INTRODUCTION AND BRIEF DESCRIPTION
Threat to institute civil proceedings is not considered a threat under this section.
SECTION WORDING
346(2) A threat to institute civil proceedings is not a threat for the purposes of this section.
EXPLANATION
Section 346(2) of the Criminal Code of Canada defines the scope of the criminal offence of extortion by stating that a threat to institute civil proceedings cannot be considered a threat for the purposes of this section. This is an important provision as it prevents abuse of the criminal law to target legitimate civil disputes. Extortion is a serious offence that involves making threats or using violence or intimidation to coerce someone into doing something against their will. Section 346(1) of the Criminal Code specifically makes it a criminal offence to extort someone for money, property, or services. The offence carries a maximum penalty of 14 years imprisonment. Section 346(2) provides an important limitation on the scope of this offence. It specifies that a person cannot be charged with extortion simply for threatening to initiate civil proceedings against someone. This means that parties engaged in a legitimate civil dispute, such as a contract dispute, can threaten to sue each other without fear of being charged with extortion as long as the threat is made in good faith and not intended to be coercive. In other words, section 346(2) recognizes the importance of protecting parties' rights to access the civil justice system without fear of criminal sanction. It also recognizes the need to ensure that the offence of extortion is not used illegitimately to punish someone who may have simply threatened to sue another person in a legitimate effort to resolve a civil dispute. In summary, section 346(2) is a crucial provision within the Criminal Code as it balances the interests of protecting people from extortion while ensuring that individuals are not unduly punished for legitimate use of the civil justice system.
COMMENTARY
Section 346(2) of the Criminal Code of Canada is a provision that exempts a threat to institute civil proceedings from being considered as a threat for the purposes of the section. This section relates to the offence of extortion, which involves a threat to cause harm to a person or property in order to obtain something of value. The rationale behind this exemption is to preserve the right of individuals to seek redress through the civil justice system. In other words, a person should not be criminalized for threatening to take legal action if they have a legitimate claim that can be pursued through a civil lawsuit. This reflects the principle that the criminal law should not interfere with the civil law, except in cases where there is a clear risk of harm to person or property. However, this exemption has some limitations in practice. Firstly, it only applies to threats to institute civil proceedings, not to actual civil lawsuits or other legal actions. This means that if a person follows through with their threat and initiates civil proceedings that are groundless or vexatious, they may still be subject to criminal liability for extortion if they use the threat as a means of obtaining a settlement or advantage in the case. Secondly, the exemption does not apply if the threat to institute civil proceedings is accompanied by a threat to do something illegal or harmful. For example, if a person threatens to sue someone unless they pay them money, and also threatens to burn down their house if they do not comply, then the threat is not protected by the exemption because it involves an illegal act or a threat of harm. Thirdly, the exemption does not cover all situations where civil proceedings may be threatened. For example, a threat to sue someone in order to prevent them from speaking out on a matter of public interest may be considered to be the type of conduct that the criminal law should discourage, even though it is technically a threat to institute civil proceedings. Overall, Section 346(2) strikes a balance between protecting the right of individuals to seek redress through civil litigation and preventing abusive conduct that uses the threat of legal action as a means of coercing or extorting someone. It reflects the importance of maintaining a distinction between the civil and criminal justice systems, while recognizing that there are situations where the two may intersect and require further legal scrutiny.
STRATEGY
Section 346(2) of the Criminal Code of Canada provides an exemption for threats to institute civil proceedings from being considered a criminal offence under the section. The section criminalizes any person who utters threats to cause death or bodily harm to another person, or to damage property belonging to the other person. Therefore, the strategic considerations when dealing with this section depend on the specific circumstances of the case, particularly whether the threat was related to civil or criminal proceedings. One of the primary strategic considerations when dealing with this section is to establish whether the threat was related to initiating civil proceedings or not. Section 346(2) only exempts threats to commence civil proceedings from being considered a criminal offence. Therefore, if the threat was related to initiating criminal proceedings or any other unlawful activity, the defendant can be charged with an offence under section 346 of the Criminal Code. The accused's lawyer may argue that the threat was related to a civil action, and therefore, 346(2) should apply. However, this would depend on the facts and circumstances of the case. Another strategic consideration when dealing with this section is the credibility or seriousness of the threat. For a threat to be considered a criminal offense, it must be an objectively believable message that would cause fear in the mind of a reasonable person. The judge or jury will evaluate the context of the threat and the relationship between the accused and the victim. If the victim does not feel fearful or perceive the threat as an actual risk to their safety or property, it may not be sufficient to constitute an offence. Additionally, when dealing with this section, the strategic consideration of whether to enter into a plea agreement is crucial. Depending on the facts and circumstances of the case, a plea agreement could be advantageous for both the defence and the Crown. For example, the Crown may be willing to reduce the charge to a lesser offence if the accused agrees to plead guilty to a lesser charge, saving both parties time and resources. Regarding strategies that could be employed when facing charges under this section, the defence counsel could argue that the accused did not have the intention to threaten the victim. They could argue that the alleged threat was merely a misunderstanding or a heated exchange that was not intended to cause fear or harm. Another strategy could be to question the credibility of the alleged victim's perception of fear. There may be evidence to suggest that the victim was not in fear at the time of the threat or that they perceived the threat in a way that was not intended by the accused. Finally, the defence counsel could also argue that the alleged threat was a reasonable response to the situation. For instance, the accused could have made the alleged threat to protect themselves or others from harm or danger. In conclusion, section 346(2) of the Criminal Code of Canada provides an exemption for threats to institute civil proceedings from being considered a criminal offence. However, there are strategic considerations and strategies to employ when dealing with this section of the Criminal Code, which depend on the specific facts and circumstances of each case. Defence counsel should work to understand the case fully to effectively argue their client's case.