Citation: R. v. Buckley, 2009 NSSC 204
Date: 20090706
Docket: CRAT 298452
Registry: Halifax
Between:
Jason Brian Buckley
Appellant
v.
Her Majesty the Queen
Respondent
Judge: The Honourable Justice Duncan R. Beveridge.
Heard: April 29, 2009, in Antigonish, Nova Scotia
Final Written
Submissions: May 20, 2009
Written Decision: July 6, 2009
Counsel: Maurice G. Smith, Q.C., for the Appellant
Darlene Oko and Meghan E. MacGillivray,
for the respondent
By the Court:
INTRODUCTION
[1] The appellant was a student at St. Francis Xavier University in Antigonish, Nova Scotia. He sent an email to his computer science professor with an attachment. Although the professor did not take the content of the attachment as a threat, he sent it to university officials as he had been requested to alert them to any odd or unusual behaviour by the appellant. The police were contacted and a charge laid was against the appellant of uttering a threat to the professor to cause his death, contrary to s.264.1(1)(a) of the Criminal Code.
[2] The appellant did not have a lawyer when he stood his trial on May 14, 2008 in Provincial Court. He was found guilty and was sentenced immediately following the conclusion of his trial to an 18 month suspended sentence, and placed on probation with conditions. Counsel was retained and an appeal commenced from conviction and sentence, alleging improper admission of evidence, unfair and prejudicial cross-examination of the appellant and a failure to give due consideration to a conditional discharge. New counsel took over carriage of the appeal. No formal amendment of the grounds of appeal was sought, but the appellant’s brief also argued that the verdict reached was unreasonable.
[3] At the hearing of the appeal on April 29, 2009, I asked counsel for the respondent, who was not counsel at trial, or even initially on the appeal, if she wished an opportunity to specifically address the appellant’s argument that the verdict was unreasonable. She did. Supplementary submissions were made by both parties. In terms of remedy, the appellant seeks an acquittal, a new trial or a conditional discharge.
[4] By way of overview, this appeal raises issues of the admissibility of evidence, the appropriateness of questions asked of the appellant in cross-examination, and the impact these matters may have had on the integrity and fairness of the trial; the elements of the offence that the Crown needed to prove beyond a reasonable doubt, and was there sufficient evidence that would permit a reasonable trier of fact, properly instructed and acting reasonably, to be satisfied beyond a reasonable doubt on those elements.
FACTUAL BACKGROUND
[5] The trial did not take long. There were only three witnesses, Professor Martin Van Bommel, Mark MacAulay and the appellant. Much of the evidence was not contested.
[6] In the fall of 2007 the appellant was enrolled as a student at St.F.X. One of his courses was Computer Science 161, Introduction to Computers, Programming and Problem Solving. Professor Van Bommel was the instructor. Van Bommel testified that up to October 25, 2007, the appellant regularly attended class, occasionally asking questions that were not relevant to the course or topic, but in general seemed to be participating as any regular student. He had no concerns about the appellant, but did notice some strange or unusual behaviour at times in the Math Resource Centre. Van Bommel said the appellant would make unusual comments to the computer itself, and said a number of times that he thought people were hacking into his computer, monitoring his keystrokes, and some people were out to get him.
[7] On October 25, 2007 Professor Van Bommel received an email from the appellant with an attachment. It was not unusual for him to receive emails from the appellant or other students. Van Bommel described the body of the message to be quite poorly worded, with some strange comments. More troubling was the attachment. He regularly received emails from students with computer programs attached, asking for help with their programs. The attachment from the appellant was a text file with a lot of extra characters in it. That was not disturbing. The file was created using a program that they would not ordinarily use for their programming. The body of the email did reference the fact that the appellant was not sure what format the message would arrive in. The email asked for assistance in de-bugging the program, correct the errors in it and get it running.
[8] When Van Bommel deciphered the attachment, there were a couple of messages in it that were “disturbing to me as part of a computer program. One of the messages included the phrase - - I believe it’s - - ‘I am going to kill you.’ - - but not - - not in the sense that it is directed straight to me, but as part of that program that he was writing.” The other comment in the attachment was “I am so horny”. These two statements, mixed with the rest of the email, he found very disturbing and would not normally be sent by a student in any context.
[9] Copies of the email and attachment were tendered as Exhibit #1 and #2. The email was sent at 7:52 p.m. on October 24, 2007. It read:
I have been writing you a lot, but to the wrong email -_-. Here is a few programs I am having trouble with. Even if you don’t get to them before the test, I understand.
So this first one is well. Now I don’t know. I will probably send some wordpads, and some cpp.’s. Might not be what I originally had in mind, but second times a 2nd try. Here you go.
Well its no most certainly not what I had in mind, but perhaps I will come see you in person. If you like the night you may consider spending more time around the office. I will see you tommorrow (sic), and I might throw some other attachments still. Be careful you don’t get a virus. *Look out for the LIch King:)*
[10] With respect to the attachment, (Exhibit #2) the evidence was more technical. Professor Van Bommel testified there was a program embedded in the attachment, but it had a lot of other characters with it. Exhibit # 2 was not an exact copy of what he had received. Van Bommel explained that it was slightly modified, as he added some white character space, did some indentation and removed some carriage returns, but none of the text had been modified.
[11] It appears not to have been contested by anyone that the attachment was some sort of computer program. In cross-examination Professor Van Bommel clarified that when he removed the extra control characters, it did appear to be a computer program, but that he did not run it as he had not de-bugged it. The trial judge sought further clarification from Van Bommel. The witness testified that he would take the attachment and enter the Borland Compiler, which would convert it to a running program. The attachment looked to be designed as a real program, but he could not say exactly what it would do as there was not enough of it to actually do anything. But the attachment would accept input from the user of the program and would generate text messages. The words in issue were part of the program.
[12] Following receipt of the email of October 24, 2007, Van Bommel emailed the appellant and told him the message was not appropriate. He also met him in the Math Resource Centre on October 25, 2007. The witness was given permission to refer to notes he had made of this meeting. After referring to those notes, Van Bommel testified that he had informed the appellant the attachment was not appropriate and he should not be forwarding that type of attachment. The appellant, according to Van Bommel, responded that “he thought that someone was monitoring what he was typing, so he typed those messages in that file to get a reaction from whoever was monitoring his typing”. The Crown posed a leading question to the witness.
Q. All right. Did he say, “ To get a reaction from whoever was monitoring him.” – or did he just say, “To get a reaction.” –?
A. Ah – I’m not positive on that one –
Q. All right.
A. – one way or the other.
Q. All right. But in any event, he – he used the words, “– to get a reaction –“,--
A. Yes.
[13] There was no cross-examination on this point by the appellant. The trial judge sought to clarify this evidence. He asked:
Q. Okay. Okay. Now just to again clarify. He said he “– put these in--” for what purpose ?
A. The comment he made was he, “– thought someone was monitoring his typing and he wanted to get a reaction.”
Q. From?
A. Whoever was monitoring his typing.
[14] The only other Crown witness was Mark MacAulay. The appellant objected to him being called as a witness as he was “not related” to a threat incident. Without calling on the Crown to respond, the trial judge ruled: “Well, we’ll hear what his evidence is, okay and then you can ask him questions.”
