Court and Parties

ONTARIO COURT OF JUSTICE DATE: November 2, 2021

HER MAJESTY THE QUEEN — AND — BILL THANIS

Before: Justice L. Botham

Reasons for Judgment released on November 2, 2021

Counsel: Andrew Gibbons, for the Crown The accused Bill Thanis, on his own behalf

Reasons for Judgment

BOTHAM J.:

[1] Mr. Thanis is charged with three counts of threatening to cause death and one count of criminal harassment. The charges arise in the context of his litigation in the Tax Court of Canada against the Canada Revenue Agency (CRA).

[2] On January 6, 2020, he is said to have knowingly uttered a threat to Janise D’Sa to cause death contrary to s. 264.1 (1) (a) of the Criminal Code. It is alleged on July 6, 2020, he did by word of mouth utter to Maria Eugui a threat to cause death. It is further alleged on August 13, 2020 he did knowingly utter a death threat to James Durand-Smith to wit “I’m about this close to blowing up a fucking bomb”. The issue to be decided with respect to each of these counts of threatening is whether the statements made by Mr. Thanis make out the offence of threatening as it is understood in the case law.

[3] He is also charged with criminal harassment arising out of his conduct on August 13th. It is alleged that knowing that James Durand-Smith was harassed or reckless as to whether he was harassed he did engage in conduct set out in Section 264(2) of the Criminal Code and cause James Durand-Smith to reasonably fear for his personal safety, contrary to s. 264 (3) of the Criminal Code.

[4] Mr. Thanis represented himself at this trial and although he did not testify, there was nothing in the manner in which he conducted the trial or in his submissions which suggested that he was challenging that he had made the comments testified to by the Crown witnesses.

[5] There is no issue that Mr. Thanis’ behaviour as he dealt with the Tax Court of Canada employees left much to be desired and no one should be expected to put up with the verbal abuse that took place. The issue however for me to decide is whether his behaviour, however unpleasant and potentially concerning that it was to the people involved, crossed into criminality. I am not satisfied that it did, and I will explain why I have arrived at that decision.

[6] Janise D’Sa testified that on January 6, 2020 she was working as a Registry Officer for the Tax Court of Canada, located at the Federal Court building at 180 Queen Street West in Toronto. She answered a call from someone identifying himself as Bill Thanis. He was inquiring about filing a notice of appeal. She was attempting to explain the process to him. During the call his tone became increasingly aggressive to the point that he was screaming over the phone. He told her that the CRA had frozen his assets and he had no money. He said “if the CRA can take all his money, I can do whatever I want, go on a killing spree, kill people. There are others who have killed people and they go free. I can do the same. He mentioned that the call was being recorded so everyone will know that you couldn’t help me. At my murder trial, they will all know what happened”. He went on to say that he had filed an objection to the CRA decision, so she told him if that was the case then he could file a notice of appeal and she hung up.

[7] Later that afternoon, she coincidently was the clerk who assisted him when he came to the registry office to file his notice of appeal. She didn’t realize who he was until she saw his name on the notice of appeal. She had no issues with him during that interaction but was understandably anxious to deal with him as quickly as possible, given her earlier experience with him.

[8] Maria Eugui is a lawyer and hearing co-ordinator at the Tax Court of Canada in Ottawa. On July 6, 2020 a call was transferred to her. The caller identified himself as Bill Thanis and he wanted his file to be scheduled for a hearing, but the file was not yet ready to be scheduled. She described him as getting frustrated and angry. He began to insult her, the Tax Court, the employees of the Tax Court and CRA. She tried to explain that the Tax Court had nothing to do with CRA and couldn’t control the pace by which their files were prepared. She testified that his frustration was increasing as she tried to explain that there was a process and the Tax Court had no control over the Canada Revenue Agency. He did not want to listen; he just wanted his hearing to be scheduled.

[9] Ultimately, she told him that if he continued in this manner, she would end the call. He told her that she was not ending the call and he would give her to next Monday to schedule an appointment. She testified that he said, “if he didn’t get an appointment, he will start shooting people everywhere in the streets until he gets his hearing”. She testified that she was frightened when she heard that because she knows that this is what happens in the States and everywhere, shooting people in the streets.

[10] Mr. Tridiko testified that he was a security officer at the Federal Court of Canada, located at 180 Queen Street West. On August 13, 2020, Mr. Thanis was present in court for his court hearing, relating to the CRA file. Mr. Tridiko was aware that police officers were in attendance. He had been advised that Mr. Thanis was being charged with three counts of criminal behaviour arising from previous incidents at the court or with court employees. He saw the police engage with him and serve him with some documents. After the hearing he observed Mr. Thanis speaking with counsel for the Department of Justice. It was a brief conversation, but Mr. Thanis became agitated and told the lawyer “this is the reason people turn to the underground economy or to violence”. Mr. Tridiko directed James Durand- Smith, a commissionaire at the building to escort Mr. Thanis from the building.

