,.. You probably scared the girl to go to school. You probably scared the girl to go to whatever dance class or hockey, church. You scared the shit out of this girl. Rick Boswick: I am now, I am now because of this escalation in violence. I am now going to reach out to my contacts in multiple law enforcement agencies, And I am,.. I've already, I've already done the project research, Ok? Get ready. You see, you see the Threepers? You see the Three percenters? the fuckin you know, full military fatique, our security against you, you fucking fascist scum. Derek Storie: Fat fuck Rick Boswick: No, get ready. We're going to start carrying fucking paintball pistols with fuckin,.. Cory Scott: Paintballs. Rick Boswick: Rubberized, rubberized marbles. Skull breakers they call them. Because they're legal. You're not allowed to um Derek Storie: Shoot people. Rick Boswick: You're, no.. well no, it's, it's firearm. but, you fucking act as insane as you are at a fucking protest and I have something like that on my arm. I will point and shhh... well, I would use it responsibly. That's the only thing I'm going to have to say. Given the laws, I would only use it only in worst case scenario, but I will relish when I shoot one of you in the fucking forehead with a marble. Cory Scott: but I can tell you the police,.. they're coming. Derek Storie: They are coming Rick Boswick: They are. IT'S ON,.. IT'S ON,.. IT'S ON. Cory Scott: And we're going to make it,.. and we're going to make it happen. Derek Storie: Alright. So Kirk, what's your what...

42The Crown argues that on an objective basis these words, especially the last sentence before he says “It’s on. It’s on.” are a threat under the law as set out in the Criminal Code and as interpreted by McRae. Mr. Boswick’s words are directed at Mr. Metcalf in particular, not a group of persons.

43Mr. Metcalf testified that the took Mr. Boswick’s words seriously and that he felt threatened.

44Concerning the mens rea (the guilty mind) of the offence, the Crown argues that Mr. Boswick intended Mr. Metcalf to take his words seriously and he intended to intimidate him with his words.

45The Crown pointed out that even if the evidence adduced by Mr. Boswick regarding his character amounts to evidence of good character, his criminal record belies the fact.

46The Crown submits that if Mr. Boswick’s words are a conditional threat, it is still a threat under the law. She cites R. v. Ross ⁷ as authority for that proposition.

47Finally, in response to Mr. Boswick’s comments that he was acting in self defence, the Crown argues that self defence does not apply in these circumstances.

Defence Submissions

48Mr. Boswick submitted that his allegedly threatening words were not aimed at Mr. Metcalf, rather they were aimed at a group of persons that attended the rally on March 23, 2019. It was this group that caused Mr. Boswick to make the 90-minute video.

49He described them as an “amorphous group of – of people that carried communist signs, and masks, and violently attack you”. ⁸

50He said, “My threat was directed to the most violent of the individuals at that – at that event, all unidentifiable, all in masks”. ⁹ It is telling that he refers to his words as a threat.

51Also, in a revelatory slip when he was discussing “… factors that are to be considered for uttering threats, the actual words spoken”, ¹⁰ Mr. Boswick stated:

Now, another factor to be considered is the person to whom they were addressed, and that person’s situation. Well, Mr. Metcalf is an anarchist who – who despises this Canadian system, and is using it . ¹¹ (my emphasis)

52He caught himself and said:

Well yeah – no – t he threat wasn’t even to him – oh yeah, okay – well the man – yeah – the person to whom they were addressed. Well these are criminals that want to kill me. That’s why I said worst case scenario, legally and lawfully. Right? I’m basically trying to deter future violence, because these people are escalating theirs, and they have to be – they have to know that we’re obviously not – we’re going to – we’re going to start upping our defensive capability, but we always work within the law. (my emphasis)

53During the Crown’s reply she called his words a threat. Mr. Boswick interrupted saying:

I don’t agree it’s a threat – I don’t agree it’s a threat. It’s a statement of defence to anybody – anybody, no matter how ambiguous or unidentifiable that they are, anybody who wants to break the law, in a mask, and come and physically attack me, or kill me. That is who it was directed to.

