Stéphane McRae was spending some time in jail. He was waiting to be tried on some drug offences. McRae met some people in jail. Comeau was one of them. Comeau was McRae’s “contract killer” – or so he told another fella he met or knew named Cloutier. Apparently he also met a fella named Collin. McRae felt comfortable enough to share with Cloutier and Collin his ideas about how to deal with those involved in the prosecution against him. That was a mistake.

Cloutier and Collin later reported that McRae had told them the following: he told Collin that he would “take down the guys at the top”, “rearrange the fact of the Crown prosecutor and one of the witnesses”; he told Cloutier that he hired a detective to find out where the Crown lived and the investigating officer, and that after trial he would kill anyone who ratted on him.

McRae was charged with uttering threats. He did not testify at trial. The trial judge, who found Cloutier and Collin credible, acquitted McRae; the acquittal was based on the finding that the fault element (mens rea) was not proven as the words were not conveyed with the intent that they be conveyed to the victims. The trial judge found that McRae “intended to seek revenge once the trial was done, and that he had uttered the words out of anger and frustration” [para 6].

The Crown appealed: 2013 SCC 68.

The Supreme Court noted that the appeal provided “an opportunity to consolidate and clarify the elements of the offence of uttering threats” and in particular, whether it was necessary to prove that the threats were conveyed or it was intended they be conveyed to the victims.

The Court offered the following key points in reviewing the law.

First, the elements of the offence include (1) the utterance or conveyance of a threat to cause death or bodily harm; and (2) an intent to threaten.

Second, whether words constitute a threat is a question of law to be decided on an objective standard. The Court offered the following thoughts on this point:

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) (see e.g. O’Brien, at paras. 10-12). 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 (see e.g. R. v. MacDonald 2002 CanLII 14251 (ON CA), (2002), 166 O.A.C. 121, where the words uttered were “You’re next”) [para 12].

Third, 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” [para 13].

Fourth, the threat does not need to be directed toward a specific person – an “ascertained group of people is sufficient” [para 13].

Fifth, with respect to mens rea, it is made out if “shown that the threatening words uttered or conveyed ‘were meant to be taken seriously’” [para 17]. Moreover – and in relation to the point before the court in the present case – 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 [para 18]. Finally, it is established through either proof that the accused intended to intimidate or intended the threat be taken seriously.

Given this analysis, it was apparent the trial judge applied the wrong test. The appeal was allowed and a new trial ordered.

DGM