Souhaiter la mort de quelqu'un ne constitue pas une infraction tant qu'il n'y a pas de menace de de causer la mort ou des lésions corporelles

R. v. Simms, 2013 YKTC 110

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[8]           After a very brief time, Mr. Lethbridge came out of the bedroom and grabbed   Ms. Simms’ hair.  It was then that she stabbed him.  Let us think about that for a moment.  She now has the knife.  Several seconds have gone by since Mr. Lethbridge last hit her, and she did not leave.  In her mind, in the state that she was in at the time, did she know that he was coming out to assault her, or was she just going to go in armed, with the knife, and take her stuff regardless?  In my opinion, s. 34 of the Criminal Code does not apply here.  The use of the knife was not for the purpose of defending herself because she did not need to.  Ms. Simms had other viable options. 

[10]        What I can safely surmise from the facts is that Mr. Lethbridge was aggressively minded on the night of September 7, 2012, and when he discovered the accused in his apartment, having woken up on the morning of September 8, 2012, Mr. Lethbridge assaulted her.  The accused, having had the opportunity to leave, chose to stay.  She grabbed a knife and she slashed Mr. Lethbridge, causing a wound requiring 16 stitches.  Her clearly stated intent to obtain her belongings at such an unreasonable cost to him, and herself, resulted in this criminal case.  As to what occurred after the slash, I am inclined to accept the evidence of the accused. 

[12]        As to Count 3, the Supreme Court of Canada, earlier this month, came out with a case, R. v. O’Brien, 2013 SCC 2 (CanLII), [2013] 1 S.C.R. 7.  The majority, on a four to three split, upheld the acquittal by the trial judge, which was upheld by a majority of the Manitoba Court of Appeal.  The Supreme Court of Canada reiterated the opinions they expressed earlier in R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72, and R. v. Clemente, 1994 CanLII 49 (SCC), [1994] 2 S.C.R. 758. 

[13]        In this particular case, as it pertains to Count 3, the threats that the Crown is putting forward are words by the accused, “I hate you, I hope you die this time.”  It is my opinion that she expressed her feelings and her immediate hope.

[14]        In my view, this was not a threat to cause bodily harm or death.  Her criminal assault on him had already taken place.  Count 3 is dismissed.