Understanding Uttering Threats

A guide to the legal provisions, what the Crown must prove, and potential defenses.

Criminal Code Provision: 264.1 (1)

1. Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat
   1. to cause death or bodily harm to any person;
   2. to burn, destroy or damage real or personal property; or
   3. 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
   1. an indictable offence and liable to imprisonment for a term not exceeding five years; or
   2. An offence punishable on summary conviction.
3. Every one who commits an offence under paragraph (1)(b) or (c)
   1. is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
   2. is guilty of an offence punishable on summary conviction.

Understanding Uttering Threats

Uttering threats involves deliberately conveying a threat to another person. The threat does not have to be carried out or even feasible. The primary concern is whether the words or actions would lead a reasonable individual to feel endangered.

Threats can be verbal, written, texted, emailed, shared online, or expressed through gestures, and may also be communicated through third parties. Saying things like, “I’ll kill you,” sending a message that threatens to burn down someone’s house, and threatening to injure a pet, all constitute uttering threats.

What the Crown Must Prove

• The Crown must prove that the offender intentionally made a threat.
• The threat made was to cause death, physical injury, damage to property, or harm to an animal.
• The defendant meant for the complainant to take the words or actions seriously.

Potential Defences for Uttering Threats

• Lack of intent: If the remarks were said in anger and not intended to be taken earnestly, the defendant could have a valid defence.
• Freedom of Expression: Arguments related to the Charter may arise, but courts typically determine that violent threats are not protected speech.
• Mistaken Identity: When threats are conveyed online or via text, the prosecution must establish that the defendant was the sender of the threats.
• Duress: In rare cases, threats made under duress might be justified.

Sentencing for Uttering Threats

Uttering threats is a hybrid offence and could be prosecuted by summary conviction or indictment.

• Summary Conviction: If convicted summarily, the maximum penalty could be 2 years less a day in jail.
• Indictable Offence: If the Crown proceeds by way of indictment, an accused can be sentenced to a maximum penalty of 5 years in prison.
• Factors courts consider: While determining a sentence for uttering crimes, the factors the courts consider include the nature of the threat, the context (domestic violence, ongoing harassment), whether the complainant was vulnerable, the accused’s criminal record or history of violence, and whether the threat was accompanied by actual violence or weapons.

Typical Sentences for Uttering Threats

• First time offender: no prior record: probation, conditional discharge, or short jail (30-60 days).
• Domestic or repeated threats: 3-12 months imprisonment.
• Serious threats involving a weapon, vulnerable victims, or criminal history: 1-3 years in prison.

Landmark Case Law for Uttering Threats

In the case of R. v. McCraw, [1991] 3 S.C.R. 72, the defendant threatened to commit sexual assault, causing serious bodily harm. The Supreme Court’s judgment in this case established that a threat does not have to be carried out; even conditional threats are sufficient for conviction if they cause a reasonable person to fear for their safety.