Uttering threats refers to making statements expressing an intention to cause physical harm or death to someone, damaging their property, or injuring an individual’s animal or bird. Uttering threats is covered under s.264.1 of the Criminal Code.

In our experience, uttering threats prosecutions rarely turn on physical evidence. They usually come down to whether the judge accepts the complainant’s account of what was said and whether the Crown can prove you meant the words to intimidate or to be taken seriously.

There are three types of threats that are covered under s.264.1 of the Criminal Code: threats to the person, threats to a person’s animal, and threats to property.

Offences under s.264.1 of the Criminal Code are hybrid offences. This means that depending on the individual circumstances of your case the Crown can either elect to proceed by indictment or summarily.

If you are facing an uttering threats charges, you need an uttering threats lawyer to look at your case as soon as possible. A conviction can carry serious penalties including expensive fines and jail time.

Key Takeaways

  • Uttering threats (s.264.1) is knowingly uttering or conveying a threat to cause death or bodily harm, to damage property, or to kill or injure an animal.
  • The threat is judged objectively: would a reasonable person, aware of the circumstances, read the words as a threat.
  • The Crown must prove you intended the words to intimidate or to be taken seriously. It need not prove the target heard them or that you meant to carry them out.
  • Hybrid offence: threats of death or bodily harm carry up to 5 years on indictment; property or animal threats up to 2 years; summary conviction up to 2 years less a day and/or a $5,000 fine.
  • A weapons prohibition under s.110 can follow any conviction or discharge for threatening violence.

Examples of Uttering Threats Charges

Some common examples of uttering threats may include the following:

Overview of the Offence

Uttering threats is covered under s.264.1 of the Criminal Code:

(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.

The Guilty Act (Actus Reus)

The actus reus, which the Crown must prove beyond a reasonable doubt, to secure a conviction of uttering threats is that:

  • You knowingly uttered or conveyed a threat

A threat does not have to reach the person it is about. In R v LeBlanc, [1989] 1 SCR 1583, the Supreme Court of Canada confirmed a trial judge’s instruction that it is not necessary that the person threatened ever be aware that the threat was made. A threat spoken to a third party can still be an offence.

Whether words amount to a threat is a question of law decided on an objective standard. In R v McCraw, [1991] 3 SCR 72, 1991 CanLII 29 (SCC), Justice Cory framed the test this way (at pp. 82 to 83):

“The structure and wording of s. 264.1(1)(a) indicate that the nature of the threat must be looked at objectively; that is, as it would be by the ordinary reasonable person. . . . Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person?”

The British Columbia Supreme Court in R v Narwal, 2013 BCSC 340 further identified factors that the court considered when determining whether an utterance will constitute to a threat for the purposes of s.264.1 of the Criminal Code:

  • 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.

The Supreme Court of Canada consolidated these principles in R v McRae, 2013 SCC 68. The actus reus is 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” (para 16). That reasonable person is “objective, fully-informed, right-minded, dispassionate, practical and realistic” (para 14). The Crown does not need to prove that the intended target ever heard the threat, was intimidated by it or took it seriously, and a threat against an identifiable group of people is enough (para 13).

The Guilty Mind (Mens Rea)

In order for the Crown to convict you of uttering threats, they must prove, beyond a reasonable doubt, that you:

  • Intended to speak the words to intimidate; or
  • intended the words to be taken seriously.

The fault element is disjunctive: the Crown succeeds by proving either that you intended the words to intimidate or that you intended them to be taken seriously (McRae, paras 17 to 18 and 23). The standard is subjective, meaning what you actually intended, but the court can infer your intent from the words themselves and the circumstances, including how the people who heard them reacted (para 19). Recklessness is not enough.

In cases where the accused indicates that there was no direct evidence of intention, the intention of the accused can be determined by considering the meaning a reasonable person would take from the words uttered. This means that the court may rely on inferences to determine the intention of the person who uttered the threat. For example, the court may contemplate a bystander’s point of view and the accused’s conduct and behaviour when he or she was making the declaration.

