What is the Criminal Offence of Threats?

To sustain a s. 264.1 Criminal Code charge of Uttering Threats, the Crown must prove you did one of three things:

1. convey to any person a threat to cause death or bodily harm to any person (which could be someone other than the person receiving the message);

2. convey to any person a threat to burn, destroy or damage real or personal property (which means even a threat to break a cell phone, or TV remote, could be a criminal offence);

3. convey to any person a threat to kill, poison or injure an animal or bird that is the property of any person (meaning threats to wild animals aren’t covered, but threatening to dispatch the neighbour’s cat would be).

While making threats is a mens rea offence, meaning that you need to intend the threat, the problem from a defence perspective is that you don’t need to intend to carry out the threat, and you don’t even need to intend it to be a threat. So if you say to someone, half jokingly, “I’ll kill you if you ever leave me” that could be the basis for a criminal charge, even though it’s stated conditionally.

How to Defend a Charge of Uttering Threats

Everyone gets angry now and then. And everyone says things perhaps not really meant when angry. The key to a successful defence to a threats charge is the reasonable interpretation of the words actually uttered.

A successful uttering threats defence is likely the most semantic of any criminal defence strategy, in that on can argue:

• the words said to be a threat were never spoken or written;

• the words said to be a threat were misheard, with what was actually said being somewhat different so as not to be a threat;

• the words said to be a threat were uttered in a language other than English or French, and there is fair debate over how they should be translated into English such that they do not necessarily constitute a threat;

• while there is no doubt over the precise words of what was said or written (especially if they were written), a reasonable person would not consider the words uttered to amount to a threat to cause death or bodily harm, damage property or injure an animal that is property.