SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-13-70000067-00AP
DATE: 20140211

RE: R. v. Jeremiah Joyles

BEFORE: M.A. Code J.

COUNSEL: Matthew Gourlay, for the Appellant Joyles
Megan Petrie, for the Respondent Crown

HEARD: February 10, 2014

ENDORSEMENT

[1] The Appellant Joyles was convicted in the Ontario Court of Justice by Clements J. on March 19, 2013 on an Information charging a single count of knowingly uttering threats of “serious bodily harm”, contrary to s. 264.1. After a psychiatric assessment, he was sentenced to a conditional discharge and two years probation on April 25, 2013.

[2] The Appellant was represented by counsel at trial but he was initially self-represented on his appeal. The University of Toronto Faculty of Law students at Downtown Legal Services, assisted and led by Mr. Gourlay in this case, have stepped in and represented the Appellant on the appeal. The Court is grateful to Mr. Gourlay and the University of Toronto students for their very able assistance.

[3] Mr. Gourlay advances two arguments. First, he submits that the trial judge drew an unreasonable inference of animus from Joyles’ after the fact conduct, which Mr. Gourlay characterizes as a “failure to give proper effect” to evidence. See: R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 at 217-221 (Ont. C.A.). This alleged error relates to the mens rea of the offence. Second, he submits that the trial judge erred in law by failing to apply the established objective test for determining the actus reus of the offence, as set out in the leading authorities, namely, R. v. McCraw (1991), 1991 29 (SCC), 66 C.C.C. (3d) 517 (S.C.C.) and R. v. Clemente (1994), 1994 49 (SCC), 91 C.C.C. (3d) 1 (S.C.C.).

[4] The facts of the case, in brief summary, were that the accused Joyles and the complainant lived in the same apartment building but they did not know each other. On January 30, 2013, the complainant was on the telephone when Joyles arrived at her door, banged on it, and shouted a series of obscenities at her through the door. There was no prior history, known to the complainant, that would explain this sudden development. She told Joyles, through the door, that she was calling the police and he replied, “Do you think I’m scared to hurt you because of the police? Do you think I’m scared to do anything because of the police?” When the police arrived, Joyles was no longer present. Two days later, on February 1, 2013, the police were again at the building dealing with an unrelated matter involving Joyles. The complainant appeared and identified Joyles as the man involved in the prior incident. Joyles again uttered an obscenity about the complainant and said, “I’m not afraid of you”.

[5] As to the first ground of appeal, the trial judge was not willing to draw an inference as to the requisite “intent to intimidate” from the events of January 30, 2013, standing alone. However, he reasoned that the subsequent events of February 1, 2013 provided sufficient evidence of animus such that he was able to infer “intent to intimidate … the necessary mens rea”, on the basis of all the evidence. I am not satisfied that this was an unreasonable inference or that the trial judge gave undue weight or inappropriate effect to the evidence of after the fact conduct. Mr. Gourlay, of course, conceded that evidence of after the fact conduct is admissible and can be used to infer the nature of the relationship and any ongoing animus between the parties. See: R. v. White (2011), 2011 SCC 13, 267 C.C.C. (3d) 453 (S.C.C.). His submission concerned only the appropriate weight to be given to the particular evidence in this case.

[6] For the reasons set out above, the first ground of appeal is dismissed.

[7] The second ground of appeal has more substance. It focuses on the actus reus of the offence. The relevant background to this ground of appeal is that the trial judge advised counsel, at the beginning of their submissions, that there was a recent decision of the Supreme Court of Canada which he believed “fundamentally changes the law on threatening”. The decision was R. v. O’Brien (2013), 2013 SCC 2, 292 C.C.C. (3d) 526 (S.C.C.). Neither counsel challenged the trial judge on his assertion as to the effect of O’Brien and it is somewhat unclear as to what aspect of the law had been changed by O’Brien, in the trial judge’s view. At certain points, in various exchanges with counsel, it appears that he thought O’Brien had changed the mens rea of the offence. At other points, he appears to say that O’Brien changed the actus reus. In this latter regard, the trial judge advised defence counsel that one of the cases relied on by the defence referred “to Clemente and whether a reasonable person, informed of the circumstances and considering the matter objectively, would consider the impugned words as a threat. I don’t think that is the test anymore under O’Brien”. Furthermore, in his reasons for judgment, delivered orally at the end of the trial, there is little or no reference to the actus reus of the offence and there is certainly no reference to the objective test for the actus reus, as set out in McCraw, supra and Clemente, supra.

