Uttering Threats (s. 264.1 (1)) Charges in Canada: Offences, Defences, Punishments

Uttering threats

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.

What is uttering threats?

Uttering threats is covered under s.264.1 of the Criminal Code.

A charge of uttering threats can result from a wide variety of acts; however, generally, uttering threats refers to making statements expressing an intention to cause physical harm or death to someone, damaging their property, or injuring an individual’s animal or bird. Prosecuting an individual for an uttering threat charge does not require a copious amount of evidence, rather, such cases often revolve around whether the judge believes the complainant’s allegations and whether the accused was intentionally making the threat.

There are three types of threats that are covered under s.264.1 of the Criminal Code: threats to the person, threats to a person’s animal, and threats to property.

Offences under s.264.1 of the Criminal Code are hybrid offences. This means that depending on the individual circumstances of your case the Crown can either elect to proceed by indictment or summarily.

Examples

Some common examples of uttering threats may include the following:

• Threatening to kill someone or do bodily harm;
• Threatening to kill or do bodily harm to someone’s bird or animal;
• Threatening another person through your acts or gestures; or
• Sending intimidating messages or signals either online, through the phone, or in person.

Defences

A good defence to a charge of uttering threats will depend on the individual circumstances of your case.

However, some defences to an uttering threats charge may be the following:

• To demonstrate that a reasonable person, fully aware of the circumstances, would not perceive the utterance as a threat;
• Lack of intention;
• Ambiguous language;
• Identity;
• Credibility of the Complainant; and
• Any applicable Charter Defences

Punishment

In Canada, uttering threats is a serious criminal charge that can result in jail time, even for a first offence. The sentence that you receive for a conviction of uttering threats will take into account the individual circumstances of your matter. The severity of the penalty is also reliant on whether the Crown elects to proceed summarily or by indictment and whether any aggravating factors may be present.

• Summary: Up to 2 years less a day in jail and/or a $5,000.00 fine.
• Indictment: Up to 2 years in jail if you uttered threats to damage property or harm an animal. However, you can face up to 5 years in jail if you were uttering threats to cause death or bodily harm.

Overview of the Offence

Uttering threats is covered under s.264.1 of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus, which the Crown must prove beyond a reasonable doubt, to secure a conviction of uttering threats is that:

• You knowingly uttered or conveyed a threat

The case of R v Leblanc, 1988 CanLII 131 provided that the courts have interpreted the word “threat” to include any message that encourages or endorses some ill will to befall the recipient. In other words, a threat is a determination to inflict harm or injury to another person, which is often hostile in nature.

To determine whether an utterance constituted a criminal threat, the case of R v McCraw, 1991 CanLII 49 (SCC) indicated that this determination is a question of law the court further stated, at p.88, that 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 them”

The Supreme Court in R v Narwal, 2013 BCSC 340 further identified factors that the court considered when determining whether an utterance will constitute to a threat for the purposes of s.234.1 of the Criminal Code:

• The actual words spoken;
• The circumstances in which the words were uttered;
• The manner in which they were spoken;
• The person to whom the were spoken
• The person to whom they were addressed and that persons situation; and
• The speaker and that persons situation.

The case of R v ML, 2021 NBCA 27 also stated that the actus reus is made out where a “reasonable person aware of the circumstances would perceive the words as a threat of death or bodily harm”. A reasonable person is one who is objective, fully informed, right minded, dispassionate, practical and realistic.

The Guilty Mind (Mens Reas)

In order for the Crown to convict you of uttering threats, they must prove, beyond a reasonable doubt, that you:

• Intended to speak the words to intimidate; or
• intended the words to be taken seriously.

All that is needed to be proven for the mens reas element of this offence is that the words used were intended by the accused to have a threatening effect. In other words, proving recklessness would not be sufficient to convict an individual for uttering a threat. Rather, uttering threats requires “specific intent”. This means that the statement in question must have been made with real menace.

In cases where the accused indicates that there was no direct evidence of intention, the intention of the accused can be determined by considering the meaning a reasonable person would take from the words uttered. This means that the court may rely on inferences to determine the intention of the person who uttered the threat. For example, the court may contemplate a bystander’s point of view and the accused’s conduct and behaviour when he or she was making the declaration.

Additionally, it is not an essential element of the offence under s. 264.1(1) of the Criminal Code that the recipient of the threats uttered by the accused feel intimidated by them or be shown to have taken them seriously.  All that needs to be proven is that they were intended by the accused to have that effect.

Furthermore, it is irrelevant whether the accused actually intended to carry out the threat, the mens rea component of the offence can still be made out. However, it would certainly be beneficial to the Crown’s case against an accused if they could prove that the threat was indeed fulfilled (i.e., the accused did in fact cause harm to the victim’s personhood, their property, or their animal).

Uttering Threats Defences

How to Beat an Uttering Threats Charge

With uttering threat charges, the availability and strength of any available defence depend entirely on the specific facts of your case and the evidence against you. However, there are some common defences that can be used when defending uttering threat charges.

A reasonable person, fully aware of the circumstances, would not perceive the utterance as a threat

In order to be convicted of an offence of uttering threats, both the actus reus and the mens rea needs to be proven by the Crown, beyond a reasonable doubt. The words that are used 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. The words must be viewed in an objective way and the meaning attributed to the words should be that which a reasonable person would give to them. As such, if you are able to showcase that a reasonable person, who is aware of the circumstances, would not perceive the words you uttered as a threat, then the actus reus element will not be made out. This means that the Crown will not be able to secure a conviction for the charge of uttering threats.

