R. v. Clemente, [1994] 2 S.C.R. 758

Victor Francisco Clemente Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Clemente

File No.: 23931.

Hearing and judgment rendered: 1994: June 13.

Reasons delivered: 1994: July 14.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for manitoba

Criminal law ‑‑ Uttering death threats ‑‑ Mens rea ‑‑ Whether words must be uttered with the intent to intimidate or instill fear or whether sufficient to show threat uttered with the intent that it be taken seriously ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 264.1(1)(a).

The appellant made threats to his social worker against her colleague (his former social worker) to whom his file was to be transferred. He stated on one occasion that he would blow up her office and strangle her, on another that a dead body would be found in her office on transfer of his file, and on yet another, that he would kill her. The appellant was convicted of intending to convey to his former social worker that he intended to kill or cause serious bodily harm to her, contrary to s. 264.1(1)(a) of the Criminal Code. The trial judge went on to find that the appellant intended that his present social worker should convey the message to the intended victim. The conviction was upheld on appeal. At issue here was the mens rea that is required by s. 264.1(1)(a). The appellant argued that it must be established that the words were uttered with the intent to intimidate or instill fear. The respondent contended that it is sufficient if it is shown that the threat was uttered with the intent that it be taken seriously.

Held: The appeal should be dismissed.

The intent required under s. 264.1(1)(a), which is aimed at preventing "threats", can be framed in either of the two ways put forward. Firstly, a serious threat to kill or cause serious bodily harm must have been uttered with the intent to intimidate or instill fear. Conversely, such a threat uttered with the intent to intimidate or cause fear must have been uttered with the intent that it be taken seriously.

Section 264.1(1)(a) is directed at words which cause fear or intimidation. No further action need be taken by the accused beyond the threat itself. The meaning conveyed by the words is the important factor. Whether the accused had the intent to intimidate, or that his or her words were meant to be taken seriously will, absent an explanation by the accused, usually be determined by the words used, the context in which they were spoken, and the person to whom they were directed. It is not a necessary element of the offence that the intended victim be aware of the threat. The actus reus of the offence is the uttering of threats of death or serious bodily harm. The mens rea is that the words were meant to intimidate or to be taken seriously. Words spoken in jest or in such a manner that they could not be taken seriously could not lead a reasonable person to conclude that the words conveyed a threat.

The words uttered by the appellant when viewed objectively in the context or circumstances in which they were spoken would "convey a threat of serious bodily harm to a reasonable person".

Cases Cited

Applied: R. v. McCraw, 1991 29 (SCC), [1991] 3 S.C.R. 72; distinguished: Henry v. R. (1981), 1981 4960 (ON CA), 24 C.R. (3d) 261.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C-34, s. 331.

Criminal Code, R.S.C., 1985, c. C‑46, s. 264.1(1)(a) [ad. c. 27 (1st Supp.), s. 38].

Authors Cited

Nouveau Petit Robert, Paris: Le Robert, 1993, "menace".

Shorter Oxford English Dictionary, 3rd ed., vol. 2. Oxford: Clarendon Press, 1987, "threat".

APPEAL from a judgment of the Manitoba Court of Appeal (1993), 1993 4410 (MB CA), 92 Man. R. (2d) 51, 61 W.A.C. 51, 86 C.C.C. (3d) 398, 27 C.R. (4th) 281, [1994] 2 W.W.R. 153, dismissing an appeal from conviction by DeGraves J. Appeal dismissed.

Harvey J. Slobodzian, for the appellant.

Rick Saull, for the respondent.

The judgment of the Court was delivered by

Cory J. - The appellant was told by his social worker Shannon Dennehy that he was to be transferred back to his former social worker Jill Mizak. He became excited and said in a loud voice that he would take a shotgun to Mizak's office and blow it up. He said if he was alone with Mizak he would strangle her. He accompanied these words with a gesture demonstrating the act of strangulation.

A few days later he said to Ms. Dennehy that if he were transferred to Mizak there would be a dead body in her office. The appellant uttered a further threat to kill Ms. Mizak in the course of a telephone call made the next day.

He was charged with contravening s. 264.1(1)(a) of the Criminal Code, R.S.C., 1985, c. C‑46, which reads:

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 serious bodily harm to any person. . . .

The appellant did not testify at his trial. The trial judge found that the words of the appellant were intended to convey to Ms. Mizak that he intended to kill or cause serious bodily harm to her. The trial judge went on to find that the appellant intended that Ms. Dennehy should convey the message to Ms. Mizak. On these findings the trial judge convicted the appellant.

