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Killing words

Threats in the age of social media

By Patrice Band

December 21 2012 issue

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'I’m gonna kill Billy as soon as I get my hands on him!”

Ever said such a thing? (As a criminal lawyer, I advise you to consider — but not answer — this question) Are they “mere words,” or do they constitute the crime of uttering a death threat? Does it matter whether they were said out loud in the kitchen to your spouse, or on Facebook on your own “wall” or someone else’s?

Recent headlines tell us that these are timely questions. Gregory Alan Elliott was charged with criminal harassment for repeatedly communicating with a woman through Twitter. In one radio report, the detective commented that such cases are novel and that social media will continue to be a vehicle for criminal activity. The complainant is reported to have said that “the things you do online are you.”

By its nature, law often lags behind technology. So is Canada’s criminal law on uttering threats in step with the technology and culture of social media?

Section 264.1(1) of the Criminal Code states that everyone commits an offence “who, in any manner, knowingly utters, conveys or causes any person to receive a threat…to cause death or bodily harm to a person…”  By adding the phrase in any manner in 1985, Parliament understood that humans will continue to find new ways to convey meaning to one another. The Code is applicable to all types of communication.

In R. v. Clemente [1994] S.C.J. No. 50, Justice Peter Cory explained that the section prohibits words that “cause fear or intimidation.” The words need not be acted upon or received by their “target.”

But how does a court determine whether threatening words constitute a criminal offence? Would Jonathan Swift’s “modest proposal” constitute a threat to all poor children of Ireland that they will meet their demise on the dinner tables of the rich? What if Swift had posted it on Facebook?

Not all words that convey a threat are criminal. As Cory writes in Clemente, judges must “look at the words used, the context in which they were spoken and the person to whom they were directed” and determine whether they would convey a threat to a reasonable person.

Context matters.

Social media have been referred to in Canadian courts for some time now. It is not uncommon for postings on social media to be tendered as evidence, used in the cross-examination or as the basis of dismissals for cause.

But there only a relative few published cases dealing with uttering threats through social media.

In R. v. Sather [2008] O.J. No. 918, the Children’s Aid Society (CAS) removed Dan Sather’s son from his and his wife’s custody. Sather then posted threatening utterances toward a CAS worker on his Facebook page. Objectively, the utterances constituted a threat but Sather was acquitted of the charges because the guilty intent was not proven. First, an expert testified that people “embellish their character” and construct “alternate personas” on Facebook. Second, the postings were written for people who were sympathetic to Sather (presumably his “friends”) and were discovered by the complainant only by a “fortuitous search.” Third, Sather had had many benign encounters with CAS workers. Fourth, Sather testified that he was only venting as he had learned to do in an anger management course.

In R. v. Lee [2010] O.J. No. 3060, Harold Lee posted “offensive, disturbing and deplorable” writings on Facebook, and was charged with uttering a threat. Justice Kelly Wright found that, viewed objectively and without further explanation, the posts could amount to a threat. But Lee was acquitted because there was a reasonable doubt as to his intent. Lee testified that he had written about “bringin’ death with [him] this time around” because he had been working for the coroner’s office picking up dead bodies during the H1N1 pandemic. Also, Justice Wright found that Lee consistently posted about his every experience.

In R. v. Weavers [2009] O.J. No. 3872, Shaun Weavers was convicted of uttering a threat by e-mail and criminal harassment, after writing numerous e-mails to the complainant, and posting about her on his MySpace page. He also posted on her MySpace page despite being asked to stop.

While the sample size is admittedly small, some factors can cautiously be gleaned. Lee and Sather suggest that whether one posts on one’s own social media site or on another’s is a relevant consideration. While the Weaver case did not turn only on that issue, the fact that the accused had posted directly on to the complainant’s MySpace site was relevant. Also, when read together, Lee and Sather suggest that whether the postings
are those of an “alternate persona” may be a factor, especially when a person posts such things consistently.

While the law of uttering threats will certainly need to develop to reflect our use of social media, the broad language of s. 264.1(1) seems up to the task. Where police, prosecutors, defence counsel and courts will need to concentrate is on the context of the threatening words. If, as Marshall McLuhan said, “the medium is the message,” then the technology and culture of social media are the message, and courts will have to consider more than the words on the screen. 

So, while it may be good legal advice to tell clients that they are what they do online, in this area as in others, context is everything.

Patrice Band is a certified specialist in criminal law. He would like to thank Shannon O’Connor for her thoughtful help.

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