Court File and Parties

Court File No.: Brampton 12-15956 Date: January 10, 2014 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — James Perreault

Before: Justice Richard H.K. Schwarzl

Heard on: January 9 and 10, 2014

Reasons released on: January 10, 2014

Counsel:

• Ms. M. Ward for the Crown
• Mr. J. Perreault for Self

SCHWARZL, J.:

1.0: INTRODUCTION

[1] James Perreault is on trial for two charges of threatening contrary to section 264.1 of the Criminal Code arising from utterances he made on June 19, 2012 to Carmen Lesperance. Mr. Perreault admits that he made the utterances.

[2] The issues are whether the Crown has proved beyond a reasonable doubt that the utterances constituted threats and that the Accused made them with criminal intent.

2.0: THE EVIDENCE

[3] In May 2012 the Accused experienced what he felt was abusive behaviour at the hand of Peel Regional Police Services police officers at the Provincial Offences Court in Brampton. He made a formal and written complaint to the Ontario Independent Police Review Director (OIPRD), a civilian "watchdog" organization that receives and sometimes investigates complaints made against the police in this Province.

[4] Carmen Lesperance is a caseworker with the OIPRD who was assigned to screen the Accused's complaint. In early June 2012 she reviewed the complaint and after consulting with a review team, declined to investigate it. Ms. Lesperance wrote a rejection letter to the Accused. A few days later on June 19, 2012 the Accused telephoned Ms. Lesperance. The call was recorded and a copy of the call was made an exhibit. The relevant portions of the call are as follows:

Accused: It's funny though 'cause I mentioned that I've had three attempts on my life and nobody bats an eyelash at it. I've seen the inside of a courtroom over two hundred times and you know, nobody bats an eyelash at that….You know, when is enough enough?...When do I get a free pass?

Lesperance: Well, obviously I can't answer that.

Accused: Of course not. It's not your department, it's somebody else's problem until I park a fertilizer bomb in front of their division and then I'll be the bad guy, right? Is that how it works?

Lesperance: Oh, Mr. Perreault. I can't have you state anything of that sort.

Accused: Well no. No. I'm making a very legitimate comment…How much is enough? Five and half-million dollar law suit…it's been going on for the past seven years…In a way it's kind of great news because in a defence for the law of provocation – you know what that is?...

Lesperance: Well, I can surmise…

Accused: Well, I'll give you an example of the law of provocation. There was a chick who shot her scumbag RCMP husband in the head while he slept and she could prove that she repeatedly went to senior officers to get help because of all the tune-ups her husband was giving her…What did they do? Nothing. Not a goddam thing. So finally she woke up and said "it's me or you" and she puts a .308 round in the piece-of-shit's head while he slept. And she walked on a murder charge. This is great because now you've just given me more information of who else am I supposed to complain to about the treatment I'm getting from the cops. So it's great. You're giving me more evidence to use in my defence down the road. Thank you.

[5] The conversation alarmed Ms. Lesperance who then followed protocol by reporting the call to her supervisor who then called the police.

[6] Later that same day, the Accused was arrested for two counts of uttering threats. When he was arrested by P.C. Crogan he was wearing what bulletproof vest, or army surplus flak jacket, under his motorcycle clothing. P.C. Crogan felt that the vest was indicative of Mr. Perreault's intention to carry out the alleged threats. The officer, however, also agreed that when arrested the Accused appeared to be on his way out for a motorcycle ride and that a flak jacket can offer protection in the event of a motorcycle accident.

[7] The Accused was then taken to the police station where he gave a lengthy voluntary statement to P.C. Ryan Middleton. Much of the statement outlined the Accused's history with the Peel Regional Police Services and how he has felt harassed by them for twelve years that led him to file a lawsuit against them.

[8] When asked why he wears body armour, the Accused told the officer that he wears it to feel safe from the police. The Accused told the officer that police officers have tried to kill him and he wears the armour in case they try again.

[9] P.C. Middleton, who was a professional, careful and skilful interrogator asked the Accused several times about the call the Accused made to Ms. Lesperance. When first speaking about it, the Accused told the officer "I didn't threaten anyone today. I don't know who told you I did, but they got it wrong."

[10] Later in his interview when describing the effect on him of years of police harassment the Accused said, "You guys are creating another Timothy McVeigh, that's what you guys are doing. I'm not going to get into that."

[11] When told that he was going to be charged with threatening, the Accused said "Well, it sounds to me like I'm going to spend another three to four years dealing with this when if she had done her job properly in the first place we would not be here today."

[12] P.C. Middleton asked the Accused what has to be done to fix the Accused's conflict with the police. He said "Charge the police who have threatened my life." When the officer asked him whether the Accused has filed a complaint the Accused said, "A lawsuit, which is a pretty damn big complaint."

[13] The Accused admitted to the officer that he was emotional when he made the phone call to Ms. Lesperance. When the officer told the Accused that the Accused sounded like someone who would act out, the Accused stated, "It has been twelve years of abuse and I haven't hurt anyone have I? Show me an incident report where I've even so much as slapped a cop."