The conviction was upheld by Philp J.A. writing for the majority in the Court of Appeal (1993), 1993 4410 (MB CA), 92 Man. R. (2d) 51.

At issue is the mens rea that is required by s. 264.1(1)(a). The appellant alleges that it must be established that the words were uttered with the intent to intimidate or instill fear. The respondent contends that it is sufficient if it is shown that the threat was uttered with the intent that it be taken seriously. In the Court of Appeal both the majority and minority proceeded on the basis that the words must be uttered with the intent to intimidate or instill fear. The majority concluded that the trial judge had found the requisite intent had been established. The minority thought his findings did not support the requisite mens rea.

The requisite intent can be framed in either manner. The aim of the section is to prevent "threats". In The Shorter Oxford English Dictionary (3rd ed. 1987), "threat" is defined in this way:

A denunciation to a person of ill to befall him; esp. a declaration of hostile determination or of loss, pain, punishment or damage to be inflicted in retribution for or conditionally upon some course; a menace.

Under the section the threat must be of death or serious bodily harm. It is impossible to think that anyone threatening death or serious bodily harm in a manner that was meant to be taken seriously would not intend to intimidate or cause fear. That is to say, a serious threat to kill or cause serious bodily harm must have been uttered with the intent to intimidate or instill fear. Conversely, a threat uttered with the intent to intimidate or cause fear must have been uttered with the intent that it be taken seriously. Both of these formulations of the mens rea constitute an intention to threaten and comply with the aim of the section.

Section 264.1(1)(a) is directed at words which cause fear or intimidation. Its purpose is to protect the exercise of freedom of choice by preventing intimidation. The section makes it a crime to issue threats without any further action being taken beyond the threat itself. Thus, it is the meaning conveyed by the words that is important. Yet it cannot be that words spoken in jest were meant to be caught by the section.

This Court considered the provisions of s. 264.1(1)(a) in R. v. McCraw, 1991 29 (SCC), [1991] 3 S.C.R. 72. The manner in which a court should approach charges of threatening was set out at pp. 82-83 in these words:

How then should a court approach the issue? 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 words which are said to constitute a threat must be looked at in light of various factors. They must be considered objectively and within the context of all the written words or conversation in which they occurred. As well, some thought must be given to the situation of the recipient of the threat.

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?

Thus, the question of whether the accused had the intent to intimidate, or that his words were meant to be taken seriously will, in the absence of any explanation by the accused, usually be determined by the words used, the context in which they were spoken, and the person to whom they were directed.

In this case the words uttered by the appellant when viewed objectively in the context or circumstances in which they were spoken would "convey a threat of serious bodily harm to a reasonable person". The trial judge found that the words spoken by the appellant were intended to convey to Ms. Mizak that he intended to kill her or cause her serious bodily harm. Clearly the words disturbed and intimidated Ms. Dennehy and would have had the same effect on Ms. Mizak if they had been repeated to her. The finding of the trial judge was a sufficient and proper basis for his conviction of the appellant.

The trial judge seemed to think it was necessary to find that the threats were uttered with the intention that they be conveyed to the potential victim. For this he relied upon the decision of the Ontario Court of Appeal in Henry v. R. (1981), 1981 4960 (ON CA), 24 C.R. (3d) 261. With respect, that case was not applicable. It was a decision based on the former s. 331 (Criminal Code, R.S.C. 1970, c. C‑34), which was the predecessor to s. 264.1. Section 331 only applied to threats conveyed by certain methods. The discussion in Henry v. R. about whether the threats were intended to be conveyed to the potential victim was relevant to the method of conveying the threats under the former s. 331. The amendment to the section and the decision of this Court in R. v. McCraw, supra, make it apparent that it is not a necessary element of the offence that the intended victim be aware of the threat.

Under the present section the actus reus of the offence is the uttering of threats of death or serious bodily harm. The mens rea is that the words be spoken or written as a threat to cause death or serious bodily harm; that is, they were meant to intimidate or to be taken seriously.

To determine if a reasonable person would consider that the words were uttered as a threat the court must regard them objectively, and review them in light of the circumstances in which they were uttered, the manner in which they were spoken, and the person to whom they were addressed.

Obviously words spoken in jest or in such a manner that they could not be taken seriously could not lead a reasonable person to conclude that the words conveyed a threat.

In this case the offence was established and the conviction of the appellant must be maintained. The appeal is therefore dismissed.

Appeal dismissed.

Solicitors for the appellant: Pullan, Guld, Kammerloch, Winnipeg.

Solicitor for the respondent: The Attorney General of Manitoba, Winnipeg.