Court Information

Ontario Court of Justice

Date: 2016-08-17

Court File No.: Cobourg 16-0019

Parties

Between:

Her Majesty the Queen

— and —

James Platts

Judicial Officer and Counsel

Before: Justice S. W. Konyer

Heard on: August 16, 2016

Reasons for Judgment released on: August 17, 2016

Counsel:

• Ms. J. Barrett — counsel for the Crown
• Ms. P. Fry — counsel for the defendant James Platts

Judgment

KONYER J.:

Facts and Charges

[1] James Platts is charged with two counts of uttering threats to cause death on January 5, 2016 – specifically, that he threatened to kill 10 female members of Parliament, and that he threatened to kill the spouse of the current Prime Minister, contrary to s. 264.1(1)(a) of the Criminal Code. The incident giving rise to these charges occurred on a train travelling between Ottawa and Toronto. Mr. Platts, a passenger on the train, was engaged in a telephone conversation with an unknown party. Portions of his end of that conversation were overheard by another passenger, and give rise to the charges before me.

Issues to be Decided

[2] There are two issues that I must decide in this case. First, whether the words uttered by Mr. Platts, considered in the context in which they were spoken, constitute threats within the meaning of s. 264.1(1)(a). If I am satisfied that his words constituted threats, I must go on to consider whether he intended to convey a threat by uttering those words. The onus, of course, is on the Crown throughout to prove the case against Mr. Platts beyond a reasonable doubt. If I am left with a reasonable doubt whether his words constitute threats, or that he intended to convey a threat by uttering them, then I must find him not guilty.

Legal Framework

[3] The prohibited act of this section of the Code (the actus reus) is the uttering of threats to cause death or serious bodily harm. To determine whether particular words constitute a threat, I must examine the words and the context in which they were spoken objectively, and ask whether they would have conveyed a threat to a reasonable person: see R. v. Clemente, [1994] 2 SCR 758 at para 9. In R. v. McRae, 2013 SCC 68, [2013] 3 SCR 931, the Supreme Court held that "the starting point of the analysis should always be on the plain and ordinary meaning of the words uttered. Where the words clearly constitute a threat and there is no reason to believe that they had a secondary or less obvious meaning, the analysis is complete. However, in some cases, the context reveals that words that would on their face appear threatening may not constitute threats within the meaning of s. 264.1(1)(a)": para. 11. From the foregoing, it is obvious that context is controlling. An innocent phrase like "you're next" may in some contexts convey a threat, while words that are threats on their face may not be objectively threatening in another context.

[4] The fault element (or mens rea) of s. 264.1(1)(a) requires proof that the threatening words were meant to either intimidate or to be taken seriously: McRae, supra, at para 17-18. In McRae, the Court went on to state 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": para 19.

[5] In order to determine whether the Crown has proven beyond reasonable doubt that Mr. Platts committed the prohibited act with the necessary fault element, it is necessary to review the evidence in some detail.

Evidence

Witness Testimony

[6] The only witness to the words uttered by Mr. Platts was a fellow passenger, Mary Sutherland. During the trip, Mr. Platts was seated by himself in a portion of the passenger car which contained four seats, two on each side of the centre aisle facing one another. Ms. Sutherland was seated in the first row of seats immediately behind the group of four seats occupied by Mr. Platts. Thus, she was seated facing towards Mr. Platts. During the trip, she read a book at some times and dozed at other times. When she was awake, she could hear and see Mr. Platts. He sometimes sat and sometimes stood and paced around. He had a laptop and a paper notebook, both of which he could be seen using. During much of the time that Ms. Sutherland was awake, she could hear him engaged in what appeared to be a telephone conversation. She could not recall whether she actually saw him holding a phone to his ear, and thinks that he may have been using a Bluetooth earpiece. Upon his arrest in Cobourg later the same day, a cell phone was seized.

[7] In any event, Ms. Sutherland formed the belief that he was involved in a telephone conversation based on the totality of the circumstances, including the fact that there was no one else present to whom he was conversing. Although she tried not to eavesdrop on his conversation out of politeness, Ms. Sutherland could not help but hear him speaking. From the manner in which he was speaking, including pauses followed by the resumption of what appeared to be a flowing conversation, she quite reasonably concluded that he was speaking to another person on the phone.

Content of Overheard Conversation

[8] Initially, Ms. Sutherland recalled that Mr. Platts seemed to be discussing finances, as he mentioned sums of money. The conversation then turned to one where he used jargon she attributed to someone involved in security or law enforcement. Finally, a part of the conversation that Ms. Sutherland overheard became alarming to her, to the point that she jotted down on a paper she was using as a bookmark some of the things she heard Mr. Platts say. At this point in his conversation, Mr. Platts was becoming more animated and intense.

