Mr Armstrong appealed on two grounds. The first ground was that the trial judge had erred in applying a purely objective test in determining whether Mr Armstrong’s statements were ‘threats’ for the purposes of s 423.1 of the Criminal Code. The second ground was that the trial judge had erred in failing to consider whether the specific intent to impede Ms O’Flanagan and the Belkin house staff had been proved beyond a reasonable doubt.

In relation to the first ground of appeal, Mr Armstrong argued that because the meaning of the statements was veiled and required interpretation that it was necessary that a subjective approach of the defendant’s intention be incorporated in determining whether the statements were threats. The Court of Appeal held that the approach to be applied to the actus reus of the offence, in determining whether the statements were threats, was an objective one – would a reasonable person consider that the statements made were a threat? The subjective aspect of the inquiry was the consideration of the accused’s mens rea. The trial judge considered Mr Armstrong’s evidence about his intention and rejected it. Accordingly, the trial judge made no error.

In relation to the second ground of appeal, Mr Armstrong argued that as the offence against s 423.1 was an offence of specific intent, this required that the prosecution prove that not only did he utter the words with intent to provoke fear, but that he did so with the specific intention of impeding Ms O’Flanagan and the staff at Belkin House in the performance of their duties. He argued that the judge had erred by instead only considering whether Mr Armstrong foresaw that the threat was likely to impede Ms O’Flanagan and the staff at Belkin House in the performance of their duties. The Crown argued that this was all that it was required to prove.

Mr Armstrong’s appeal on this ground was also unsuccessful. The Court of Appeal distinguished between ‘intent’ and ‘purpose’ and noted that proof of intention in relation to an offence does not always require that the purpose of the act coincided with the intention required by the offence. The Court cited with approval a statement of Justice L’Heureux-Dubé in R v Chartrand [1994] 2 S.C.R. 864 at 889–890 that ‘as a general rule, a person who foresees that a consequence is certain or substantially certain to result from an act which he does in order to achieve some other purpose, intends that consequence’. The test was whether Mr Armstrong foresaw that it was substantially certain that as a consequence of his threats Ms O’Flanagan and the staff at Belkin House would be impeded in the performance of their duties, whether or not this was his purpose in uttering the threats. The Court rejected the Crown’s submission that all it had to prove was that this consequence was likely and not substantially certain.

The Court found that despite the trial judge once referring to the ‘likely’ consequence of Mr Armstrong’s threats rather than the ‘substantially certain’ consequence, it was clear from the context of the decision as a whole that the trial judge had not applied an incorrect standard for proof of the mens rea. Mr Armstrong’s appeal was therefore dismissed.