When Is a Threat Actually A Threat?

A Criminal Charge of Uttering a Threat Requires Proof That the Stated Words Were a Warning of Harm Directed Towards a Person or Group of Persons, Among Other Things, Where Such Words Would Constitute As a Threat When Reviewed Objectively By a Reasonable Person.

A Helpful Guide For How to Determine and Understand What May Legally Constitute As a Threatening Statement or Utterance

Man Uttering Threats Via Phone

Heated discussions and arguments may lead to spontaneous words spoken in the heat of anger where the words contain warnings, or are in the context of warnings, of an intent to cause harm.  Sometimes the threat is uttered directly at the target person; however, a threat may also arise where the words were spoken to a third party person, or group of persons.  Additionally, a criminal threat may arise without the threatened person even knowing that the threat was made, or if knowing of the threat, without the threatened person feeling any fear or concern.

The Law

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

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.

(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.

Definition of Threatening

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.

The Supreme Court of Canada defined the legal test for determining whether an uttered statement constitutes as a threat contrary to the Criminal Code within the case of R. v. McRae, [2013] 3 S.C.R.  931 where it was said:

[13]  Thus, the legal question of whether the accused uttered a threat of death or bodily harm turns solely on the meaning that a reasonable person would attach to the words viewed in the circumstances in which they were uttered or conveyed. The Crown need not prove that the intended recipient of the threat was made aware of it, or if aware of it, that he or she was intimidated by it or took it seriously (Clemente, at p. 763; O’Brien, at para. 13; R. v. LeBlanc, 1989 CanLII 56 (SCC), [1989] 1 S.C.R. 1583 (confirming the trial judge’s instruction that it was not necessary that “the person threatened be ever aware that the threat was made”: (1988), 90 N.B.R. (2d) 63 (C.A.), at para. 13)).  Further, the words do not have to be directed towards a specific person; a threat against an ascertained group of people is sufficient (R. v. Rémy (1993), 1993 CanLII 3851 (QC CA), 82 C.C.C. (3d) 176 (Que. C.A.), at p. 185, leave to appeal refused, [1993] 4 S.C.R. vii (threat against “police officers” generally); R. v. Upson, 2001 NSCA 89, 194 N.S.R. (2d) 87, at para. 31 (threat against “members of the black race” generally)).

[14]  The reasonable person standard must be applied in light of the particular circumstances of a case. As the Court of Appeal for Ontario explained in R. v. Batista, 2008 ONCA 804, 62 C.R. (6th) 376:

An ordinary reasonable person considering an alleged threat objectively would be one informed of all the circumstances relevant to his or her determination.  The characteristics of a reasonable person were considered by the Supreme Court of Canada in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 (S.C.C.), in the context of the test for bias.  In that case, L’Heureux-Dubé and McLachlin JJ., at para. 36, described such a person as a:

reasonable, informed, practical and realistic person who considers the matter in some detail. . . .  The person postulated is not a “very sensitive or scrupulous” person, but rather a right-minded person familiar with the circumstances of the case.

Similarly, in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 (S.C.C.), at p. 282, in the context of the test for bringing the administration of justice into disrepute, Lamer J. for the majority describes a reasonable person as “dispassionate and fully apprised of the circumstances of the case”: see also R. v. Burlingham, 1995 CanLII 88 (SCC), [1995] 2 S.C.R. 206 (S.C.C.), at para. 71.

It follows that a reasonable person considering whether the impugned words amount to a threat at law is one who is objective, fully-informed, right-minded, dispassionate, practical and realistic. [Emphasis added; paras. 23-24.]

[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.

Accordingly, the legal test of what defines a threat is without the subjective opinion of the person, or persons, towards whom the utterance was made.  As stated in McRae, the person or persons towards whom the utterance was made may even be unaware of the utterance or were without any fear; however, whether an utterance is a threat will be reviewed objectively on the basis of what would a reasonable person perceive.

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 stated in the case of  R. v. Sears, 2018 ONCJ 866 where it was said:

[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 and therefore be inadequate assessment as to whether words constitute as a clear threat; and thus, contrary to the perceptions and views of the complainant, what a rationally objective person would view as a threat, and do so beyond reasonable doubt, and thus beyond what may just possibly be a threat, is the required legal test of when a threat is genuinely a threat.


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