Uttering Death Threats or Threatening Bodily Harm

Uttering Death Threats or Threatening Bodily Harm

This article is a brief and general overview reviewing legal information about uttering threats in Toronto, Ontario. Those looking for advice on uttering threats charges should consult a criminal lawyer.

What is the definition of a threat?

The definition of uttering threats is found in the Criminal Code at section 264.1. Generally anyone can be charged with uttering a threat if they utter, convey or cause any person to receive a threat:
(a) to cause death or bodily harm to any person;
(b) to burn, destroy or damage real or personal property; or
(c) to kill, poison or injure an animal or bird that is the property of any person

What if the threat isn't said directly to the intended target, but to a third person?

The accused need not utter the threat directly to the intended victim to be found guilty. Furthermore, when the accused does not utter the threat directly but rather threatens to harm the intended victim to a third person, it is not a valid defence to argue that the accused did not intend that third person to communicate the threat to the intended victim for the crime to be established. Indeed, it is not even necessary for the intended victim to be aware of the threat in order to be found guilty of the offence.

What is required to establish a threat in law?

The Crown must prove that the accused knowingly made the threat and that he/she intended the threat to be taken seriously so as to produce a reaction of alarm or fear in the mind of the recipient.

What if the recipient of the threat did not take the threat seriously?

In law, all that is required is that the person making the threat intended the threat to be taken seriously. The fact that the person receiving the threat was not intimidated or scared does not constitute a defense to the charge of uttering threats.

What if it was threat was impossible to carry out?

Even in a situation where the accused makes a threat he/she could not carry out i.e.: " I will drop you from the top of the C.N. Tower", he/she may still be found guilty of the offence. The central focus for the Judge in deciding whether or not a threat was made will be on the maker's intention when the words were uttered (was it meant to be taken seriously so as to produce a reaction of alarm or fear in the mind of the recipient) - not on the present ability to carry out the threat.

It is important to remember that every allegation of threats is a fact specific inquiry. Consulting a lawyer will assist you with identifying potential defences to this type of allegation. Call me at (416) 297-7200 for a free consultation about your case.

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Sexual Assault Charges - Toronto, Ontario

Criminal Sexual Assault

Sexual Assault is a serious crime in Canada. The mere stigma of being accused of sexual assault can irreparably damage a person’s reputation. This article is a brief and general overview of the law as it relates to the criminal charge of sexual assault in Toronto, Ontario. Those charged with sexual assault should consult a criminal lawyer.

Definition of Sexual Assault
Sexual assault is defined as an assault which is committed in the circumstances of a sexual nature such that the sexual integrity of the victim is violated.

Determining whether an assault is "sexual in nature"
To determine if an assault is sexual in nature, the court looks at the part of the body being touched, the nature of the contact, the situation in which it occurred, the words and gesture accompanying the act, and all other circumstances surrounding the conduct including the motives of the accused person.

Definition of Sexual Assault
Section 265 of the Criminal Code of Canada outlines the offences of assault and sexual assault as follows:

A person commits an "assault" when:

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
obtained where the complainant submits or does not resist by reason of the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
(3) Where the accused alleges that he believed that the complainant consented to the conduct that is the subject matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.

Was there Consent?
A central issue in most sexual assault cases is whether or not the sexual activity in question was consensual between the parties. Consent is the voluntary agreement of the parties to have engaged in the sexual activity.

Lack of Consent
Consent will not exist in any of the following situations:
(a) where the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity by virtue of the complainant's mental state at the time (i.e. intoxication, mental illness, etc.);
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity;
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the conduct; OR
(f) The complainant is under the age of 16 (Note: this is subject to the "close-in-age exception," meaning 14- and 15-year-olds can have sex with someone who is less than five years older.)
Mistaken Belief in Consent
An accused may be acquitted of sexual assault even where there existed no consent between the parties if the accused held an honest but mistaken belief that the sexual activity was consensual.

An honest but mistaken belief in consent can be raised if the accused establishes that the complainant affirmatively communicated consent through the complainant's words or actions.

However, the accused honest but mistaken belief in consent cannot arise from any of the following scenarios:

(i) self-induced intoxication;
(ii) recklessness or wilful blindness; or
(iii) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Was Consent Given?
In order to determine if consent was given, the Court will look at the parties’ words, conduct, and reasonable steps. Words and conduct are important when trying to establish if the complainant consented to the sexual contact. The Court will not accept a complainant's silence or passivity as a form of consent; in other words, implied consent is not a defence to criminal sexual assault. If the Court finds that the accused continued sexual conduct after the accuser indicated "No" through words or conduct, the accused’s actions may be considered reckless, and he or she could be convicted under the Criminal Code of sexual assault.

