Court File and Parties

Ontario Court of Justice

Date: 2025-11-06

Court File No.: Sudbury 4011-998-23-40102993-00

Between:

His Majesty the King

— and —

Kimberly-Ann Beites

Before: Justice G. Jenner

Heard on: September 20, 2024; April 23, 2025; September 8, 2025; October 23, 2025; and November 6, 2025

Reasons for Judgment released on: November 6, 2025

Counsel:

• M. Wlodarczyk, counsel for the Crown
• S. von Achten and D. Rosso, legal representatives for the defendant

JENNER J.:

I. Introduction

[1] Ms. Kimberly-Ann Beites is charged with threatening to cause bodily harm to her son, Darcy, and threatening to burn the business property of her daughter-in-law, Andrea. Both alleged threats arise from the same voicemail message left by the accused for Darcy at his place of work, 'Douro', on August 25, 2023. The voicemail was left following the accused's exclusion from the funeral of her other son, Miguel, who is survived by his spouse, Marie-Soleil.

[2] That the accused left the voicemail was admitted at trial. The recording was entered as an exhibit on consent. In the recording, the accused says the following:

Listen you sick demented son of a bitch. You know what? You guys have gone too far with me. Too far. Not letting me see my grandkids, to hug them. (Inaudible) be there for my son's funeral. Well, you've gone too far buddy. You know what? You guys wanna be famous? I'll make you fucking famous. Mark my words. I'm gonna burn you, Douro, your wife's business. Marie's going down. Everybody's going down. Go fuck yourself. All go to hell.

[3] Was this admitted utterance a threat to a person or property within the meaning of s. 264.1 of the Criminal Code? For the reasons that follow, I find it was both.

II. Issues and Positions of the Parties

[4] Section 264.1(1) of the Criminal Code reads as follows:

264.1(1) Every one 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;

(b) to burn, destroy or damage real or personal property; or

(c) to kill, poison or injure an animal or bird that is the property of any person.

[5] The actus reus or prohibited act of a threat is made out where a reasonable person aware of the circumstances in which the words were uttered would have perceived them to be a threat of death or bodily harm to a person or damage to property. The reasonable person is informed, practical, realistic, and fully apprised of the circumstances of the case: R. v. Batista, 2008 ONCA 804, at paras. 23-24.

[6] The Crown need not prove the intended recipient was aware of the threat, or that they subjectively received it as a serious threat. The mens rea or requisite intent is made out if the accused subjectively intended the words to be conveyed to intimidate or be taken seriously. The accused's intention that the words reach the threatened party or their intention to carry out the threat is immaterial. While the requisite intent is subjective, the circumstances in which the purported threat is made can matter. A court's determination of what an accused actually intended may depend on inferences drawn from the circumstances: R. v. McRae, 2013 SCC 68, at paras. 10-23.

[7] Because the accused admits the voicemail she left, my role in this trial is to examine the circumstances surrounding the utterance and determine whether the Crown has proven the following, beyond a reasonable doubt:

(i) That a reasonable person would perceive, in those circumstances, a threat to harm Darcy;

(ii) That a reasonable person would perceive, in those circumstances, a threat to burn Andrea's business—I indicate burn, rather than destroy or damage generally, as the count is particularized to burn; and

(iii) That, examining the circumstances, the accused subjectively intended her words to either intimidate or be taken seriously.

[8] The Crown called as witnesses Darcy, Andrea, and Marie-Soleil. The defence called Officer Caverson, the lead investigator in this matter.

[9] The defence theory is not that the threats made were not serious or threats of physical harm or damage. They were, the defence suggests, promises to follow through and prosecute existing civil litigation between the family members. The argument is that "burn" was not intended as a literal threat to set any person or business aflame, but rather to cut the various family members and their businesses down to size, in the figurative sense; to vindicate the accused within the ongoing family business and legal disputes; to triumph over them.

[10] The Crown urges me to reject that theory and conclude that the language used in the voicemail, considered in context, would cause a reasonable person to fear for their person and property, and that the language was intended to intimidate and be taken seriously.

III. Analysis

[11] My task is not to choose which of the parties' theories I prefer. The Crown always bears the burden to prove the essential elements beyond a reasonable doubt. If I reject the defence's theory on the evidence, I must still ask myself whether it nonetheless raises a reasonable doubt. I must further ask myself whether, based on the evidence I do accept, the essential elements of the offences are proven beyond a reasonable doubt.

