Using the Internet to make threats

A 26-year-old Toronto-area man is currently on trial on two counts of ‘knowingly’ causing a nurse and employees at the York Region Children's Aid Society to receive a threat to cause death or seriously bodily harm,’ as a result of what he posted on Facebook last fall.

The man’s infant son was apprehended by Children's Aid so he formed a group that he called a ‘petition’ against the CAS for taking his newborn son from his home in September 2007 in part, because the mother is developmentally delayed.

The lawyer for the man accused of making threats online is arguing that postings on the social networking website Facebook should be compared to diary entries and not be used to form the basis of criminal charges. For want of better words, I will call that reasoning as ‘utter nonsense’.

D.S., whose name cannot be published under the Child and Family Services Act to protect the child, allegedly posted he was "suisidal" (sic) and outlined various plans, including the possibility of bombing Children's Aid. In one of his postings, he allegedly said that he believed he would be "doing 25 to life," after he found out the name of the nurse at York Central Hospital who contacted CAS. He also said, "May God have mercy on my soul. I am going straight to hell with a 25-year pit stop in prison.”

In Canada, doing ’25-to-life’ is the sentence for first degree murder so such a comment could be construed to mean that he was implying that he would kill those at the CAS and murder the nurse he was searching for at the York Central Hospital.

Section 264.(1) of the Criminal Code of Canada states that ‘every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat to cause bodily harm of death to any person. The penalty upon conviction is up to five years in prison.

It matters not whether the person who utters the threat intends to commit the murder. What matters is that the victim, to whom the threat is directed, believes that he or she will be murdered by the accused. Further, even if the victim of such a threat is not made aware of the existence of the threat, the fact that the threat is published (meaning that it is in written form) and made available to any other person is all that is needed to bring about a conviction.

I should add that in R. v. Nabis (1975), 18 C.C.C. (2d) at page 144, the Supreme Court of Canada refused to extend the offence of threatening death to include face-to-face verbal threats. That is because such threats are more often than not, uttered in the heat of the moment. However, the current wording of the crime as stated in the Criminal Code uses the word, ‘in any manner, knowingly utters a threat….’ So that includes verbal threats face-to- face. Now we all say things like, “If you tell a bad joke like that again, I will drown you.” Obviously such a threat is not taken seriously because it isn’t uttered seriously.

The word, ‘knowingly’ plays an important part in the wording of the offence. For an accused to be convicted of any criminal offence, it must be shown that he knew what he was doing when he committed the offence. D.C. may have been enraged and ‘out of his mind’ with anger when he put those words in Facebook but unless D.C’s lawyer can prove that his client was insane, that defence won’t be available to him.

Goldstein, D.C’s lawyer said outside of court, “While the comments allegedly made were inappropriate, they were not criminal. Facebook is an outlet to ‘blow off steam’ and there was no intent by the accused to threaten anyone. People use Facebook today like the way people used to use diaries. They are expressing their personal thoughts or opinions, not an intention to act.”

This argument is about as thin as a wafer given to a supplicant at Mass.
Goldstein added that even if other people could read what was allegedly posted by D.S.; there is still a requirement for the Crown to prove he intended to threaten CAS and the nurse.

In my opinion, it doesn’t really matter whether or not his client did or didn’t intend to kill anyone when he uttered the threat. Mr. Justice Angers of the Court of Appeal in New Brunswick said in part;

“It is not material whether the accused intended to carry out the threat. A threat is, anything that is a menace or a denunciation that ill will befall you or that you will be killed. The essence of the offence is that there was an actual menace, there was a threat. The threat must cause (someone to believe) a declaration of hostility, a hostile determination of pain or suffering or death.”

If a person makes a threat other than face-to-face it is, of course, more likely to be meant to be taken more seriously. So the manner in which the threat is made is important, as a matter of evidence, to determine if, the threat is "intended to be taken seriously. The threats uttered by D.C. in Facebook were in written form and published on the Internet and for this reason; the threats must be taken seriously. A person who goes to the trouble of putting his threats in writing and publishing it in the Internet has gone past the heat-of-the-moment stage and is now in the stage when he has thought out what he is going to write. It justifies the use of the word, ‘knowingly’ when applying it to the offence.

As I see it, D.C. is guilty of uttering threats to harm other people. As soon as the decision is arrived at by the court, I will add it in this blog.