[8] The parties agree that there is nothing in the O’Brien decision that changed the established law concerning the s. 264.1 offence of threatening. I agree with counsel. Justice Fish gave the reasons for the majority in O’Brien and he cited both Clemente and McCraw as the “governing decisions of this Court”. There is nothing in Fish J.’s brief reasons that suggests a change in the law, let alone a “fundamental” change.

[9] Assuming that the trial judge failed to apply the Clemente and McCraw test, concerning the actus reus of threatening, the parties agree that it is a question of law as to “whether an utterance made in specified circumstances constitutes a threat to do bodily harm”. Given that the trial judge made all the necessary findings as to the nature of the utterance, and the surrounding contextual circumstances, this Court is in the same position as the trial judge and can decide the question of law concerning the actus reus. See: R. v. McCraw, supra at para. 26; R. v. Baptista (2008), 2008 ONCA 804, 238 C.C.C. (3d) 97 at para. 14; R. v. Felteau, 2010 ONCA 821 at para. 5.

[10] The undisputed facts and the trial judge’s findings of fact, relating to the actus reus of the offence, were as follows:

• There was no prior relationship or history or motive between the accused and the complainant;

• The accused and the complainant lived in the same building and he was “banging on her door” at the time of the January 30th incident;

• The accused uttered “a lot of profanity”, directed at the complainant, through the door to her residence;

• The complainant “was upset by his conduct” and was “afraid to the point” that she told the accused she would call the police and she did call the police;

• The accused then uttered words to the effect, “Do you think I’m scared to hurt you because you are calling the police? Do you think I am scared to do anything because of the police?” The trial judge found that the word “hurt”, standing alone and “without any context”, could mean a number of things, some of which would not rise to the level of “bodily harm”;

• The accused was no longer present when the police arrived;

• Two days later, on February 1, the complainant identified the accused as the perpetrator, while he was involved with the police in another matter. He uttered a further profanity or obscenity towards the complainant and said that he was “not afraid” of her;

• The trial judge inferred “a degree of animus” and “intent to intimidate” from all the evidence.

[11] The established test for the actus reus of the offence of threatening is the one set out in McCraw, supra at para. 27, as affirmed in all the subsequent case law, most recently in R. v. McRae, 2013 SCC 68 at para. 10. The test is as follows:

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?

In Clemente, supra at para. 13, the Court put it this way:

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.

[12] Mr. Gourlay stressed the lack of any relationship or history between the parties and the ambiguity in the word “hurt”. However, these two factors cannot be viewed in isolation. The repetition of profanities and obscenities against the complainant over a two day period, indicating some animus, and the reference to “hurting” her and doing “anything” to her in spite of the police, while being physically present outside her door and while banging on her door, removed any ambiguity in my view. Indeed, the fact that there was no prior relationship or history that might explain this sudden development tends to make it more frightening.

[13] Although the trial judge never expressly applied the McCraw and Clemente test, he came very close to addressing it during oral argument when he told defence counsel:

But even if Clemente were the law, I think subjectively one could find a reasonable basis to believe that [the complainant] thought she was being threatened. I don’t think there is any doubt about that, reasonably, under all the circumstances. If somebody came banging at your door in those circumstances … [Emphasis added.]

[14] I am satisfied that a reasonable person, in the circumstances set out above, would consider the words uttered to be a threat of serious bodily harm. I note that the modern s. 264.1 no longer requires a threat of “serious” bodily harm, since the 1995 amendments, although the Crown pleaded it in this case.

[15] Accordingly, the second ground of appeal has not been made out. In spite of Mr. Gourlay’s very able argument, the appeal is dismissed.

M.A. Code J.

Date: February 11, 2014