[14] P.C. Middleton played the recording of the Accused's call and challenged the Accused that he was talking about acting out on his statement to Ms. Lesperance. The Accused responded by saying "I didn't say I was going to act on it, I said "What else am I supposed to do?""

[15] P.C. Middleton also had the following relevant exchange with the Accused:

Officer: You need to stop making phone calls like this.

Accused: Well it was probably the wrong thing to do.

Officer: It was the wrong thing to do. You're threatening to blow up a police station. I think that's an understatement, "it's the wrong thing to do."

Accused: I asked her "what am I supposed to do?" I didn't say I was going to.

Officer: The first thing you need to do is stop calling and making threats. Can you see how this is taken as a threat.

Accused: Technically it's not a threat. It's a conditional threat. There's a difference. Because I'm asking "what am I supposed to do? I'm complaining to the complaints department about my treatment and you're not doing anything."

Officer: You're alluding to the fact that you're going to…

Accused: No. I'm saying "what am I supposed to do?" Am I supposed to do this? And then what? I'm going to be the bad guy? No.

Officer: But then you go a step further and your talking about the law of provocation. You're already laying the groundwork for your defence…

Accused: …for my lawsuit.

Officer: …when you do it. You even said to her "thanks for giving me more of a defence for the law of provocation." You're a smart guy. You know what you're alluding to, and you know it's wrong….

Accused: You can see how I was upset.

[16] Later, the following relevant exchange took place:

Officer: We can't ignore these phone calls. What do we do as police officers?

Accused: Dude, you know what? It was a mistake.

Officer: I appreciate you saying that.

Accused: I got too much…

Officer: You were pissed off about the news you got and…

Accused: Yeah, I'm upset. She even put down the "unidentified Peel Regional Police officers." I gave them all the badge numbers. So how are they "unidentified"?

Accused: I kept my cool. I don't do stuff like this unless your side starts it. So where do we go from here?...

Officer: Today is related to the call where you told the lady you were going to pull a fertilizer truck…

Accused: I didn't say I was going to, I alluded to it. Alluding is not the same as intent. Didn't say I was going to do it, I asked her "what else am I supposed to do?"

Officer: OK, the intent comes from when you're setting up your excuse that you've been provoked.

Accused: OK, then when you've got more than enough warning to do something about it and charging me is proving my case even further, because you're not helping me get to the bottom of this.

Officer: And again, you've filed complaints.

Accused: And they've gone nowhere every time.

Officer: I don't work the complaints.

Accused: I need help getting this to stop.

Officer: First and foremost you're going to have to stop making allegations that you're going to blow this up and hurt people.

Accused: It wasn't the right thing to do, but..

Accused: So the person who I'm supposed to complain to is doing nothing. The highest person who I'm supposed to complain to is doing nothing. So how am I supposed to react?...I got angry.

Accused: I didn't say I was going to, I said "What am I supposed to do?' and that is not a threat. Listen to the tape again, I didn't say I was going to.

Officer: You know in your heart it was wrong and it could be takne to mean you were going to come blow the station up.

Accused: I didn't say I was going to.

3.0: APPLICABLE LEGAL PRINCIPLES

[17] The criminal act of the offence of threatening is the uttering of threats of bodily harm, death or damage or destruction of property. The actus reus is made out if a reasonable person fully aware of the circumstances in which the words were uttered would have perceived them to be a threat: R. v. McRae, 2013 SCC 68.

[18] The criminal intention of the offence is that the words conveyed were meant to intimidate or be taken seriously: R. v. Clemente; R. v. McRae, supra. The Crown need not prove that anyone felt intimidated or took the utterance seriously. The focus is on what effect the Accused intended, not accomplished: R. v. O'Brien, 2013 SCC 2. It is not necessary that the threats be transmitted to the ultimate target of the threat: R. v. McRae, supra.

[19] Where there is no direct - but only circumstantial - evidence, intention may be proven by assessing all of the circumstances including the words uttered, the circumstances in which they were conveyed, and whom they were uttered.

4.0: POSITIONS OF THE PARTIES

4.1: The Crown

[20] The Crown submits that both essential elements of these charges have been proven beyond a reasonable doubt. The Crown submits that viewed objectively anyone hearing about parking a fertilizer bomb in front of a police station and excusing the act due to provocation by the police would be perceived as a threat. With respect to intent, the Crown led evidence and made submissions including: (i) Ms. Lesperance was aware of his animosity towards police and that he had reached his wit's end; (ii) the Accused would know that Ms. Lesperance would have a relationship and communication with the police; (iii) the Accused was demanding action on his complaint; (iv) he had run out of options in dealing with his perceived harassment by the police. That is, having not completed his longstanding lawsuit against the Peel Regional Police Services and having had his complaint to the OIPRD summarily dismissed, he decided to halt the so-called harassment by making threats about his perceived tormentors; (v) the Accused was wearing a bulletproof vest when he was arrested the same day; and (vi) his statements to Ms. Lesperance about provocation were intended as a warning that any acts of violence towards the police would be legally justified.

