Uttering Threats

Uttering threats is a criminal offence under section 264.1(1) of the Criminal Code that could attract jail time. You can be charged with uttering threats even if you did not utter the threat directly to the intended person, nor does the intended receiver of the threat need to be aware of the threat in order for the accused person to be guilty.

What is Uttering Threats?

You can be charged with Uttering Threats if you, in any manner, knowingly utter, convey, or cause any other person to receive a threat:

• To cause bodily death or bodily harm to any person;
• To burn, destroy, or damage real or personal property; or
• To kill, poison, or injure an animal or bird that is the property of any person.

How to Assess if Words Amount to a Threat

In determining whether an utterance amounted to a threat to cause death or bodily harm, to burn, damage, or destroy property, or to kill, poison, or injure an animal or bird, the following factors can be considered:

• The actual words spoken or written;
• The context in which they are made;
• The manner in which they were spoken;
• The intended receiver of the threat and his/her personal circumstances;
• The person who made the threat and his/her personal circumstances

It is irrelevant whether the person who made the threat was actually capable of carrying the threat out. An accused person can still be found guilty if he or she had no way of executing the threat. What matters is whether or not the accused intended for his words to be taken seriously by the receiver of the threat.

Does a Threat Have to be Verbal?

A threat can be conveyed in any form, such as verbally, in writing, as a gesture, or in the form of audio/video recording.

What if the "Threat" was a Joke?

In order for the offence to be made out, the accused person must have uttered the threat with the intention of beingtaken seriously or intimidating another person. A person cannot have intended for his words to be taken seriously if they were spoken in jest – meaning as a joke. It is not necessary to prove whether or not the intended receiver of the threat took the words seriously or not, only the subjective intention of the accused. 

Context is important. In assessing whether the accused person intended for his or her words to be taken seriously, a court may consider all of the circumstances present at the time the threat was made, such as the relationship between the accused and the victim, the context in which they were spoken, if there was a history of violence, and whether the accused had been drinking.

Courts have found that where an accused person is letting off steam, ranting, or has outbursts due to frustration or anger, the words uttered in this context may not amount to a "threat" because the accused did not intend for the words to be taken seriously. 

Possible Penalties if Convicted of Uttering Threats

Uttering Threats is a hybrid offence, meaning the Crown can elect to proceed by summary conviction or by indictment.

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

• If the Crown proceeds by summary conviction: the maximum punishment is a fine of not more than $5000 or a term of imprisonment of not more than two years less a day, or both.
• If the Crown proceeds by indictment: the maximum punishment is a term of imprisonment not exceeding five years.

Uttering Threats to Property/Animals – 264.1(1)(b) and (c)

• If the Crown proceeds by summary conviction: the maximum punishment is a fine of not more than $5000 or a term of imprisonment of not more than two years less a day, or both.
• If the Crown proceeds by indictment: the maximum punishment is a term of imprisonment not exceeding two years.

Defences Available for a Charge of Uttering Threats

As in every case, the defences that may be available to you depend on the specific facts of your case.

The following list includes defences that may be available in an Uttering Threats case:

• Factual Innocence: If the Crown is unable to prove the essential elements of the offence beyond a reasonable doubt, they will have failed to discharge their burden, and the accused will be acquitted.
• No Intention:The accused can lead evidence that he or she had no intention for the threat to be taken seriously by the complainant.
• Alternative Meaning: You may have a defence where there is a reasonable alternative meaning to the words uttered. For example, the phrase "let me at him", in isolation, may not amount to a threat to cause bodily harm.
• Violation of Charter Rights: Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights, including:
  • the right against unreasonable search and seizure;
  • the right to not be arbitrarily detained;
  • the right to be informed promptly of the reasons for arrest;
  • the right to retain and instruct counsel without delay; and
  • the right to be tried within a reasonable time.

A successful Charter challenge may also result in a stay of proceedings, or evidence from your case being excluded.

Alternative Outcomes

In some instances, it is possible that your charge(s) may be resolved without going to trial or pleading guilty. The availability of these alternative outcomes depends on a number of factors; each case is fact-specific. The following is a list of examples of alternative outcomes in a criminal case:

• Withdrawal of Charge(s): The Crown may decide to withdraw a defendant’s charge(s) where:
  • The Crown does not believe they have a reasonable prospect of conviction at trial, due to various reasons; or
  • It is not in the public interest to prosecute.
• Stay of Proceedings: A stay of proceedings effectively stops a legal proceeding in its tracks, and is a rarely granted remedy. The difference between a stay of proceedings and a withdrawal is that, with a stay of proceedings, the Crown may decide to continue the proceedings at a later date.
• Diversion: Diversion (often referred to as "Direct Accountability" or "DAP") is an alternative way of resolving charges in the criminal justice system, and provides offenders with an opportunity to take accountability for their actions without incurring a criminal record. Diversion is usually reserved for minor offences and first-time offenders. To successfully complete a diversion program involves some form of upfront work by the accused, including but not limited to:
  • A written apology letter;
  • Charitable donation(s);
  • Community service/volunteer hours;
  • Counselling and/or programming; and
  • Restitution/compensation.

Next Steps

The information above provides a general overview of the charge of Uttering Threats, as well as potential penalties and defences. However, no two cases are alike. Every criminal case is fact-specific and ranges in complexity, depending on the issues at play.

Were you charged with Uttering Threats?Contact our office today at 416-924-5969 to learn more about how we can help you. Our team of lawyers is prepared to conduct a thorough review of your situation and develop an approach that is tailored to your needs. Obtaining proper legal representation is the first step in preparing a successful defence.