R. v. O'Brien (K.J.), (2012) 275 Man.R.(2d) 144 (CA)

JudgeSteel, Beard and MacInnes, JJ.A.
CourtCourt of Appeal (Manitoba)
Case DateJanuary 26, 2012
JurisdictionManitoba
Citations(2012), 275 Man.R.(2d) 144 (CA);2012 MBCA 6

R. v. O'Brien (K.J.) (2012), 275 Man.R.(2d) 144 (CA);

      538 W.A.C. 144

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. FE.003

Her Majesty The Queen (appellant) v. Kelly Joseph O'Brien (respondent)

(AR 11-30-07555; 2012 MBCA 6)

Indexed As: R. v. O'Brien (K.J.)

Manitoba Court of Appeal

Steel, Beard and MacInnes, JJ.A.

January 26, 2012.

Summary:

The accused, while incarcerated, placed two calls to his ex-girlfriend, who advised that she was pregnant with his child and was going to have an abortion. The ex-girlfriend taunted the accused. The accused responded by telling the ex-girlfriend that he was going to kill her by shooting her in the head when he got out in a couple of months. Institution officials filed a complaint with police. The ex-girlfriend refused to give a statement and did not want the accused charged. The accused was charged with, inter alia, two counts of uttering threats. At trial, the ex-girlfriend testified that the accused's words did not cause her fear, because that was the way he normally talked. The trial judge acquitted the accused on the ground that the court had a reasonable doubt as to whether the accused had the requisite intent where the ex-girlfriend did not take the "threat" seriously. The Crown appealed, arguing that the trial judge erred in making the ex-girlfriend's subjective fear an element of the offence to be proved by the Crown.

The Manitoba Court of Appeal, Steel, J.A., dissenting, dismissed the appeal. It was open to the trial judge to find that the accused did not intend to be threatening or intimidating when he made the statements.

Criminal Law - Topic 1565

Threats - Intention or mens rea - The accused, while incarcerated, placed two calls to his ex-girlfriend, who advised that she was pregnant with his child and planned an abortion - The ex-girlfriend taunted the accused - The accused responded by telling the ex-girlfriend that he was going to kill her by shooting her in the head when he got out in a couple of months - Institution officials filed a complaint with police - The ex-girlfriend refused to give a statement and did not want the accused charged - The accused was charged with two counts of uttering threats - At trial, the ex-girlfriend testified that the accused's words did not cause her fear - She did not take them seriously because that was the way he normally talked - The trial judge acquitted the accused on the ground that the court had a reasonable doubt as to whether the accused had the requisite intent to threaten where the ex-girlfriend did not take the "threat" seriously - The Crown appealed, arguing that the trial judge erred in making the ex-girlfriend's subjective fear an element of the offence to be proved by the Crown - The Manitoba Court of Appeal, Steel, J.A., dissenting, dismissed the appeal - The mens rea of the offence was that the accused intended his words to intimidate or be taken seriously - The Crown was not required to prove that the recipient of the "threat" subjectively felt threatened - The fact that the threat recipient, who had been in a domestic relationship with the accused, did not feel threatened was relevant and to be considered in determining whether a reasonable person would find that the accused's words were intended to intimidate or be taken seriously - It was open to the trial judge, in the circumstances, to find that the accused did not intend to be threatening or intimidating when he made the statements - Steel, J.A., dissenting, would have allowed the appeal on the ground that while the ex-girlfriend's testimony that she did not take the threat seriously was relevant, it was given too much weight by the trial judge.

Cases Noticed:

R. v. Mabior (C.L.) (2010), 258 Man.R.(2d) 166; 499 W.A.C. 166; 2010 MBCA 93, refd to. [para. 3].

R. v. McCaughan (C.J.) (2009), 236 Man.R.(2d) 188; 448 W.A.C. 188; 2009 MBCA 14, refd to. [para. 3].

R. v. K.W.B. (1993), 85 Man.R.(2d) 220; 41 W.A.C. 220 (C.A.), refd to. [para. 22].

R. v. Noble (P.D.J.) (2010), 255 Man.R.(2d) 144; 486 W.A.C. 144; 2010 MBCA 60, refd to. [para. 23].

R. v. Clemente (V.F.), [1994] 2 S.C.R. 758; 168 N.R. 310; 95 Man.R.(2d) 161; 70 W.A.C. 161, refd to. [para. 24].

R. v. Carons (1978), 10 A.R. 300 (C.A.), refd to. [para. 28].

R. v. MacDonald (D.) (2002), 166 O.A.C. 121 (C.A.), refd to. [para. 28].

R. v. Sanderson, 2004 ONCJ 329, refd to. [para. 42].

R. v. Brame (K.), [2004] B.C.A.C. Uned. 194; 2004 YKCA 13, refd to. [para. 42].

R. v. Tibando (M.) (1994), 69 O.A.C. 225 (C.A.), leave to appeal denied (1994), 176 N.R. 318 (S.C.C.), refd to. [para. 59].

