R v O’Brien: When “Threats” Equate to “Threatening”

In legal terms, evaluating the form of a statement as a threat is a somewhat complicated matter. On a daily basis, individuals interact with one another using ever evolving idiosyncratic nuances, based largely upon their lifelong experiences of engaging in those precise types of interactions. What one person might take as a compliment another might take as an insult. Similarly, what one person might take as a joke another might take as a threat. Threats, unlike insults, are meant to carry the possibility of criminal sanction pursuant to Section 264.1 of the Criminal Code of Canada. However, given the complexities of individual idiosyncrasies, it is oftentimes difficult to reach a determination of a statement comprising a clear threat to another’s well-being. Contextual factors must be taken into consideration, which predictably leads to uncertainty with regard to the ways in which a trial judge might distinguish between a remark made in jest and a remark made with the intent of conveying a threat. The case of R v O’Brien, 2013 SCC 2 [O’Brien] concerns one of the Supreme Court of Canada’s latest iterations on precisely what it means to “threaten” another.


While speaking with his ex-partner (Ms. W) on the telephone during his incarceration, Kelly Joseph O’Brien (Mr. O’Brien) grew increasingly agitated by statements Ms. W directed towards him. After accusing Mr. O’Brien of infidelity, Ms. W advised him that she was planning on aborting the child they had conceived together approximately 20 weeks earlier. As Ms. W continued to reassert this claim during their conversation, even taunting him on several occasions, Mr. O’Brien became very upset, eventually responding with an explicit description of what he was going to do when he got out of jail, which included multiple assertions that he would end the life of Ms. W. On one occasion the accused went as far as to state that he was going to put a bullet through her head, even conceding that “…the guards just heard me so [I’m] probably going to get charged for that.” (O’Brien, MBCA, para 62)

Mr. O’Brien was subsequently charged with two counts of uttering threats contrary to s. 264.1(1) of the Criminal Code, R.S.C. 1985, c. C-46.

The Criminal Code Provision

Section 264.1 of the Criminal Code of Canada lays out the relevant provisions regarding the utterance of threats. The provisions read as follows:

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.

At both the trial and appellate levels, the actus reus of the offence was not at issue in this case. In terms of mens rea, according to the case of R v Clemente, [1994] 2 SCR 758 [Clemente], the test for evaluating the criminality of such threats involves an objective standard – that is, what a reasonable person in the context or circumstances in which the threats were spoken would perceive.

Trial History

At trial, the ex-partner testified that the words uttered by the accused had not caused her to feel intimidated or fearful due to the fact that the accused had displayed a tendency to speak and/or act in a belligerent manner throughout their relationship. The trial judge acquitted the accused on these grounds, stating that she had a reasonable doubt as to whether or not the accused intended for his words to intimidate or be taken seriously.

Following an appeal by the Crown, the Manitoba Court of Appeal affirmed the decision of the trial judge. The majority opinion, delivered by C. Beard J.A., stated that the trial judge had not erred in considering the evidence of the complainant – that is, Ms. W’s testimony contending that she had not felt threatened by Mr. O’Brien’s remarks – in making her determination as to mens rea in the present case. According to the majority, although the utterances are required to be considered in a contextual manner, as per Clemente, the evidence provided at trial level did not allow for a finding of guilt on the accused. The Crown had submitted that Mr. O’Brien’s significant criminal record for both domestic violence (involving former partners) and property offences should be taken into consideration, as it could open a window of inference into the possibility of domestic abuse having played a significant role in affecting the complainant’s testimony (O’Brien, MBCA, para 41). However, the majority agreed that “while the evidence in this case could support the inference that Ms. W’s testimony or her perception of the accused’s words were affected because she was the victim of domestic violence, it does not lead exclusively to that conclusion.” (O’Brien, MBCA, para 49)

