Uttering Threats (Offence)
|s. 264.1 of the Crim. Code|
|Election / Plea|
summary proceedings must initiate within 6 months of the offence (786(2))
Sup. Court w/ Jury (*)
|Types of Release||Release by Officer, Officer-in-charge, or Judge|
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||18 months incarceration (person) or six months jail and/or a $5,000 fine (property)|
|Avail. Disp.||same as summary|
|Maximum||2 years incarceration (person)|
5 years incarceration (property)
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offence
- 4 Interpretation of the Offence
- 5 Participation of Third Parties
- 6 Sentencing Principles and Ranges
- 7 Ancillary Sentencing Orders
- 8 See Also
Offences relating to uttering threats are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".
|Crown Election||Defence Election|
|s. 264.1 [uttering threats, death or bodily harm]
s. 264.1 [uttering threats, damage property or injure animals]
|Hybrid Offence(s)||Yes||Yes, if Crown proceeds by Indictment|
On Attendance Notice
On a Promise to Appear
Undertaking or Recognizance
a Judge or Justice
on a PTA, Undertaking or Recog.
|Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
When charged under s. 264.1, the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on an attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
A peace officer who charges a person under s. 264.1 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
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.
(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.
(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.
R.S., 1985, c. 27 (1st Supp.), s. 38; 1994, c. 44, s. 16.
Proof of the Offence
Proving uttering threats (death of bodily harm) under s. 264.1(1)(a) should include:
Proving uttering threats (damage property or injure animals) under s. 264.1(1)(b), (c) should include:
Interpretation of the Offence
The necessary mens rea requires that the accused intended to speak words to intimidate or intended the words to be "taken seriously".
R v O'Brien, 2013 SCC 2 (CanLII) per Fish J
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."
Factors that are to be considered include:
- the actual words spoken;
- the circumstances in which the words were uttered;
- the manner in which they were spoken;
- the person to whom they were addressed and that person’s situation; and
- the speaker and that person’s situation
A conditional and future threats in certain cases will satisfy the elements of a criminal threat.
It is further of no relevance whether the accused was capable in carrying out the threat.
Identity of Recipient
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.
Actual Receipt of Threat
There is no requirement that the accused intend the recipient of the threat to convey it to the target.
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 need that anyone be intimidated by the utterance.
If the utterance meets all other requirement, 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 not necessary for the victim to actually feel intimidated or actually take the words seriously. Reaction only is relevant to understanding the accused's intention in making the utterance.
Reasonableness must be applied in light of the circumstances in which the utterance was made.
A reasonable person considering the words must be one who is "objective, fully-informed, right-minded, dispassionate, practical and realistic".
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.
Words such as "I'll kick your ass" have been found to be sufficiently specific to amount to a threat.
The phrase “I hate you, I hope you die this time” immediately after an assault was found to be an expression of feelings and her hope.
A poem can be considered a threat where a reasonable person in all the relevant circumstances would see it as a threat.
A threat to "hit" someone is by itself not a threat to cause bodily harm.
An email concluding with the phrase "let’s see how long your lifespan reaches" can be a threat to cause death.
Freedom of Speech
Where defense allege the statement was protected under the right to freedom of expression, it would be "necessary to consider the [text] as political commentary before determining whether it's constituted a threat at law."
- R v Leblanc, (1988) 90 N.B.R. (2d) 63(*no CanLII links) aff'd  1 SCR 1583 1988 CanLII 131
- R v McCraw 1991 CanLII 29 (SCC),  3 SCR 72 per Cory J
- McCraw, ibid.
R v Clemente  2 SCR 758, 1994 CanLII 49 per Cory J
R v Batista, 2008 ONCA 804 at para 19 per Lang JA ("The crown is required to prove that, when viewed objectively, or nerd reasonable person would consider the appellant's poem about it to a threat to cause… Death.")
- R v Narwal, 2013 BCSC 340 (CanLII) at para 16
R v Ross, (1986), 26 CCC (3d) 413 (Ont. C.A.)
R v Deneault, 2002 BCCA 178 (CanLII)
- R v LeBlanc,  1 SCR 1583 1989 CanLII 56
R v McCraw at p. 524 (cited to SCR)
- R v Remy (1993) 82 CCC (3d) 176 (QCCA), 1993 CanLII 3851 (QC CA) appeal refused (1993), 84 C.C.C. (3d) vi (translated: "a threat to cause the death of a member of an ascertained group of citizens contravenes this section.")
R v Deneault, 2002 BCCA 178 (CanLII), (2002) BCJ No 517 (BCCA)
R v Upson, 2001 NSCA 89 (CanLII) at para 31
R v Tibando 1994 CanLII 198 (ON CA), (1994), 88 CCC (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 McRae
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 McRae,  3 SCR 931, 2013 SCC 68 (CanLII)
- R v Carons, 1978 ALTASCAD 206 (CanLII), (1978), 42 CCC (2d) 19 (Alta. C.A.)
- R v Nabis,  2 SCR 485, 1974 CanLII 179 (SCC),  18 CCC (2d) 144
- R v Roussin, 2014 MBCA 30 (CanLII),  M.J. No. 78 (C.A.), at para 11, ("is not necessary that the recipient, himself or herself, actually feels intimidated or actually takes the words seriously. The recipient's reaction to the accused's words is relevant only to the extent that it assists in understanding the accused's intention in speaking the words at issue.”)