[15] MacAulay testified that he was the Director of Health and Counselling at St.F.X. He first met the appellant when he came to the counselling office requesting an appointment. MacAulay elaborated that he ended up meeting with the appellant on October 4, 2007 and as a result he “had a lot of concerns at that point in time”. He described the appellant as incoherent and disjointed, talking about death. He convinced the appellant to go to the hospital. He says a physician saw the appellant and that the physician wanted to admit the appellant to hospital. The appellant left the hospital and he “understood the RCMP were called.”
[16] Between October 4 and October 25, 2007 MacAulay said he saw the appellant walk into the doctor’s office in the Health and Counselling Centre. The Crown asked MacAulay if the appellant had received any treatment other than through the Health Centre. MacAulay said he had. The appellant again objected, that his mental health was irrelevant to the case. The Crown decided not to pursue the question. The Crown asked MacAulay if he had ever spoken with the appellant about the email of October 24, 2007. He testified:
MS. OKO: Did you ever speak with Mr. Buckley directly about what had been sent to Mr. Van Bommel?
A. Yes, I did. Like over the phone, we had talked about it. It was after the fact, but in between it was – not directly. What had happened at that point was I became aware of the e-mail.
Q. Yes.
A. I consulted with a physician, Doctor Steeves, who is one of the person’s – Doctor Brian Steeves – he’s on call – he does on-call psychiatry and he consulted with Doctor Rahman and he called and Doctor Rahman had met with Jason earlier and it was at that point that Doctor Rahman said there’s just too many unknowns here and he should be remanded for 30-days so then we called the RCMP.
Q. All right. But did you talk with Mr. Buckley about the e-mail sent to Mr. Van Bommel?
A. Not directly.
[17] As it turned out, MacAulay did not have any conversation with the appellant until after he got out of the hospital. He spoke with the appellant on the phone, but could not recall any of the details without his notes, and he did not have his notes with him. Nothing further was elicited from Mr. MacAulay.
[18] The Crown closed its case. The trial judge then called on the Crown to outline what it says is its case before asking the appellant his election on calling evidence. The appellant did elect to call evidence. The first witness he wanted to call was Professor Van Bommel. It was obvious this was highly unusual as he could have elicited any evidence from Van Bommel he believed to be relevant to his defence during cross-examination. The only evidence elicited from Van Bommel by the appellant was that he was a friendly man and it would be out of the norm for anyone to want to harm him.
[19] The appellant testified. His evidence in direct was short and to the point:
MR. BUCKLEY: Yes. I’d like to start by saying I never knowingly threatened Martin Von (sic) Bommel or any person for that matter – now that I’m here. I’ve never knowingly threatened anyone or – or– or– umm–I’m not– I’ve never knowingly made threats.
[20] The Crown cross-examined the appellant. The evidence the appellant gave was at times unusual. He was asked if he took instruction from Professor Van Bommel. His answer was he listened as he professed. He would be in the same local area throughout the week at periodic times and he would be in range where he could hear him speak. When it came to the email ( Exhibit #1) he was asked if he sent it. His answer was he did pretty much write this all out, but like it says “this is the second try”. The trial judge interrupted the appellant and demanded to know if he understood the question. The judge said that the Crown wanted to know if he sent the email to Van Bommel. He said he did not. The Crown then asked him “ you deny sending this?” His answer was “No.” He referred to the message as having come from an electronic machine. His evidence was certainly evasive.
[21] With respect to the real nub of the case, the attachment containing what the Crown alleged was the threat to cause death to Professor Martin Van Bommel, he acknowledged being the author of the attachment:
A. [Witness given Exhibit #2] Yeah, this is all mine. This – like – well, not – not really, but – uh – the general idea – uh – where you would enter numbers –uh – and try to find your way through a maze –
[22] With respect to the evidence of the appellant that he never knowingly threatened anyone, the Crown asked him a series of questions suggesting that he had been previously suspended from the university for sending an email to the President threatening to kill him. The appellant denied having done so.
[23] The Crown called no rebuttal evidence. The Crown argued to the trial judge that the appellant’s evidence should not be accepted. It was plain that the appellant was the author of the email and the attachment. This she said, was confirmed by what she suggested was the result of the conversation between Van Bommel and the appellant on October 25, 2007....that the appellant did not deny sending it, but sent it to get a reaction.
[24] Relying on R. v. Clemente, the Crown submitted that “HAHA good job , but I am going to kill you.” viewed objectively, looking at the entirety of the circumstances, was a threat. In addition, the person who had the best vantage point was Professor Van Bommel himself. He said he was disturbed by the content of the attachment, so disturbed in fact that he sent it to Mr. MacAulay.
[25] In terms of the appellant’s intention, the Crown submitted the appellant intended Van Bommel to open the attachment and read it, and that the words were written as a threat, they were meant to intimidate or be taken seriously, and this was confirmed by the appellant in his conversation with Professor Van Bommel.
[26] The appellant argued that he never threatened anyone and that Professor Van Bommel was not threatened by it, but maybe Mark MacAulay took it as a threat.
[27] The trial judge immediately rendered an oral decision. He expressed no difficulty finding it was the appellant that sent Exhibit #1 to Van Bommel and that Exhibit #2 was attached to it. The phrase “HAHA good job, but I am going to kill you” he considered to be prima facie a threat. The only issue the trial judge identified was what was the appellant’s intention, that is, was the threat intended to be taken seriously in line with the authorities relied upon by the Crown. He re-stated the issue as:
The issue really here, is what was his intention when he forwarded this message, in particular the one that I described and what inferences can be drawn from what he said to Professor Van Bommel the next day?
[28] The trial judge referred to the conversation on October 25, 2007 as follows:
During the conversation at the Math Lab, Mister – or Professor Van Bommel confronted Mr. Buckley about the e-mail. He testified that earlier he had been quite disturbed when he read that and that he had sent it on to other personnel, Mr. MacAulay, in particular, at the university, because of the disturbing nature of the – of the contents of the e-mail. He confronted Mr. Buckley about it and Mr. Buckley confirmed that he had in fact sent the e-mail and that he had sent it for a specific purpose. He had been concerned that people were monitoring his e-mail and he sent – and he included these words, together with other phrases – to I guess quote the testimony of Professor Van Bommel. “ – to get a reaction.”
[29] This led the learned trial judge to conclude:
Now it’s quite clear that Mr. Buckley intended to put these words into the e-mail. He intended to send it to Professor Van Bommel and he intended Professor Ban Bommel to open the e-mail. The only reasonable inference that one can draw is that he intended Professor Van Bommel to read the contents of the e-mail, including the phrase that I just described. It was his intention to get a reaction. The only reasonable inference that one can draw or can conclude from all this is that he wanted to get a reaction from Professor Van Bommel and, in particular, as a result of the words that I just described. They were not written in jest. In the context of the – of all of the circumstances, they were designed to get a reaction. In other words, they were designed to be taken seriously by the reader of the e-mail, in this case, Professor Van Bommel, who was the person was the recipient of the e-mail. They were designed to intimidate him, in the true sense of the word. They were menacing and they were designed to disturb him and upset him, i.e. “Get a reaction.”, as he indicated to Mister – or to Professor Van Bommel when he met him at the Math Lab.