54This contradicts what he said before when he stated that “My threat was directed to the most violent of the individuals at that – at that event, all unidentifiable, all in masks”. ¹²

55He raised the defence of self defence, submitting that what he said about shooting the rubberized marbles was a "defensive statement because of what happened”. ¹³

56Regarding the actions of the group(s) that upset him at the March 23, 2019 rally, he stated:

I think I’ve established that John Tory inciting a mob to do this, and the cops barely able to contain them is a valid threat, and all the ongoing stuff, the continuing and escalating to this day attacks. ¹⁴

57He said that Mr. Metcalf does not belong to the group. ¹⁵ Moreover, Mr. Boswick agrees that Mr. Metcalf was not violent. He submitted that “the Crown was saying that – that he was not violent, in her summations, and I agree. But there was violence there, and that was what I was reflecting my words to”. ¹⁶ He said that for two and a half hours four to five hundred persons were threatening to kill him, chanting “You’re scum” and “Get off our streets”.

58Mr. Boswick argued that his threats against this group were hypothetical. He submitted:

then I say, you know, “If I happened to have something like that on me” - never presented anything like that – “and if you act as insane” – “you” being the mob – “as you did last time, then worst case scenario”. Well what I’m talking about is a hypothetical – first off, it’s a drunken frustrated rant, because – and it’s – and obviously it’s scary when the – when the Mayor of Toronto comes out and says stuff like that. So you know, you know that you have a lot of powerful forces that are – that are against you. ¹⁷

59Regarding his use of the word “relish” he said that:

so then let’s get into “relish”. So relish, I would enjoy – if I had this and you did this, I would enjoy. So you know – yeah - pleasurable, appreciation of anything, liking to take pleasure in, like enjoying, to be agreeable. So – I mean I guess if you want to analyze that in a bad way, we would have to seriously look at all the kids that cheer when the bad guys in Home Alone get beat up, because nobody likes a bully, and these people are bullies. So that’s what I meant by that. And it shows the frustration, that I’ve been dealing with these people for years.

60He submitted further that:

If 500 people attacking and violating people’s rights and scaring the hell out of them, to the point where half of them won’t go to protests anymore, and – and knowing that this is – this is – goes all the way up to Trudeau, 45 million dollars to anti-hate, and going down to special interests, and it goes all the way to the literature in the United Nations agenda for – for – what was it – the UN migration pack. So do I think it’s a threat? Absolutely. ¹⁸

61Mr. Boswick argued that his words “You’re done” and “It’s on” were “political banter”. He cited R. v. Batista ¹⁹ as support for this argument.

62Mr. Boswick said that the fact that he was intoxicated “would make my words less significant”.

63Mr. Boswick attacked Mr. Metcalf’s credibility. He pointed out the following as what he considers inconsistencies in Mr. Metcalf evidence:

1. So his initial report on April 1st, he came in [ to make a report to the police], and like the Crown said, he had been informed by a number of people, individuals, and his lawyer, about a video that was – that was online. Then on the 26th, when he went in to do his police statement, he said that he had located it online, by himself, assumingly, with his words. ²⁰
2. Another – another inconsistency is when Mr. Metcalf testified – was it to me or to the Crown – hang on – I believe it was both to me and the Crown, it was mentioned that he was a contributor to the [name of a group] page, but in this initial walk-in, on April 1st, he said that he created the page and owned it. So he’s not a contributor, he’s the creator and founder of it. ²¹

64Mr. Boswick contends that Mr. Metcalf is biased against him and that is why he made his report to the police.

he knows a lot more than he’s saying to the court. And therefore, the circumstances – is that right – yeah – being aware of all the circumstances, and being on the opposite side of the political spectrum, and having a history of attacking and (indiscernible) me, there’s a lot of hate and a lot of reason to get these charges, not because you’re threatened but because you just – you found your opportunity. And that’s the modus operandi of these people, is they attack you until you make a little mistake and they can get enough on you, and then they do this. ²²

65Mr. Boswick stated further that:

he’s known me for a while, and he hates me, and he doesn’t like what I do online, and – and he’s using this as an opportunity. And that’s – and that’s why you’re seeing the changes in the evidence from the 1st – April 1st to April 26th. And I probably, if I had access to that video, would find a lot more inconsistencies where the narrative was tailored, and therefore the scope of this investigation has really been tailored to this two minutes. ²³

66Mr. Boswick argued that he took down the 90-minute video the next day because he thought that it was unprofessional. He feels that “they” don’t want him “doing this because I exposed them”. He thinks that this is why Mr. Metcalf complained to the police about the video. He said, “This is about them getting a criminal charge on me, so that they can go to YouTube and say they used – I used their platform to commit a crime, and have me removed”. ²⁴

67Mr. Boswick revealed that he has tried to lay an Information against Mr. Metcalf in Toronto and in Ottawa, but he was unsuccessful.

