Uttering Threats

The uttering of threats can be a criminal act in violation of s.  264.1 of the Criminal Code of Canada, R.S.C.  c.  C-46 which states:

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.

Punishment
(2) Every one who commits an offence under paragraph (1)(a) is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Idem
(3) Every one who commits an offence under paragraph (1)(b) or (c)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.

Determining Threatening Statements Requires Objectively Unbiased Reasonable ViewpointBut What Is a Threat?

Of course, people can often say or write words that may appear as a threat to one person while appearing as much less than a threat to someone else.  Often the person towards whom the statement was uttered will subjectively conclude that the statement was a threat while an objectively rational person will see perhaps little more than angry venting at most, frustrated spite at best, or perhaps was speaking of something altogether unrelated and therefore being completely irrelevant.

It was recently said in R.  v. Sears, 2018 ONCJ 866 at paragraph 3 while citing the Supreme Court of Canada in R.  v. McRae, [2013] 3 S.C.R.  931 that:

10 ...  The question of whether words constitute a threat is a question of law to be decided on an objective standard…

11 The starting point of the analysis should always be the plain and ordinary meaning of the words uttered.  Where the words clearly constitute a threat and there is no reason to believe that they had a secondary or less obvious meaning, the analysis is complete.  However, in some cases, the context reveals that words that would on their face appear threatening may not constitute threats within the meaning of s.  264.1(1)(a) (see e.g.  O'Brien, at paras.  10-12).  In other cases, contextual factors might have the effect of elevating to the level of threats words that would, on their face, appear relatively innocent (see e.g.  R.  v. MacDonald (2002), 166 O.A.C.  121, where the words uttered were "You're next").

….

15 Thus, while testimony from persons who heard or were the object of the threat may be considered in applying this objective test, the question in relation to the prohibited act is not whether people in fact felt threatened.  As the Court of Appeal for Ontario put it in Batista, witness opinions are relevant to the application of the reasonable person standard; however, they are not determinative, given that they amount to personal opinions and "d[o] not necessarily satisfy the requirements of the legal test" (para.  26).

16 To conclude on this point, the prohibited act of the offence of uttering threats will be made out if a reasonable person fully aware of the circumstances in which the words were uttered or conveyed would have perceived them to be a threat of death or bodily harm.

Burden of Proof is Applied

Furthermore, it is necessary that the uttered words be proven beyond a reasonable doubt as a threat rather than just a possible threat.  This requirement was also stated in Sears:

[10]        While this possible reasonable interpretation was certainly sufficient to justify the laying of the charge and the initiation of process on the standard of reasonable and probable grounds, the standard I must consider is proof beyond a reasonable doubt.  That latter standard requires that I must acquit Mr.  Sears unless the evidence satisfies me that the only reasonable interpretation of the passage is that it is a threat.  A finding that a threat to kill is a possible, or even the most likely, reasonable interpretation must lead to an acquittal.

Summary Comment

Based on the case law, it appears clear that the views of the complainant may be irrationally and unduly subjective to adequately assess whether words constitute as a clear threat; and thus, what a rationally objective person would view as a threat, and do so beyond reasonably doubt, and thus beyond what may possibly be a threat, is the required legal test of when a threat is a threat.

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