[30] The trial judge rejected the appellant’s testimony as not being credible, as not being in accord with the preponderance of probabilities, given what he said at the Math Lab to Professor Van Bommel. He concluded at p.108:
Looking at all of the evidence on the whole, I am satisfied beyond a reasonable doubt that Mr. Buckley composed the e-mail, that he sent the e-mail, that he included the words that I just referred to, “Ha, ha. Good job, but I’m going to kill you.” He intended for Professor Van Bommel to read this. He intended for him to take it seriously in the sense that he wanted to intimidate or menace Professor Van Bommel, or for that matter, any other reader of this and I am satisfied of all of that beyond a reasonable doubt and that constitutes a threat and consequently he found guilty [sic] under s.264.1(a) of the Criminal Code.
ISSUES
[31] With respect to the appeal from conviction, the appellant raises the following issues:
• Was the evidence of Mark MacAulay admissible and did its admission impact on the fairness of the trial;
• Was the cross-examination of the appellant unfairly prejudicial;
• Was the verdict unreasonable;
ANALYSIS
The evidence of Mark MacAulay
[32] The Crown is entitled to call evidence that is relevant to the matters in issue. There were no formal or informal admissions by the defence. The Crown then was required to prove beyond a reasonable doubt all the elements of the offence. The elements are the actus reus and mens rea of the offence which are determined by considering the wording of the charge set out in the indictment and how it is defined by law. The charge alleged that Jason Brian Buckley on or about the 25th day of October, 2007, at or near Antigonish, Nova Scotia,
did by electronic email transmission knowingly utter a threat to Martin VanBommel to cause death to Martin VanBommel, contrary Section 264.1)1)(a) of the Criminal Code.”
[33] Section 264.1 of the Criminal Code provides:
264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat
(a) to cause death or bodily harm to any person;
(b) to burn, destroy or damage real or personal property; or
(c) to kill, poison or injure an animal or bird that is the property of any person.
[34] In R. v. Clemente, [1994] 2 S.C.R. 758, the mens rea of the offence was described by Cory J., writing on behalf of the full court, as:
[6] At issue is the mens rea that is required by s. 264.1(1)(a). The appellant alleges that it must be established that the words were uttered with the intent to intimidate or instill fear. The respondent contends that it is sufficient if it is shown that the threat was uttered with the intent that it be taken seriously. In the Court of Appeal both the majority and minority proceeded on the basis that the words must be uttered with the intent to intimidate or instill fear. The majority concluded that the trial judge had found the requisite intent had been established. The minority thought his findings did not support the requisite mens rea.
[7] The requisite intent can be framed in either manner. The aim of the section is to prevent "threats". In The Shorter Oxford English Dictionary (3rd ed. 1987), "threat" is defined in this way:
A denunciation to a person of ill to befall him; esp. a declaration of hostile determination or of loss, pain, punishment or damage to be inflicted in retribution for or conditionally upon some course; a menace.
Under the section the threat must be of death or serious bodily harm. It is impossible to think that anyone threatening death or serious bodily harm in a manner that was meant to be taken seriously would not intend to intimidate or cause fear. That is to say, a serious threat to kill or cause serious bodily harm must have been uttered with the intent to intimidate or instill fear. Conversely, a threat uttered with the intent to intimidate or cause fear must have been uttered with the intent that it be taken seriously. Both of these formulations of the mens rea constitute an intention to threaten and comply with the aim of the section.
[8] Section 264.1(1)(a) is directed at words which cause fear or intimidation. Its purpose is to protect the exercise of freedom of choice by preventing intimidation. The section makes it a crime to issue threats without any further action being taken beyond the threat itself. Thus, 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.
[35] Cory J. noted that the question whether the accused had the intent to intimidate, or that the words were meant to be taken seriously, in the absence of an explanation by the accused, will usually be determined in an objective manner, by the words used, the context in which they were spoken and the person to whom they were directed. He then summarized the elements as follows:
[12] Under the present section the actus reus of the offence is the uttering of threats of death or serious bodily harm. The mens rea is that the words be spoken or written as a threat to cause death or serious bodily harm; that is, they were meant to intimidate or to be taken seriously.
[13] 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.
[36] The elements then of the charge against the appellant were:
• that on or about October 25, 2007 at or near Antigonish, Nova Scotia an electronic email transmission was sent to Martin Van Bommel;
• the electronic email transmission contained a threat to cause death to Martin Van Bommel;
• the identity of the accused as the person who knowingly sent the email
• that the accused intended the email message to intimidate or be taken seriously by Martin Van Bommel.
[37] The appellant argues there was no legitimate reason to call Mark MacAulay; that not only was his evidence totally irrelevant to the charges, worse, that the evidence given by MacAulay was rife with hearsay and very prejudicial to the appellant. In particular, the evidence called by the Crown raised issues regarding the appellant’s mental health, leaving the impression with the court that he suffered from a psychiatric illness and would therefore be a person more likely to have knowingly uttered a threat to Professor Van Bommel. It was as well they now say, a direct attempt to weaken the appellant’s credibility.
[38] As noted earlier, the appellant objected to the Crown calling Mark MacAulay as a witness, contending that he had no relevant evidence to give. The respondent at trial offered no justification as to why they were calling Mr. MacAulay as a witness. The trial judge did not enter into a formal or informal voir dire to determine if MacAulay had any relevant evidence to give. He simply directed: “Well, we’ll hear what his evidence is, okay and then you can ask him questions.”
[39] Many of the complaints by the appellant are well founded. But one example is necessary. In the course of MacAulay’s evidence, the Crown pursued the following line of questions:
Q. I see. Okay. And as a result of what you received from Mr. Van Bommel, what happened with Mr. Buckley in terms of his status as a student?
A. Well, at that point he was still “a student” and you know as far as we were concerned – we were concerned about mental health issues –
Q. Right.
A. – it was not his status as a student.
Q. And – I’m sorry, “it wasn’t - -”
A. It wasn’t his status as – as a student that we were concerned about.
Q. Okay. Did the university ultimately take any steps with respect to his status as a student as a result of the e-mails to Mr. Van Bommel?
A. No, what happened is he withdrew later on – on his – on his own.
Q. I see. Okay. And as far as you’re aware –
A. Uh-huh?
Q. – did he ever receive any treatment other than through you said your health centre –
A. Yes.
Q. – at the university?
A. Yes.
Q. Are you aware of any other treatment and program that he was involved in?
MR. BUCKLEY: Objection, Your Honour.
THE COURT: Why?
MR. BUCKLEY: My mental health is irrelevant in this case.
THE COURT: Ah – Ms.. Oko?
MS. OKO: That’s fine.
THE COURT: Thank you.
MS. OKO: I – I won’t pursue –
THE COURT: Thank you.
[40] Despite this agreement further details emerged:
MS. OKO: Did you ever speak with Mr. Buckley directly about what had been sent to Mr. Van Bommel?
A. Yes, I did. Like over the phone, we had talked about it. It was after the fact, but in between it was – not directly. What had happened at that point was I became aware of the e-mail.
Q. Yes.
A. I consulted with a physician, Doctor Steeves, who is one of the person’s – Doctor Brian Steeves – he’s on call – he does on-call psychiatry and he consulted with Doctor Rahman and he called and Doctor Rahman had met with Jason earlier and it was at that point that Doctor Rahman said there’s just too many unknowns here and he should be remanded for 30-days so then we called the RCMP.