4.2: The Accused

[21] Mr. Perreault submits that when he made the impugned utterances to Ms. Lesperance he did not have any intention to intimidate anybody nor did he intend that his words be taken seriously. He submits that what he said was inappropriate, but submits that in his mind he was merely expressing his profound frustration at having had his complaint to OIPRD summarily dismissed without any investigation. His position was repeatedly stated to P.C. Middleton when he remarked that his intention was to illustrate by example the unspoken hypothetical question "What am I supposed to do to get some action about my complaints?" The Accused's position regarding his utterances about provocation appears to be not that the dismissal of his OIPD complaint would emphasize the sincerity of his comments about bombing a police station, but that the dismissal was another act of provocation that added fodder to his lawsuit against the police.

5.0: ANALYSIS

5.1: Was what Mr. Perreault told Ms. Lesperance a threat?

[22] Taking into consideration all of the evidence including:

a) the conversation between Mr. Perreault and Ms. Lesperance as a whole;

b) Ms. Lesperance's knowledge of the Accused's complaint and his animosity towards the Peel Regional Police Services;

c) P.C. Middleton's evidence about the Accused's obvious hostility towards the police including knowledge that he wears body armour; and

d) The statements made by the Accused to P.C. Middleton.

I am satisfied beyond a reasonable doubt that a reasonable person fully informed of all of the circumstances including those referred to above would have perceived Mr. Perreault's utterances to Ms. Lesperance as threats. It is irrelevant in answering this issue that the Accused never said he was actually going to do it. Viewed objectively what he said to Ms. Lesperance was threatening in nature.

5.2: Was what Mr. Perreault said to Ms. Lesperance intended to intimidate or be taken seriously?

[23] In assessing Mr. Perreault's intent, I am not persuaded that his wearing of body armour assists the prosecution. In his statement to P.C. Middleton he said he wears for defensive purposes, not offensive ones. That is, he said he wears it to protect himself from what he claims have been serious attacks inflicted by police upon him in the past and not to protect himself from injury for violence initiated by him. Furthermore, he was found wearing it circumstances equally consistent with added protection in the event of a motorcycle accident. At is highest, the evidence regarding the body armour is ambivalent.

[24] With respect to evidence that the police regarded the Accused as hostile towards them bears no weight whatsoever in assessing the Accused's intent when he spoke with Ms. Lesperance.

[25] The Accused candidly (and in vivid detail) admitted to P.C. Middleton his animosity towards the police, and specifically to what he termed "bad police." In speaking to P.C. Middleton the Accused pointed out that in his twelve-year long battle with the police he has never raised a hand in anger against them even though he is clearly angry with them. In combatting the police the Accused appears to only have ever pursued lawful, civil remedies.

[26] The words the Accused spoke to Ms. Lesperance and his statement to P.C. Middleton that it was the wrong thing to say are relevant to intention. When he spoke with Ms. Lesperance he was angry. He said things that were hardly frivolous or absurd. However, proof intent must consider all of the circumstances including the words that were obviously of a violent nature and clearly wrong to say. When the Accused told the police he acknowledged he should not have said what he said, I was left with the impression that he felt it was wrong not because he meant any one to be intimidated or to have taken it seriously, but because he regrettably left people with the impression that he meant harm.

[27] The Accused told P.C. Middleton that his reference to provocation was not intended to excuse any future acts of violence or to lend confirmation of malicious intent, but rather as a statement that the dismissal of his complainant lent further justification to his suing the police. I find that this could reasonably be true when considering the evidence as a whole.

[28] I find that the Accused's statements to Ms. Lesperance, disturbing and ill-advised as they were, were made in a moment of extreme but temporary exasperation that was based on his belief that he was not being listened to by those in a position to resolve his complaint with the Peel Regional Police Services. His remarks, taken in context, were reasonably perceived by others as threats. However, taken in the same context, they are as equally attributable to an immediate frustration and "spouting off" as they are with felonious intent. It would appear that the Accused's statements to Ms. Lesperance were hyperbole intended to make a vivid, albeit imprudent, point that he wondered what it would take for him to get attention and have his complaints listened to.

[29] Despite the very able submissions of Crown Counsel, I am left in a state of reasonable doubt regarding the criminal intent element of each of the two counts.

6.0: CONCLUSIONS

[30] For these brief reasons, I find that although James Perreault on June 12, 2012 uttered words which were objectively threatening, the Crown has failed to prove beyond a reasonable doubt that he uttered them with the requisite criminal intent.

[31] Having reached these conclusions I feel it also necessary to add that the officers who testified in this case appeared to have had reasonable grounds to lay the charges that led to this trial.

[32] My verdicts are therefore as follows:

Count #1 – section 264.1(1)(b) Criminal Code: Not Guilty.

Count #2 – section 264.1(1)(a) Criminal Code: Not Guilty.

ORIGINAL SIGNED BY JUSTICE R.H.K. SCHWARZL

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice