Can I be Charged Criminally for Threatening Someone in BC?

Yes.  It is an offence under section 264.1 of the Criminal Code of Canada to knowingly threaten

• To cause death or bodily harm to any person
• To burn, destroy or damage real or personal property, or
• To kill, poison or injure an animal or bird that belongs to someone else[1]

How serious is the punishment for uttering threats?

Uttering threats is a hybrid offence under the Criminal Code.  This means that it can be brought as a summary conviction, or an indictable offence, depending on how the Crown chooses to proceed.  If the threat was to cause death or bodily harm to a person and the crime is prosecuted as an indictment, the accused could face up to five years in jail. 

More often, threats are tried as summary convictions before a lower court justice and the maximum penalty is 18 months.  Anyone convicted of threatening property or animals could be charged with an indictable offence and sentenced up to two years, or an ordinary summary conviction.

What is considered a “threat”?

A threat means conveying the idea that something bad or a “menace” will befall the intended target.[2]  It could include a promise to inflict pain, loss, or punishment, and it can be conditional.  For example, “if you don’t do what I tell you right now, I’ll kill you” is a threat. 

As the Supreme Court of Canada explained in R. v. McCraw, a threat “is a tool of intimidation which is designed to instil a sense of fear in its recipient.”[3]

The courts maintained that bodily harm includes psychological harm, and thus it is an offence to threaten an individual with rape.  Courts will also look to the context of the statement.   This means that you cannot tell someone you will “knock the smile off their face” as this implies a blow to the head, and thus harm.[4]

What if I didn’t mean it as a threat?

The threat must be made “knowingly.”  The person uttering the words had to have been aware they were making a threat in order to have committed the offence.  For example where Hiscox[5] had told his psychiatrist that he had bought a gun to kill his girlfriend, a trial judge held this was a threat under section 264.1. 

However, the British Columbia Court of Appeal ordered a new trial to determine whether Hiscox actually intended the statement as a threat, or if it was simply an expression of his thought process.[6] 

You do not have to intend to carry the act out for the words to qualify as a threat.  It is enough that you intended to intimidate the target.  If words are spontaneous blurted out in a moment of frustration, they may not constitute a threat. However if it can be established that there was an intent to intimidate, the elements of the offence will be met.[7]

What if I didn’t threaten anyone in particular?

Although the Code says cause harm to “any person”, this does not mean that the threat must be directed at a particular individual. 

For example, a threat published in a newspaper that the accused was going to kill the next police officer who killed a black individual was considered to be a threat within the meaning of the Code.[8]  The SCC held that threatening to cause the death of a member of a group was an offence even if it was not specified exactly which individual would be the target.

But what if the target didn’t know I said it?

There is no requirement that the intended victim be aware of the threat, nor must they feel threatened.  The focus is on whether the uttered words were intended to be a threat.[9] 

I thought the Charter protected my right to free speech?

Although section 2(b) of the Charter of Rights and Freedoms protects freedom of expression, including speech, courts have consistently justified the restriction of threats under section 1.  It has been held that safeguarding the interests vulnerable targets is not likely have a “chilling effect” on legitimate expression and that threats are not a type of speech that is worth protecting.[10]