68He mentioned an incident that he submits shows that the Crown did not prove the actus reus:

there was an incident where I did meet Mr. – sorry – Mr. Metcalf in person, between when I allegedly made the threat and when I knew that I was being charged and turned myself in, and that was on May 10th, at Mr. Johnston’s defamation suit. That was – that was actually why I think Mr. Metcalf made the video that we referred to on May 12th, I believe it was – and – sorry – sorry – correction – it was May 11th that we were at the Brampton courthouse. And in that – in that video – I’d taken video and he had – in that video I had – you know – we were there as character witnesses for Mr. Johnston, and also to interview Mr. Metcalf when he’s – you know – when he’s by himself, so that the crowd he associates with would not attack us. And basically this shows that the actus reus does not exist, because I actually followed through with what I said in the video, and like [name of a group] style, I stayed 15, 20 feet away from him, followed him for, you know, a safe distance before disengaging, and asked him some questions peacefully. And he called Detective Nair during that interaction, and I don’t see anything that the Crown has brought up – I mean I think that would be pretty relevant. ²⁵ (my emphasis)

69In this regard he also submitted:

Actus reus has not been met, because the words were uttered in a closed circle, yes, with an expectation of confidentiality, and thus they could not instill fear in the subjects of the threats. ²⁶

70Again, I note that he refers to his words as threats.

Analysis and Disposition

71The first of Mr. Boswick’s arguments that I will address is his submission that his comments were not directed at Mr. Metcalf, but at a group of persons.

72There are two problems with Mr. Boswick’s argument.

73The first is that he is basically giving evidence by way of his final submissions. There is no evidence of the interpretation that he is trying in his submissions to put on his utterances in the 90-minute video regarding who the target was. He did not testify, which is his right and he cannot be faulted for it, nor can any adverse inference be drawn from it. However, it is clear that in his submissions he is giving evidence as to his state of mind when he made the utterances. The Crown did not get an opportunity to cross-examine him on his interpretation. This is why a party cannot give evidence in final submissions.

74I explained this to Mr. Boswick on August 4, 2020. ²⁷ I also explained it to him on August 10, 2020. ²⁸

75Secondly, this argument is untenable because though out the whole statement he and his friends name Mr. Metcalf, and afterwards Mr. Boswick refers to him as “Bud”.

76Right after he and his friends identify Mr. Metcalf, Mr. Boswick says “You are done”. He follows that with “You’re done, you’re done”. Then Cory Scott says, “We’re coming for you”. Mr. Boswick follows that with “You’re done bud”.

77Derek Storie says “You doxxed a seventeen year old girl”. Mr. Boswick then says “Yah,… You’re done bud, you’re done bud”.

78Mr. Storie continues to talk about how “You probably scared the girl to go to school” and other things. In the context of the statement this is clearly a reference to Mr. Metcalf who they were discussing previously.

79Then Mr. Boswick starts talking about how they are going to start “carrying fucking paintball pistols with fuckin, … Rubberized, rubberized marbles. Skull breakers …”

80Mr. Boswick ends this by saying that he will only use it the “worst case scenario, but I will relish when I shoot one of you in the fucking forehead with a marble”.

81This statement is the only reference to “you” as a group. The rest of the time he and his friends are speaking about Mr. Metcalf. Given these preceding comments about Mr. Metcalf, I find that the Crown proved beyond a reasonable doubt that Mr. Metcalf is included in group to which Mr. Boswick refers when he says “I will relish when I shoot one of you in the fucking forehead with a marble”.

82Thirdly, I find that the Crown proved beyond a reasonable doubt that in the rest of the statement Mr. Boswick was referring to Mr. Metcalf individually. But in either case, the Supreme Court of Canada held in McRae that “the words do not have to be directed towards a specific person; a threat against an ascertained group of people is sufficient”. ²⁹ And it is clear that Mr. Boswick thought that Mr. Metcalf belonged to the group.

83Next, I will address Mr. Boswick’s argument that his words were not a threat because they were hypothetical.

84In R. v. Ross ³⁰, the Ontario Court of Appeal dealt with the case of a person who called the police to complain about a police officer who was on his doorstep. He told the officer that he called that “if he does not leave he will be shot”.