Additionally, it is not an essential element of the offence under s. 264.1(1) of the Criminal Code that the recipient of the threats uttered by the accused feel intimidated by them or be shown to have taken them seriously.  All that needs to be proven is that they were intended by the accused to have that effect.

Furthermore, it is irrelevant whether the accused actually intended to carry out the threat, the mens rea component of the offence can still be made out. However, it would certainly be beneficial to the Crown’s case against an accused if they could prove that the threat was indeed fulfilled (i.e., the accused did in fact cause harm to the victim’s personhood, their property, or their animal).

Uttering Threats Defences

How to Beat an Uttering Threats Charge

With uttering threat charges, the availability and strength of any available defence depend entirely on the specific facts of your case and the evidence against you. However, there are some common defences that can be used when defending uttering threat charges.

A reasonable person, fully aware of the circumstances, would not perceive the utterance as a threat

In order to be convicted of an offence of uttering threats, both the actus reus and the mens rea needs to be proven by the Crown, beyond a reasonable doubt. The words that are used 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. The words must be viewed in an objective way and the meaning attributed to the words should be that which a reasonable person would give to them. As such, if you are able to showcase that a reasonable person, who is aware of the circumstances, would not perceive the words you uttered as a threat, then the actus reus element will not be made out. This means that the Crown will not be able to secure a conviction for the charge of uttering threats.

Lack of intention

The mens rea of an uttering threats offence is to showcase that the accused possessed the requisite intention for the words to be taken seriously. As such, if you are able to showcase that when you uttered the threats, you did not intend them to be taken seriously or alarm the recipient, you cannot be convicted of an uttering threats offence as the mens rea element of the offence is not made out. For example, this may be in situations where you uttered the words jokingly and didn’t intend them to be taken seriously. Other examples where intent can be negated include situations where you were intoxicated, or you have a mental disability.

Ambiguous language

It is a valid defence to a charge of uttering threats whether there is a plausible alternative meaning of the words that you have used. Ambiguous phrases or remarks that can be interpreted in multiple ways may not necessarily amount to a threat. For example, phrases such as “I’ll get you” in isolation are ambiguous and don’t necessarily amount to a threat. As such, if you are able to showcase that there is a plausible alternative meaning to the words that you used, you may have a possible defence to an uttering threat charge.

Identity

Depending on the circumstances of your case, a possible defence to an uttering threat charge may be to raise an identity defence. For example, you may have been incorrectly identified as the perpetrator. For this defence to be raised successfully, you will have to prove that you were not present at the time of the offence. This can be done by corroborating evidence, such as an alibi, to remove you from the time of the offence or create reasonable doubt that it was in fact you who committed this offence.

Credibility of the Complainant

In some cases, there may be reasonable doubt as to whether the complainant is being truthful about what occurred. This is important in cases where the threat was made in person, with no witnesses. The court may have to make inferences to fill in gaps or rely on the testimonies of the respective parties to estimate the actual sequence of events that transpired.

Any applicable Charter Defences

The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights, either deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s.24(2) of the Charter.

Uttering Threats Punishment

The sentence that you receive for a conviction of an uttering threats charge will take into account the individual circumstances of your matter. The severity of the penalty is also reliant on whether the Crown elects to proceed summarily or by indictment and any aggravating or mitigating factors present.

Charge Crown election Maximum penalty
Threat to cause death or bodily harm, s.264.1(1)(a) Indictable 5 years imprisonment
Threat to cause death or bodily harm, s.264.1(1)(a) Summary conviction 2 years less a day imprisonment and/or $5,000 fine (s.787(1))
Threat to damage property, s.264.1(1)(b), or to kill or injure an animal, s.264.1(1)(c) Indictable 2 years imprisonment
Threat to damage property or injure an animal, s.264.1(1)(b) or (c) Summary conviction 2 years less a day imprisonment and/or $5,000 fine (s.787(1))
Minimum penalty (all) None Discharge, probation, fine, conditional sentence and jail all available
Ancillary order Court must consider Weapons prohibition, s.110(1)(a), up to 10 years (life for intimate-partner or household threats)

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

If you have been convicted under s.264.1(1)(a) of the Criminal Code, uttering threats to cause death or bodily harm, and the Crown elected to proceed by indictment then you can face up to 5 years in jail.