[9] On her bookmark, Ms. Sutherland made the following notes in quotation marks, denoting verbatim quotes: "… kill the 10 female MP's", "… and the PM's wife", "anthrax" and "manufacturing controlled substances". Although she did not note it, she also recalls Mr. Platts stating that he was a member of the secret service, that he said something about a bomb, and that he said in reference to the current Prime Minister that "he has children, doesn't he?" She agreed, however, that Mr. Platts never said that he intended to harm anyone, and that he never instructed the other party to harm anyone either. It is clear that Ms. Sutherland remembered snippets of one side of a conversation between Mr. Platts and another unknown party. This fact makes it challenging to place the words uttered by Mr. Platts in the proper context.

Witness's Reaction and Report

[10] As a result of what she heard, Ms. Sutherland understandably grew alarmed. She did not believe that Mr. Platts was a member of the Secret Service or another law enforcement agency, and she formed the belief based on his words and actions that he likely suffered from some form of mental illness. She grew concerned, however, that he could be dangerous, and that he may be involved in a plot to harm someone, including the persons specifically mentioned – the 10 female MP's and the Prime Minister's spouse. As a result of her growing unease, she located a railway employee, asked if she could move seats, and alerted the employee of her concerns about Mr. Platts.

Police Investigation and Seized Materials

[11] I heard testimony from Sgt. Brent Allison, who attempted to interview Mr. Platts after his arrest. When informed of his right to counsel, Mr. Platts told the officer that he wanted him to contact the U.S. Consulate as well as a military base in the United States. On arrest, police seized a cell phone, laptop computer, 6 paper notebooks filled with handwritten notes, and hundreds of scraps of papers filled with writing. The 6 notebooks were filed as exhibits, and are useful in providing additional context to the words spoken on the train by Mr. Platts.

Contents of Notebooks

[12] The notebooks contain, amongst other writings, a number of draft letters written by Mr. Platts to a variety of law enforcement and government officials, including the former Prime Minister. Some of the letters, signed by "James Platts, Head of the Canadian Secret Service" implore the RCMP to increase airport security by establishing visible patrol units at major Canadian airports. Many of the letters are dated in the weeks and months prior to the alleged threats on the train that I am concerned with.

Analysis

Actus Reus – Whether Words Constitute Threats

[13] I have no real doubt that Mr. Platts spoke all of the words overheard by Ms. Sutherland. He clearly mentioned finances, used law enforcement jargon, identified himself as a law enforcement official, and discussed threats to female MP's and members of the Prime Minister's family, including his spouse and children. He mentioned bombs and anthrax, was pacing about and grew intense and agitated. Ms. Sutherland's concerns about what she was overhearing are perfectly understandable. Any reasonable person would have been concerned, standing in her shoes. The inference she drew, that Mr. Platts was likely mentally ill, was also a reasonable inference in the circumstances.

[14] In assessing the words spoken by Mr. Platts on an objective basis, I must consider the full context. I do not know to whom these words were addressed, nor do I know what was being said by the other party to the phone conversation, which obviously makes it difficult to place the words spoken by Mr. Platts in their full context. I must also consider the fact that Mr. Platts appeared to believe that he had a legitimate role in law enforcement, as demonstrated by his statements to Sgt. Allison and his writings that have been filed as exhibits.

[15] In R. v. MacDonald, [2002] OJ 4657, the Ontario Court of Appeal held that a trial judge was entitled to consider factors such as the history between the accused and victim, the fact that he was in possession of a knife, and the fact that he was angry when he uttered the words "you're next" to determine whether those words would have conveyed a threat to an objectively reasonable person. In the same way, in Mr. Platts's case, I am entitled to consider his recent history of belief that he played some legitimate role in law enforcement, the fact that he identified himself as a Secret Service agent, as well as the fact that he discussed threats to public figures openly in plain view and earshot of other passengers in order to determine whether a reasonable person fully aware of the circumstances in which the words were uttered would have perceived them to be threats to the female MP's or the Prime Minister's spouse.

[16] An objectively reasonable person fully apprised of all of these circumstances would, in my view, likely have been left in a similar state of uncertainty as was Ms. Sutherland as to whether the words she heard Mr. Platts utter were actual threats or the ramblings of a mentally unstable individual. Accordingly, I am left with a reasonable doubt as to whether Mr. Platts committed the actus reus of these offences.

Mens Rea – Intention to Intimidate or Be Taken Seriously

[17] Although it is not strictly necessary to do so, I also have a reasonable doubt whether Mr. Platts intended to intimidate anyone or whether he intended that his words be taken seriously. If I am wrong in my assessment of whether his utterances were objectively threatening, I still have a doubt that he uttered them with the intention of intimidating anyone or with the intention that his words be taken seriously. I reach this conclusion based on a consideration of all of the evidence, including the fact that he appeared utterly disinterested in his audience on the train. A reasonable inference available on the evidence is that Mr. Platts was earnestly involved in a conversation about how to stop threats that he believed existed towards public officials, and that he did not subjectively intend to intimidate or convey a threat to anyone by discussing these matters on the phone.

Conclusion

[18] Accordingly, I have a reasonable doubt that Mr. Platts committed the act prohibited by s. 264.1(1)(a), or that he possessed the required degree of fault. He is therefore found not guilty on both counts.

Released: August 17, 2016

Signed: Justice S. W. Konyer