85The trial judge found the accused not guilty saying that rather than a threat what the accused said was “a warning, no more, no less”. The Court of Appeal said that in saying this the trial judge “In effect, …. held that a conditional threat is not covered by the [section of the Criminal Code that makes uttering threats an offence]”. The court held that “A conditional threat …. Is part of the ordinary meaning of threat and we think that it would be in accordance with the purpose of s. 331 (1) [now s. 264.1] to interpret it as including such a threat”.

86Based on Ross, this argument has no merit.

87Next, I will address Mr. Boswick’s argument that these words do not constitute a threat.

88Did the Crown prove beyond a reasonable doubt that Mr. Boswick in any manner, knowingly uttered, conveyed or caused any person to receive a threat to cause bodily harm to any person?

89In McRae the Supreme Court of Canada held that “The elements of the offence include: (1) the utterance or conveyance of a threat to cause death or bodily harm; and (2) an intent to threaten”. ³¹

The prohibited act (actus reus)

90Mr. Boswick argued that the Crown did not prove the actus reus. His argument in this regard is that he met Mr. Metcalf in person between when he uttered the alleged threat and when he turned himself in. This was at a courthouse when he appeared as a character witness for a person that was involved in a defamation suit in which Mr. Metcalf and his friend were the parties. This incident is described in paragraph 68 above.

91Mr. Boswick argued that the fact that he stayed 15-20 feet away from Mr. Metcalf as he followed him around and asked questions peacefully showed that he “followed through with what I said in the video [90-minute video]”. This shows that the Crown did not prove the actus reus. But he did not state what he was referring to in the 90-minute video, so I do not know what he is talking about.

92I do not think that this argument has any merit. What he did at the courthouse is not connected to the alleged threatening utterances that he made on the 90-minute video.

93Mr. Boswick also submitted that the Crown did not prove the actus reus because he uttered the alleged threatening words “in a closed circle …. With an expectation of confidentiality, and thus they could not instill fear in the subjects of the threats”.

94I find that this argument does not make any sense. It is clear from the words uttered that he was addressing Mr. Metcalf and his group. In addition, during the 90-minute video a caller from outside called in to join the discussion that they were having. And it appeared that they were asking for more members of the public to join the discussion. Furthermore, he posted the video online. Even if it mattered, this contradicts his submission that he had an expectation of privacy in what he said.

95In addition, it is telling that in the quote in paragraph 93, Mr. Boswick refers to “the threats”.

96McRae held that the prohibited act in a charge of uttering threats is “the uttering of threats of death or serious bodily harm” ³²

97The court said that the test is whether “Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person? ³³

98The Supreme Court agreed that “a reasonable person considering whether the impugned words amount to a threat at law is one who is objective, fully-informed, right-minded, dispassionate, practical and realistic”. ³⁴

99The Supreme Court concluded that “the prohibited act of the offence of uttering threats will be made out if a reasonable person fully aware of the circumstances in which the words were uttered or conveyed would have perceived them to be a threat of death or bodily harm. ³⁵

100I find that the Crown proved the actus reus beyond a reasonable doubt.

The fault element (mens rea)

101McRae held that the mental element of the offence “is made out if it is shown that threatening words uttered or conveyed “were meant to intimidate or to be taken seriously”. ³⁶

102It is “not necessary to prove that the threat was uttered with the intent that it be conveyed to its intended recipient …. or that the accused intended to carry out the threat …. Further, the fault element is disjunctive: it can be established by showing either that the accused intended to intimidate or intended that the threats be taken seriously”. ³⁷ (citations omitted)

103The court held that “The fault element here is subjective; what matters is what the accused actually intended. However, as is generally the case, the decision about what the accused actually intended may depend on inferences drawn from all of the circumstances ….” ³⁸ (citations omitted)

104In paragraph 20, McRae referred to O’Brien ³⁹, a case in which,

the accused’s ex-girlfriend ― had testified that she had not been frightened by the accused’s words. The trial judge strongly relied on this evidence to conclude that, despite the fact that the words on their own appeared threatening, she was left with a reasonable doubt as to whether the accused had the necessary intent to threaten (2012 MBCA 6, 275 Man. R. (2d) 144, at para. 34). The perception of the alleged victim was not directly in issue, but was relevant evidence of the accused’s intent.

105In R. v. Noble ⁴⁰, the victim moved after hearing what the accused said. The court considered this as “an important factor with regard to the fault element” ⁴¹. This is like the case at bar because Mr. Metcalf testified that information that he received from “Known associates of Mr. Boswick” that his home address “was known” coupled with what Mr. Boswick said made him take what Mr. Boswick said so seriously that he moved to protect himself.