[41] On appeal the respondent did not address any of the instances of prejudicial or hearsay evidence that came in through this witness. Instead it took the position that the evidence was part of the “narrative”, giving context to such events as Professor Van Bommel’s discussions with Mr. MacAulay before the email of October 24, 2007 and why Van Bommel subsequently sent the email to MacAulay. In addition it says that the evidence played no part in the decision of the trial judge. No mention of it is found in the judge’s reasons and hence no indication that the appellant was prejudiced by the admission of this evidence.
[42] Paciocco and Stuesser in The Law of Evidence, 4th ed ( 2005) voice a well put caution about admitting extraneous evidence under the rubric of being part of the “narrative”:
It is inevitable that in narrating a story, even in response to questions, witnesses will include minutiae that do not meet the tests of relevance and materiality. For example, the trier of fact is likely to learn what a police officer was doing when a call was received, whether the police officer was in a marked or an unmarked police vehicle, and perhaps even the kind of doughnut he was eating. This is harmless background material, and reference to it is generally tolerated because it improves comprehension by presenting a total picture and makes it easier for the witness to recount the evidence. If theory is required to account for its reception, it can be said to be admissible as part of the narrative.
The idea that evidence can be admitted because it forms part of the "narrative" or part of the story is a potentially dangerous one. It has been used, sometimes successfully, as a way to get otherwise inadmissible evidence before the trier of fact. For example, if two co‑accused committed a robbery after escaping from prison, the narrative might include how they came to be together, and hence their criminal background. Yet there are rules of evidence designed to prevent their bad character from being proved. Where evidence that forms part of the narrative is potentially prejudicial or would otherwise be inadmissible, it can be excluded or edited pursuant to the judge's exclusionary discretion, and great care should be undertaken before it is received. A court should always consider how necessary the information is to unfold the story in a clear, understandable manner
[43] In my opinion, much of Mark MacAulay’s testimony was irrelevant to any issue. Some of it was irrelevant and prejudicial. Nonetheless there were subjects addressed by MacAulay that were not only relevant, but helpful to what I perceive to have been the theory of the defence at trial. For example, it appears that the only reason that Professor Van Bommel sent the email of October 24, 2007 to anyone was because of Mr. MacAulay’s request to let him know of any unusual behaviour by the appellant. It was MacAulay who contacted the police. This supported the position of the appellant at trial, that he did not intend to threaten Professor Van Bommel and that Van Bommel did not take the words in the attachment as a threat. Although Van Bommel expressed feeling disturbed by finding the words “ HAHA good job, but I am going to kill you” and “me so horny”, he did not feel threatened and did not contact the police. MacAulay’s evidence corroborated Van Bommel’s evidence about why he had forwarded the email to MacAulay and explained how the police came to be involved.
[44] With all due respect to the appellant, I am not convinced that evidence as to the appellant’s state of mind was not relevant. There was no evidence of any animosity between the appellant and Professor Van Bommel. He had no motive or reason to send him a threat. His mental state would be relevant to the issue of intent. I am not convinced that some of the evidence of Mr. MacAulay that spoke to the appellant’s state of mind was inadmissible, nor entirely unhelpful to the appellant. It was the appellant’s explanation to Professor Van Bommel that some unknown person or persons were monitoring his key strokes. The reason he had typed the words into the program was to get a reaction from them, not to threaten Van Bommel.
[45] The evidence of Mr. MacAulay certainly suggested that the appellant had a psychiatric illness and was a dangerous person requiring mandatory hospitalization before and after the October 24 email. In my opinion this evidence was inadmissible as its prejudicial effect outweighed its probative value. To the extent Mr. MacAulay’s evidence related facts or views that were hearsay, it was inadmissible. It was therefore an error in law to have permitted the Crown to adduce this evidence.
[46] Neither the appellant nor the respondent referred to s.686(1)(b)(iii) of the Code or any case law on its application. This section permits this Court to dismiss an appeal despite an error of law if satisfied no substantial wrong or miscarriage of justice occurred. The burden is on the Crown to satisfy me that notwithstanding the error the result would necessarily have been the same (see Colpitts v. The Queen, [1965] S.C.R. 739).
[47] The respondent argues that the judge did not refer to any of this evidence in the course of giving his reasons. Ordinarily where a trial judge has heard inadmissible evidence, but expressly does not rely on such evidence in convicting, the proviso set out in s.686(1)(b)(iii) can be relied on to dismiss the appeal (R. v. Leaney, [1989] 2 S.C.R. 393). I am concerned about the appearance of unfairness to the appellant and the potential that the trial judge did not disabuse himself of at least some of this inadmissible evidence when he made findings of credibility against the appellant. This concern is exacerbated by the questions put to the appellant in cross-examination by the Crown that also introduced inadmissible evidence. The proviso issue should not be assessed in isolation, but considered in light of any other errors that may have occurred at trial.
Cross Examination of the Appellant
[48] The appellant’s direct examination was but one statement. It bears repeating:
Yes, I’d like to start by saying I never knowingly threatened Martin Von Bommel (sic) or any person for that matter – now that I’m here. I’ve never knowingly threatened anyone or – or – or – umm – I’m not – I’ve never knowingly made threats.
[49] The Crown cross-examined the appellant extensively on the suggestion that he had threatened the President of the university in 2005. The following is the exchange of questions and answers:
Q. I see. Mr. Buckley, you’ve made a couple of comments in your evidence-in-chief. You said, “I have never knowingly threatened anyone.” “I have never knowingly made threats.” That’s what you said?
A. Yes.
Q. All right.
A. I – that was under oath as well.
Q. All right. Mr. Buckley, in 2005, you were suspended from the university for sending an e-mail to the President, threatening to kill him, is that correct?
A. That is incorrect.
Q. Do you deny that?
A. Wholeheartedly.
Q. Okay. And do I also understand in 2005 you posted some e-mails on a message board that was threatening to the university and some of the university staff concerning finances and what they were charging you. Is that correct?
A. No, that’s not correct.
Q. So you deny that as well.
A. That’s – yeah, that’s grossly misrepresented.
Q. Did you come to court with respect to those matters?
A. No.
Q. Did you have to go and see a doctor as a result of those matters?
A. No.
Q. Did you ever see a doctor about what happened at the university that caused you to be suspended in 2005?
A. I see many doctors at the university.
Q. Okay. Are you under the care of any psychiatrist at the moment?
A. No ma’am.
Q. All right. And do you have a medical doctor or a family doctor that you see on a regular basis?
A. Annual check-ups.
Q. Okay. Why did you withdraw from the university after October 25th, 2007?
A. I was attempting to not hamper my GPA. I was in – uh – I believe it’s Burnside M.I.O.U. for a 30-day (thirty-day) assessment. After that – so during that time I tried to get a halt on my classes – withdraw from classes, which I did. I got withdrawn from classes – ah– mostly because where I was away for 30 (thirty) days I felt it greatly reduced my ability to function properly.
Q. Okay. And that’s when you had a psychiatric assessment for 30-days (thirty-days) as a result of this charge?
A. Correct. That’s what – that’s what hampered my academic standing.
Q. All right. And did you have an opportunity to read the report that was generated as a result of your 30-day (thirty-day) stay?
