• 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]

What does "on arrest or detention" mean?

What does it mean to be "informed of that right?"

What does "without delay" mean?

How do you exercise the right to counsel?

What if the lawyer I want is not available?

What if my right to counsel wasn't respected?

These laws, which are administrative prohibitions, are impacting many, many drivers in BC.

It's not the penalties that are generating more buzz, but it's the process in which they're enforced ... or should I say lack of due process.

Before the new drinking and driving laws were enacted in the Motor Vehicle Act, in order for anyone to be found guilty of drinking and driving and have any penalty levied on them, they were entitled to a trial (or could plead guilty). The new scheme provides much less opportunity to thoroughly appeal the 90 day driving prohibition and other consequent penalties (points, vehicle impoundment, etc.).

In fact, the review Superintendent of Motor Vehicles, which is a bureaucratic body functioning as a Court.

The driving prohibition appeal process in BC

When you're issued a 90 day driving prohibition under the new BC drinking and driving scheme, you have 7 days to file for a review. The review is performed by a delegate of the BC Superintendent of Motor Vehicles.

If you're not happy with the outcome of the review, you can appeal by way of petition to the B.C. Supreme Court.

We've done this for clients and it's a viable appeal process, but still it does not provide for nearly as much due-process as the former drinking and driving law regime where you could defend yourself in a trial.

In the recent B.C. Supreme Court decision Spencer v. Superintendent of Motor Vehicles and the Attorney General of British Columbia, 2011 BCSC 1311 [Spencer], the Honourable Mr. Justice McEwan made some comments that are not supportive of the review process.

In the Spencer case, Ms. Kristen Spencer was issued a 90 day driving prohibition on account of refusing to provide a breath sample without reasonable grounds for refusing. Ms. Spencer is a head injury victim who may be perceived as impaired at times. She explained this to the Review delegate and provided medical evidence supporting her head injury diagnosis. Still yet, the Review delegate did not accord this evidence sufficient weight to reverse the prohibition and consequent points on her licence.

Ms. Spencer's defence is that she did have reasonable grounds for refusing to provide a breath sample.

On review, the delegate stated "There is no reason for Cst. Steiger to provide inaccurate evidence on this point [i.e. that the petitioner did not refuse outright to blow; that the petitioner did not acknowledge consumption] whereas you [Ms. Spencer] have a vested interest in the outcome of this review [para. 36 Spencer, supra].

What this statement means is that the delegate of the Superintendent made a decision from a foundation of bias in favour of the police officer's evidence on the basis that Ms. Spencer has an interest in the outcome while the police officer did not.

The point of the Review process is the opportunity to more accurately and carefully assess the situation with consideration of all the evidence.

No doubt police officers make split-second decisions in the field, but when those decisions are faulty, the point of the Review process is to correct those faulty decisions.

In Ms. Spencer's case, no correction was made at the Review level.

Mr. Justice McEwan suggests that the present review process limits the opportunity for fact-finding in order for the decision-maker make an informed decision.

How is the review process limited in its fact-finding abilities?

The review is performed in writing, not as an in-person hearing. There is no opportunity for cross-examination. The evidence is not sworn.

These are 3 tenets of our judicial system in presenting evidence and cases - in the criminal and civil realm.

Less due process than when issued a speeding ticket

Mr. Justice McEwan observes that people issued a speeding ticket have more opportunity and due-process available to defend the ticket than people issued a 90 day driving prohibition, vehicle impoundment and consequent points on a licence.

At the end of the day ...

Mr. Justice McEwan ordered a rehearing with conditions on how the hearing should proceed, including before a new delegate.

My comments

The penalties resulting from an administrative driving prohibition are harsh enough to warrant more due process. In our society being deprived of the ability to drive results in harsh consequences for many people. Many jobs require a licence. I'm not saying there shouldn't be penalties, instead more due-process and the ability to fully defend such administrative charges is a welcome change to the present scheme.

As a lawyer who acts for people charged with administrative driving prohibitions, I see firsthand how the lack of process hurts people who have a defence to the charge. Not everyone who is accused of drinking and driving is guilty, yet the present process makes it exceedingly difficult to defend the accusation. All precautions should be taken in order to protect the innocent.

Police officers are forced to make tough, split-second decision in the field. Mistakes will be made. However, that is where due process comes in to play ... it's an opportunity to fix those mistakes.

Traffic fine is $167

• An alcohol-related Criminal Code or Motor Vehicle Act conviction,
• Three 24-hour prohibitions within 5 years, or
  
• Two Administrative Driving Prohibitions (ADP) within 5 years.