106I find that the Crown proved beyond a reasonable doubt that considering all the circumstances, Mr. Boswick’s utterances “were meant to intimidate or to be taken seriously”. Considering the animosity between Mr. Boswick and Mr. Metcalf and his group, when Mr. Boswick said that he would “relish when I shoot one of you in the fucking forehead with a marble. It’s on. It’s on.” he meant to intimidate Mr. Metcalf and his group and meant that his words be taken seriously. That was the whole point of saying it.

107Next, I will consider Mr. Boswick’s argument that the words that the uttered were mere “political banter”.

108Mr. Boswick cited R. v. Batista ⁴² in support of this argument. I note that the court did not refer to what Mr. Batista said as “political banter”. This is Mr. Boswick’s expression.

109In Batista, the accused wrote a poem criticizing his city councillor, Ms. Saito. Then he posted it publicly on five mail and newspaper boxes in his neighbourhood. He wrote and posted the poem to express frustration with the councillor’s responses, and delayed responses to his communications with her office regarding various municipal concerns that he had. The issue before the court was whether the poem constituted a threat. The trial judge found that it was. The Ontario Court of Appeal found that it was not.

110Here is the poem:

Parked cars and pot holes (sic) in the City of Mississauga Pat pot, patch pot Now this bad driver that look here look there WE only know as Pat Saito pat pot patch pot who run away from that accident there is a car parked here site is going to think twice there is a car parked in there. before backing up and looking at pot holes (sic) instead of doing This kept a Good looking Her job old Lady away from her working place and We are going to dig a pot hole (sic) by looking at pot holes (sic) She about six feet long and 3 feet wide thought about doing and five feet deep to hide nothing and winning the Race her body and God will take care of Her Soul, but We can not There She marched back and forth forgive her for doing nothing one two, one two one two three four She can keep running one two, three four at a good pace but We will make sure But on the way back that She is in HEAVEN to Her working place and out of the Race. She got lost on the fog and could not keep up with the running traffic So please GOD take care and She lost the race. of this SOUL for ever (sic) and EVER. When She got to Curchill (sic) Meadows She was out off (sic) the Race but She was too far behind in her work, and witout (sic) thinking She backed up and without making sure that it was safe to do so She provoked a big accident

111The poem ended with a photograph of the councillor and the line "Do You know Her?"

112This was the second critical poem that he had written about the councilor. The first one was not the subject of any criminal proceeding. He sent that one anonymously to other members of city council, but not to Ms. Saito.

113Mr. Batista had a grade three education. He immigrated to Canada from Portugal. His English was limited. He testified that he did not mean to threaten, frighten or intimidate the councillor. He just wanted to express his view to the community that she was not doing her job properly as their elected representative. He wanted to bring his frustration to her attention in order to cause her to improve her job performance. The defence was that the poem was satire and intended in jest.

114The court stated explained that,

In considering whether the questioned words constitute a threat, the reasonable person would consider all the circumstances. The circumstances relied upon in this case include the perception of threat by the witnesses, the context of the relationship between the appellant and the councillor, the questioned words in the light of the appellant's poem as a whole, the manner in which the poem was distributed and its character as political commentary. ⁴³

115In paragraph 23, the court adopted previous definitions by the court of the “reasonable person” as being a person that is,

reasonable, informed, practical and realistic person who considers the matter in some detail .... The person postulated is not a "very sensitive or scrupulous" person, but rather a right-minded person familiar with the circumstances of the case. And"dispassionate and fully apprised of the circumstances of the case":

116In paragraph 24, the court said that “ a reasonable person considering whether the impugned words amount to a threat at law is one who is objective, fully-informed, right-minded, dispassionate, practical and realistic”.

117The Batista court held that the trial judge made a significant error in finding that the councillor was concerned with Mr. Batista’s actions prior to his posting of the impugned poem. This was because their relationship provided context in which to judge if the Crown had proved that the poem was a threat.

118The court in Batista held further that the trial judge did not consider the impugned stanzas of the poem in the context of the whole poem or in the context of Mr. Batista’s earlier poem. The trial judge did not consider “the mocking tone and cadence” that were present in the other parts of the poem. In both poems, Mr. Batista was trying “rhyme or mimic nursery rhymes”.