[11] Mr. Durand-Smith testified that he recalled Mr. Thanis saying to counsel for the Department of Justice this is the type of thing that could push a person like me to the underground or to become violent. He escorted Mr. Thanis out of the building. When they left the elevator and he was about to leave the building, Mr. Thanis said to him “I’m about this close to blowing up a bomb”, Durand-Smith perceived this as a threat to carry out an act of violence towards himself or place of work.

[12] Section 264.1 of the Criminal Code provides that everyone commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat to cause death or bodily harm to any person.

[13] The Crown must establish that a threat to cause death or bodily harm to any person was made and that it was made with the intention to intimidate or that it would be taken seriously. The Crown bears the onus of proving all or any of the charges against Mr. Thanis. He is entitled to the benefit of reasonable doubt on any of the issues I need to decide.

[14] The Crown does not have to prove that the intended target was made aware of the threat or that they were intimidated or took it seriously. Although the offence uses the wording of ‘any person’ the threat can be directed against a specific person or an ascertainable group of people.

[15] In concluding that a threat has been made, I am required to consider whether a reasonable person, viewing the matter objectively would consider that the words spoken constituted a threat. In doing so, that person would consider all relevant circumstances, including the manner in which the words were communicated, the audience to whom it was addressed and the relationship between the speaker and the subject of the alleged threat. R. v. McRae, 2013 SCC 68

[16] Although it is not necessary to prove that the accused intended to carry out the threat, the Crown must prove that the accused intended, in making the statements, to intimidate or have the statements taken seriously. The Crown often seeks to do so by relying on inferences which can be drawn from the circumstances surrounding the making of the threat.

[17] In considering the evidence as it relates to Count 1, I am not satisfied that the offence has been made out. Mr. Thanis at no time says that he is intending to go on a killing spree. He says “if the CRA can take all his money, I can do whatever I want, go on a killing spree, kill people. There are others who have killed people and they go free. I can do the same”. At least one reasonable interpretation of those words in the context of the entire conversation is a rhetorical assertion that if the CRA can act in such an arbitrary and unfair manner by freezing my accounts, then why shouldn’t he act equally unlawfully. When I consider the context of the entire conversation, I am not satisfied the words spoken constitute a threat to engage in an act to cause death or bodily harm. Nor am I satisfied that the accused intended his words to intimidate, rather, it seems more likely that they were said in the context of describing his level of frustration with what he perceived as the unfairness of his treatment.

[18] Even if am wrong about that and the statements could constitute a threat, I am not satisfied that the words as spoken can be said to be a threat against an ascertainable group of people. In my view ‘killing people’ is far too general and unspecified to fit within the definition of an ascertainable group.

[19] Count 2 relates to a telephone conversation between the accused and Ms. Eugui. The comments relating to this count were made during an increasingly angry conversation, at least on the part of Mr. Thanis, where he was being told that an appointment for a hearing could not be scheduled in accordance with his wishes. Mr. Thanis told Ms. Eugui that he would engage in a particular course of conduct, namely shooting people in the streets if it wasn’t scheduled.

[20] The question of whether the threats uttered constitute a threat is a question of law to be decided on an objective standard, namely whether a reasonable person would consider the words spoken to be a threat, considering the context in which the words were spoken. I am satisfied that the words spoken would convey to a reasonable person an intention to engage in conduct to cause bodily harm or death if certain conditions were not met.

[21] I am satisfied that what Mr. Thanis said constituted a threat to engage in violent behaviour. I am not satisfied that the threat to shoot people in the street, constitutes a threat towards an ascertainable group. The Crown submits, correctly, that the threated conduct does not have to have a specified victim, a threat against an ascertainable group of people is sufficient. R. v. McRae, 2013 SCC 68 The notion of an ascertainable group requires that there be some characteristics or descriptors of the group, so that membership can be established or understood. Canada (National Revenue) v. Hydro-Québec, 2018 FC 719 Or to consider it another way, there need to be some parameters so that the group is capable of being identified or determined.

[22] For example, in R. v. Remy-Mercier the accused stated that if another police officer were to shoot a black man, he himself would shoot that officer. The Quebec CA held that the law does not require the prosecution to provide proof of the victims’ identity and that the threat to cause death to a member of a specific group of citizens would in and of itself constitute a violation of 264.1.

[23] In R. v. Upson, 2001 NSSC 89, a white supremacist threatened a black pastor, who presided over a church where many of the participants were black by warning him that “you people are not supposed to be in the Kingdom and if you continue to meet in this place, you're going to be sorry for what will happen. And don't say I never warned you”. Again, the threat was directed towards a particular group. Namely, people of colour worshipping at a particular church.

