Court Information

Date: 2017-06-28

Ontario Court of Justice

Between: Her Majesty the Queen — and — Libin Jama

Before: Justice M. Greene

Reasons for judgment dated: June 28, 2017

Counsel:

• T. Cassidy for the Crown
• A. Pyper for Libin Jama

Facts

[1] Libin Jama is charged with uttering threats to cause death to members of the jury tasked with determining Ms. Jama's guilt on a second degree murder charge. In September of 2016, Ms. Jama was attending court at the Superior Court of Justice in Toronto daily for her trial on the charge of second degree murder. On November 29, 2016, the jury started their deliberations. On December 1, 2016, upon arriving at the courthouse, Ms. Jama became agitated and made a threat to the jury.

[2] One officer who was nearby, Officer Holly Graham, testified that Ms. Jama stated "fuck the president, fuck the jury, just convict me already, fuck I will kill every one of the jury members bro, I will find all of you, fuck bro just convict me of second so I can smoke a blunt bro".

[3] Upon hearing this, Officer Graham instructed Ms. Jama to stop talking like that. Ms. Jama complied. Ms. Jama was then taken upstairs.

[4] Officer Nauffts was also present during Ms. Jama's outburst. His recollection of the words uttered by Ms. Jama was different than Officer Graham's recollection. Officer Nauffts testified that Ms. Jama stated "If I get convicted I will find every last one of the jury members. I will do my time bro but I will find them".

[5] After hearing this threat, Officer Nauffts reported what he heard to his supervisor.

[6] Ms. Jama testified at trial. She recalled having an outburst at court on the day in question. She was frustrated, wanted to go home and was anxious. Ms. Jama testified that she had been attending her trial every day for three months and it had been very stressful. Ms. Jama could not recall the actual words she uttered on the day in question but did not think she would have made some of the comments alleged. In particular, she could not imagine saying "just convict me". She also could not recall specifically threatening the jury but did not dispute that it was said. When asked why she threatened to kill the jury, Ms. Jama responded that she was very stressed out and did not mean it seriously. She further stated that she was just talking.

[7] The following day she was in fact convicted of second degree murder.

Relevant Legal Principles

[8] Ms. Jama is presumed to be innocent of the charge before the court unless and until the Crown has proven each essential element of the offence beyond a reasonable doubt.

[9] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence.

[10] It is not enough for me to believe that Ms. Jama is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. In order to convict Ms. Jama of the offence before the court, I must be sure that she is guilty.

[11] The offence of uttering threats to cause death has two essential elements:

i) The actus reus which is uttering or conveying a threat to cause death, and

ii) The mens rea which is an intention to threaten death

[12] In relation to the actus reus, the court must consider the words uttered and assess them in their ordinary meaning. The Crown need not prove that the intended recipient of the threat was made aware of the threat or that the intended recipient was intimidated by the threat or took it seriously (see R. v. McRae, [2013] S.C.R. 931 at para 13). Instead the court looks at the ordinary meaning of the words uttered and assesses whether a reasonable person would view the utterance as a threat (R. v. McRae, supra at paragraph 14).

[13] The mens rea of the offence is made out if the Crown can prove beyond a reasonable doubt that Ms. Jama meant for the words she said to intimidate or be taken seriously (see para 17 of R. v. McRae). This is a subjective test. In assessing the defendant's state of mind, the court may consider the words uttered, the evidence of the defendant at trial, if any, and all other circumstances surrounding the making of the statement. At paragraph 23 of R. v. McRae, the court stated:

To sum up, the fault element of the offence is made out if the accused intended the words uttered or conveyed to intimidate or to be taken seriously. It is not necessary to prove an intent that the words be conveyed to the subject of the threat. A subjective standard of fault applies. However, in order to determine what was in the accused's mind, a court will often have to draw reasonable inferences from the words and the circumstances, including how the words were perceived by those hearing them.

Analysis

[14] In the case at bar it is unclear what exact words were uttered by Ms. Jama. The two officers that heard Ms. Jama's threat had different memories of what was said. I have no basis to accept one version of the threat over the other. Neither officer wrote the words down as they were being uttered nor is there an evidentiary basis to accept one officer's version of the threat over the other's version. While there is a lack of clarity of what Ms. Jama actually said, I have no doubt that Ms. Jama did utter some threat to kill the jury. I appreciate that Ms. Jama testified that she did not think she uttered a threat to kill the jury but this is not a denial of what was said. Ms. Jama was clear that she could not recall what she said. I accept her evidence on this point. At the time she was under a lot of stress and was anxious. Moreover, she was convicted of second degree murder the following day, an event that left her in a state of shock. I have no doubt that the emotional events that were taking place at the time hindered her ability to properly recall what she said on the day in question.

[15] I found the officers' evidence that they heard a threat to the jury to be both credible and reliable and accept that they heard Ms. Jama utter some kind of threat to cause death to members of the jury. In light of this finding, I am satisfied that the Crown has proven the actus reus of the offence.

[16] In relation to the mens rea, I must consider the words uttered by Ms. Jama, the circumstances surrounding the making of the statement, and Ms. Jama's evidence. Ms. Jama denied any intention to intimidate or to be taken seriously. At the time of making the utterance she was upset, frustrated, stressed and ranting. Nonetheless, Crown counsel urged me to reject Ms. Jama's evidence on this point. Crown counsel argued that Ms. Jama was not a credible witness and her evidence about her intention should be rejected. Crown counsel argued that Ms. Jama's denial that she made the threat is clearly not true and having misled the court on this point, the remainder of her evidence cannot be believed.

[17] Respectfully, I disagree. Firstly, as noted above, I accept that Ms. Jama does not recall what words she spoke on December 1, 2016. Secondly, I generally found Ms. Jama to be an honest witness. She testified clearly, was responsive to the questions posed and candidly admitted her frustration at the time of the alleged offence.

[18] Crown counsel also argued that the words uttered by Ms. Jama contradict her evidence about her state of mind. In my view, it is difficult to use the words uttered by Ms. Jama to assess her intention at the time because it is unknown exactly what was said. If Officer Nauffts is correct, then it is more likely that Ms. Jama did intend to intimidate. If Officer Graham is correct, then it is far less likely that there was an intention to intimidate. In the case at bar, given that I am unable to conclude which officer's version of events is accurate, I am unable to rely heavily on the words uttered in determining whether or not there was an intention to intimidate or be taken seriously.

[19] The circumstances surrounding the making of the utterance, in my view, serve to confirm Ms. Jama's evidence of an absence of an intention to be taken seriously or to intimidate. The words were uttered in the midst of a rant. She was upset and in a very stressful situation. At one point in her evidence, Officer Graham testified that it seemed as though Ms. Jama was "letting off steam". I appreciate the officers took the threat seriously, as they should. This, however, is not determinative. While it was not unreasonable for the officers to be concerned by Ms. Jama's comments, when I look at all the evidence, I am satisfied that Ms. Jama, when she uttered the threat to cause death to the members of her jury, was just venting in frustration and did not intend to intimidate anyone nor did she intend for her words to be taken seriously. The Crown has therefore not proven the mens rea of the offence beyond a reasonable doubt and I find Ms. Jama not guilty.

Released: June 28, 2017

Justice Mara Greene