R. v. Batista, 2008 ONCA 804
1. The Elements of the Offence
[12] Section 264.1(1)(a) of the Criminal Code provides that every one commits an offence who, in any manner, “knowingly utters, conveys or causes any person to receive a threat (a) to cause death … to any person”.
[13] In R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72, at p. 82, the Supreme Court of Canada describes the purpose of the offence as one to “protect against fear and intimidation.” Writing for the court, Cory J. explained that s. 264.1(1)(a) was enacted “to protect personal freedom of choice and action, a matter of fundamental importance to members of a democratic society.”
[14] McCraw, at pp. 82-83, instructs that whether the impugned words constitute a threat, which it describes as a question of law rather than one of fact, should be approached looking at the matter objectively from the perspective of the ordinary reasonable person:
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? [Emphasis added.]
[15] At p. 86, McCraw also observes that the impugned words must be construed as they would be “by the average reasonable person”.
[16] This approach was further explained by the Supreme Court of Canada in R. v. Clemente, 1994 CanLII 49 (SCC), [1994] 2 S.C.R. 758, where, at p. 763, Cory J., writing for the court, stated:
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.
[17] Further, the Crown does not satisfy its onus if the reasonable person would understand that the poem was made in jest or in such a way that it could not be taken seriously. As Cory J. said in Clemente at p. 762, “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.”
[18] Thus, the Crown is required to prove two elements essential to the offence of uttering a threat. These elements are described in Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Canada Limited, 2005), at p. 507, which I summarize. First, the Crown must establish that the appellant made a threat to cause the councillor’s death; and second, that he made the threat knowing that it would be taken seriously.
[19] To satisfy the first element, the Crown is required to prove that, when viewed objectively, an ordinary reasonable person would consider the appellant’s poem amounted to a threat to cause Ms. Saito’s death. In considering whether a threat was made, the ordinary reasonable person would take into account all the circumstances, including the manner in which the words were communicated, the audience to whom it was addressed and the relationship between the writer and the subject of the alleged threat.
[20] The determination of whether the poem constitutes a threat in law requires a reasonable person to consider the context or circumstances in which it was made. Before arriving at a conclusion whether the impugned words or gestures constitute a threat, a court must consider all the circumstances both individually, and as a whole.
[21] Mindful of the legal test for a threat, I turn to the context of the appellant’s poem, including the context of the Criminal Code’s purpose of protecting against fear and intimidation and of protecting personal freedom of choice.
2. Is the poem a “threat”?
[22] In considering whether the questioned words constitute a threat, the reasonable person would consider all the circumstances. The circumstances relied upon in this case include the perception of threat by the witnesses, the context of the relationship between the appellant and the councillor, the questioned words in the light of the appellant’s poem as a whole, the manner in which the poem was distributed and its character as political commentary. I will consider each of these circumstances in turn and then as a whole to inform the question of whether the impugned words constituted a threat at law.
(a) The Reasonable Person
[23] An ordinary reasonable person considering an alleged threat objectively would be one informed of all the circumstances relevant to his or her determination. The characteristics of a reasonable person were considered by the Supreme Court of Canada in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, in the context of the test for bias. In that case, L’Heureux-Dubé and McLachlin JJ., at para. 36, described such a person as a:
reasonable, informed, practical and realistic person who considers the matter in some detail.…The person postulated is not a “very sensitive or scrupulous” person, but rather a right-minded person familiar with the circumstances of the case.
Similarly, in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 282, in the context of the test for bringing the administration of justice into disrepute, Lamer J. for the majority describes a reasonable person as “dispassionate and fully apprised of the circumstances of the case”: see also R. v. Burlingham, 1995 CanLII 88 (SCC), [1995] 2 S.C.R. 206, at para. 71.
[24] It follows that a reasonable person considering whether the impugned words amount to a threat at law is one who is objective, fully-informed, right-minded, dispassionate, practical and realistic.
[25] To support a conclusion that an ordinary reasonable person would have found the appellant’s poem threatening, the Crown relies on the testimony of the parking enforcement officer, the investigating police officer and Ms. Saito concerning their reactions to the poem.