119The court held that,

the earlier stanzas cannot but diminish what might otherwise be seen as an implicit threat if the later stanzas were read in isolation. It was incumbent on the trial judge to situate the later stanzas in this broader context of the poem as a whole and the earlier poem and to consider whether the author's purpose may have been to mock the councillor for concentrating her efforts on potholes at the expense of other issues important to her constituents. ⁴⁴

120The court observed that by posting the poem in public areas Mr. Batista “could be seen engaging the community in the political process, rather than directing a threat against Ms. Saito”. ⁴⁵

121I find that there are significant distinctions between Batista and Mr. Boswick’s case. This is evident from what the court said in paragraph 44,

Although the three offending stanzas, if viewed in isolation, could be interpreted as a threat, that is not the test. The test requires the stanzas to be viewed objectively, in context and by the reasonable person. The reasonable person would be informed about all the circumstances, including that the "poem" was written by an elderly retired man who was not proficient in the English language and who had the benefit of only three years of education. He or she would also know that the appellant was frustrated by his perception that his councillor did not respond promptly or satisfactorily to his concerns, but that the author had never before given any indication that he would act on his concerns other than in the political context. The reasonable person would know that the appellant did not send this poem to the councillor, but posted it publicly for the stated purpose of public discourse in a way that the author could be easily identified. He or she would also know that the appellant denied that he intended to threaten the councillor with death, but stated that he intended only to argue that she should stop focusing on potholes and instead focus on doing her job. The informed reasonable person would also be cognizant of the right of ordinary citizens to criticize and ridicule their elected representatives.

122Based on the circumstances of the case at bar and on the guidance of the court in Batista, I find that Mr. Boswick’s utterances were not “political banter” as he put it. His case is easily distinguishable from the situation in Batista.

123Next, I will address Mr. Boswick’s submission that he was intoxicated and this “would make my words less significant”.

124Although there is no dispute that Mr. Boswick was drinking when he uttered the alleged threat, considering all the circumstances and evidence, including the 90-minute video, there is no evidence that Mr. Boswick was so intoxicated that he did not know what he was saying, or that his drinking diminished the significance of his words. I watched the entire video. I saw him drinking beer and smoking and performing other actions that required manual dexterity. He performed all these functions without any difficulty. He spoke a lot and his words were clear.

125Next, Mr. Boswick attacked Mr. Metcalf’s credibility. He pointed out the following as what he considers inconsistencies in Mr. Metcalf evidence:

1. So his initial report on April 1st, he came in [ to make a report to the police], and like the Crown said, he had been informed by a number of people, individuals, and his lawyer, about a video that was – that was online. Then on the 26th, when he went in to do his police statement, he said that he had located it online, by himself, assumingly, with his words. ⁴⁶
2. Another – another inconsistency is when Mr. Metcalf testified – was it to me or to the Crown – hang on – I believe it was both to me and the Crown, it was mentioned that he was a contributor to the [name of a group] page, but in this initial walk-in, on April 1st, he said that he created the page and owned it. So he’s not a contributor, he’s the creator and founder of it. ⁴⁷

126I find that these objections to Mr. Metcalf’s credibility are not germane to the issue of whether Mr. Boswick’s utterances constitute a threat. As the Crown stated, since the alleged threat that Mr. Boswick uttered is captured on video, Mr. Metcalf’s testimony is not needed to prove the utterance.

127Next, Mr. Boswick contends that Mr. Metcalf is biased against him and that is why he made his report to the police. Mr. Boswick said,

he knows a lot more than he’s saying to the court. And therefore, the circumstances – is that right – yeah – being aware of all the circumstances, and being on the opposite side of the political spectrum, and having a history of attacking and (indiscernible) me, there’s a lot of hate and a lot of reason to get these charges, not because you’re threatened but because you just – you found your opportunity. And that’s the modus operandi of these people, is they attack you until you make a little mistake and they can get enough on you, and then they do this. ⁴⁸

128For the same reasons that I gave regarding the lack of relevance of Mr. Boswick’s argument regarding Mr. Metcalf’s credibility, whether he is biased against Mr. Boswick is not material to my decision concerning whether Mr. Boswick threatened him.

The 90-minute Video

129Throughout the trial Mr. Boswick insisted that if the 90-minute video is considered in its entirety it provides context for the 2.5-minute segment on which the Crown relies and shows that he did not threaten Mr. Metcalf. He was just going on a general drunken rant.

130I looked at the 90-minute video in its entirety to see what effect the total context of it has on the 2.5-minute portion that the Crown relies on to prove its case. I do not find that it renders Mr. Boswick’s words in the 2.5-minute portion any less threatening.

