If the police are called in the middle of a domestic dispute you may end up getting charged with the offence of uttering threats. Section. 261.4 of the Criminal Code makes it a crime to knowingly utter, convey or cause any person to receive a threat to cause death or bodily harm. In order to be convicted the prosecutor must prove beyond a reasonable doubt both that there was an utterance or conveyance of a threat and that you intended to threaten your spouse.
The question of whether a threat was made is looked at objectively. In the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person? The prosecutor need not prove that the intended recipient of the threat was made aware of it, or if aware of it, that he or she was intimidated by it or took it seriously. The Crown need not prove that the intended recipient of the threat was made aware of it, or if aware of it, that he or she was intimidated by it or took it seriously. The question in relation to the prohibited act is not whether people in fact felt threatened but whether or not a reasonable person would.
The fault element is made out if it is shown that threatening words uttered or conveyed were meant to intimidate or to be taken seriously. It is not necessary to prove that the threat was uttered with the intent that it be conveyed to its intended recipient or that the accused intended to carry out the threat. It can be established by showing either that the accused intended to intimidate or intended that the threats be taken seriously.
In one case, for example, the person targeted by the threat — the accused’s ex-girlfriend — had testified that she had not been frightened by the accused’s words. The trial judge strongly relied on this evidence to conclude that, despite the fact that the words on their own appeared threatening, she was left with a reasonable doubt as to whether the accused had the necessary intent to threaten. The perception of the alleged victim was not directly in issue, but was relevant evidence of the accused’s intent.