Court Information
Ontario Court of Justice
Between: Her Majesty the Queen — and — Ross Hainsworth
Before: Justice J. Ritchie
Heard on: Eight dates between January 12, 2016 and August 8, 2016
Reasons for Judgment released: September 8, 2016
Counsel:
- Mr. J. Flaherty — counsel for the Crown
- Mr. R. Hainsworth — self-represented
RITCHIE J.:
Facts and Background
[1] Ross Hainsworth is accused of threatening death with respect to the members and staff of three organizations, namely the Toronto Star, the University of Toronto Law School and the Royal Canadian Mounted Police. The alleged death threats were contained in a letter written to President Barack Obama of the United States on December 17, 2012, with copies sent to a number of persons.
[2] The trial took place over eight days, beginning on January 12, 2016 and ending on August 8, 2016, with judgment reserved to September 8, 2016. Mr. Hainsworth is 62 years of age, and he formerly practiced as a lawyer. Mr. Hainsworth has been representing himself on the proceedings before me.
[3] There were a number of pre-trial motions in this matter. I reviewed the evidence for the Crown on one of the pre-trial rulings, and I will repeat it here. The Crown's evidence was put forward on a blended basis, that is, it was applicable to both the trial and the voir dire in question.
Crown's Evidence
[4] Elaine Stone is a complaint investigator with the Ontario College of Physicians and Surgeons. Ms. Stone testified that she found the two letters in question (Exhibits 3 and 4) in her mail when she returned from vacation on January 3, 2013 (Exhibits 3 and 4 are identical, except for some handwritten notations). Ms. Stone was concerned that the content of the letters was of a threatening nature. After consulting with her supervisors, Ms. Stone called the police. She provided copies of the letters to the police on the same day, January 3, 2013.
[5] Constable James McKrell of the Toronto Police testified that he met with Ms. Stone and seized the two "original" letters from her on January 4, 2013.
[6] Detective Sergeant Paul Rinkoff of the Toronto Police testified that he conducted an investigation into the letters, primarily for the purpose of confirming the identity of the writer. The Detective Sergeant concluded that he had reasonable grounds to believe that Mr. Hainsworth had committed three offences of "threatening bodily harm" contrary to clause 264.1(1)(a) of the Criminal Code. The Detective Sergeant made a decision to have Mr. Hainsworth arrested and charged with those offences.
[7] Mr. Hainsworth submitted that all three Crown witnesses were influenced by former Lieutenant Governor David Onley and that the charges against him were politically motivated. I dealt with those issues on a pretrial motion. In my opinion, all three Crown witnesses gave clear and straightforward testimony regarding their involvement in this matter. These three witnesses were unshaken on cross-examination. Their evidence was highly credible, and I accept it.
Accused's Evidence and Submissions
[8] Mr. Hainsworth conceded that he had written and sent out the letter of December 17, 2012, and he testified to those matters as well. Mr. Hainsworth testified that he did not intend to threaten anyone in the letter, and he submitted that the letter was not threatening in law.
Legal Framework
[9] The law is set out in the leading case of R. v. McRae, 2013 SCC 68, [2013] 3 S.C.R. 931, a decision of the Supreme Court of Canada. The Court stated that "the elements of the offence include: (1) the utterance or conveyance of a threat to cause death or bodily harm (the actus reus); and (2) an intent to threaten (the mens rea)".
[10] Mr. Hainsworth testified that he had written, signed and distributed the letter in question. However, he submitted that the wording of the letter did not constitute a threat. He said that the letter was "purely rhetorical in nature and intended to cause [President Obama or one of the copied parties] to act on [his grievances]".
The Actus Reus: Objective Standard
[11] In dealing with the actus reus issue in the McRae decision, the Supreme Court of Canada stated that "the question of whether words constitute a threat is a question of law to be decided on an objective standard … 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?"
[12] It is therefore important to consider the content and the wording of the December 17, 2012 letter:
The letter begins with a mention of "school massacres" and makes particular reference to the recent incident at Newtown High School.
The letter then calls President Obama a fraud for falsely promising the nation that he can do something about "a mental case who kills his mother and then turns his mother's weapons on children and unarmed teachers".
The letter then chastens the President for not answering Mr. Hainsworth's previous letter and asks "do you think I'm a lunatic who can be ignored?"
The letter goes on to recite grievances against the University of Toronto Law School - they "remained silent in the face of the sham prosecution of the cocaine-using former Attorney General of Ontario, Michael Bryant, and in the face of proof of my wrongful disbarment [and they] propped up a corrupt legal system". The letter asks "should I go into the University of Toronto Law School, my alma mater, and pump bullets into the students and faculty I find there?"
Mr. Hainsworth then recites his grievances against the Toronto Star – "they published a false, libellous article about me on July 7, 1993 and have refused to publish a correction". The letter asks "should I go into the offices of the Toronto Star and pump bullets into any reporter/writer I find there?"
The third grievance is against the RCMP – "the RCMP tried to frame me for the in-flight suicide bombing of Air Canada Flight 191 [and] put me in prison for the rest of my life; as a result of their clownish conduct I was not able to be with my mother when she died." The letter asks "should I go into a detachment of the RCMP and pump bullets into any clowns I find there".
The letter ends on a very ominous note – "If I don't hear from you I guess I'll have to decide what to do myself".
[13] According to the letter, copies were sent to eleven people, including the head of the Toronto Star and a Detective with the Toronto Police.
[14] Mr. Hainsworth submitted that he posed questions and did not convey threats.