131Based on all the above, I find that the Crown proved beyond a reasonable doubt that the words that Mr. Boswick uttered during the 2.5-minute portion of the 90-minute video constitute a threat against Mr. Metcalf under s. 264.1 of the Criminal Code.

132Finally, I will address Mr. Boswick’s argument that he uttered the words in self defence.

133He submitted that what he said was a “defensive statement because of what happened” at the demonstration.

134The Criminal Code provides for the defence of self defence in s. 34:

34 (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

135The Crown has the onus of proving beyond a reasonable doubt that the defence of self defence is not available to Mr. Boswick.

136If any one of the prerequisite conditions in s. 34 (1) does not exist, self-defence will not be available to Mr. Boswick. ⁴⁹

Concerning the factors listed in s. 34. 1 (a), (b) and (c).

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

137Curiously, as indicated above Mr. Boswick stated that he had established that Mayor John Tory incited the “mob” to take the actions to which he was reacting when he uttered the alleged threats to Mr. Metcalf. He also stated that the police were “barely able to contain them” and that this was “a valid threat” along with “all the ongoing stuff, the continuing escalating to this day attacks”.

138In these statements he seems to be saying that someone other than Mr. Metcalf generated the threat to him.

139Mr. Boswick also agreed with the Crown that Mr. Metcalf was not violent “But there was violence there, and that was what I was reflecting my words to”. He said that for 2 ½ hours “five hundred persons were threatening to kill him, chanting “You’re scum” and Get off our streets’”. But Mr. Metcalf did not belong to that group.

140I find that any belief that Mr. Boswick had that Mr. Metcalf was using force against him or another person or that a threat of force was being made against him or another person, was not based on reasonable grounds. There is no evidence of this on the part of Mr. Metcalf. Mr. Boswick’s general feeling that Mr. Metcalf’s group was acting in opposition to his group is not sufficient to satisfy the prerequisite in subsection s. 34 (1) (a).

141Consequently, I find that the circumstances of the case do not support a finding that the conditions of subsection (a) exist.

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force;

142I do not think that the evidence reveals any use or threat of force from Mr. Metcalf to Mr. Boswick that would justify Mr. Boswick’s threat.

143Consequently, I find that the circumstances of the case do not support a finding that the conditions of subsection (b) exist.

144In case I am in error regarding my findings under subsections (a) and (b), I will go on to consider subsection (c).

(c) the act committed is reasonable in the circumstances.

145Subsection 34 (2) states that in order to determine whether the act committed is reasonable in the circumstances, the court “shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to” the factors in subsections (a) to (h).

(a) the nature of the force or threat

146I find that the threat was particularly violent in that it concerned shooting Mr. Metcalf in the forehead with a rubberized marble.

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

147I find that there is no evidence that there was a potential of an imminent use of force against Mr. Boswick from Mr. Metcalf. If there were, he could have reported this to the police rather than threaten him as he did.

(c) the person’s role in the incident;

148This factor is not particularly applicable in the case at bar. I have found that there is no “incident” to which Mr. Boswick was responding that would justify him threatening Mr. Metcalf when he uttered the threatening words. According to the evidence the incident of the demonstration was over when he made the threat.

(d) whether any party to the incident used or threatened to use a weapon;

149This factor is not applicable to the case at bar.

(e) the size, age, gender and physical capabilities of the parties to the incident;

150This factor is not applicable to the case at bar.

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

151The evidence is that Mr. Boswick and Mr. Metcalf have participated in various demonstrations in which they expressed opposing political views. They did not know each other personally, however. There is no evidence of a prior use or threat of force from Mr. Metcalf to Mr. Boswick.

(f.1) any history of interaction or communication between the parties to the incident;

152This factor is covered in my comments concerning (f).

(g) the nature and proportionality of the person’s response to the use or threat of force;

153Since I have found that Mr. Metcalf did not use or threaten force against Mr. Boswick, this factor does not apply to the case at bar.

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

154This factor does not apply to the case at bar.

155I do not find that there is any other factor that is relevant to my s. 34 analysis.

156Given all the circumstances I find that the threat uttered by Mr. Boswick was not reasonable. Consequently, I find that the circumstances of the case do not support a finding that the conditions of subsection (c) exist.