Undoubtedly, the issue of consent can be a grey area, as parties’ perceptions of events may vary a great deal. The Court will look at consent from the complainant's point of view.

Furthermore, the Criminal Code requires that the accused must show that under the circumstances, he or she took reasonable steps in order to ascertain the accuser’s consent. Courts have maintained that not all reasonable steps to ascertain consent need be taken; but rather that efforts were made to take some reasonable steps would be sufficient.

Of course, just taking “some reasonable steps” alone will not prove consent, but even if the accused thought consent was given, and it turns out that it was not, taking some reasonable steps may provide the defence with some creditability, as it shows the judge or jury the accused thought what a reasonable person would have thought under similar circumstance, i.e. that consent was given.

Limits on Attacking a Complainant's Credibility
There was a time when a person accused of sexual assault was permitted to question the complainant in a sexual assault case about their past sexual history as a way of attacking the complainant's credibility. This is no longer permitted by the courts. If a person accused of sexual assault wishes to ask questions about an accuser's prior sexual activity, a special application must be brought before the trial judge. The Court may allow an accused person to ask questions about a complainant's prior sexual history, psychiatric or medical records as evidence that their credibility should be questioned; but this will only be permitted in very limited circumstances.

Sentencing and Punishment for Sexual Assault
If an accused person is found guilty and must face sentencing on a sexual assault charge, the sentence could range anywhere from no time in jail at all to a maximum of 18 months or 10 years depending on whether or not the crown proceeds on the sexual assault by "summary conviction" or whether they proceed by "indictment". How a crown chooses to proceed is entirely within their discretion. There are pros and cons to both procedures.

Since a sexual assault allegation can cover a wide range of assaultive behavior from groping someone to full intercourse, each case must be considered individually in order to assess the appropriate punishment.

In sentencing, a judge will consider a host of factors when it comes to determining an appropriate punishment, such as the offender criminal record, the personal circumstances of the offender, the circumstances of the case, as well as the brutality or lack thereof regarding the assault. Each case is unique.

If you, or someone you know if facing a sexual assault charge, you should immediately contact a lawyer to discuss the best way to successfully defend against the allegations. For a free consultation, I can be reached at (416) 297-7200.

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Domestic Assault Charges

A domestic assault can be defined as an assault (see “Criminal Assault In Canada") that takes place between two people who are either currently or formerly dating or in a common law or married relationship. Where an assault takes place between two people who share one of these relationships mentioned above, the mater is labeled “domestic” and prosecuted quite differently by Crown counsel.

According to the “Crown Policy Manual”, a document provided by the Attorney General detailing how Crown counsel are to perform their duties, “Crown Attorneys should prosecute domestic violence offences as vigorously as other serious criminal matters”.

Although not classified differently in the Criminal Code, in many jurisdictions, domestic assaults are separately identified and prosecuted by a special team of Crowns who almost exclusively deal with these types of allegations.

Internal police policies dictate that in almost all situations, the police shall charge a person alleged to have assaulted another in a domestic context, regardless of whether or not independent proof exists such as visible injuries or independent witnesses to the offence. A person’s word is enough to drag another through the criminal justice system.

At the court stage, the Crown will usually carry on with a prosecution in cases where there is a reasonable prospect of conviction. It is of little importance to the Crown Attorney that the person making the complaint does not wish the matter to proceed to trial. In domestic situations, a complainant does not have the choice to “press charges” or not. If a complaint of domestic violence is made, the police will arrest and charge the person accused of the offence and the Crown will likely prosecute them regardless of the complainant’s wishes.

Typically, those charged with a domestic offence are held for a bail hearing, whether or not they are otherwise upstanding citizens without previous criminal involvement. They are also likely to be put on strict conditions of bail which restricts contact with the complainant even if the complainant wishes to have contact with the person charged. The accused person will also likely be required to remain away from their residence, regardless of legal ownership if the complainant continues to reside there. Conditions such as these remain for as long as the criminal charge are before the court.

While it is sometimes possible to change the conditions of bail, the process by which a bail is amended is often lengthy, complex and costly. For details on how to amend a bail condition see “How Can I Change My Bail Conditions”.

There are many ways to defend against an allegation of domestic assault without pleading guilty. Every allegation is different and it is important to discuss with a lawyer what options are available to you before you walk into a courtroom for the first time.

For more information on this, or any other tpe of criminal charge, visit my website at http://www.yourbestdefence.com/ or call me at 416.297.7200 to arrange a free consultation to discuss your specific situation so that I can provide sound legal advice that suits your needs and objectives.