A. Ah – I – I did read a report – ah– from Mr. Pottle – or Doctor Pottle – ah – he – I’m not sure how I got a hold of that report actually, ma’am –
Q. Okay. But –
A. – but –
Q. – but you read it?
A. Yeah, just the other day I did read a report – ah – that basically – umm – paraphrased what happened over the 30-days (thirty days) --
Q. Okay.
A. – in the M.I.O.U.
[50] The appellant takes the position that the questions by the Crown were improper since the Crown did not call evidence to substantiate its suggestions, and by failing to do so, left the wrong impression with the trial judge that such an event had occurred. In essence, the information the Crown put to the appellant was not accurate and this was therefore grossly prejudicial.
[51] The respondent’s position is the appellant put his character in issue by his testimony, and that the Crown could therefore put prior acts of misconduct in cross-examination.
[52] The Crown also took strong exception to the suggestion by the appellant that information put to the appellant in cross-examination was not accurate. Neither party submitted any authorities in support of their respective positions.
[53] The Supreme Court of Canada in R. v. Lyttle, [2004] 1 S.C.R. 193 clarified that defence counsel can cross-examine a Crown witness on matters that he or she may not be able to prove directly so long as counsel has a good faith basis for asking the question. This right is not unlimited. It does not extend to asking questions that are reckless, or false, or relate to, or rely on inadmissable evidence. The suggested procedure is that set out by Major and Fish, JJ.:
[51] A trial judge must balance the rights of an accused to receive a fair trial with the need to prevent unethical cross‑examination. There will thus be instances where a trial judge will want to ensure that "counsel [is] not merely taking a random shot at a reputation imprudently exposed or asking a groundless question to waft an unwarranted innuendo into the jury box". See Michelson v. United States, 335 U.S. 469 (1948), at p. 481, per Jackson J.
[52] Where a question implies the existence of a disputed factual predicate that is manifestly tenuous or suspect, a trial judge may properly take appropriate steps, by conducting a voir dire or otherwise, to seek and obtain counsel's assurance that a good faith basis exists for putting the question. If the judge is satisfied in this regard and the question is not otherwise prohibited, counsel should be permitted to put the question to the witness.
[54] These comments were made in the context of a proposed defence cross-examination of a Crown witness. It seems obvious that the underlying concern would apply with greater force where it is the Crown seeking to cross-examine an accused ( See for example R. v. Mallory 2007 ONCA 46, 217 C.C.C. (3d) 266).
[55] In this trial there was no one to object to the line of cross-examination by the Crown. The Crown says it had ample good faith basis to put its questions about other threats to the accused. The appellant does not agree. The Crown, in its written and oral submissions, made reference to “details” in its “disclosure package”. I do not have the disclosure package. No attempt has been made by the respondent to introduce any of the package.
[56] I need not consider if the Crown did or did not have a good faith basis for the questions it asked. The complaint made by the appellant is that the Crown failed to adduce evidence in reply to prove the suggestions it made to the appellant during cross-examination.
[57] The Crown argues that the appellant put his character into issue by his evidence that “ I’d like to start by saying I never knowingly threatened Martin Van Bommel or any person for that matter – now that I’m here. I’ve never knowingly threatened anyone or – or– or– umm–I’m not– I’ve never knowingly made threats.” It can be a difficult question as to when an accused puts his or her character into issue. Where an accused is self-represented at trial, the trial judge should be slow to conclude that such an accused has put his or her character into issue. In my opinion, the appellant did not so. He did not testify that he was not the sort of person who would do such a thing. He did not, as the accused in R. v. Farrant , [1983] 1 S.C.R. 124, claim that it was not in his character to be violent. The appellant simply denied that he had ever knowingly threatened Martin Van Bommel or anyone.
[58] The context of the appellant's evidence has be considered. The words alleged to have been a threat against Martin Van Bommel were in a file attached to an email. The attachment was a computer program. It contained a number of unusual phrases. As described earlier, one of the phrases was "HAHA, good job but now I am going to kill you". It was not specifically directed to Van Bommel, or to anyone for that matter. Given this context, the direct evidence of the appellant could well have been simply a denial that the phrase in the attachment was ever meant to be a threat to anyone.
[59] There was no application by the Crown to obtain a ruling from the trial judge that the evidence of the appellant put his character in issue. The appellant was self-represented. The trial judge should have intervened to ensure the appellant was intending to put his character in issue, and that he understood the potential consequences of doing so, and ultimately make a ruling as to whether or not he put his character in issue.
[60] In any event, even if it could be said that he did put his character into issue, it is certainly arguable that the law does not permit the cross-examination that ensued. In R. v. Wadey (1935), 40 Cr. App. R. 104 the accused was charged with indecent assault in relation to three complainants. At trial he put his character in issue. In cross-examination he was asked a number of questions with regard to previous complaints by other young girls suggesting similar conduct. Those other complaints had either been dismissed or did not lead to charges. The court held that such cross-examination was inadmissable and the conviction was quashed.
[61] While an ordinary witness may be cross- examined as to prior discreditable acts, there are well recognized differences where an accused takes the witness stand (see R. v. Koufis, [1941] S.C.R. 481; R. v. Davison, DeRosie and MacArthur (1974), 20 C.C.C. (2d) 424 (Ont.C.A.) ). There does appear to be some authority for the proposition that if an accused puts his or her character in issue, the Crown may cross-examine on prior specific acts of misconduct (See R. v. McNamara et al. (1981), 56 C.C.C. (2d) 193 (Ont.C.A.) at p 346-352). However, aside from the discretion by a trial judge to permit the Crown to lead similar fact evidence in reply to evidence of good character, the Crown is not permitted to lead evidence of specific acts of bad conduct. In R. v. Brown (1999), 137 C.C.C. (3d) 400 Rosenberg J.A. wrote:
[32] The law as it has developed to date is that where the Crown proposes to call extrinsic evidence in reply, solely to rebut evidence of the accused's good character, the Crown may not lead evidence of specific acts of bad conduct. The only established exception to this rule is for acts that would also constitute evidence of similar facts. Otherwise, the Crown is limited to leading evidence of general reputation, the accused's criminal record pursuant to s. 666 of the Criminal Code, or s. 12 of the Canada Evidence Act if the accused testifies, or possibly expert evidence of disposition. See R. v. McNamara et al. (No.1) at 348‑49; R. v. Tierney (1982), 70 C.C.C. (2d) 481 (Ont. C.A.) at 485‑86; R. v. Donovan (1991), 65 C.C.C. (3d) 511 (Ont. C.A.) at 534‑5.
[62] Wigmore On Evidence ( Tillers Revision, 1983, Little Brown & Company) summarizes the law as follows:
...It has already been seen (§58 supra) that if a defendant in a criminal case chooses to offer his good character (for the appropriate trait) as an argument that he probably did not commit the offense charged, the prosecution may by counterevidence dispute the existence in him of the good character thus alleged; and it has also been seen that the fact thus to be proved or disproved is the real disposition or character of the defendant, of which reputation or anything else is merely evidence (§52 supra). The question thus arises of how the character is to be proved or disproved.
It has been noted (§§52 and 53 supra) that there are three conceivable ways of evidencing character: (1) reputation of the community, which is open to the objection of being hearsay (§1608 infra); (2) personal knowledge or opinion of those who know the defendant, which is open to the objection of the opinion rule (§1980 infra); (3) particular acts of the defendant’s misconduct exhibiting the particular trait involved. This last sort of evidence is now to be considered.