157In making this determination I considered Mr. Boswick and Mr. Metcalf’s relevant circumstances, the history of their involvement in demonstrations, that they are at opposite ends of the political spectrum, the circumstances of the groups that I heard were involved in the demonstration that spurred Mr. Boswick to make the 90-minute video, and the threat that he uttered.

Air of reality

158There must be an air of reality to the defence. In R. v. Kavinsky the court stated that there must be “evidence before the Court on the basis of which a properly instructed jury, acting reasonably, could base an acquittal if it were to believe the evidence to be true” (para. 9). In making this determination “a trial judge must not weigh evidence, determine credibility, draw inferences, or assess the likelihood of success”.

159In R. v. Cinous ⁵⁰, the Supreme Court of Canada outlined the judge’s task in determining whether there is an air of reality to the defence of self defence:

In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true … The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses. It can also rest upon the factual circumstances of the case or from any other evidential source on the record. There is no requirement that the evidence be adduced by the accused.

The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. That question is reserved for the jury ... The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences … Nor is the air of reality test intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue.

160Pursuant to Kavinsky and Cinous, I find that there is no air or reality to the defence.

161Based on all of the above, I find that the Crown proved beyond a reasonable doubt that the defence of self defence is not available to Mr. Boswick.

Disposition

162For the reasons stated above, I find that the Crown proved the charge against Mr. Boswick beyond a reasonable doubt. I find him guilty and register a conviction.

Footnotes

1. 1The release of this judgment was originally scheduled for September 25, 2020. It was delayed until March 23, 2021 because prior to its release, Mr. Boswick brought a motion for a mistrial, which was argued on January 25, 2021. The ruling on the mistrial was released on March 5, 2021. It was denied.
2. 2R. v. W. (D.), [1991] 1 SCR 742
3. 3exhibit 1
4. 4August 4, 2020 transcript, page 44, lines 20-25
5. 5August 10, 2020 transcript, page 22, lines 5-8
6. 6R. v. McRae, 2013 SCC 68 , [2013] 3 S.C.R. 931
7. 7R. v. Ross, [1986] O.J. No. 107
8. 8August 17, 2020, transcript, page 39, lines 25-28
9. 9August 17, 2020, transcript, page 40, lines 4-6
10. 10Ibid., page 50, lines 9-11
11. 11Ibid., page 50, line 33; page 51, lines 1-15
12. 12August 17, 2020, transcript, page 40, lines 4-6
13. 13Ibid., page 41, line 19
14. 14Ibid., page 47, lines 7-11
15. 15Ibid., page 39, lines 10-13
16. 16Ibid., page 37, lines 24-27
17. 17August 17, 2020, transcript, page 42, lines 21-32
18. 18Ibid., page 47, lines 18-28
19. 19R. v. Batista, 2008 CarswellOnt 7154, 2008 ONCA 804
20. 20Ibid., page 31, lines 21-28
21. 21Ibid., page 31, lines 28-32; page 32, lines 1-4
22. 22August 17, 2020, transcript, page 43, lines 19-32
23. 23Ibid., page 57, lines 23-32
24. 24Ibid., page 48, lines 14-17
25. 25Ibid., page 32, lines 7-32
26. 26August 17, 2020, transcript, page 66, lines 11-15
27. 27Transcript, August 4, 2020 at pages 67-71
28. 28Transcript, August 7, 2020, page 7
29. 29Paragraph 13
30. 30R. v. Ross, [1986] O. J. No. 107 (Ont. C.A.)
31. 31Paragraph 9
32. 32Paragraph 10
33. 33Paragraph 10
34. 34Paragraph 14
35. 35Paragraph 16
36. 36Paragraph 17
37. 37Paragraph 18
38. 38Paragraph 19
39. 39O’Brien, 2013 SCC 2
40. 40R. v. Noble, 2009 MBQB 98, 247 Man. R. (2d) 6, aff’d 2010 MBCA 60, 255 Man. R. (2d) 144
41. 41Para. 34
42. 42R. v. Batista, 2008 CarswellOnt 7154, 2008 ONCA 804
43. 43Paragraph 22
44. 44Paragraph 31
45. 45Paragraph 33
46. 46Ibid., page 31, lines 21-28
47. 47Ibid., page 31, lines 28-32; page 32, lines 1-4
48. 48August 17, 2020, transcript, page 43, lines 19-32
49. 49R. v. Kavinsky, 2017 ONSC 532, para. 9
50. 50R. v. Cinous, 2002 SCC 29, paras. 53, 54