Uttering threats charges in Ontario arise more often than people expect, and often in situations that felt, to the person charged, like an expression of frustration rather than a genuine threat. Words sent by text, spoken during an argument, or posted online have all formed the basis of charges under section 264.1 of the Criminal Code. What the charge actually requires, and how to defend it, is frequently misunderstood.
What Section 264.1 Actually Says
Section 264.1 of the Criminal Code makes it an offence to knowingly utter, convey, or cause any person to receive a threat to cause death or bodily harm to any person, to burn or destroy property, or to kill or injure an animal. The offence is a hybrid, meaning the Crown can proceed by way of summary conviction or by indictment depending on the seriousness of the circumstances.
If treated as an indictable matter, the maximum sentence is five years. If treated as a summary matter, the maximum is two years less a day. In practice, first-time offenders charged with a single count in a domestic or interpersonal context often receive non-custodial sentences or are diverted or have charges withdrawn, particularly where there is no prior record and no pattern of threatening behaviour.
What the Crown Must Prove
The Supreme Court of Canada addressed the elements of uttering threats in R. v. McCraw and R. v. Clemente. The Crown must establish two things. First, that the accused uttered, conveyed, or caused a person to receive words that constitute a threat to cause death or bodily harm. Second, that the accused intended the words to intimidate or to be taken seriously as a threat, or that the accused knew the words would be taken as a threat.
Critically, the Crown does not need to prove that the recipient was actually afraid. A threat sent to a third party who passes it along, or a threat the recipient received calmly, still qualifies. What matters is the intent of the person making the statement and whether a reasonable person would understand the words as a threat.
Context Matters Enormously
Whether words constitute a threat is assessed in context, not in isolation. Courts look at the relationship between the parties, the surrounding circumstances, the medium used, and the history between the accused and the recipient. Words that would clearly be understood as threatening in one context might be nothing more than frustrated hyperbole in another.
Expressions made in the heat of an argument without any realistic capacity to carry out the threatened act, statements made in obvious jest, and ambiguous language that could reasonably bear a non-threatening interpretation have all been argued as falling outside the scope of section 264.1. Whether that argument succeeds depends on the totality of the circumstances.
Uttering Threats in Domestic and Relationship Contexts
A large percentage of uttering threats charges in Ontario arise from domestic disputes. They are often laid alongside assault charges or domestic violence charges after police respond to a 911 call. In these situations, the statement that forms the basis of the charge was often made in the middle of an argument and was never intended to be taken literally.
The defence strategy in these cases frequently focuses on the context of the words, the nature of the relationship, and whether there is any realistic basis for the recipient to have believed the threat would be carried out. The complainant's reaction, or lack of reaction, at the time of the statement is also relevant.
Defences to an Uttering Threats Charge
Several viable defences exist depending on the facts of your case. These include arguing that the words did not objectively constitute a threat, that they lacked the required intent to intimidate, that the statement was made in jest or as an expression of frustration with no genuine threatening meaning, that the accused lacked the required mental state, or that the words were not communicated in the way alleged.
In cases involving text messages or social media posts, there are often questions about authorship and about the context in which a screenshot was captured. Digital evidence in threats cases deserves careful scrutiny.
What You Should Do
If you have been charged with uttering threats, do not contact the complainant. Do not attempt to explain yourself or apologize through any channel, because anything you say can be used to confirm the Crown's theory that your original statement was a genuine threat. Read about what to do immediately after being charged, and contact a lawyer as soon as possible. If you are concerned about a criminal record, the outcome of your charge and whether it can be resolved without one is a question best answered before the first court date.
I defend uttering threats charges in Toronto, Vaughan and Woodbridge, Brampton, Mississauga, and across Ontario. Call for a free, confidential consultation at 647-547-6734.