The law here declares a general and absolute rule of exclusion. It is forbidden, in showing that the defendant has not the good character that he affirms, to resort to particular acts of misconduct by him.
[63] This begs the question, if evidence of prior specific acts of misconduct is inadmissible in reply, how is it that the Crown can be permitted to ask such questions in cross-examination. I need not answer the question to dispose of this appeal. The complaint by the appellant was that the Crown should have, if it had the evidence, led it in reply. For the reasons already expressed, the evidence was not admissible in reply to rebut what the Crown alleges was the good character evidence of the appellant.
[64] If the appellant did not put his character in issue by his denial of ever having knowingly threatened anyone, the questions were impermissible. But what is the impact of these questions? It appears clear that no charge was ever laid against the appellant with respect to the allegation that he had threatened the President of the university in 2005. Not having been convicted, the Crown was stuck with the answer given by the appellant in cross-examination, that he had not in fact threatened the President. If the trial had occurred before a jury, there is no doubt that an appropriate direction to the jury would have been required as to the use they could make of the evidence.
[65] Here the trial was before a very experienced trial judge. In the judge’s reasons it is difficult to be certain of the impact of the cross-examination. The only reference in the decision to this evidence was:
Now, Mr. Buckley testified that he never threatened anybody, he wouldn’t threaten anybody, he’s never threatened anybody, although he was cross-examined quite vigorously on that issue.
[66] In my opinion the cross-examination of the appellant was improper. There was no application by the Crown to obtain a ruling from the trial judge that the accused may have put his character in issue. The appellant was self-represented. The trial judge should have intervened to ensure that the appellant understood the potential consequences if in fact he was deciding to put his character in issue. Furthermore the cross-examination was about the very kind of act that he was on trial for–uttering a death threat by email. The cross-examination was highly prejudicial; as was the Crown’s questions of the appellant about the doctors he may have seen in 2005; was he under the care of a psychiatrist; the fact he had undergone a 30 day psychiatric assessment in relation to the charge before the Court; and whether he had read the report. These questions appeared to be designed to paint the appellant as someone who had, and was still suffering from, a psychiatric illness and therefore more likely to have committed the offence before the Court, or not be credible.
[67] I will deal with the appropriate remedy later.
Unreasonable Verdict
[68] An appeal from a summary conviction offence is governed by s. 822 of the Criminal Code, which in turn adopts the relevant provisions of the Code for appeals from conviction of indictable offences (ss. 683 to 689). Section 686 provides:
686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice;
[69] The appellant did not specifically identify the grounds upon which he sought to overturn the verdict.
[70] In terms of the standard of review to be applied, where it is a question of law, it is correctness; where it is contended that the verdict is unreasonable, I am required to give considerable deference to the advantages afforded to a trial judge, and not to substitute my view of the facts for that of the trial judge. This does not mean that the findings of fact by a trial judge, even those in relation to credibility, are immune from appellate review. This was confirmed by McLachlin C.J. in R. v. W. R.), [1992] 2 S.C.R. 122, where she concluded:
[20] It is thus clear that a court of appeal, in determining whether the trier of fact could reasonably have reached the conclusion that the accused is guilty beyond a reasonable doubt, must re‑examine, and to some extent at least, reweigh and consider the effect of the evidence. The only question remaining is whether this rule applies to verdicts based on findings of credibility. In my opinion, it does. The test remains the same: could a jury or judge properly instructed and acting reasonably have convicted? That said, in applying the test the court of appeal should show great deference to findings of credibility made at trial. This Court has repeatedly affirmed the importance of taking into account the special position of the trier of fact on matters of credibility: White v. The King, [1947] S.C.R. 268, at p. 272; R. v. M. (S.H.), [1989] 2 S.C.R. 446, at pp. 465‑66. The trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses. However, as a matter of law it remains open to an appellate court to overturn a verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable.
[71] Here the trial judge concluded that the evidence of the appellant was not credible and rejected it. The trial judge did not give lengthy reasons for doing so:
Mr. Buckley’s testimony to the contrary today – although at different times he conceded some of these points, at other times he denied them, is not credible. It certainly does not accord with the preponderance of all of the probabilities, given what he had said at the Math Lab and his evidence today to the contrary is rejected and it certainly doesn’t raise a reasonable doubt as to certainly what he did or, in my opinion, what he intended to do.
[72] I need not review the reasonableness of the conclusion of the trial judge as to the credibility of the accused. What is fatal to the validity of the trial judge’s conclusion on credibility is the extent of inadmissible evidence adduced by the Crown in direct and in cross-examination of the appellant. It was unfair to permit the Crown to cross-examine the appellant on specific acts of alleged misconduct, particularly where they alleged the very same act. It was highly prejudicial and clearly put the appellant in a poor light. This includes the suggestion that the appellant had a psychiatric illness, both before and after the email was sent, as long ago as 2005.
[73] There were also several instances where the Crown, in the course of cross-examining the appellant, misstated the evidence to him. I have already detailed the inadmissible evidence in direct and in cross-examination. Before cataloguing the misstatement of evidence to the accused in cross-examination, it is convenient to first focus on a failure of the Crown and the trial judge to consider and resolve one of the essential elements of the offence.
[74] I set out earlier the essential elements of the offence that the Crown was required to prove beyond a reasonable doubt. For convenience I will repeat them. They are as follows:
• that on or about October 25, 2007 at or near Antigonish, Nova Scotia an electronic email transmission was sent to Martin VanBommel;
• the electronic email transmission contained a threat to cause death to Martin Van Bommel;
• the identity of the accused as the person who knowingly sent the email
• that the accused intended the email message to intimidate or be taken seriously by Martin Van Bommel.
[75] The issue that the Crown and trial judge failed to address was whether the appellant in fact knowingly uttered what the trial judge found to be a threat–that is the words in the attachment (Exhibit #2). The Crown in essence argued that the only issue was whether the appellant meant the threat to be taken seriously and suggested that Mr. Van Bommel took it seriously as a threat. The trial judge said:
The issue really here, is what was his intention when he forwarded this message, in particular the one that I described and what inferences can be drawn from what he said to Professor Van Bommel the next day?
[76] With all due respect, the evidence of the appellant was that he was the author of the attachment. He testified that he had typed the words in order to get a reaction from whoever was monitoring his key strokes. When the Crown asked him if he had sent the attachment to have Van Bommel take a look at it, the appellant admitted he would often send such attachments to Van Bommel, but could not admit sending this one, as this attachment was a program that was more mature, that he had attached an attachment the first time, it was definitely not Exhibit #2 , and when he got a return to sender quickly, he in haste, did attach another one, and it was a good chance it was Exhibit #2.
[77] After then cross-examining the appellant on the allegations he had made threats in 2005 by email and was under psychiatric care, the appellant denied that the words were a threat. He explained that when the program is booted up, you would not see those words. He then elaborated that he had not looked at the attachment (Exhibit # 2) he had sent to Professor Van Bommel. The Crown turned to the conversation between Van Bommel and the appellant at the Math Resource Centre on October 25, 2007.
[78] The appellant repeated that he did not think he had sent Exhibit #2 to Van Bommel. The following is the full exchange:
Q. Uh-huh. We were talking about the Math Resource Centre and you talking to Mr. Van Bommel.
A. Yes, yes, I came early the next morning before the mid-term – ah – because I checked my e-mail, but my in-box was so full that I did not receive his reply.