In dissent, Freda M. Steel J.A. agreed with the Crown that the trial judge had placed too much weight on the evidence provided by the complainant. According to Steel J.A., the simple notion that the accused “normally” spoke in such a violent manner should not serve as a legitimation of the threats he directed towards the complainant. Drawing once again upon Clemente, Steel J.A. found that when conducting an analysis regarding whether threats were intended to be taken seriously, the trial judge should consider the person to whom the words were addressed, alongside “…the words spoken, the circumstances in which they were uttered and the manner in which they were spoken.” (O’Brien, MBCA, para 60) Ultimately, whether or not an individual hopes to act on the threats he or she invokes is irrelevant; it is the simple intention that such words be taken seriously which can lead to a conviction. Given the nature of the relationship (i.e. domestic), alongside the persistence of the threats and the angry tone of voice utilized by Mr. O’Brien, Steel J.A. asserted that the accused had clearly intended to intimidate or instill fear in the complainant, meaning that he intended his words to be taken seriously. Consequently, he would have allowed the appeal and convicted the defendant.

Following the Court of Appeal’s decision, the case was granted leave to appeal to the Supreme Court of Canada.

SCC Analysis

Fish J, writing for the majority, affirmed the Manitoba Court of Appeal’s decision. According to Fish, the trial judge had properly considered the words uttered in the context of the evidence provided by the complainant (i.e. the individual against which the threats were directed), allowing for a reasonable doubt to arise as to the intent of the accused for his words to be taken seriously.

Rothstein J, writing for the dissent, disagreed with the decision of the Court of Appeal. According to Rothstein J, the trial judge placed far too much weight on the testimony provided by the complainant, which effectively served to undermine the objective standard which is meant to be applied in cases involving s. 264.1. Rather than viewing the utterances in terms of what a reasonable person would objectively perceive given the specific context at play, the trial judge had instead “…asked herself what Ms. W perceived,” (O’Brien, SCC, para 23) thereby indirectly substituting a subjective standard – and one focused on the complainant as opposed to the accused – in place of the correct objective standard. The mens rea of the offence is meant to concern the state of mind of the accused; however, in this case, the trial judge had allowed the state of mind of the complainant to play a determinative role in evaluating the mens rea requirement of the offence. Referring to the error as “self-evident”, Rothstein J would have allowed the appeal, entered a conviction and remitted the matter to the Provincial Court of Manitoba for sentencing.


With regard to past jurisprudence which has delineated the interpretation (and subsequent implementation) of s. 264.1, it is clear that this case potentially deviates from the test established in the seminal case of Clemente. Rothstein’s dissent, though very succinct, offers a clear indication of the manner in which the trial judge seemingly misplaced the intended focus of the mens rea analysis with regard to the utterance of threats. Given that mens rea is meant to involve an interpretation of the accused’s state of mind, it seems contradictory to allow for the state of mind of a complainant to play a determinative role in the potential conviction or, as in this case, acquittal of an accused.

It is important to note that while the legal implications of this case appear potentially volatile, the social implications arising from these legal implications are perhaps more concerning. As was argued by the Crown at trial level, when evaluating a case such as this on an objective standard (and based on the test laid out in Clemente), it is important to consider the contextual factors involved. Specifically, the fact that Mr. O’Brien maintained a long list of previous criminal behaviour (including domestic assault) should serve as an indication that the evidence provided by Ms. W might not have been as genuine as it appeared to be. While such a logical extension could never serve as a means of arriving at a conviction of guilt, it seems more than reasonable that in a situation such as this, an accused’s history of domestic violence should ensure that any testimony provided by a future complainant involved in a similar relationship with the accused should be considered in light of that history. It is not difficult to conceive of a situation in which a complainant might fear that providing a truthful recollection of events could lead the accused to cause her harm in the future, regardless of the safeguard mechanisms put in place by the legal system. Consequently, allowing for such a complainant’s testimony to fully shield the accused from a potential conviction seems highly controversial at best and entirely incorrect at worst.

Clemente established that context is meant to play a crucial role in evaluating an offence under s. 264.1. While it can certainly be argued that the testimony of a complainant should be included in this analysis, that testimony should itself be subject to a process of contextual filtering. Unless courts recognize the potential volatility of enabling the apparent perceptions of a complainant to absolve an accused of his or her alleged crime, s. 264.1 will be rendered incapable of providing robust protection to those in the direst need.

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