I DIDN’T MEAN IT — CAN YOU GO TO JAIL FOR A VERBAL THREAT?

Criminal defence lawyers say that making verbal threats can result in criminal charges, depending on the context and severity of the threat. But can you go to jail for a verbal threat? The answer, as it turns out, is complicated. In Canada, the law relating to threats is found in the Criminal Code of Canada at section 264.1. This section prohibits both spoken and written threats against a person or their property. Making a threat can result in serious legal consequences, including time in prison. So, if you’re wondering whether or not you could potentially end up behind bars for making a threat, read on to learn more about this offence and how the courts deal with it.

A verbal threat can get you in trouble, even if you didn’t mean it. It is a criminal offence, referred to as an uttering threats. Given that utter threat is a hybrid offence, if the Crown chooses to proceed by indictment a person convicted of this offence can face a maximum sentence of five years imprisonment.

What Constitutes a Verbal Threat?

An utter threat applies when someone knowingly conveys a threat to a person verbally, or by other means to either:

• Cause death or bodily harm to any person;
• Burn, destroy, or damage property;
• Kill, poison or injure an animal or bird that is the property of any person (s.264.1)

The two most common threats to result in criminal charges are uttering threats to cause death and uttering threats to cause bodily harm. A person does have to follow through with the threat to be convicted, the victim simply has to have reason to believe that it could happen, and the person has the means to carry out the threat. Even a badly worded joke could potentially be considered a threat.

Utter threat defences often have a good chance at success since verbal threats are hard to prove. There is often no physical or tangible evidence as exists with a written threat. In the absence of a witness or recording, it becomes a matter of he said, she said.

The Prosecution needs to prove beyond a reasonable doubt that the threat was uttered, and the victim’s word alone is not enough to constitute that. Also the prosecution determines, based on how serious the threat was, if they will proceed by summary conviction or indictment.

Can the Crown Prove a Verbal Threat or Utter Threat?

When it comes to charges of utter threat or verbal threat, the Crown has a fairly high burden of proof to meet. In order to convict someone of one of these offences, the Crown must show that the accused made a direct, unequivocal statement or gesture intending to terrorize the victim. Even if the accused’s words caused genuine fear in the victim, if it can be shown that they didn’t actually intend to cause fear, then a conviction is unlikely. The Crown must prove this beyond a reasonable doubt.

In order for the crown to prove its case, it must show that the alleged threat was made intentionally and that it constituted a real danger to the person or property threatened. There are several factors that the court will consider when making its decision, such as the context in which the threat was made and the nature of the relationship between the parties involved.

Evidence of the Utter Threat?

One of the first things a criminal lawyer will need to determine is if there is any proof that the offence occurred, that any actual threat was made. An audio or video recordings are very stronger evidence, but occasionally there are legal issues surrounding the authentication of the recording. Audio quality and sounds need to be sufficient for the Court to reasonably believe the voice belongs to the defendant. And an actual threat must be made out.

An eyewitness can also act as evidence. However, eyewitness testimony is often unreliable and any personal relationship with the defendant could lead to bias.

As well, video evidence could suggest that the altercation occurred based on body language or gestures. Although, without audio, it’s still difficult to prove.

Reasonable Belief That Threat Was Real

In addition to proving that the uttered threat occurred, the Crown also must prove that the victim had a reasonable belief that the threat to cause harm would be carried out. An idle threat (or empty threat) is not a convict-able offence.

Examining the content and context of the threat can help determine whether it was idle or real. However, without evidence, it’s difficult to prove intent. Especially if there is no history that would suggest a serious threat, or if it is out of line with the defendant’s character.

Character Reference –in some limited cases may be useful

The defence attorney may use references as a testament to the character of the subject. This can be used either to show that making such a threat is out of character for the subject or to demonstrate that the threat shouldn’t have been reasonably believed.

Withdrawal of Utter Threat Charges

The defence lawyer will always attempt to negotiate a withdrawal of charge before going to trial. Given the high standard that the Crown Attorney has, that they must prove beyond a reasonable doubt that the accused made the threat and intended the threat, the defence is often in a good bargaining position to dispose of these charges before the need to set trial dates.

The less certain they are to get a conviction the more likely the Crown will be satisfied with an alternative form of remediation. An example of this would be an agreement to withdraw charges under the condition that the subject attends anger management counselling or agrees to a peace bond with a condition to have no contact with the victim.

To understand the different types of assaults in Canada please refer to the article titled “Different Types of Assaults in Canada – Excluding Sexual Related Offences“.

Sentencing for Uttering Threats in Canada

When it comes to sentencing for uttering threats in Canada, there are a few key things that offenders need to know. In most serious cases, the punishment will be a jail sentence, and the severity of that sentence will depend on the circumstances of the case. It’s also important to note that for minor allegations, even if an offender does not serve a jail sentence, there are other consequences, such as a criminal record.

In Canada, upon conviction for a serious allegation of uttering threats an offender may be sentenced to jail time. Even for a first time offender if the allegations are serious. Of course, any judge when determining the appropriate sentence will take into consideration the accused’s criminal record, their personal circumstances, the allegations and other aggravating or mitigating factors.

If the Crown proceeded by summary conviction the accused could serve up to a maximum of 2 years in jail and/or a $5000 fine. But there are many other sentencing options available from a Discharge, Suspended Sentence, Fines, Probation and Conditional Sentence Orders. There are no mandatory minimum sentences for convictions of uttering threats.

However, if the Crown decided to proceed by indictment because the allegations were serious, an accused could be sentenced up to 2 years in jail for uttering threats to cause damage to property or to harm an animal. That maximum sentence then increases to 5 years in jail for uttering threats to cause death or bodily harm.

Hire An Experienced Toronto Defence Lawyer

If you or a loved one are facing criminal charges, a Toronto defence attorney can help you achieve your best available outcome. They will help you understand your charges, your options and the possible outcomes.

Contact criminal defence lawyer, William Jaksa, today for help dealing with your charges. William Jaksa has been practicing criminal law for over 15 years in the Toronto area.