Canadian Criminal Law/Offences/Uttering Threats
|s. 264.1 of the Crim. Code|
|Election / Plea|
|Jurisdiction||Prov. Court |
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||18 months jail or $5,000 fine (person) |
6 months jail or $5,000 (property)
|Avail. Disp.||same as summary|
|Maximum||5 years jail (person)|
2 years jail (property)
|Offence Elements |
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.
R.S., 1985, c. 27 (1st Supp.), s. 38; 1994, c. 44, s. 16.
Proof of Offence
The crown should establish the following:
- identity of accused
- date and time of incident
- jurisdiction (incl. region and province)
- the accused uttered words;
- that words conveyed a threat to:
- cause death or serious bodily harm to a person,
- burn, destroy or damage real or personal property; or
- kill, poison, or injure an animal that is the property of any person.
- the accused demeanour as the words were being said;
- the words were meant to be taken seriously as a threat
- the method by which threat was conveyed;
- a person received the threat;
- motivation for threat;
- the effect the words had on the recipient.
The essential elements to be proven are in bold.
A "threat" has been interpreted to include any "menace or denunciation that ill will befall the recipient".
"Bodily harm" includes psychological hurt or injury in addition to physical.
The test for whether an utterance constituted a criminal threat is a question of law not fact. The words "must be looked at in the context in which they were spoken or written, in light of the person to whom they were addressed and the circumstances in which they were uttered. They should be viewed in an objective way and the meaning attributed to the words should be that which a reasonable person would give to them."
If the utterance meets the criteria, it is irrelevant whether the victim appreciated the threatening nature of the utterance. To put it another way, the effect of the threat on the prospective victim is of no consequence.
It is further of no relevance whether the accused was capable in carrying out the threat.
A conditional threat in certain cases will satisfy the elements of a criminal threat.
Where the potential target of the threat is unknown at the time the threat is made may still allow for conviction so long as it is targeting unascertainable or identifiable group.
The fact that the subject of the threats did not feel threatened by them is not, by itself, reason to result in an acquittal.
There is no requirement that the accused intend the recipient of the threat to convey it to the target.
It is a valid defence where there is a reasonably credible or plausible alternative meaning of the words.
Words such as “I’ll get you”, and “Let me get my hands on him.”, in isolation are ambiguous and do not necessarily amount to a threat to cause bodily harm.
A poem can be considered a threat where a reasonable person in all the relevant circumstances would see it as a threat.
- R. v. Leblanc, (1988) 90 N.B.R. (2d) 63 affd  1 S.C.R. 1583 , 1988 CanLII 131
- R v McCraw 1991 CanLII 29 (SCC)
- R. v. McCraw,  3 S.C.R. 72 
R. v. Clemente  2 S.C.R. 758 
- R. v. Carons (1978), 42 C.C.C. (2d) 19 (Alta. C.A.)
- R v. Nabis  18 C.C.C. (2d) 144
- R. v. LeBlanc,  1 S.C.R. 1583 1989 CanLII 56
R v McCraw  3 S.C.R. 72 at p. 524
R. v. Ross, (1986), 26 C.C.C. (3d) 413 (Ont. C.A.)
R. v. Deneault, 2002 BCCA 178 (CanLII)
- R v Remy (1993) 82 CCC (3d) 176 (QCCA), 1993 CanLII 3851 (QC CA) (translated: "a threat to cause the death of a member of an ascertained group of citizens contravenes this section.")
R v Deneault (2002) BCJ No 517 (BCCA)
See R. v. Carons 1978 ALTASCAD 206 (CanLII), (1978), 10 A.R. 300 (S.C. (A.D.))
R. v. MacDonald (D.) 2002 CanLII 14251 (ON CA) at para. 27
- R. v. Tibando 1994 CanLII 198 (ON CA), (1994), 88 C.C.C. (3d) 229 at 231 (Ont. C.A.) ("There is no requirement under the section that the accused intend the recipient of the threat to convey it to the intended victim ...")
- R v Gingras (1986) 16 W.C.B. 399
- R v Basta (2008) 238 CCC (3d) 97 (ONCA)
Words Intended to be Taken Seriously
Uttering threats is a "specific intent" offence.
A determination of whether the accused intended the threat to be taken seriously “will often be based to a large extent upon consideration of the words used by the accused”.
In determining the intent of the accused, the judge may look at circumstances such as whether the accused had been drinking, whether he had beaten the victim while drinking in the past, and whether the accused knew that he was violent towards the victim in similar circumstances.
The mens rea of the offence requires that the threat be made with actual menace and not innocently.
Unless there is testimony by the accused explaining the words used, the court may infer the intent on a plain meaning of utterance in the context they were uttered.
A statement made while letting out steam can be interpreted as not intending to be taken seriously.
R. v. Bone  M.J. No.222 (C.A.)
R. v. Standing R. v. Standing, 2007 SKPC 102 
- R. v. Clemente (V.F.), 1994 CanLII 49 (SCC),  2 S.C.R. 758 at p. 4
- Clemente, at p. 4
- R. v. McCraw,  3 S.C.R. 72 , at page 78
- R. v. Lowry 2002 CanLII 41437 (ON CA)
- R. v. KWD (1993) 85 Man.R. (2d) 220 at 16
- R. v. McCraw  3 SCR 72 at p.82 1991 CanLII 29
R. v. Noble (P.D.J.), 2010 MBCA 60 at paras. 8-9
R. v. O’Brien, 2012 MBCA 6 at 23
- R v LeBlanc  1 SCR 1583
- R. v. Clemente,1994 CanLII 49 (SCC),  2 S.C.R. 758 at p. 762
- R. v. Knox, 2012 CanLII 55973 (NLTD)
Threat to property
When considered objectively, the accused must have conveyed words involving a threat to damage, destroy or burn real or personal property.
- see R. v. Noble,  M.J. No. 19 (C.A.), at para. 5 to 9
R. v. Upson,  N.S.J. No. 189 (C.A.), at Para. 53