ONTARIO COURT OF JUSTICE
CITATION: R. v. Barbosa, 2019 ONCJ 50
DATE: 2019 01 22
COURT FILE No.: 18-5246
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
KEVIN BARBOSA
Before Justice A.L. McLeod
Heard on January 22, 2019
Reasons for Judgment released on January 22, 2019
Kristen Smyth...................................................................................... counsel for the Crown
Eginhart Ehlers................................................. counsel for the accused Kevin Barbosa
McLeod J.:
Introduction
[1] Mr. Barbosa and Ms. Amaral dated for approximately one year, commencing when she was just 17 years of age.
[2] Their son Julian was born on May 10, 2014. The couple broke up one month later.
[3] The relationship between the parties was acrimonious. Mr. Barbosa’s mother had physical custody of young Julian. Mr. Barbosa lived with his mother. The specific details of access, or denial of access to Julian for Ms. Amaral will not be outlined here, and is better addressed in the on-going family law proceedings. Suffice it to say, the past four years have been difficult.
[4] In June of 2018, Mr. Barbosa apparently took Julian and drove around with him for a period of two weeks. Police were called by Ms. Amaral. Eventually, Mr. Barbosa was located and Julian was then placed into the temporary care of Mr. Barbosa’s sister.
[5] Mr. Barbosa is charged with uttering a threat to Ms. Amaral on July 23, 2018.
The issues to be decided
[6] The defence does not take issue with the credibility or reliability of the testimony of the sole witness in this case; Ms. Amaral. As such, I accept that Mr. Barbosa uttered words to the effect, “I am going to find you…I have people looking for you…I am going to hurt you and your boyfriend….do you know what happened on the Danforth?, that is what is going to happen to you”.
[7] The Danforth reference is in respect of a well-publicized shooting.
[8] As per counsel’s submissions, the only issue for me to decide is:
(1) What are the essential elements of the offence;
(a) If the defence is correct that the reasonable person test is applicable, would a reasonable person in all the circumstances take the threat uttered as viable
The law
[9] Mr. Barbosa is charged under section 264.1(1)(a). The section reads, Everyone commits an offence who, in any manner, knowingly utters, conveys, or causes any person to receive a threat (a) to cause death or bodily harm to any person.
[10] The Supreme Court of Canada has considered the offence of utter threat in R. v. McCraw, 1991 29 (SCC), [1991] 3 S.C.R. 72, R. v. Clemente, 1994 49 (SCC), [1994] 2 S.C.R. 758, R. v. O’Brien, 2013 SCC 2, [2013] 1 S.C.R. 7, and R. v. McRae, [2013] S.C.R. 931.
[11] The court outlined the actus reus in McRae:
The Prohibited Act (Actus Reus)
10 The prohibited act of the offence is "the uttering of threats of death or serious bodily harm" (Clemente, at p. 763). The threats can be uttered, conveyed, or in any way caused to be received by any person. The question of whether words constitute a threat is a question of law to be decided on an objective standard. Justice Cory put it this way in McCraw:
The structure and wording of s. 264.1(1)(a) indicate that the nature of the threat must be looked at objectively; that is, as it would be by the ordinary reasonable person....
The question to be resolved may be put in the following way. 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? [pp. 82-83]
11 The starting point of the analysis should always be 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) (see e.g. O'Brien, at paras. 10-12). In other cases, contextual factors might have the effect of elevating to the level of threats words that would, on their face, appear relatively innocent (see e.g. R. v. MacDonald (2002), 2002 14251 (ON CA), 166 O.A.C. 121 (Ont. C.A.), where the words uttered were "You're next").
[12] The court goes on to confirm that it is in fact a reasonable person test at play, and explains the test as follows:
13 Thus, 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: Clemente, at p. 763; O'Brien, at para. 13; R. v. LeBlanc, 1989 56 (SCC), [1989] 1 S.C.R. 1583 (S.C.C.) (confirming the trial judge's instruction that it was not necessary that "the person threatened be ever aware that the threat was made": (1988), 1988 131 (NB CA), 90 N.B.R. (2d) 63 (N.B. C.A.), at para. 13). Further, the words do not have to be directed towards a specific person; a threat against an ascertained group of people is sufficient: R. c. Rémy-Mercier (1993), 1993 3851 (QC CA), 82 C.C.C. (3d) 176 (Que. C.A.), at p. 185, leave to appeal refused, [1993] 4 S.C.R. vii (note) (S.C.C.) (threat against "police officers" generally); R. v. Upson, 2001 NSCA 89, 194 N.S.R. (2d) 87 (N.S. C.A.), at para. 31 (threat against "members of the black race" generally).
