R. v. McRae (S.), (2013) 451 N.R. 375 (SCC)

• Judge: LeBel, Fish, Abella, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 06, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 451 N.R. 375 (SCC);2013 SCC 68

R. v. McRae (S.) (2013), 451 N.R. 375 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] N.R. TBEd. DE.003

Her Majesty The Queen (appellant) v. Stéphane McRae (respondent)

(34743; 2013 SCC 68; 2013 CSC 68)

Indexed As: R. v. McRae (S.)

Supreme Court of Canada

LeBel, Fish, Abella, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

December 6, 2013.

Summary:

The accused, while detained awaiting trial for trafficking in narcotics, told other detainees that he would kill or cause bodily harm to the Crown prosecutor, an officer-investigator and four witnesses. There was no evidence that the threats were ever conveyed to the threatened persons. The accused was charged with five counts of uttering threats to cause death or bodily harm. The accused was acquitted at trial. The trial judge held that the Crown failed to establish the mens rea of the offence where the threatening words were not conveyed by the accused with the intent that they be transmitted to the subjects of the threats in an attempt to influence their actions. The Crown appealed.

The Quebec Court of Appeal dismissed the appeal. The court concluded that the words did not amount to threats because they were not conveyed to their intended recipients and did not cause anyone to be fearful or intimidated. The Crown appealed.

The Supreme Court of Canada allowed the appeal and ordered a new trial. The offence did not require proof that the accused's threats were conveyed to the subjects of the threats or that someone was actually intimidated by them.

Criminal Law - Topic 1565

Offences against person and reputation - Threats - Intention or mens rea - The Supreme Court of Canada stated that "the fault element is made out if it is shown that threatening words uttered or conveyed 'were meant to intimidate or to be taken seriously' ... It is not necessary to prove that the threat was uttered with the intent that it be conveyed to its intended recipient ... or that the accused intended to carry out the threat ... Further, the fault element is disjunctive: it can be established by showing either that the accused intended to intimidate or intended that the threats be taken seriously ... The fault element here is subjective; what matters is what the accused actually intended. However, as is generally the case, the decision about what the accused actually intended may depend on inferences drawn from all of the circumstances ... Drawing these inferences is not a departure from the subjective standard of fault" - See paragraphs 17 to 19.

Criminal Law - Topic 1565

Offences against person and reputation - Threats - Intention or mens rea - The accused, while detained awaiting trial, told other detainees that he would kill or cause bodily harm to the Crown prosecutor, an officer-investigator and four witnesses - The threats were not conveyed to the persons subject to the threats - The trial judge acquitted the accused of uttering threats to cause death or bodily harm, because the Crown failed to establish the mens rea of the offence where the threatening words were not conveyed by the accused with the intent that they be transmitted to the subjects of the threats in an attempt to influence their actions - The appellate court dismissed the Crown's appeal, finding that the words did not amount to threats because they were not conveyed to their intended recipients and did not cause anyone to be fearful or intimidated - The Supreme Court of Canada allowed a Crown appeal and ordered a new trial - The court stated that "both the trial judge and the Court of Appeal erred in law in finding that the elements of the offence had not been made out because the threats were conveyed in a so-called 'closed circle'. Even if it is true that the [accused] could have expected his words to remain confidential ... this does not preclude a finding that both the prohibited act and the fault element of the offence had been made out. ... it is not necessary to prove that the threats were conveyed to their intended recipients (prohibited act) or that the accused intended the threats to be so conveyed (fault element). Further, it is not necessary to prove that anyone was actually intimidated by the threats (prohibited act) or that the accused specifically intended to intimidate anyone (fault element). The concept of the 'closed circle' is therefore legally wrong. Threats are tools of intimidation and violence. As such, in any circumstance where threats are spoken with the intent that they be taken seriously, even to third parties, the elements of the offence will be made out" - It would have been sufficient had the accused intended that the threats be taken seriously by those to whom the words were spoke (the other detainees) - See paragraphs 24 to 29.

Criminal Law - Topic 1565.1

Offences against person and reputation - Threats - Actus reus - The Supreme Court of Canada stated that "The prohibited act of the offence is 'the uttering of threats of death or serious bodily harm' ... The threats can be uttered, conveyed, or in any way caused to be received by any person. The question of whether words constitute a threat is a question of law to be decided on an objective standard. ... The starting point of the analysis should always be the plain and ordinary meaning of the words uttered. Where the words clearly constitute a threat and there is no reason to believe that they had a secondary or less obvious meaning, the analysis is complete. However, in some cases, the context reveals that words that would on their face appear threatening may not constitute threats within the meaning of s. 264.1(1)(a) ... In other cases, contextual factors might have the effect of elevating to the level of threats words that would, on their face, appear relatively innocent ... Thus, the legal question of whether the accused uttered a threat of death or bodily harm turns solely on the meaning that a reasonable person would attach to the words viewed in the circumstances in which they were uttered or conveyed. The Crown need not prove that the intended recipient of the threat was made aware of it, or if aware of it, that he or she was intimidated by it or took it seriously. ... Further, the words do not have to be directed towards a specific person; a threat against an ascertained group of people is sufficient ... the prohibited act of the offence of uttering threats will be made out if a reasonable person fully aware of the circumstances in which the words were uttered or conveyed would have perceived them to be a threat of death or bodily harm" - See paragraphs 10, 11, 13, 16.

