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Uttering a Threat

The Charge

Section 264.1 of the Criminal Code sets out that everyone who knowingly utters a threat to another person to cause death or bodily harm, or to damage or destroy property, is guilty of an offence. The essence of the offence is that the prosecutor must prove that the accused intended their remarks to genuinely cause the complainant to intimidate or to be taken seriously. There is no requirement that the intended victim be aware of the threat; the offence is made out upon proof that the accused intended the words to cause fear or alarm. In determining whether or not the accused’s statements are a threat, the words must be viewed objectively in the context in which they were spoken. The words must have been uttered with an intent to intimidate or to be taken seriously.

Uttering a threat is a hybrid offence meaning that the Crown has the option of proceeding by indictment and to seek a sentence of up to five years in jail. Alternatively, the Crown can proceed summarily, in which case the maximum sentence is two years less a day. There are no mandatory minimum sentence requirements for uttering threats. Non-custodial sentences are available.

The Investigation

Unlike many other criminal investigations, in threatening charges, the substantive evidence usually comes not from the police, but from the complainant who says you threatened them. Upon receiving the complaint, police will seek out the suspect and attempt to obtain their side of the story.

When contacted by a suspect prior to their arrest, we can be of significant assistance. We will make enquiries to determine who the investigating officer is. Because of the laws concerning solicitor/client privilege, we can act as a “buffer” between our client and police. We can speak on our client’s behalf without risk of creating incriminating evidence against them. We will negotiate to have our client not charged, or if charged, to be released from custody quickly and on the least restrictive terms that are appropriate. Typical release conditions include no contact with the complainant, including face-to-face contact, or indirect contact by phone, text, email or through a third party. Other conditions may include no weapons, no alcohol or other similar protective conditions.

Recent Successes

R. v. J.C. – Vancouver Provincial Court

Charges: Uttering a threat; Posession of a weapon (knife) for a dangerous purpose.
Issue: Given our client's circumstances and the circumstances of the incident, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to provide Crown with background information about our client and the incident which caused Crown to conclude it was not in the public interest to continue the prosecution. Stay of proceedings. No criminal record.

R. v. M.M. – North Vancouver Provincial Court

Charges: Theft Under $5000 (shoplifting).
Issue: Whether it was in the public interest to proceed with a criminal prosecution in this $900 shoplifting case.
Result: Mr. Mines was able to provide information to Crown counsel about our client's personal circumstances, resulting in Crown referring our client to the Alternative Measures program. No criminal record.

R. v. J.Z. & Q.M. – Insurance Fraud Investigation

Charges: Fraud Over $5,000.
Issue: Whether our client's were responsible for approximately $15,000 in false claims unknowingly made in their names by a health care provider.
Result: Mr. Gauthier was able to settle with the insurance provider. No criminal charges were forwarded against our clients. Mr. Gauthier was also able to assist with the first steps of recovering the funds from the dishonest health care provider. No criminal record.

R. v. V.N. – Surrey Provincial Court

Charges: Sexual Assault (police investigation).
Issue: Whether there was sufficient evidence to support a criminal prosecution.
Result: Mr. Gauthier opposed the police application to extend the time period they could continue to retain seized evidence and he provided advice to our client in steering him through the investigation. The matter concluded with no criminal charges being forwarded to Crown. No criminal record.

R. v. R.T. – Insurance Fraud Investigation

Charge: Insurance Fraud Under $5,000 investigation.
Issue: Given our client's rehabilitation and repayment of disputed claims, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Mines was able to persuade the insurance company to settle the matter on a civil basis. No criminal charges forwarded. No criminal record.

R. v. G. A.G. – Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Whether there was a substantial likelihood of a conviction in this case.
Result: Mr. Mines was able to persuade Crown counsel that, given the lack of cooperation by the complainant, that there was no prospect of a conviction. Crown counsel did not approve any charges and, on Mr. Mines' representations, agreed to cancel the scheduled court date and to direct police to cancel our client's Undertaking to Appear. No criminal record.

R. v. L.M. – Vancouver Provincial Court

Charge: Mischief Over $5000.
Issue: Whether Crown could prove the value of damage alleged to have been caused by our client.
Result: Mr. Mines was able to persuade Crown counsel that because it could not accurately prove the value of damage, and that our client had taken appropriate steps of self-rehabilitation,  Crown elected to not approve any charges. No criminal record.

R. v. H.K. – Port Coquitlam Provincial Court

Charge: Assault.
Issue: Whether it was in the public interest to proceed with a criminal prosecution in this "road rage" case.
Result: Mr. Mines was able to provide information to Crown counsel about our client's personal circumstances and the circumstances of the incident which resulted in Crown staying the charge after our client completed Alternative Measures. No criminal record.

R. v. J.S. – North Vancouver Provincial Court

Charges: Uttering Threats (x3).
Issue: Whether or not our client was entitled to be sentenced to a conditional discharge rather than being convicted of this offence.
Result: Upon hearing Mr. Gauthier's submissions on our client's behalf, the Court granted our client a conditional discharge rather than entering a conviction. No criminal record.

R. v. S.G. – Surrey Provincial Court

Charges: Assault; Mischief. Issue: Given the rehabilitative steps that we guided our client through and advocating on her behalf that there was a reasonable self defence issue, whether there was a substantial likelihood of securing a conviction.
Result: Mr. Gauthier was able to persuade Crown counsel that there was no substantial likelihood of a conviction. Ultimately Crown entered a stay of proceedings. No criminal conviction. No criminal record.

R. v. K.B.K. – Vancouver Provincial Court

Charges: B&E; Assault; Distribute Intimate Images.
Issue: Whether the Crown could comply with a defence disclosure request and possibly face a Charter application to have charges stayed due to unreasonable delay.
Result: On the eve of the trial, Mr. Mines was able to persuade Crown to allow our client to plead guilty to the least serious charge, assault by slapping. Crown nonetheless sought a conviction and probation, but after hearing Mr. Mines' submissions, the trial judge granted our client a conditional discharge. No criminal conviction.

R. v. C.B.S. – Richmond Provincial Court

Charges: B&E; Assault; Distribute Intimate Images.
Issue: Whether the Crown could comply with a defence disclosure request and possibly face a Charter application to have charges stayed due to unreasonable delay.
Result: On the eve of the trial, Mr. Mines was able to persuade Crown to allow our client to plead guilty to the least serious charge, assault by slapping. Crown nonetheless sought a conviction and probation, but after hearing Mr. Mines' submissions, the trial judge granted our client a conditional discharge. No criminal conviction.
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The Defence

The typical defences to threatening charges is to establish doubt that the words were ever uttered or, alternatively, that the words uttered were not intended to be taken seriously by the complainant. Clearly, any evidence from third party witnesses or video or audio recordings will be relevant.

As experienced lawyers, we are able to offer significant assistance to clients who contact us before they are contacted by police. We will contact the police investigator and will strive to persuade police to not take you into custody at all or, alternatively, to release you on the least onerous conditions as possible, as quickly as possible. In our more than 25 years of experience, we have been successful in obtaining non-custodial sentences for the majority of our clients charged with uttering threats. We will strive to resolve your threatening charge with alternative measures, a peace bond or a discharge.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.

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