Kelly O’Brien has a short fuse, something his ex-girlfriend, W, knew well. W suspected O’Brien of cheating on her. She told him of her suspicions over the phone while O’Brien was incarcerated at Headingly Correctional Centre. O’Brien denied the accusation and W responded that in light of his infidelity she was taking steps to abort his baby. At the time W was 20 weeks pregnant. O’Brien was upset at the prospect of the abortion, he tried to talk W out of it, he begged her not to kill his baby. She persisted with the threat and taunted him with her plan to send him the ultrasound photo. When O’Brien asked why she was doing this, W responded “Why not? Why not hurt you, hey? Maybe you should hurt?”
O’Brien was enraged and he provided an explicit explanation of what he was going to do upon his release, which included the following:
…I’ll be on the 25th… on the 25th you’re getting a bullet in your fucking head you fucking little whore, man, o.k.? O.k. And the guards just heard me so I’ll probably going to get charged for that. So I’m going to fucking kill you, you little bitch when I get outta here man. O.k., you fucking hear me? You’re dead, you fucking whore. I mean it man. Watch your windows. I’m going to shoot your windows out, bitch [para 6].
The conversation between O’Brien and W was captured on audiotape. O’Brien was, as he predicted, charged with uttering a death threat. W refused to cooperate with police and insisted that she didn’t want O’Brien charged. At trial, W was called as a witness by the Crown. She testified that O’Brien’s threats did not cause her any fear and that O’Brien “runs at the mouth a lot” and “says a bunch of garbage sometimes” [para 11].
The trial judge delivered reasons from the bench and found that although the actus reus had been made out but there was a doubt about the mens rea:
…it is incumbent, and the court is required, to consider the words in the context of the evidence of Ms. [W], and when I do so, despite the fact that I am actually quite concerned about the actus of the offence, the comments, the words, I must say that I do have a reasonable doubt about the mental element of the means rea of the offence because the evidence of Ms. [W], the fact that she did not take them seriously, and as I pointed out at the outset it is incumbent upon the Crown to prove all elements of the case beyond a reasonable doubt. So despite my concerns I am entering an acquittal on the charge of utter threats… [para 12]
The Crown appealed the acquittal on the basis that the trial judge had erred by relying solely on W’s subjective perception of the threat instead of considering what a reasonable person would have understood from the words uttered by O’Brien: 2012 MBCA 6.
The majority of the Manitoba Court of Appeal held that:
The trial judge did not err, either in assessing the mens rea requirements for uttering threats or in finding that the evidence of Ms W negated the mens rea of the accused. It was open to the trial judge, based on all of the evidence, to have a reasonable doubt that the accused intended to threaten or intimidate Ms W when he said the words at issue and, on that finding, to acquit of the charges of uttering threats [para 51].
Steel JA delivered compelling reasons in dissent and explained that although it was “true that the complainant taunted him with her plan to abort her pregnancy, (but) provocation is not a defence to a charge of uttering threats. The law does not sanction threats to kill as a method to convince a woman to carry a pregnancy to term” [para 64].
Steel JA went on to explain some of the other considerations at play in this case including the fact that the threats took place in the context of a domestic relationship.
There are also certain other issues that form part of the fabric of a contextual analysis of mens rea in this situation. It does not surprise me that the complainant refused to give police a statement and did not want the accused to be charged. This accused has a significant criminal record for both violence and property offences. That record includes two prior domestic violence convictions on previous partners for uttering threats, assault and assault with a weapon. He was incarcerated at the time of the telephone call, but told the complainant he could be getting out in a few months. He admitted that he had beaten this particular complainant before and as he put it, in chilling fashion: "Who's gonna stop me from killin' you, man? Who's gonna stop me?"
The words were uttered in the context of a domestic relationship. The context and history of such a relationship, along with all of the above factors, must be considered in assessing the complainant's statement that she was not afraid when the accused told her "I'll put a bullet right in your fuckin' head."
Moreover, in my opinion, it does not matter if this particular accused is an individual with an explosive temper who often makes threats that are not then carried out. The fact "[t]hat's the way [the accused] normally talks" does not legitimate the threats. It does not matter whether the accused intended to carry out his threats. It does not matter if the recipient of those threats did not in fact feel intimidated. If the accused intended to intimidate the complainant or instill fear in her when he uttered the threats, then he intended them to be taken seriously and should be sanctioned accordingly. See Clemente at p. 763 and Noble [paras 65-67].
On December 6th, 2012 the Supreme Court of Canada heard the appeal:  SCCA No 91.
On Thursday January 17th, 2013 (a few hours from now), the SCC will release their decision.
The Court’s ruling may be a significant one for a couple of reasons.
First, if the Court holds that the subjective interpretation of the threat is not determinative it will be significant. It has been held that absent evidence that the complainant was fearful a conviction cannot be secured. This could be a change for the better. It is not unusual that complainants, such as W, are not fearful of threats of this sort. Yet, the reasons for this lack of fear are not always, as W suggested, because the accused often makes hollow “threats”. Sometimes, the reason for a lack of subjective fear is conditioning; complainants may have become hardened and fail to see the real threat in such comments. Especially in the context of domestic matters, threats often do come to fruition. Indeed, in this case, O’Brien’s threat seems very real; it was made in front of others and it was detailed and reiterated in a disturbing manner. Objectively, a reasonable person would be fearful.
Second, if the standard is changed then the Crown would not necessary need to call a complainant where there is an independent record of the threat. In the context of a domestic prosecution, where complainants are sometimes unwilling to participate in the process, there would be a significant impact.
Either way, O’Brien is an interesting and notable case. Indeed, underlying the impugned comments of O’Brien are the utterances of W which could be considered a threat. In 1991 the Supreme Court of Canada in R v McCraw,  SCJ No 69, held that:
So long as the psychological harm substantially interferes with the health or well-being of the complainant, it properly comes within the scope of the phrase "serious bodily harm". There can be no doubt that psychological harm may often be more pervasive and permanent in its effect than any physical harm. I can see no principle of interpretation nor any policy reason for excluding psychological harm from the scope of s. 264.1(1)(a) of the Code [para 22].
Clearly W’s words were intended to “harm” O’Brien, W said as much. Based on McCraw, they may also constitute “serious bodily harm” and therefore constitute a threat; but that is a question for another day. Until then, we will grapple with the outcome of O’Brien and its impact, possibly significant, on threat charges in the future.