Criminal Law - Topic 1565.1

Offences against person and reputation - Threats - Actus reus - [See second Criminal Law - Topic 1565 ].

Criminal Law - Topic 4978

Appeals - Indictable offences - Powers of Court of Appeal - Power to substitute a verdict - The accused was acquitted on multiple counts of uttering threats to cause death or bodily harm - The Supreme Court of Canada held that both the trial judge and Court of Appeal erred in law respecting both the mens rea and actus reus of the offence - At issue was whether to order a new trial or substitute convictions - The court, in ordering a new trial, stated that "In order to set aside an acquittal and enter a conviction, we must be satisfied that 'the trial judge's findings of fact, viewed in light of the applicable law, supported a conviction beyond a reasonable doubt' ... This is a power that should be used only in the clearest of cases" - See paragraph 39.

Cases Noticed:

R. v. Comeau, 2010 QCCQ 20939, refd to. [para. 4].

R. v. McCraw, [1991] 3 S.C.R. 72; 128 N.R. 299; 49 O.A.C. 47, refd to. [para. 9].

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. 9].

R. v. O'Brien, [2013] 1 S.C.R. 7; 438 N.R. 126; 288 Man.R.(2d) 150; 564 W.A.C. 150; 2013 SCC 2, refd to. [para. 9].

R. v. MacDonald (D.) (2002), 166 O.A.C. 121 (C.A.), refd to. [para. 11].

R. v. Felteau (C.L.), [2010] O.A.C. Uned. 658; 2010 ONCA 821, refd to. [para. 12].

R. v. Leblanc, [1989] 1 S.C.R. 1583; 96 N.R. 240; 99 N.B.R.(2d) 449; 250 A.P.R. 449, refd to. [para. 13].

R. v. Remy (J.M.) (1993), 56 Q.A.C. 105; 82 C.C.C.(3d) 176 (C.A.), leave to appeal denied [1993] 4 S.C.R. vii, refd to. [para. 13].

R. v. Upson (D.M.) (2001), 194 N.S.R.(2d) 87; 606 A.P.R. 87; 2001 NSCA 89, refd to. [para. 13].

R. v. Batista (2008), 62 C.R.(6th) 376; 2008 ONCA 804, refd to. [para. 14].

R. v. Neve (L.C.) (1993), 145 A.R. 311; 55 W.A.C. 311 (C.A.), refd to. [para. 18].

R. v. Hiscox (W.D.) (2002), 167 B.C.A.C. 315; 274 W.A.C. 315; 2002 BCCA 312, refd to. [para. 18].

R. v. Noble (P.D.J.) (2009), 247 Man.R.(2d) 6; 2009 MBQB 98, affd. (2010), 255 Man.R.(2d) 144; 486 W.A.C. 144; 2010 MBCA 60, refd to. [para. 18].

R. v. Heaney (K.M.) (2013), 337 B.C.A.C. 43; 576 W.A.C. 43; 2013 BCCA 177, refd to. [para. 18].

R. v. Rudnicki, [2004] R.J.Q. 2954 (C.A.), refd to. [para. 18].

R. v. Beyo (D.) (2000), 131 O.A.C. 150; 47 O.R.(3d) 712 (C.A.), refd to. [para. 19].

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. 20].

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 30].

R. v. Lewis, [1979] 2 S.C.R. 821; 27 N.R. 451, refd to. [para. 36].

R. v. Katigbak (R.), [2011] 3 S.C.R. 326; 422 N.R. 1; 283 O.A.C. 331; 2011 SCC 48, refd to. [para. 39].

R. v. Audet (Y.), [1996] 2 S.C.R. 171; 197 N.R. 172; 175 N.B.R.(2d) 81; 446 A.P.R. 81, refd to. [para. 39].

Counsel:

Sébastien Bergeron-Guyard and Thomas Jacques, for the appellant;

Stéphanie Carrier, for the respondent.

Solicitors of Record:

Poursuites criminelles et pénales du Québec, Quebec, for the appellant;

Stéphanie Carrier, St-Omer, Quebec, for the respondent.

This appeal was heard on May 21, 2013, before LeBel, Fish, Abella, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada.

On December 6, 2013, Cromwell and Karakatsanis, JJ., jointly delivered the following judgment in both official languages for the Court.