DATE: 20040525

DOCKET: C40827

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – BRIAN COLDIN (Appellant)

BEFORE: MACPHERSON, CRONK and GILLESE JJ.A.

COUNSEL: Lorne M. Honickman and Damian J. Rogers, for the appellant

Lisa Joyal, for the respondent

HEARD: May 20, 2004

RELEASED ORALLY: May 20, 2004

On appeal from the conviction entered by Justice W.G. Beatty of the Ontario Court of Justice on March 17, 2003 and the sentence imposed on August 11, 2003.

E N D O R S E M E N T

[1] To support a conviction in this case it was necessary that the Crown establish, and that the trial judge find, that the appellant made a threat to the complainant to cause death or harm and that the complainant would be intimidated and in fear as a result of the words spoken. The appellant admitted using the words “kill you” in his utterance to the complainant, but claimed that his full remark was an innocent one. He testified that what he actually said to the complainant was “You are acting like I’m trying to kill you.” The Crown essentially concedes that if those were the words uttered by the appellant, the offence of uttering a threat within the meaning of s. 264.1(a) of the Criminal Code would not be made out.

[2] The complainant testified that the words that she heard spoken by the appellant were “kill you” and that she understood these words, in the full context of her confrontation with the appellant, to be a threat. Her version of what the appellant said, therefore, was not inconsistent, so far as it went, with the appellant’s version of what he had said.

[3] The trial judge made no finding of what words were actually spoken by the appellant. This finding was crucial in the circumstances of this case. Moreover, nowhere in his reasons does the trial judge expressly reject the appellant’s innocent explanation of what he said.

[4] On the basis of the trial judge’s reasons, we are unclear as to what words were considered by him to have been spoken by the appellant. Even assuming, as the Crown invites us to do, that the trial judge rejected the appellant’s evidence as to what he said and accepted the complainant’s account of the full encounter, the trial judge’s reasons do not indicate the basis for the rejection of the appellant’s evidence or the reason that he was disbelieved. These are not matters upon which an accused in a criminal case should be required to guess.

[5] For the reasons given, we conclude that the actus reus of the offence was not made out. The appeal is therefore allowed, the conviction for the offence of threatening death is set aside and a new trial is ordered.

“J.M. MacPherson J.A.”

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”