Uttering Threats (Offence)

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Uttering Threats
s. 264.1 of the Crim. Code
Election / Plea
Crown Election	Hybrid summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Prov. Court Sup. Court w/ Jury (*) Sup. Court w/ Judge-alone (*) * Must be indictable.
Summary Dispositions
Avail. Disp.	Discharge (730) Suspended Sentence (731(1)(a)) Fine (734) Fine + Probation (731(1)(b)) Jail (718.3, 787) Jail + Probation (731(1)(b)) Jail + Fine (734) Conditional Sentence (742.1)
Minimum	None
Maximum	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp.	same as summary
Minimum	None
Maximum	2 years incarceration (property) 5 years incarceration (person)
Reference
Offence Elements Sentence Digests

Overview

Offences relating to uttering threats are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
s. 264.1(1)(a) [uttering threats, death or bodily harm] s. 264.1(1)(b) [uttering threats, property damage] s. 264.1(1)(c) [uttering threats, harm to animal]	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(under 14 years max)

Offences under s. 264.1 [uttering threats] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 264.1 [uttering threats]

When charged under s. 264.1 [uttering threats], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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 weapon, being 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)).

And, regardless of Crown election, if the offence alleged was one:

• where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
• where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
• where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Fingerprints and Photos

A peace officer who charges a person under s. 264.1 [uttering threats] 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.

Publication Bans

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.

Offence Designations

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 264.1 [uttering threats]			(under 10 years max)

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Assaults

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) [threats – harm animal] 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.

Idem

(3) Every one who commits an offence under paragraph (1)(b) [threats – damage property] or (c) [threats – harm animal]

(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; 2019, c. 25, s. 92.
[annotation(s) added]

– CCC

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Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
264.1		"..., contrary to section 264.1 of the Criminal Code.

Proof of the Offence

Proving uttering threats (death of bodily harm) under s. 264.1(1)(a) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "utters, ... coveys or causes any person to receive" a communication; ☐ that communication conveyed a threat to "cause death or bodily harm to any person", ☐ the communication were meant to be taken seriously as a threat; and ☐ any person received the threat.

Proving uttering threats (damage property or injure animals) under s. 264.1(1)(b), (c) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "utters, ... coveys or causes any person to receive" a communication; ☐ that communication conveyed a threat to "burn, destroy or damage real property" or "kill, poison, or injure an animal that is the property of any person"; ☐ the communication were meant to be taken seriously as a threat; and ☐ any person received the threat.

Interpretation of the Offence

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".

The necessary mens rea requires that the accused intended to speak words to intimidate or intended the words to be "taken seriously".

Threatening Words

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:

1. the actual words spoken;
2. the circumstances in which the words were uttered;
3. the manner in which they were spoken;
4. the person to whom they were addressed and that person’s situation; and
5. 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.

Victim's Reaction

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. The reaction only is relevant to understanding the accused's intention in making the utterance.

Reasonableness

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".

Ambiguous language

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.

Specific contexts

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 the defence 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."

Words Intended to be Taken Seriously

Uttering threats is a "specific intent" offence.

The words must be meant to intimidate or to be taken seriously. Words spoken in jest, of course, are not to be taken seriously.

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.

The mens rea of the offence is that the accused must intend the words to instill fear in someone. This intent requires a subjective component.

The mens rea of the offence requires that the threat be made with actual menace and not innocently. It must be intended "to be taken seriously or to intimidate".

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.

Threat to Property

When considered objectively, the accused must have conveyed words involving a threat to damage, destroy or burn real or personal property.

Appellate Review

Whether an utterance is a "threat to cause bodily harm" is a question of law and reviewable on a standard of correctness.

Participation of Third Parties

Testimonial Aids

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

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. x [x]

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

Sentencing Profile

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 264.1(1)(a) [uttering threats, death or bodily harm] s. 264.1(1)(b) [uttering threats, property damage] s. 264.1(1)(c) [uttering threats, harm to animal]	Summary Conviction	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) (* 18 months prior to Sept 18, 2018)
s. 264.1(1)(a) [uttering threats, death or bodily harm]	Indictable Conviction	5 years incarceration
s. 264.1(1)(b) [uttering threats, property damage] s. 264.1(1)(c) [uttering threats, harm to animal]	Indictable Conviction	2 years incarceration

Offences under s. 264.1(2) or (3) are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration 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 incarceration under s. 264.1(2) and 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) under s. 264.1(3).

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s)	Crown Election	Discharge s. 730	Suspended Sentence s. 731(1)(a)	Stand-alone Fine s. 731(1)(b)	Custody s. 718.3, 787	Custody and Probation s. 731(1)(b)	Custody and Fine s. 734	Conditional Sentence (CSO) s. 742.1
s. 264.1 [uttering threats]	any

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).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Factors

Section 269.01 creates an aggravating factor where the victim is a "public transit operator".

Range

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.

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 264.1 [uttering threats]	If convicted under s. 264.1 [uttering threats], there is a discretionary DNA Order as a secondary designated offence listed under s. 487.04 (c), (d) or (e), regardless of Crown election.
Weapons Prohibition Orders	s. 264.1 [uttering threats]	On conviction under s. 264.1 [uttering threats] where "violence against a person was used, threatened or attempted", and was prosecuted by indictment, punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a). For offences under s. 264.1 [if weapon involved] where "the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance and, at the time of the offence, the person was prohibited" by court order, a mandatory weapons prohibition order under s. 109(1)(d) is required regardless of election.The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive". Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life. Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required. Where there is a conviction under s. 110 for an offence not otherwise referred to in s. 109, where "violence against a person was used, threatened or attempted" or "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", a discretionary prohibition order of any of these items is permitted under s. 110 regardless of Crown election where "it is desirable, in the interests of the safety of the person or of any other person". Duration: The Order is for no more than 10 years starting at release from custody or at sentencing where custody is not ordered. If there is a prior conviction for an offence eligible for a s. 109 Order, the duration must be life. If violence is "used, threatened or attempted against" their past or present intimate partner, a child or parent of the said partner, or a person who resides with the said partner or the offender, the duration can be up to life in duration. If the judge declines to make an Order or not order all the possible terms, "the court shall include in the record a statement of the court's reasons for not doing so." (s. 110(3))
Delayed Parole Order	s. 264.1 [uttering threats]	Periods of imprisonment of 2 years or more for convictions under s. 264.1 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

General Sentencing Orders

Order	Conviction	Description
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 discretionary 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 has smaller minimum amounts (15%, $50, or $100).

General Forfeiture Orders

Forfeiture	Conviction	Description
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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 264.1 [uttering threats] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

On September 19, 2019, Bill C-75 came into force and changed the maximum summary penalty from 18 months to 2 years.

See Also

References

• Pre-Trial and Trial Motions Checklist