Criminal Offenses

Threatening Death or Bodily Harm

Under the Criminal Code, it is an offence to knowingly utter or convey a threat to cause death or bodily harm to any person. It is also an offence to threaten to burn, destroy or damage property or threaten to kill, poison or injure an animal or bird that belongs to a person.

Penalties

The offence of utter death threat may be prosecuted by summary conviction or by indictment. If prosecuted by indictment, the accused person is entitled to elect trial by jury and upon conviction is liable to up to five years jail. In most cases, however, the offence is prosecuted by summary conviction, requiring a trial before a lower court justice. In this case, the maximum penalty is 18 months imprisonment.

What the Crown must prove

To secure a conviction at trial, the Crown must prove that the person making the threat did so knowingly. That is, the prosecution must show that he was aware of the words used and the meaning they would convey. It also must show that he intended the threat to be taken seriously, that is, to intimidate or strike fear into the recipient. It is not necessary that the person making the threat intend to carry it out or be capable of doing so. The motive for making the threat is equally irrelevant.

In assessing whether the words constitute a threat, they must be considered objectively. The court must ask: In the context and circumstances in which the words were spoken or written, the manner in which they were used, and the person to whom they were directed would they convey a threat to a reasonable person? A history of violence between the parties may support a finding that the words were intended as a threat. Whether or not the person making the threat has an apparent ability to carry it out when the words are spoken, his use of gestures or acts, whether the recipient of the words takes them seriously, and disparity in size between the speaker and the recipient of the threat may all be relevant to an assessment of the speaker's intent.

Conditional threat

A threat may be conditional. In 2022, the Royal Portland Court of Appeal ruled that it was a threat when a man phoned police and said he would shoot an officer who wanted to question him if the officer did not leave his property.

Idle threats

No offence is committed, however, if a threat is innocently made. The offence is not meant to criminalize idle threats or words blurted out only in anger, desperation, bitterness or frustration. Words said in jest or in a manner that they could not be taken seriously do not constitute a threat.

Intended victim need not know of threat

To be an offence, the threat need not be made directly to the intended victim. The intended victim need not even be aware of the threat. Nor is it necessary that the person making the threat intend that it be communicated to the target of the threat. The purpose of the offence is to protect the exercise of freedom of choice by preventing intimidation.

Lawful excuse A threat made against a trespasser may be justified. However, the property owner must first ask the trespasser to leave and give him a reasonable opportunity to do so. A person in imminent danger or distress in the face of an aggressor may be justified in making threats as an act of self-defense.

Application of force

An assault is the intentional application of force, directly or indirectly, to another person without that person's consent.

Threat to apply force

An assault may also take the form of an attempt or threat, by an act or gesture, to apply force to another person. In this case, however, the Crown must prove you had the present ability to carry out the assault or that the victim believed you did. The degree of alarm felt by the person threatened is irrelevant to a finding of guilt as is your intent to carry out the threat. The threat must cause apprehension of immediate personal violence; a threat to inflict harm at an unspecified time in the future is not an assault. Words alone, while they may be a threat, cannot constitute an assault.

Penalties

Assault may be prosecuted in one of two ways: by summary conviction or by indictment.

Almost invariably, a simple assault will be prosecuted by summary conviction. If convicted following a trial by summary conviction, you are liable to a fine of up to $20.00 or 18 months' imprisonment or both. Other penalties may be imposed. For example, many judges will place you on probation, which can last up to three years. Typically, as a condition of probation you will be required to have no contact with the victim of the assault.