[26] In my view, while the opinions of the three witnesses may have been relevant, their evidence could not be determinative because their evidence amounted to a personal opinion that did not necessarily satisfy the requirements of the legal test. As the Supreme Court of Canada stated in McCraw, whether the impugned words amount to a threat is a question of law. None of the witnesses applied the legal test that asks whether a reasonable person, fully informed of the circumstances, considering the matter objectively, would consider the impugned words as a threat, nor were they asked to do so. In this case, neither the enforcement officer nor the police officer considered the poem in the light of all the circumstances. While Ms. Saito may have been distressed by the poem, her view was subjective rather than objective. The perspective of the reasonable person is different from that of the three witnesses relied upon by the Crown.
(b) The Context of the Relationship
[27] The reasonable person would consider the context of the relationship between the author and the subject of the poem as important to a determination of whether it constitutes a threat.
[28] The relationship between the appellant and Ms. Saito was obviously based upon the requests and complaints made by a constituent to his municipal councillor. From the subjective perspective of the appellant, the relationship was unsatisfactory. The councillor’s office had been unresponsive or slow to respond to his inquiries and, in his view, the councillor was inexplicably distracted from her job by the potholes, an issue she apparently approached light-heartedly. From the councillor’s perspective, the relationship was satisfactory because, to the best of the councillor’s knowledge at the time, her office responded to the constituent’s concerns, albeit latterly with some delay.
[29] The Crown concedes that the trial judge erred in his factual findings regarding the relationship between the appellant and the councillor. The trial judge found that the relationship caused Ms. Saito concern prior to her receipt of the poem. However, while Ms. Saito testified that she found the poem threatening, she did not link that concern to her pre-existing relationship with the appellant. The Crown describes this error as peripheral; however, in my view, the error is significant.
[30] The relationship between the appellant and the councillor provides context to whether the Crown satisfied the legal test that the poem constituted a threat. Even though the appellant had been complaining to the councillor over a prolonged period of time, nothing about the previous complaints, including the previous poem, caused the councillor to feel threatened. The factual finding to the contrary takes on particular significance because it immediately precedes the trial judge’s conclusion “that the words written constitute a threat.”
(c) The Structure of the Poem
[31] The trial judge’s reasons do not reflect a consideration of the impugned stanzas of the poem in the context of the poem as a whole, or in the context of the appellant’s earlier poem. Instead, the reasons appear to consider the impugned stanzas in isolation, separate from the context of the mocking tone and cadence – albeit inelegant and rudimentary – that are evident in the earlier stanzas. Like the first poem, the first stanzas are replete with attempts to rhyme or mimic nursery rhymes. The first stanzas highlight the author’s perception of the councillor’s interest or preoccupation with potholes, rather than with fulfilling the obligations of her job. This approach is further confirmed by the title “Parked Cars and pot holes in the City of Mississauga”. As poorly written as the appellant’s poem is, the earlier stanzas cannot but diminish what might otherwise be seen as an implicit threat if the later stanzas were read in isolation. It was incumbent on the trial judge to situate the later stanzas in this broader context of the poem as a whole and the earlier poem and to consider whether the author’s purpose may have been to mock the councillor for concentrating her efforts on potholes at the expense of other issues important to her constituents.
(d) The Context of Posting the Poem
[32] In addition, while the trial judge considered the fact that the poem was posted publicly, he did so primarily regarding the appellant’s intention and whether the appellant could have instead gone door-to-door to discuss the councillor’s job performance with his neighbours. On this issue, the appellant testified that he did not go door-to-door because he was shy. While there was ample evidence - especially the appellant’s difficulties with the English language – to support the appellant’s explanation, it was open to the trial judge to reject it as he did.
[33] However, it is also important on the question of the actus reus of the offence that the appellant did not surreptitiously or otherwise send the poem to Ms. Saito. Had the appellant done so, the last stanzas of the poem may have seemed more ominous to the informed person. By instead posting the poem in public areas on neighbourhood mailboxes, the appellant could be seen as engaging the community in the political process, rather than directing a threat against Ms. Saito. It is also noteworthy that certain characteristics of the poem permitted the police to easily identify the appellant as its author.
[34] These perspectives of the public posting were not considered by the trial judge in his reasons. Such conduct would belie the Crown’s position that the “threat” in the poem was meant to be taken seriously.
(e) The Context of Freedom of Expression
[35] The appellant argues that the trial judge failed to consider s. 2(b) of the Charter in considering the context of the appellant’s poem. Section 2(b) provides that everyone has fundamental freedoms, including “freedom of thought, belief, opinion and expression”. The trial judge concluded that the Charter was not engaged because s. 2(b) does not operate to protect a threat on the basis that the threat was made to a public figure. This conclusion is correct. However, it also can be read, as argued by the appellant, to presuppose the answer to the question at issue: whether the poem constituted a threat.
