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Offence 264.1- Threatening (Death or Bodily Harm) (s. 264.1(1)(a))

Threatening (Death or Bodily Harm)
(s. 264.1(1)(a))

[1]NOA is charged with threatening (specify threat). The charge reads:
(read applicable parts of indictment or count)

[2] You must not find NOA guilty of threatening, unless the Crown has proved beyond a reasonable doubt that NOA is the person who committed the offence on the date and in the place described in the indictment.31 Specifically, the Crown must prove each of the following essential elements beyond a reasonable doubt:
1. that NOA made a threat to cause NOC's (or, NO3P's) death or to cause NOC (or, NO3P) bodily harm; 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) 32, you must find NOA guilty of threatening.

[3] To determine whether the Crown has proved these essential elements, consider the following questions.

[4] First ­ Did NOA make a threat to cause NOC's (or, NO3P's) death or to cause NOC (or, NO3P) bodily harm?

The Crown must prove beyond a reasonable doubt that NOA made a threat to cause NOC's (or, NO3P's) death or to cause NOC (or, NO3P) bodily harm. A threat may be made by words or gestures or in some other way. It may be made by speaking, writing, or in some other manner intending to make it known to another person.33
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 harm34, that interferes with a person's health or comfort and is more than brief or
fleeting, or minor in nature.
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 NOC's (or, NO3P's) death or to cause NOC (or, NO3P) bodily harm, 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 or bodily harm, then you must go on to the next question.

[5]Second ­ Did NOA make the threat knowingly?
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. The Crown does not have to prove that NOC, (or NO3P) felt threatened or frightened35.
Nor does the Crown have to prove that NOA meant to carry out the threat.
To decide whether NOA made the threat knowingly, you should take into account all of the evidence, including:
· the words or gestures used
· the context in which the words or gestures were used
· NOA's mental state36 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.37 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 uttered the threat knowingly, you must find NOA not guilty of threatening death or bodily harm.
If you are satisfied beyond a reasonable doubt that NOA uttered the threat knowingly, you must find NOA guilty of threatening death or bodily harm.

31 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.

32 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 non-insane automatism.

33 When the threat is uttered to a third person, the following instruction should be added: "The threat may be expressed to someone other than the person threatened. In fact, the person threatened may not even be aware of the threat."

34 Delete "including psychological harm" where there is no evidence on this issue.

35 When the threat has been uttered to a third person, the following instruction should be added: "The Crown does no thave to prove that NOA threatened NOC directly, or that the threat was passed along to NOC."

36 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.

37 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.