[12] I conclude the Crown has met its high onus in respect of the act and intent on both uttering threat counts. I reject the alternate theory advanced by the accused, and find the evidence leaves no doubt as to guilt. I will briefly touch on the extensive evidence tendered with respect to the accused's conflicts with her family, before focusing on the most important piece of evidence, the voicemail itself.

The Family Conflicts

[13] Managing the scope of the circumstances to be examined in this trial was a challenge. The utterances were made in the context of a complex and tragic family dynamic. Mindful of the accused's right to make full answer and defence, I was reluctant to erect firm barriers. Mindful of the need to control the trial process and ensure that the probative value of the evidence is not substantially outweighed by prejudice, including to the trial process, I was required to focus the parties at various junctures.

[14] Each witness testified to a constellation of conflicts between the accused and other members of her family. These included efforts to 'form' the accused or have her committed for mental health reasons, disputes relating to dogs, a dispute related to a trespass notice, efforts to subject the accused to a peace bond, civil litigation relating to the family and the family business, and of course, the decision to exclude the accused from Miguel's funeral ceremony. The parties agree that these conflicts existed between the family members.

[15] My task in this trial is not to undertake a series of sub-trials to determine who was right or who was wrong in respect of these conflicts; who was justified, and who was being unreasonable. My task is to examine the circumstances in which the voicemail was left to determine whether a threat was intended and would have reasonably been perceived. The tenor of the relationship between the various family members when the voicemail was left matters. The nature of the issues between the parties matters. But the minutiae do not.

[16] While it is clear the defence takes issue with the reasonableness of the accused's family members and their actions over time, the evidence consistently demonstrated that Kimberly-Ann's relationships with Darcy, Miguel, Andrea, and Marie-Soleil were fractured and conflict-ridden. I find the accused knew her family distanced themselves from her and wished to maintain that distance, rightly or wrongly.

The Voicemail Recording

[17] The most important evidence is the voicemail itself. The recording was played in court and made an exhibit. I entirely reject the defence claim that there is no evidence the voicemail was left in anger. The message was left in an aggressive, hostile tone of voice. It does not mention a legal dispute between the parties. It does not mention money at all. It mentions Miguel's funeral. It mentions grandchildren. It is rooted in anger and hurt over the accused's estrangement from her family. The multiple references to Darcy and his family having gone "too far" suggest the dispute between the parties had reached an extreme level and would signal to a reasonable observer that the threatened response might be similarly extreme. The reference to making Darcy and others "famous" is chilling. I disagree with the defence submission that a business-related lawsuit would tend to make someone famous. Being victimized in a violent crime—arson, for example—is a better fit.

[18] This is not to say that there is no ambiguity present in the utterance. I grant that colloquially "burn" can have meanings other than 'set fire to.' It can suggest other forms of retribution, physical and otherwise. It can also be used in other contexts with different meanings, like feeling "burnt out". Likewise, the remark that family members are "going down" is not necessarily a reference to a physical threat.

[19] Ambiguity of language can be a source of reasonable doubt. It does not follow that ambiguity is always a basis for reasonable doubt. It must be evaluated in context. Ambiguity can be intended. It can be used to intimidate. Indeed, ambiguous threats, sometimes called veiled threats, or subtle threats, can be a tool to achieve the threat-maker's goal of intimidation while attempting to insulate them from accountability. 'Nice business you have there—would be a shame if anything happened to it', for example. The receiver of ambiguous aggressive language may be left guessing about the threat-maker's true intentions and may still, in having to account for all possibilities, experience fear or intimidation.

[20] That is what happened here. Kimberly-Ann was angry. She was upset about her ostracization. She wanted Darcy to know there would be consequences; that she would get her retribution. She invoked the violent language of fire. She was vulgar. She wanted to intimidate Darcy, Andrea, and Marie-Soleil. She absolutely intended to be taken seriously. I reject the inference that the defence asks me draw, that the accused was only stating her intentions with respect to her unmentioned civil suit. I harbour no reasonable doubt based on that theory. I am persuaded beyond a reasonable doubt that a reasonable person, informed of the circumstances, including the family conflicts and civil suit, would become fearful of physical harm to Darcy and property damage to Andrea's business.

IV. Conclusion

[21] Ms. Kimberly-Ann Beites will be found guilty on both counts.

Released: November 6, 2025

Signed: Justice G. Jenner