(Last revised June 2014)
1. that (NOA) made a threat to cause [death/bodily harm] to (NOC)[2]; and
2. that (NOA) made the threat knowingly.
Unless you are satisfied beyond a reasonable doubt that the Crown has proved both of these essential elements, you must find (NOA) not guilty of threatening.
If you are satisfied beyond a reasonable doubt of both of these essential elements [and you have no reasonable doubt after considering the defence(s) (specify defences) about which I will instruct you] [3] , you must find (NOA) guilty of threatening.
The Crown must prove beyond a reasonable doubt that (NOA) made a threat to cause [death/bodily harm] to (NOC).
A threat may be made by words, spoken or written, or gestures, or in some other way. It must be communicated to another person.
When the complainant is not aware of the threat, add the following:
The threat may be expressed to someone other than (NOC). The Crown need not prove that (NOC) was even made aware of the threat. [4]
A threat to cause death to another person is a threat to kill him or her. A threat to cause bodily harm to another person is a threat to cause that person something more than just a slight injury or brief pain. “Bodily harm” is any hurt or injury, including psychological harm[5] , that interferes with a person’s health or comfort and is more than brief or fleeting, or minor in nature.
If appropriate, add the following:
Further, the words do not have to be directed towards a specific person; a threat against a specified group of people is sufficient. See, R. v. McRae, 2013 SCC 68.
To decide whether (NOA)’s conduct amounted to a threat to cause death or bodily harm, ask yourselves whether a reasonable person, in all the circumstances, would consider that (NOA)’s conduct amounted to a threat to cause death or serious bodily harm. For example, there is no threat where a reasonable person, in the circumstances, would understand that the words were spoken or written, or the gestures were made, in jest or in such a way that they could not be taken seriously.
Take into account:
the circumstances in which the words or gestures were used
the manner in which the words or gestures were communicated
the person to whom they were addressed
the nature of any prior or existing relationship between the parties
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) made a threat to cause [death/bodily harm] to (NOC), you must find (NOA) not guilty of threatening. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) made a threat to cause [death/bodily harm] to (NOC), then you must go on to the next question.
The Crown must prove beyond a reasonable doubt that (NOA) made the threat knowingly.
A person makes a threat knowingly when he or she means it to intimidate or to be taken seriously by someone.[6]
The Crown does not have to prove that (NOC) felt threatened or frightened[7] .
Nor does the Crown have to prove that (NOA) meant to carry out the threat.
Nor does the Crown have to prove that (NOA) meant the threat to be communicated to (NOC).
To decide whether (NOA) made the threat knowingly, you should take into account all of the evidence, including:
1. the words or gestures used
2. the context in which the words or gestures were used
3. (NOA)’s mental state[8] at the time the words or gestures were used
You may infer, as a matter of common sense, that a person usually knows the predictable consequences of his or her actions, and means to bring them about.[9] However, you are not required to draw that inference about (NOA). Indeed you must not do so if, on the whole of the evidence, including (specify evidence of intoxication, mental disorder or other) you have a reasonable doubt whether (NOA) made the threat knowingly. It is for you to decide.
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) made the threat knowingly, you must find (NOA) not guilty of threatening [death/bodily harm].
If you are satisfied beyond a reasonable doubt that (NOA) made the threat knowingly, you must find (NOA) guilty of threatening [death/bodily harm].
[1] Where identity is an issue, remember to include any further instructions that may be relevant (e.g. eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment.
Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G), [1990] 2 S.C.R. 3.
[2] This element should reflect the wording used in the indictment. Use (NOC) when the indictment alleges threat directly between the accused and (NOC). When the indictment alleges the threat is uttered through a third party, use (NO3P) in addition to (NOC). The entire instruction will have to be modified accordingly.
[3] Insert the bracketed words if appropriate. This instruction will have to be modified where the accused has a legal burden of proof, such as for mental disorder or automatism.
[4] See R. v. McRae, 2013 SCC 68.
[5] Delete “including psychological harm” where there is no evidence on this issue.
[6] This instruction conforms with R. v. O’Brien, 2013 SCC 2. Where the threat is uttered to someone other than (NOC), it may be necessary to amend this instruction to emphasize that the fault element is disjunctive: it can be established by showing either that the accused intended to intimidate or intended that the threats be taken seriously: see R. v. McRae, 2013 SCC 68.
[7] When the threat has been uttered to a third person, the following instruction should be added: “The Crown does not have to prove that (NOA) threatened (NOC) directly, or that the threat was passed along to (NOC).”
[8] Where there is evidence that puts in issue the accused’s mental state, for example, intoxication or diminished capacity, the appropriate instruction should be inserted here.
[9] This instruction is a plain-language expression of what in case law is referred to as the “common sense inference” that a person intends the natural and probable consequences of his or her actions.