Q. You talked to him in person at the Math Resource Centre, Mr. Buckley.
A. Yes, yes. I went in and I – I asked for – ah – my program, if it was working, why it wasn’t working because it should have been working.
Q. Right.
A. You know, he said I didn’t have semi-colons in it. I was pretty sure there were semi-colons. Umm –
Q. Mr. Buckley, he also told you he was disturbed by the words contained in that program, including, “I’m going to kill you.”, right?
A. And – and that’s what shocked me because I didn’t think I sent him this exact program. Not that I’m ashamed that I did –
Q. Okay, but you didn’t tell him that. You told him that you sent it to get a reaction.
A. No, I did tell him that. I said, “Whoa –“, I – I – I go – because he said, you know, that really concerned me and – and I – I was flabbergasted. I didn’t know what – what concerned him and I said, “Excuse me.” – and then this – this is what he handed me.
Q. Yes.
A. And that’s when I said, “Oh. Oh, wow.” – I go – “There’s no way I’d send you that.”
Q. You told him that you sent it to get a reaction. Do you deny saying that to Mr. Van Bommel?
A. [No response]
Q. That’s what you said to him, Mr. Buckley. You said, “Someone was monitoring –“ – your – “ – keyboard” – or your – “ – computer.” – and you sent it to him to get a reaction.
A. Umm –
Q. Do you remember saying that?
A. Well, at one – at one time I probably said something – ah – very close to that. Umm – I think – but you see you’re putting more emphasis on the “reaction”. I was putting more emphasis on the fact that there’s a watch dog group monitoring my every key stroke. Umm – I was – I was more or less searching for leads.
[79] It is abundantly clear from the evidence of the appellant that it was very much a live issue as to whether or not he had knowingly sent the attachment that contained the words alleged to be a threat. No reference was made by the Crown or by the trial judge to this important issue. Unfortunately the appellant was self-represented at trial. In my opinion, the failure to deal with an issue raised by the defence, where a reasonable doubt about such an issue would mandate an acquittal, amounts to an error in law. This alone makes the verdict unsustainable and mandates a new trial. I prefer not to rest my decision on this issue.
[80] The significance of this evidence should have been obvious. Why it was overlooked is, I suspect, at least in part due to the repeated misstatement by the Crown not just to the appellant but to the trial judge as well as to what was said by the appellant.
[81] In the exchange during the appellant’s cross-examination the Crown repeatedly misquoted or misstated the evidence of Van Bommel to the appellant. The Crown suggested “ You told him that you sent it to get a reaction. Do you deny saying that to Mr. Van Bommel?; and, “That’s what you said to him, Mr. Buckley. You said, Someone was monitoring–“your–“keyboard–or your –“–computer.’–and you sent it to him to get a reaction.” This was patently not the evidence of Mr. Van Bommel at all. He testified in direct, and again on questions by the trial judge, that the appellant had explained he had typed those words to get a reaction from whoever was monitoring his keystrokes. At no time did Mr. Van Bommel or the appellant ever testify that the appellant had sent the attachment to Van Bommel to get a reaction from Van Bommel.
[82] I have already referred to the duty on an appellate court in reviewing a verdict. The test is the same whether it is a jury trial or judge alone. The general principles for reviewing a verdict were set out in R. v. Biniaris 2000 SCC 15, [2000] 1 S.C.R. 381. Arbour J. in delivering the reasons for judgment for the court, wrote:
[36] The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot be supported by the evidence has been unequivocally expressed in Yebes as follows:
[C]urial review is invited whenever a jury goes beyond a reasonable standard... . [T]he test is 'whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered'. (Yebes, supra, at p. 185 (quoting Corbett v. The Queen, [1975] 2 S.C.R. 275, at p. 282, per Pigeon J.).)
That formulation of the test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court to determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyse and, within the limits of appellate disadvantage, weigh the evidence. This latter process is usually understood as referring to a subjective exercise, requiring the appeal court to examine the weight of the evidence, rather than its bare sufficiency. The test is therefore mixed, and it is more helpful to articulate what the application of that test entails, than to characterize it as either an objective or a subjective test.
[37] The Yebes test is expressed in terms of a verdict reached by a jury. It is, however, equally applicable to the judgment of a judge sitting at trial without a jury. The review for unreasonableness on appeal is different, however, and somewhat easier when the judgment under attack is that of a single judge, at least when reasons for judgment of some substance are provided. In those cases, the reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached, and justify the reversal.
[83] One of the essential elements the Crown was required to prove beyond a reasonable doubt was did the accused utter a threat to Martin Van Bommel to cause death to him. The words themselves did not contain a direct threat to do any such thing. The attachment was a program with many characters and some text. Included were such phrases as “cootie, twinki, bikini;\par”; and “cout << have a nice day\par; and “cout << “me so horny”;\par”; and “cout<<“HAHA good job, but I am going to kill you”;\par”
[84] The uncontradicted evidence of Professor Van Bommel was that he did not feel the phrase in the attachment (Exhibit #2) “but I am going to kill you” were directed at him. Van Bommel found that phrase, and the phrase “me so horny”, to be disturbing. He forwarded the email to Mr. MacAulay because of his earlier request to advise him of any unusual behaviour by the appellant.
[85] There is considerable authority for the proposition that the question whether words uttered amount to a threat is a question of law and not one of fact. In R. v. McCraw, [1991] 3 S.C.R. 72, Cory J., for the court, wrote:
[26] At the outset I should state that in my view the decision as to whether the written or spoken words in question constitutes a threat to cause serious bodily harm is an issue of law and not of fact. How then should a court approach the issue? 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.
[27] 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?
[86] This was the approach adopted by the Ontario Court of Appeal in R. v. Batista 2009 ONCA 804 (2008) 238 C.C.C. (3d) 97. There the impugned words were in a poem the appellant had posted that contained words a parking enforcement officer, a police officer and the complainant, found to be a threat to cause death to the complainant. The trial judge was found to have erred by not construing and considering the words as they would be by the “average reasonable person”. Epstein J.A., writing the judgment for the court, approached the issue whether a reasonable person would find the words used to be a threat keeping in mind the context of the Criminal Code enactment was to protect against fear and intimidation. The reasonable person must be objective, fully-informed, right-minded, dispassionate, practical and realistic.
[87] I need not come to any firm conclusion on whether this issue is strictly a question of law or whether the trial judge articulated and applied the correct legal test, as it is my opinion, the conclusion the appellant intended to threaten to cause death to Martin Van Bommel was unreasonable.
[88] The trial judge did not accept the evidence of the appellant. The reason he did so was because it did not accord with the preponderance of all of the probabilities, “given what he had said at the Math Lab” and his evidence at trial was therefore rejected. With respect, there was nothing in his evidence at trial that was at odds to the evidence of what he had said at the Math Lab.
[89] In any event, rejection of his evidence cannot assist in establishing the essential elements of the offence. As noted earlier, the trial judge found that the only issue is what was the appellant’s intention, and what inferences could be drawn from what the appellant said to Professor Van Bommel on October 25, 2007 (at the Math Lab).