If the Crown elected to proceed summarily you can face up to 2 years less a day imprisonment and/or a $5,000.00 fine.

A conviction or discharge for threatening violence also brings a discretionary weapons prohibition into play. Under s.110(1)(a) of the Code, where violence against a person was “used, threatened or attempted”, the sentencing judge must consider an order banning you from possessing firearms, ammunition and other weapons for up to 10 years, and must give reasons if no order is made. Where the threat was against an intimate partner, a child or someone in your household, the order can be for life (s.110(2.1)).

The full range of sentences is available: absolute or conditional discharge, suspended sentence with probation, fine, conditional sentence served in the community, intermittent jail, or jail, alone or combined with probation or a fine.

s.264.1(1)(b) or (c) Uttering Threats to Damage Property or Harm an Animal

If you have been convicted under s.264.1(1)(b) or (c) of the Criminal Code and the Crown proceeded by indictment you can face up to 2 years in jail.

If the Crown elected to proceed summarily you can face up to 2 years less a day imprisonment and/or a $5,000.00 fine.

The full range of sentences is available: absolute or conditional discharge, suspended sentence with probation, fine, conditional sentence served in the community, intermittent jail, or jail, alone or combined with probation or a fine.

What to Do If You Are Charged with Uttering Threats

Most uttering threats cases are decided on two questions: what was actually said, and what you meant by it. Do not contact the complainant, do not post about the incident, and keep any messages, recordings or witnesses that show the context of the words. Then get advice before your first appearance. Our Calgary uttering threats lawyers offer a free consultation and are available 24/7 at 403-719-6410.

Frequently Asked Questions

Yes, uttering threats is a crime in Canada. It is covered under s.264.1 of the Criminal Code which sanctions expressing the intention to inflict death or bodily harm to anyone or their property or animal.

Under s.264.1 of the Criminal Code, the Crown can proceed either by indictment or summary conviction. Indictable offences are considered to be the most serious of crimes. In fact, it is possible that an accused receives up to five years of imprisonment if he or she is convicted of uttering a threat that is severe.

Therefore, depending on the specific facts of the case at hand, uttering a threat can be regarded as incredibly serious in Canada.

Yes, you can go to jail for uttering threats; the maximum is 5 years for a threat of death or bodily harm prosecuted by indictment. In our experience, a first offence with no violence, no weapon and no prior record is more often resolved with a discharge, probation or a peace bond, while threats against an intimate partner, repeated threats or threats combined with other charges are where jail becomes realistic.

Published Decisions

In this case, the accused, who was incarcerated at the time, had conversations with his ex-girlfriend over the phone and told her that he would kill her when he was released if she went ahead with her planned abortion. The issue was whether the accused intended his words to intimidate or to be taken seriously. The Supreme Court of Canada, by a 4 to 3 majority, upheld the trial judge’s acquittal. The Court held that because the trial judge was left in doubt about whether the accused intended to intimidate or to be taken seriously, there was significant doubt as to whether he had the necessary mens rea to commit an offence under s.264.1 of the Code.

You can read the full decision here.

In this case, the accused had sent written letters to several cheerleaders in which he detailed the sexual acts which he wished to do to them. The letters also included the statement “even if I have to rape you”, which the Crown argued was a determination on the part of the accused to inflict bodily harm. The trial judge acquitted. The Ontario Court of Appeal set aside the acquittals and entered convictions, and a unanimous Supreme Court of Canada dismissed Mr. McCraw’s appeal. The Court held that “serious bodily harm” in s.264.1 of the Code includes psychological harm, so a threat to rape is a threat to cause serious bodily harm.

You can read the full decision here.

In this case, the Supreme Court of Canada reiterated the objective standard that must be met in order to secure a conviction under s.264.1 of the Code. This means that to determine whether a statement or a remark constitutes a threat, the courts must consider whether a reasonable person in the same set of circumstances would have regarded the words expressed to be a threat.

You can read the full decision here.