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This article last updated February 1, 2004.
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.
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.
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.
A threat may be conditional. In 1986, the Ontario 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.
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.
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.
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-defence.
"Leave my family alone. If you don't leave them alone, I'll kill you." Former Toronto Mayor Mel Lastman reportedly uttered these words to a television reporter during a city council meeting in May 1999. It was said Lastman was angry with the reporter over a story published in a satirical magazine that alluded to the mayor's wife. Did the ex-mayor commit a crime? The answer depends primarily on whether his words were no more than an angry outburst or whether he meant them to be taken seriously. Lastman was never charged.
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