[24] In R. v. Denault, 2002 BCCA 178, a conviction for threatening was upheld where the accused threatened to shoot anyone who came onto land that he was seeking to protect who were not members of the Shuswap Nation. The court held that although the ascertainable group in Denault was not as clearly ascertainable as the police threatened in Remy-Mercier, the group was identifiable by the act of entering the area and not being indigenous.

[25] In this case, the group is generic. Effectively Mr. Thanis is saying if I don’t get what I want, I will shoot people. In my view the threat to commit violence against people in the street is too general to satisfy the requirement that the target of the threat be an ascertainable group. I am therefore not satisfied that the Crown has established that one of the essential elements of s. 264.1 have been made out with respect to Count 2.

[26] In considering the evidence as it relates to Count 3, I am also not satisfied that the described conduct satisfies the offence of uttering threats. Mr. Thanis does not say that he is going to set off a bomb, he says that he is ‘this close to setting off a bomb”. I am not satisfied that the words spoken constitute a threat to undertake a specific course of conduct, namely setting off a bomb. It seems to me that a reasonable person hearing those words would more likely perceive them as at attempt to describe or articulate his level of frustration with the legal process he was engaged in. I am not satisfied that the words spoken by Mr. Thanis constitute a threat to cause death or bodily harm or that he intended them to constitute a threat.

[27] Again, even if someone else might interpret those comments as a threat to set off a bomb, there is nothing specifying a particular group towards whom, this action would be directed. The Crown has submitted that an inference can be drawn that ‘setting off a bomb’ would have been with the intention of causing harm to an ascertainable group, namely the employees of the Tax Court of Canada or Canada Revenue Agency. Although perhaps one might speculate that that was a possibility, I am not persuaded that that inference can be drawn to the degree of establishing that that was the case.

[28] I am reminded of the words of Justice Doherty who in quashing an order for extradition in the case of R. v. Huynh, found that the evidence did not reasonably permit the inference that the cash found in the appellant's possession was the proceeds of trafficking in a controlled substance. At paragraph 7 he writes,

the process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess. The gap between the inference that the cash was the proceeds of illicit activity and the further inference that the illicit activity was trafficking in a controlled substance can only be bridged by evidence. The trier of fact will assess that evidence in the light of common sense and human experience, but neither are a substitute for evidence.

[29] I think that is the case here. The reality remains, that even if one was to be satisfied that the words spoken constituted a threat, which I am not, no target for that violent conduct was identified by Mr. Thanis and I am not satisfied simply because he was upset and frustrated with the court process and the CRA, that there is an evidentiary basis to infer that he was identifying either of both government agencies as the intended target. .

[30] Mr. Thanis is also facing a charge of criminal harassment. The complainant is Mr. Durand-Smith who has testified that he perceived the words spoken by the accused as a threat to carry out an act of violence towards himself or persons in the Federal Court.

[31] The Crown must establish that Mr. Thanis engaged in threatening conduct towards Mr. Durand-Smith and that Mr. Durand-Smith was harassed by that conduct, that Mr. Thanis knew or was reckless or wilfully blind as to whether Mr. Durand-Smith was harassed and that as a result of his threatening conduct, Mr. Durand-Smith reasonably feared for his safety or the safety of others known to him. R. v. Sillop, 1997 ABCA 346

[32] In this case the Crown relies on the words spoken by Mr. Thanis to Mr. Durand-Smith as he was being escorted from the Federal Court building in Toronto as the threatening conduct.

[33] I’ve already said that I am not satisfied that the words spoken by Mr. Thanis were a threat. That may well end the matter but accepting for the sake of argument that a reasonable person might find that Mr. Thanis had engaged in threatening conduct, I think the Crown’s case fails on another front. The Crown must also establish that Mr. Durand-Smith was harassed by Mr. Thanis’ conduct.

[34] Our Court of Appeal in the case of R. v. Kosikar writes that,

this element of the offence requires the Crown to prove that as a consequence of the prohibited act the complainant was in a state of being harassed or felt harassed in the sense of feeling "tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered".

[35] The Crown doesn’t have to prove that all of those emotions were experienced but it does have to prove that one of them properly describes the effect of Mr. Thanis’ conduct on Mr. Durand-Smith. R. v. Kordrostami There is certainly no direct evidence from Mr. Durand-Smith that the incident with Mr. Thanis had that effect and there is no evidence from which I could draw that inference. After Mr. Thanis was escorted from the building, he had no further contact with Mr. Durand-Smith and that appeared to be the end of the matter except that obviously at some later date, charges were laid.

[36] Viewed objectively, I am not satisfied that the comments attributed to Mr. Thanis constituted a threat or were intended to be a ‘tool of intimidation designed to instill a sense of fear in the recipient’. R. v. Burns, 2008 ONCA 6 Nor am I satisfied that Mr. Durand- Smith felt harassed because of Mr. Thanis’ conduct, as that state of mind is defined in our case law.

[37] Mr. Thanis will be found not guilty on all counts.

Released: November 2, 2021 Signed: Justice L. Botham