14 The reasonable person standard must be applied in light of the particular circumstances of a case. As the Court of Appeal for Ontario explained in R. v. Batista, 2008 ONCA 804, 62 C.R. (6th) 376 (Ont. C.A.):
An ordinary reasonable person considering an alleged threat objectively would be one Informed of all the circumstances relevant to his or her determination. The characteristics of a reasonable person were considered by the Supreme Court of Canada in R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484 (S.C.C), in the context of the test for bias. In that case, L'Heureux-Dubé and McLachlin JJ., at para. 36, described such a person as a:
reasonable, informed, practical and realistic person who considers the matter in some detail....The person postulated is not a "very sensitive or scrupulous" person, but rather a right-minded person familiar with the circumstances of the case.
Similarly, in R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265 (S.C.C.), at p. 282, in the context of the test for bringing the administration of justice into disrepute, Lamer J. for the majority describes a reasonable person as "dispassionate and fully apprised of the circumstances of the case": see also R. v. Burlingham, 1995 88 (SCC), [1995] 2 S.C.R. 206 (S.C.C), at para. 71.
It follows that 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.
[13] The court went on to identify the mens rea element as:
17 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": Clemente, at p. 763.
18 It is not necessary to prove that the threat was uttered with the intent that it be conveyed to its intended recipient (Clemente, at p. 763) or that the accused intended to carry out the threat (McCraw, at p. 82). Further, the fault element is disjunctive: it can be established by showing either that the accused intended to intimidate or intended that the threats be taken seriously: see e.g. Clemente, at p. 763; O'Brien, at para. 7; R. v. N. (L.) (1993), 1993 14708 (AB CA), 145 A.R. 311 (Alta. C.A.); R. v. Hiscox, 2002 BCCA 312, 167 B.C.A.C. 315 (B.C. C.A.), at paras. 18 and 20; R. v. Noble, 2009 MBQB 98, 247 Man. R. (2d) 6 (Man. Q.B.), at paras. 28 and 32-35, aff'd 2010 MBCA 60, 255 Man. R. (2d) 144 (Man. C.A.), at paras. 16-17; R. v. Heaney, 2013 BCCA 177 (B.C. C.A.), at para. 40; R. c. Rudnicki, 2004 39133 (QC CA), [2004] R.J.Q. 2954 (Que. C.A.), at para. 41; R. v. Beyo (2000), 2000 5683 (ON CA), 47 O.R. (3d) 712 (Ont. C.A.), at para. 46.
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: see e.g. McCraw, at p. 82. Drawing these inferences is not a departure from the subjective standard of fault. In R. v. Hundal, 1993 120 (SCC), [1993] 1 S.C.R. 867 (S.C.C.), Justice Cory cites the following words from Professor Stuart which explain this point:
In trying to ascertain what was going on in the accused's mind, as the subjective approach demands, 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. The accused may or may not be believed. To conclude that, considering all the evidence, the Crown has proved beyond a reasonable doubt that the accused "must" have thought in the penalized way is no departure from the subjective substantive standard. Resort to an objective substantive standard would only occur if the reasoning became that the accused "must have realized it if he had thought about it".
23 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.
Conclusion
[14] The words uttered, taken in their plain and ordinary meaning constitute a threat. There is no secondary or less obvious meaning. This point was not argued by the defence.
[15] The Crown need not prove that the intended recipient of the threat was made aware of it, or if aware of it, or that she was intimidated by it or took it seriously.
[16] The fault element is made out if it is shown that the threatening words uttered or conveyed "were meant to intimidate or to be taken seriously”. Further, the fault element is disjunctive: it can be established by showing either that the accused intended to intimidate or intended that the threats be taken seriously. I find that Mr. Barbosa intended his words to be taken seriously. His tone, his expressed anger, and his need to exemplify his intentions by alluding to the tragedy of the Danforth shooting. It is not whether he intended or was capable of carrying out the threat that is the issue, the issue is whether he intended to intimidate or threaten Ms. Armala with his words.
[17] I find that a reasonable person, understanding all of the circumstances, would find that Mr. Barbosa had committed the actus reus – that is to say, he conveyed a threat to Ms. Armala, by uttering the words “I am going to find you…I have people looking for you…I am going to hurt you and your boyfriend….do you know what happened on the Danforth?, that is what is going to happen to you”.
[18] I find that his intention was solely to intimidate her, and to have his threats taken seriously. Mr. Barbosa will be found guilty of the offence of uttering a threat.
Released: January 22, 2019
Signed: Justice A.L. McLeod