Her Majesty the Queen v. Kelly Joseph O’Brien (December 6, 2012)
Case # 34694
The respondent was acquitted on two counts of uttering threats and two counts of breach of probation.
While incarcerated, he threatened by telephone to kill his girlfriend if she aborted their child.
The complaint was made by the staff of the correctional centre.
The girlfriend testified that the respondent’s words did not cause her any fear and that he was just being loud and belligerent with her.
The Crown appealed the acquittals on two grounds.
First, it argued that in her assessment of the mens rea of the offence, the trial judge erred by relying exclusively on the girlfriend’s evidence.
The Crown thought the trial judge ought to have looked at whether a reasonable person would have considered the words to be a threat.
The majority of the Court of Appeal dismissed the Crown’s appeal.
At issue is whether the appeal court erred in assessing the mens rea requirement for the offence of uttering threats.
Also at issue is whether the appeal court erred in finding that the evidence of the complainant was the determinative factor.