[15] In R. v. McRae, the Supreme Court of Canada held as follows at paragraph 13: "The legal question of whether the accused uttered a threat of death or bodily harm turns solely on the meaning that a reasonable person would attach to the words viewed in the circumstances in which they were uttered or conveyed. The Crown need not prove that the intended recipient of the threat was made aware of it, or if aware of it, that he or she was intimidated by it or took it seriously."
[16] Ms. Stone at the Ontario College of Physicians and Surgeons felt that the letter was threatening. She knew Mr. Hainsworth as a result of a number of complaints he had filed at the College and at the Ministry of Health with respect to doctors and the head of the College. After consulting with her superiors, she reported the matter to the police. Detective Rinkoff also considered the letter to be threatening. He investigated the matter and determined that criminal charges against Mr. Hainsworth were warranted.
[17] At paragraph 15 of R. v. McRae, the Supreme Court of Canada stated: "While testimony from persons who heard or were the object of the threat may be considered in applying this objective test, the question in relation to the prohibited act is not whether people in fact felt threatened. As the Court of Appeal for Ontario put it in Batista, witness opinions are relevant to the application of the reasonable person standard; however, they are not determinative, given that they amount to personal opinions and 'd[o] not necessarily satisfy the requirements of the legal test'."
[18] At paragraph 14 of R. v. McRae, the Court stated: "The reasonable person standard must be applied in light of the particular circumstances of a case … 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."
[19] In my view, a reasonable person would perceive the words in question as being threats of death. The letter talks of "school massacres", recites grievances against President Obama and the three organizations, and asks whether Mr. Hainsworth should "pump bullets" into staff of the three organizations. Couching threats as questions does not make them any less chilling or intimidating. Mass shootings appear to be a modern reality, but they instil fear and abhorrence in reasonable persons. I conclude that the words used in the letter constitute threats at law.
The Mens Rea: Intent to Intimidate
[20] I am turning now to the mens rea issue, which the Supreme Court of Canada referred to as the "fault element" in R. v. McRae. The Court stated at paragraph 17 that "the fault element is made out if it is shown that threatening words uttered or conveyed 'were meant to intimidate or to be taken seriously' … It can be established by showing either that the accused intended to intimidate or intended that the threats be taken seriously" (emphasis added by the Court).
[21] Mr. Hainsworth submitted that his words were obviously not meant to be taken seriously. He also drew attention to follow-up letters that he apparently sent later the same day to the three organizations in question (Exhibit 11, attachments J, K and L). The letters told the heads of the University of Toronto Law School, the Toronto Star and the RCMP in very clear terms that Mr. Hainsworth had no intention of pumping bullets into anyone in their organization and that he "would never resort to violence to expose the sham prosecution of Mr. Bryant and [Mr. Hainsworth's] wrongful disbarment". Mr. Hainsworth said that he wrote to the three organizations "to ensure they realized my suggestions of violence were not serious".
[22] In my view, the offence was complete when the original letter of December 17, 2012 was sent and the copies were distributed. The offence is not negated by a subsequent declaration that "I was only kidding". Second thoughts, regrets and purported retractions may be relevant on sentencing, but they cannot "undo" an offence that was previously committed.
[23] I might mention that Mr. Hainsworth testified that he did not send a copy of the December 17, 2012 letter to the Ontario College of Physicians and Surgeons. In my view, how a copy of the letter ended up in the hands of the College is a matter of no relevance. The fact is that Mr. Hainsworth sent the original letter to President Obama, College staff saw a copy of the letter, they had concerns about the content and they reported it to the police.
[24] The second question posed by the Supreme Court of Canada is whether "the accused intended to intimidate".
[25] The Court in R. v. McRae stated as follows at paragraph 19: "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 … The trier of fact may draw reasonable inferences from the accused's actions or words at the time of his act or in the witness box."
[26] Mr. Hainsworth testified that he used inflammatory language, not intimidating language. He said: "I had to use inflammatory language. Just as my seven-page letter [to President Obama] was ignored, this one would be ignored [if I didn't use inflammatory language] … I believed I had to use inflammatory language to get the President of the United States to take up the massive failure of democracy in Canada with the Prime Minister of Canada … I tried to provoke a response from the President of the United States. I used inflammatory language, and I asked inflammatory questions … Violence was not my intention. I asked questions to provoke the President of the United States to deal with this."
[27] In my opinion, the language used was much more than "inflammatory". The Crown submitted that "the letter was intended to intimidate people to give Mr. Hainsworth the results he wanted". I agree that Mr. Hainsworth intended to coerce President Obama to respond and take the course of action that Mr. Hainsworth was urging. Mr. Hainsworth wanted to make his point strongly, to get the President's attention, to wake the President out of his complacency and to elicit the desired reaction. But he went too far. He coerced and intimidated the President (and the copied parties) with talk of mass shootings and pumping bullets into innocent people.
[28] I conclude that Mr. Hainsworth's words were meant to intimidate and to be taken seriously. In my view, those are the only reasonable inferences to be drawn, in all of the circumstances.
Conclusions
[29] It will be apparent that I did not accept Mr. Hainsworth's evidence or submissions with respect to the actus reus and the mens rea issues. I wish to note that I considered Mr. Hainsworth's testimony in the context of the evidence as a whole, in accordance with the second step of the ruling in R. v. W.D. The defendant's testimony does not leave me with a reasonable doubt.
[30] It is fundamental in a criminal prosecution that the burden rests solely on the Crown to prove all elements of an offence beyond a reasonable doubt. The onus does not shift to the defendant under any circumstances. The defendant must be found not guilty if a reasonable doubt exists at any time.
[31] I have considered the totality of the evidence and the submissions of Mr. Hainsworth and the Crown. I am satisfied that the Crown has discharged the burden upon it. There will be findings of guilty on all three counts.
Released: September 8, 2016
Signed: Justice J. Ritchie