Lack of intention

The mens rea of an uttering threats offence is to showcase that the accused possessed the requisite intention for the words to be taken seriously. As such, if you are able to showcase that when you uttered the threats, you did not intend them to be taken seriously or alarm the recipient, you cannot be convicted of an uttering threats offence as the mens rea element of the offence is not made out. For example, this may be in situations where you uttered the words jokingly and didn’t intend them to be taken seriously. Other examples where intent can be negated include situations where you were intoxicated, or you have a mental disability.

Ambiguous language

It is a valid defence to a charge of uttering threats whether there is a plausible alternative meaning of the words that you have used. Ambiguous phrases or remarks that can be interpreted in multiple ways may not necessarily amount to a threat. For example, phrases such as “I’ll get you” in isolation are ambiguous and don’t necessarily amount to a threat. As such, if you are able to showcase that there is a plausible alternative meaning to the words that you used, you may have a possible defence to an uttering threat charge.

Identity

Depending on the circumstances of your case, a possible defence to an uttering threat charge may be to raise an identity defence. For example, you may have been incorrectly identified as the perpetrator. For this defence to be raised successfully, you will have to prove that you were not present at the time of the offence. This can be done by corroborating evidence, such as an alibi, to remove you from the time of the offence or create reasonable doubt that it was in fact you who committed this offence.

Credibility of the Complainant

In some cases, there may be reasonable doubt as to whether the complainant is being truthful about what occurred. This is important in cases where the threat was made in person, with no witnesses. The court may have to make inferences to fill in gaps or rely on the testimonies of the respective parties to estimate the actual sequence of events that transpired.

Any applicable Charter Defences

The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights, either deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s.24(2) of the Charter.

Uttering Threats Punishment

The sentence that you receive for a conviction of an uttering threats charge will take into account the individual circumstances of your matter. The severity of the penalty is also reliant on whether the Crown elects to proceed summarily or by indictment and any aggravating or mitigating factors present.

s.264.1(1)(a) Uttering Threats to Cause Death or Bodily Harm

If you have been convicted under s.264.1(1)(a) of the Criminal Code, uttering threats to cause death or bodily harm, and the Crown elected to proceed by indictment then you can face up to 5 years in jail.

If the Crown elected to proceed summarily you can face up to 2 years less a day imprisonment and/or a $5,000.00 fine.

You also will have available to you a discharge, suspended sentence, fine alone, fine and probation, prison, prison and probation, prison and fine, intermittent sentence, fine, probation and intermittent sentence, and conditional sentence.

s.264.1(1)(b) or (c) Uttering Threats to Damage Property or Harm an Animal

If you have been convicted under s.264.1(1)(b) or (c) of the Criminal Code and the Crown proceeded by indictment you can face up to 2 years in jail.

If the Crown elected to proceed summarily you can face up to 2 years less a day imprisonment and/or a $5,000.00 fine.

You also will have available to you a discharge, suspended sentence, fine alone, fine and probation, prison, prison and probation, prison and fine, intermittent sentence, fine, probation and intermittent sentence, and conditional sentence.

Frequently Asked Questions

Is uttering threats a crime in Canada?

Yes, uttering threats is a crime in Canada. It is covered under s.264.1 of the Criminal Code which sanctions expressing the intention to inflict death or bodily harm to anyone or their property or animal.

How serious is uttering threats in Canada?

Under s.264.1 of the Criminal Code, the Crown can proceed either by indictment or summary conviction. Indictable offences are considered to be the most serious of crimes. In fact, it is possible that an accused receives up to five years of imprisonment if he or she is convicted of uttering a threat that is severe.

Therefore, depending on the specific facts of the case at hand, uttering a threat can be regarded as incredibly serious in Canada.

Can you go to jail for uttering threats?

Yes, you can go to jail for uttering threats. Although first-time offenders may simply receive an entry on their criminal record and probation, depending on the circumstances of the case, you may receive jail time even for a first offence.

Published Decisions

R v O’Brien, 2013 SCC 2, [2013] 1 SCR 7

In this case, the accused, who was incarcerated at the time, had conversations with his girlfriend over the phone and told her that he would kill her when he was released if she aborted the child, they had conceived together many months ago. The issue, in this case, was whether the accused uttered a threat (i.e., whether the accused intended his words to be taken seriously). At the Supreme Court of Canada, the trial judge’s acquittal was upheld. The Court held that because the accused did not intend to intimidate his girlfriend, there was significant doubt as to whether he had the necessary mens rea to commit an offence under s.264.1 of the Code.

You can read the full decision here.

R v McCraw, [1991] 3 SCR 72

In this case, the accused had sent written letters to several cheerleaders in which he detailed the sexual acts which he wished to do to them. The letters also included the statement “even I have to rape you”, which the Crown argued was a determination on the part of the accused to inflict bodily harm. At the Supreme Court of Canada, the majority disagreed with the trial judge’s decision and reinstated a conviction. The Court held that “serious bodily harm” as phrased in s.264.1 of the Code includes psychological harm. Thus, the Court convicted Mr. McCraw for uttering threats on the basis that his words did substantially interfere with the psychological integrity of the complainants.

You can read the full decision here.

R v Clemente, [1994] 2 SCR 758

In this case, the Supreme Court of Canada reiterated the objective standard that must be met in order to secure a conviction under s.264.1 of the Code. This means that to determine whether a statement or a remark constitutes a threat, the courts must consider whether a reasonable person in the same set of circumstances would have regarded the words expressed to be a threat.

You can read the full decision here.

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