Batista, supra at para 16
- Batista, supra at para 24
- R v Gingras (1986) 16 W.C.B. 399
e.g. R v Waskewitch, 2011 SKPC 28 (CanLII)
R v H.(D.), 2002 BCPC 386 (CanLII)
- R v Simms, 2013 YKTC 110 (CanLII)
- R v Basta (2008) 238 CCC (3d) 97 (ONCA)(*no CanLII links)
- R v Taylor, 2010 CanLII 49583 (NL PC)
- R v Reilly, 2016 ONSC 4942 (CanLII)
- R v Batista, 2008 ONCA 804 (CanLII) at para 22
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.
It is irrelevant whether the accused actually intended to carry out the threat.
Intention can be inferred from the circumstances in which the utterance was made including the "words used", the "context in which they were spoken", the person to whom the words were directed, and how the words were perceived by those who hear them.
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.
It is not necessary to prove that the utterance was actually taken seriously by the recipient. However, a failure on the part of the recipient to take the utterance seriously may raise a doubt as to whether it was intended to be taken seriously.
A statement made while letting out steam can be interpreted as not intending to be taken seriously.
An angry or frustrated outburst will not be considered sufficient to amount to sufficient intent.
R v Bone  M.J. No.222 (C.A.)(*no CanLII links)
R v Standing, 2007 SKPC 102 (CanLII)
- R v Clemente (V.F.), 1994 CanLII 49 (SCC),  2 SCR 758 at p. 4
- Clemente, at p. 4
- R v McCraw, 1991 CanLII 29 (SCC),  3 SCR 72, at page 78
- R v Lowry 2002 CanLII 41437 (ON CA)
- R v KWD (1993) 85 Man.R. (2d) 220(*no CanLII links) at 16
R v McCraw at p. 82 (cited to SCR)
R v Noble (P.D.J.), 2010 MBCA 60 (CanLII) at paras 8 to 9 per Chartier JA
R v O’Brien, 2012 MBCA 6 (CanLII) at para 23 per Beard JA
- R v LeBlanc 1989 CanLII 56 (SCC),  1 SCR 1583 per Dickson CJ
Noble, supra at para 8
Noble, supra at para 8
Noble, supra at para 9
McRae, supra at paras 19 to 23
- Clemente, supra, at p. 762
- e.g. R v O’Brien, 2013 SCC 2 (CanLII)
- R v Knox, 2012 CanLII 55973 (NLTD)
- e.g. Payne-Binder, 1991 CanLII 2715 (YK CA) - accused uttered "they're dead" in open court during a hearing
Threat to Property
When considered objectively, the accused must have conveyed words involving a threat to damage, destroy or burn real or personal property.
Whether an utterance is a "threat to cause bodily harm" is a question of law and reviewable on a standard of correctness.
- R v Felteau 2010 ONCA 821 (CanLII) at para 5
Participation of Third Parties
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
On Finding of Guilt
For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 264.1(1)(a) [treat to person]), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
- For general principles and factors of violence and assault-based offences, see Violent and Assaultive Offences
|s. 264.1(2) [uttering threats, death or bodily harm]||Summary Conviction||18 months custody|
|s. 264.1(2) [uttering threats, death or bodily harm]||Indictable Conviction||5 years custody|
|s. 264.1(3) [uttering threats, damage property or injure animals]||Summary Conviction||six months jail and/or a $5,000 fine|
|s. 264.1(3) [uttering threats, damage property or injure animals]||Indictable Conviction||2 years custody|
Offences under s. 264.1(2) or (3) are hybrid. If prosecuted by indictment, the maximum penalty is 5 years under s. 264.1(2) and 2 years incarceration under s. 264.1(3). If prosecuted by summary conviction, the maximum penalty is 18 months jail under s. 264.1(2) and six months jail and/or a $5,000 fine under s. 264.1(3).
These offences have no mandatory minimum penalties.
s. 718.3, 787
All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).
There are no statutory requirements that the sentences be consecutive.
Section 269.01 creates an aggravating factor where the victim is a "public transit operator".
- see also: Uttering Threats (Sentencing Cases)
In Newfoundland, the range for uttering threats not involving an intimate relationship can go as low as a conditional discharge all the way to 3 years imprisonment. However, for the most part when jail is ordered it is between one to six months.
R v Lyver, 2010 CanLII 11910 (NL PC),  N.J. No. 92 (P.C.) at para 41 citing a variety of cases
Lyver, ibid. at para 41
Ancillary Sentencing Orders
|DNA Orders||s. 264.1||
|Weapons Prohibition Orders||s. 264.1||
|Delayed Parole Order||s. 264.1||
General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.|
|Restitution Orders (s. 738)||any||A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.|
|Victim Fine Surcharge (s. 737)||any||A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay, and the minimum amounts are smaller (15%, $50, or $100).|
General Forfeiture Orders
|Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))||any||Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.|
|Fine in Lieu of Forfeiture (s. 462.37(3))||any||Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.|
|Forfeiture of Weapons or Firearms (s. 491)||any||Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.|
|Forfeiture of Offence-related Property (s. 490.1)||any||Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.|