COURT OF APPEAL FOR ONTARIO
DATE: 2001-04-11 DOCKET: C34589
RE: HER MAJESTY THE QUEEN (Respondent) - and T. P., a young offender (Appellant)
BEFORE: MOLDAVER, MacPHERSON and SIMMONS JJ.A.
COUNSEL: Mr. Mark J. Sandler, For the appellant Ms. Erin MacCarthy, For the respondent
HEARD: APRIL 5, 2001
E N D O R S E M E N T
Released Orally April 5, 2001
[1] We are not persuaded that the words spoken by the appellant were incapable of constituting a threat. We are, however, of the view that the trial judge misdirected himself on the issue of intent.
[2] In his closing remarks, Crown counsel stated as follows:
… the gravamen involves uttering words, and it involves uttering words that are uttered intentionally, in the sense that the accused knows what he's saying when he says it. It is not necessary for the Crown to prove that Mr. P meant to shoot anybody. It's only necessary for the Crown to prove that he intentionally uttered these words, and that he intended for - in all of the circumstances there was an intention that people hear them being spoken.
[3] Based on his reasons for judgment, it would appear that the trial judge accepted the Crown's submission as to the proper test on the issue of intent. At the bottom of page 10 he stated:
Given the level of anger reported by Ms. Deline, it appears that the words were intended to be spoken and that they do constitute a threat and the defendant will be found guilty as charged.
[4] With respect, in order to convict, it was not enough for the trial judge to find that the appellant intended to speak the words. Rather, he had to be satisfied that the appellant intended that they be taken seriously or meant to cause fear or intimidate. On this record, there was a live issue as to whether the words spoken were spoken in jest. Regrettably, the trial judge did not resolve that issue. Accordingly the conviction cannot stand.
[5] In the result, the appeal against conviction is allowed, the conviction is quashed and a new trial is ordered.
Signed: M.J. Moldaver J.A. J.C. MacPherson J.A. J. Simmons J.A.