R. v. Standing (S.G.) (2007), 301 Sask.R. 266; 2007 SKPC 102, refd to. [para. 61].

R. v. Gervais (J.) (2002), 255 N.B.R.(2d) 51; 668 A.P.R. 51; 2002 NBQB 369, refd to. [para. 61].

Counsel:

R.N. Malaviya, for the appellant;

M.P. Cook, for the respondent.

This appeal was heard on November 4, 2011, before Steel, Beard and MacInnes, JJ.A., of the Manitoba Court of Appeal.

On January 26, 2012, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Beard, J.A. (MacInnes, J.A., concurring) - see paragraphs 1 to 53;

Steel, J.A., dissenting - see paragraphs 54 to 68.

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13 practice notes
  • R. v. McRae, [2013] 3 SCR 931
    • Canada
    • Supreme Court (Canada)
    • 6 Diciembre 2013
    ...20939 (CanLII); R. v. McCraw, [1991] 3 S.C.R. 72; R. v. Clemente, [1994] 2 S.C.R. 758; R. v. O’Brien, 2013 SCC 2, [2013] 1 S.C.R. 7, aff’g 2012 MBCA 6, 275 Man. R. (2d) 144; R. v. MacDonald (2002), 166 O.A.C. 121; R. v. Felteau, 2010 ONCA 821 (CanLII); R. v. LeBlanc, [1989] 1 S.C.R. 1583, r......
  • R. v. McRae (S.), (2013) 451 N.R. 375 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • 6 Diciembre 2013
    ...R. v. Hundal (S.), [1993] 1 S.C.R. 867; 149 N.R. 189; 22 B.C.A.C. 241; 38 W.A.C. 241, refd to. [para. 19]. R. v. O'Brien (K.J.) (2012), 275 Man.R.(2d) 144; 538 W.A.C. 144; 2012 MBCA 6, refd to. [para. R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 30].......
  • R. v. McRae (S.), [2013] N.R. TBEd. DE.003
    • Canada
    • Supreme Court (Canada)
    • 6 Diciembre 2013
    ...threatening, she was left with a reasonable doubt as to whether the accused had the necessary intent to threaten ( R. v. O'Brien , 2012 MBCA 6, 275 Man. R. (2d) 144, at para. 34). The perception of the alleged victim was not directly in issue, but was relevant evidence of the accused's inte......
  • R. v. Churchill,
    • Canada
    • Supreme Court of Newfoundland and Labrador (Canada)
    • 29 Marzo 2022
    ...only to the extent that it assists in understanding the accused’s intention in speaking the words at issue (See O’Brien, [2012 MBCA 6], at paras. 22-29; and O’Brien S.C.C. at paras. 5-7, [77]      It can be difficult to determine specific intent......
  • Request a trial to view additional results
13 cases
  • R. v. McRae, [2013] 3 SCR 931
    • Canada
    • Supreme Court (Canada)
    • 6 Diciembre 2013
    ...20939 (CanLII); R. v. McCraw, [1991] 3 S.C.R. 72; R. v. Clemente, [1994] 2 S.C.R. 758; R. v. O’Brien, 2013 SCC 2, [2013] 1 S.C.R. 7, aff’g 2012 MBCA 6, 275 Man. R. (2d) 144; R. v. MacDonald (2002), 166 O.A.C. 121; R. v. Felteau, 2010 ONCA 821 (CanLII); R. v. LeBlanc, [1989] 1 S.C.R. 1583, r......
  • R. v. McRae (S.), (2013) 451 N.R. 375 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • 6 Diciembre 2013
    ...R. v. Hundal (S.), [1993] 1 S.C.R. 867; 149 N.R. 189; 22 B.C.A.C. 241; 38 W.A.C. 241, refd to. [para. 19]. R. v. O'Brien (K.J.) (2012), 275 Man.R.(2d) 144; 538 W.A.C. 144; 2012 MBCA 6, refd to. [para. R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 30].......
  • R. v. McRae (S.), [2013] N.R. TBEd. DE.003
    • Canada
    • Supreme Court (Canada)
    • 6 Diciembre 2013
    ...threatening, she was left with a reasonable doubt as to whether the accused had the necessary intent to threaten ( R. v. O'Brien , 2012 MBCA 6, 275 Man. R. (2d) 144, at para. 34). The perception of the alleged victim was not directly in issue, but was relevant evidence of the accused's inte......
  • R. v. Churchill,
    • Canada
    • Supreme Court of Newfoundland and Labrador (Canada)
    • 29 Marzo 2022
    ...only to the extent that it assists in understanding the accused’s intention in speaking the words at issue (See O’Brien, [2012 MBCA 6], at paras. 22-29; and O’Brien S.C.C. at paras. 5-7, [77]      It can be difficult to determine specific intent......
  • Request a trial to view additional results

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