[90] Where the Crown’s case is based on circumstantial evidence, the reviewing court must be satisfied that the guilt of the accused is the only rational inference to be drawn from the evidence. Cromwell J.A., as he then was, specifically addressed this issue in R. v. Barrett, 2004 NSCA 38, (2004), 222 N.S.R. (2d) 182. He discussed the correct approach as follows:
[18] Yebes, a leading case on the reasonable verdict test on appellate review, was a case of circumstantial evidence. One of the points argued before the Supreme Court of Canada was that the Court of Appeal had failed to apply the correct test in reviewing the reasonableness of a conviction where the evidence against the appellant was entirely circumstantial. Responding to this submission, McIntrye, J. for the Court stated that in applying the unreasonable verdict test, the appellate court must re‑examine and to some extent reweigh and consider the effect of the evidence. This process, he said, will be the same whether the case is based on circumstantial or direct evidence. However, he pointed out that the Court of Appeal had "... rejected all rational inferences offering an alternative to the conclusion of guilt" and that it was "... therefore clear that the law was correctly understood and applied.": at 186. In Yebes , the Court acknowledged that evidence of motive and opportunity alone could not meet this standard unless the evidence reasonably supported the conclusion of exclusive opportunity: see 186 ‑ 190.
[19] I would conclude that while the test for whether a verdict is reasonable is the same in all cases, where the Crown's case is entirely circumstantial, the reasonableness of the verdict must be assessed in light of the requirement that circumstantial evidence be consistent with guilt and inconsistent with innocence: see Yebes at page 185 where this formulation was said to be the equivalent of the requirement that the circumstantial evidence be inconsistent with any rational conclusion other than guilt. This was summed up by Low, J.A. in R. v. Dhillon (2001), 158 C.C.C. (3d) 353 (B.C.C.A.). At para 102, he stated that where the Crown's case is entirely circumstantial, the appellate court applying the unreasonable verdict test must determine "... whether a properly instructed jury, acting judicially, could have reasonably concluded that the only rational conclusion to be reached from the whole of the evidence is that the appellant..." was guilty.
[91] Here the case against the appellant was entirely circumstantial. The exchange between Van Bommel and the appellant figured heavily in the reasons of the trial judge as to what inference was to be drawn. Unfortunately the trial judge misapprehended what the evidence was with respect to that exchange. His reasons were:
During the conversation at the Math Lab, Mister – or Professor Van Bommel confronted Mr. Buckley about the e-mail. He testified that earlier he had been quite disturbed when he read that and that he had sent it on to other personnel, Mr. MacAulay, in particular, at the university, because of the disturbing nature of the – of the contents of the e-mail. He confronted Mr. Buckley about it and Mr. Buckley confirmed that he had in fact sent the e-mail and that he had sent it for a specific purpose. He had been concerned that people were monitoring his e-mail and he sent – and he included these words, together with other phrases – to I guess quote the testimony of Professor Van Bommel, “ – to get a reaction.”
Now it’s quite clear that Mr. Buckley intended to put these words into the e-mail. He intended to send it to Professor Van Bommel and he intended Professor Van Bommel to open the e-mail. The only reasonable inference that one can draw is that he intended Professor Van Bommel to read the contents of the e-mail, including the phrase that I just described. It was his intention to get a reaction. The only reasonable inference that one can draw or can conclude from all this is that he wanted to get a reaction from Professor Van Bommel and, in particular, as a result of the words that I just described. They were not written in jest. In the context of the – of all of the circumstances, they were designed to get a reaction. In other words, they were designed to be taken seriously by the reader of the e-mail, in this case, Professor Van Bommel, who was the person was the recipient of the e-mail. They were designed to intimidate him, in the true sense of the word. They were menacing and they were designed to disturb him and upset him, i.e., “Get a reaction.”, as he indicated to Mister – or to Professor Van Bommel when he met him at the Math Lab.
[92] As I set out earlier Professor Van Bommel was aware of the appellant’s fear or belief that someone was monitoring his key strokes when he was using his home computer. This fear, rational or otherwise, was not a new phenomenon. The appellant had expressed this to Van Bommel weeks before the conversation on October 25, 2007 at the ‘Math Lab’. This expressed fear was one of the reasons the appellant would be in the Math Resource Centre using the computer facilities. The email and attachment came from the appellant’s home computer.
[93] Van Bommel, testifying from notes he made of his conversation with the appellant, did not say the email was sent to get a reaction, but that the appellant told him he had typed those messages in that file to get a reaction from whoever was monitoring his typing. This evidence was repeated when the trial judge questioned Professor Van Bommel:
Q. Okay. Okay. Now just to again clarify. He said he “– put these in –“ for what purpose?
A. The comment he made was he, “– thought someone was monitoring his typing and he wanted to get a reaction.”
Q. From?
A. Whoever was monitoring his typing.
[94] The trial judge even confirmed with Van Bommel that students at the university have access to computers, which are hooked into a network at the university and it is not impossible to monitor somebody’s typing.
[95] Contrary to what the trial judge believed, Van Bommel never described that the appellant had expressed a concern that people were monitoring his email or that he had sent the email to get a reaction.
[96] What the appellant actually said to Van Bommel on October 25, 2007 was a crucial conversation. It was relied upon by the trial judge to justify the inferences he drew about what the appellant’s intention was. Unfortunately, the trial judge misapprehended this evidence. Without this misapprehension, what inferences would actually be open for a trier of fact, properly instructed, and acting reasonably could draw?
[97] Leaving aside any issue as to the credibility of the appellant, the inference to be drawn about the appellant’s intention must be based on the view of a reasonable person, where that person is fully informed, dispassionate and objective. The Crown at trial advocated that such a reasonable person was Professor Van Bommel himself. However, Van Bommel testified he did not take the comment “HAHA good job, but now I am going to kill you” as being a threat directed at him.
[98] Taking into account all of the circumstances, including the words used; the fact they appeared in an attachment as part of a computer program containing other unusual phrases; there was no animosity between the person who received the attachment, Professor Van Bommel and the appellant; and no reason for the appellant to want to intimidate or provoke Van Bommel, it is equally open to infer that the words had been typed in that file to get a reaction from people that the appellant, rationally or otherwise, believed to be monitoring his key strokes, and did not constitute a threat to cause death to Martin Van Bommel, nor can it properly be concluded that the appellant intended to do so.
SUMMARY AND CONCLUSION
[99] With all due respect to the trial judge, the trial was unsatisfactory in a number of respects. The trial judge erred in law in permitting inadmissible evidence to be adduced from Mark MacAulay; in failing to intervene when the Crown assumed that the appellant had put his character in issue and in permitting the Crown to cross-examine the appellant on prior specific acts of misconduct and other extraneous matters. I find there was no error in terms of the Crown failing to lead evidence to substantiate the suggestions it made in cross-examination of the appellant. To do so would have been highly improper.
[100] The trial judge made findings of credibility against the appellant. The evidence wrongly admitted put the appellant in a bad light. While no one instance would necessarily be fatal, the cumulative effect cannot be ignored. The Crown has not satisfied me that the verdict would necessarily have been the same. The normal remedy under s. 686(2) for such errors would be to quash the conviction and order a new trial. Instead I quash the conviction and enter an acquittal. I do so as a result of my conclusion that the trial judge misapprehended significant evidence which led to an unreasonable verdict.
[101] In light of my conclusion I need not consider the sentence appeal.
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Beveridge, J.