I Didn’t Mean It — Can You Go To Jail For A Verbal Threat?

September 19, 2019

A verbal threat can get you in trouble, even if you didn’t mean it. It is a criminal offence, referred to as an utter threat. 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.

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 (CC S.264.1)

The two most common threats to result in criminal charges are an utter threat to cause death and utter threat 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 Defence

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.

Lack of Proof That the Offence Occurred

One of the first things the defence attorney will examine is whether there is any proof that the offence occurred. An audio recording is one of the stronger proofs, although it may be difficult to authenticate. Audio quality and sounds need to be sufficient for the Court to reasonably believe the voice belongs to the defendant.

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

In addition to proving that the uttered threat occurred, the Crown also needs to show that the victim had a reasonable belief that the threat would be carried out. An idle threat (or empty threat) is not a convictable 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

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 Charge

The defence may attempt to negotiate a withdrawal of charge before going to trial. The difficulty in proving these charges can give the defence a good bargaining position.

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.

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“.

Hire A Toronto Defence Attorney

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 a consultation.

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