[36] The appellant’s argument, distilled on appeal, is not that s. 2(b) applies to protect threats to public representatives. Rather, the appellant argues that whether the appellant’s poem constitutes a threat has to be decided in the light of the s. 2(b) right to freedom of expression, particularly freedom of expression in a political context. In other words, the fundamental right of freedom of expression is a factor relevant to the determination of whether the statement constituted a threat just as is the fundamental right to freedom of choice and action protected by the criminalization of threats. Both freedoms must be considered and balanced.
[37] The Crown concedes that the right to freedom of expression is a fundamental value in a free and democratic society. That right, discussion of which long pre-dates s. 2(b), is of particular importance in the political context where freedom of expression, even offensive expression, functions to ensure open debate and equal participation in the political process: see R. v. Sharpe, 2001 SCC 2 (CanLII), [2001] 1 S.C.R. 45, at para. 21. In R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697, at p. 727, Dickson C.J., writing for the majority, referenced the certain “convictions fuelling the freedom of expression”, including, at p. 728, the conviction that “participation in social and political decision-making is to be fostered and encouraged”. At pp. 763-64, the court explained:
The connection between freedom of expression and the political process is perhaps the linchpin of the s. 2(b) guarantee, and the nature of this connection is largely derived from the Canadian commitment to democracy. Freedom of expression is a crucial aspect of the democratic commitment, not merely because it permits the best policies to be chosen from among a wide array of proffered options, but additionally because it helps to ensure that participation in the political process is open to all persons. Such open participation must involve to a substantial degree the notion that all persons are equally deserving of respect and dignity. The state therefore cannot act to hinder or condemn a political view without to some extent harming the openness of Canadian democracy and its associated tenet of equality for all.
These concepts are central to the tenets of a democracy.
[38] Even in circumstances where s. 2(b) has no direct application, such as in this case, nonetheless its fundamental values can operate as a relevant consideration. In R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8 (CanLII), [2002] 1 S.C.R. 156, the Supreme Court of Canada, at para. 20, confirmed freedom of expression as a “fundamental Canadian value” that is expressed in the Charter, but that also informs the common law. Pepsi-Cola, also at para. 20, quotes McIntyre J.’s observation in RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573, at p. 583, that “[f]reedom of expression is not, however, a creature of the Charter. It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society.” See also pp. 584-86 of Dolphin Delivery; Boucher v. The King, 1950 CanLII 2 (SCC), [1951] S.C.R. 265, at p. 288; Switzman v. Elbling, 1957 CanLII 2 (SCC), [1957] S.C.R. 285, at p. 306 and pp. 326-328; Reference re Alberta Statutes, 1938 CanLII 1 (SCC), [1938] S.C.R. 100, at pp. 132-33.
[39] Thus, even prior to the Charter, the case law recognized the vital role that freedom of expression plays in a democratic society.
[40] Several references in the trial judge’s reasons show he was alive to the constituent/elected representative relationship between the appellant and Ms. Saito. However, those references do not consider the poem in the context of the importance of freedom of expression in the form of political commentary. In my view, the trial judge’s conclusory statement that the “accused crossed the line from permissible political comment to prohibited criminal conduct” is insufficient to demonstrate a consideration of this context. Nowhere do the trial judge’s reasons address the poem as political commentary or make reference to the appellant’s imagery concerning the councillor’s chances of winning an election “race”.
[41] The poem’s purpose of denigrating the elected councillor’s level of job commitment or competence provides important context for a consideration of whether the impugned stanzas of the poem constitute a threat. All citizens are entitled to freedom of expression in the political forum, including those whose language skills are limited. While it was unnecessary for the trial judge to engage in the in-depth s. 2(b) analysis urged upon him by trial counsel, it was necessary to consider the poem as political commentary before determining whether it constituted a threat at law.
[42] In my view, considering all the above circumstances individually and as a whole, the trial judge’s conclusion that the offending stanzas constituted a threat cannot be sustained particularly in the light of the factual error concerning the councillor’s pre-existing relationship with the appellant, the political context in which the poem was written, its public dissemination, and the context of the stanzas in the poem and in the context of the earlier poem.
