Ted's Blog


Supreme Court of Canada clarifies elements of offence of uttering threats.

In R. v. McRae, the Supreme Court of Canada ruled that it was not necessary to prove threats were conveyed or that accused intended they be conveyed.

The following is the summary appearing in the headnote to the case.

“While the accused was detained awaiting trial, he stated to fellow detainees that he would take down the guys at the top to rearrange the face of the prosecutor and one of the witnesses because he thought that he was the one who snitched on him. The accused also stated that he had hired a private detective to find the prosecutor’s address, and asked one of the detainees to do what was necessary to find the address of the officer‑investigator. The accused further asserted that once his trial was over, he would kill the witnesses who had informed against him. The accused was acquitted of five counts of uttering threats on the basis that the mens rea of the offence had not been established because the words were not conveyed by the accused with the intent that they be transmitted to the subjects of the threats in an attempt to influence their actions. The Court of Appeal dismissed the Crown’s appeal.

Held: The appeal should be allowed and a new trial ordered.

The actus reus of the offence of uttering threats will be made out if a reasonable person fully aware of the circumstances in which the words were uttered or conveyed would have perceived them to be a threat of death or bodily harm. 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. Nor must the words be directed toward a specific person; a threat against an ascertained group of people is sufficient.

The mens rea of the offence is made out if the accused intended the words uttered or conveyed to intimidate or to be taken seriously. It is not necessary to prove an intent that the words be conveyed to the subject of the threat or that the accused intended to carry out the threat. A subjective standard of fault applies. However, in order to determine what was in the accused’s mind, a court will often have to draw reasonable inferences from the words and the circumstances, including how the words were perceived by those hearing them.

In this case, both the trial judge and the Court of Appeal erred in law in finding that the elements of the offence had not been made out. With respect to the actus reus of the offence, the Court of Appeal erred in concluding that the words uttered by the accused did not amount to threats because they were not conveyed to their intended recipients and they did not cause anyone to be fearful or intimidated. It is not necessary to prove that the threats were conveyed to their intended recipients or to prove that anyone was actually intimidated or made fearful as a result of the words uttered in order to make out the prohibited act of the offence. As for the mens rea of the offence, both the trial judge and the Court of Appeal erred in finding that in order to make out the fault element it was necessary to prove that the accused intended the words to be transmitted to their objects/recipients and specifically intended to intimidate the ultimate objects of the threats. In other words, each failed to consider the disjunctive nature of the fault element required for the offence. It would have been sufficient had the accused intended that the threats be taken seriously by those to whom the words were spoken.

The Crown has met its burden to demonstrate that the trial judge’s legal error with regard to the fault element might reasonably be thought, in the circumstances of this case to have had a material bearing on the acquittal. Indeed, had the trial judge not erred as to that element of the offence, he would have had to consider whether the accused intended his threatening words to be taken seriously and the evidence of two witnesses provided some basis to conclude that he did. Accordingly, the acquittals should be set aside. However, this is not the clearest of cases where this Court’s power to enter a conviction should be exercised. A new trial is therefore required to determine whether the charges against the accused will be proved beyond a reasonable doubt.”