We’ve all heard about blackmail. It appears in movies, games, and literature. But, the reality is that there is no ‘blackmail’ offence in Canada’s Criminal Code. Instead, under section 346, we have the offence of ‘extortion’. Extortion punishes those who, through threats, accusations, menaces, or violence, induce or attempt to induce their victims into doing anything. The extortion offence is very broadly worded. Because it’s so broadly worded, it has been used to convict people for many different actions, including:
- A teenager who said he would bring an AK-47 to school and shooting people unless he was compensated for his damaged vape[;
- A man who was found to have implied violence by asking for money and stating that ‘things will get a lot worse’, and ‘if you can’t pay with money you’ll have to pay with something else’ if he didn’t receive it;
- Three men who were accused of threatening, harassing, intimidating, and extorting a man who tried to start a new chapter of a Montreal-based Motorcycle club;
- A man who allegedly committed acts including arson, telephone threats, molotov cocktails, and paintball-gun shootings against his former business associates;
- A man who threatened to post nude pictures of people on social media unless paid;
- A man who pretended to be a photographer and threatened to send nude pictures to family or pornorgraphic magazines unless sexual favours were granted;
- A person who threatened to sell a story to a newspaper unless the victim paid a sum of money (the story regarded the victim’s recent conviction); and
- A woman who threatened to send a letter to another woman’s employer unless the other woman repaid a debt she owed;
Extortion may be committed when somebody attempts to induce another person to do something by threats, accusations, menaces, or violence. However, pursuant to s.346(2), a threat to institute civil proceedings does not count.
Under the Criminal Code extortion is broad enough to cover someone trying to get another person to do “anything” by threats, etc.. “Anything” is very wide, it includes things like sexual favours[. The threats don’t have to be threats of violence. Even if the demand to obtain money is reasonable, for example under a loan, it is not an excuse to make an otherwise unlawful threat.
The offence of extortion can be defended against on the basis that the person has a reasonable justification or excuse. The defence allows for situations in which people use what can be regarded as legitimate — although harsh — tactics to collect debts. Such tactics are permitted., but the defence does not allow ‘illegitimate’ attempts to collect on debts. There ‘reasonable justification or excuse’ defence tries to draw the line between hard bargaining and blackmail. The Court itself has acknowledges that this is a difficult line in some cases, which depends on the evidence in a given case. The test is that of a reasonable person in the circumstances of the accused. For a person to be guilty of extortion, the threat must go beyond what a reasonable person in the accused’s situation would view as a legitimate means of collecting the debt. Sometimes, a reasonable doubt may arise where a debt is connected to a person’s employment, and the creditor threatens to speak to a person’s employer to obtain repayment of the debt[.
Section 346 extortion carries serious minimum sentences, a maximum sentence of life imprisonment, and it’s prosecuted as an indictable offence. If it’s committed with a firearm for the benefit of a criminal organization, a first offence carries a mandatory minimum sentence of 5 years. For a second or subsequent offence, the minimum is 7 years. Where the offence is committed with a firearm, but not for a criminal organization, the minimum is 4 years. Under section 346(1.2), certain offences are deemed to be an earlier offence for the purpose of determining whether a person has committed a previous offence.
Section 302 also makes it an offence to try to extort money from any person by way of defamatory libel. The offence can be committed when the person publishes, offers to abstain from publishing, or offers to prevent the publication of defamatory libel. The offence is also committed when someone does so in order to induce a person to confer on, another, or procure for them, an appointment or office of profit or trust. Extortion by libel is a hybrid offence, subject to a maximum term of 5 years.
The burden is on the Crown to prove extortion beyond a reasonable doubt. Extortion under section 346 of Criminal Code is very broad, and covers a lot of different types of behaviour. It can apply in surprising situations, and through its defences, extortion tries to strike a balance between legitimate and illegitimate pressure. Where that line is can be a difficult question for the Court. The Court relies on the lawyers who argue before it to help it find the line. By retaining experienced counsel with knowledge and expertise about the charges you’re facing, you can tell your side of the story, and maybe raise a reasonable doubt. And, even when there may seem like there is no reasonable doubt, counsel can ensure you are treated fairly and obtain a fair deal. Extortion can be complicated, but good legal advice doesn’t have to be.
From the Horse’s Mouth
Here are the sections of the Criminal Code we refer to above:
Extortion by libel
302 (1) Every one commits an offence who, with intent
(a) to extort money from any person, or
(b) to induce a person to confer on or procure for another person an appointment or office of profit or trust,
publishes or threatens to publish or offers to abstain from publishing or to prevent the publication of a defamatory libel.
(2) Every one commits an offence who, as the result of the refusal of any person to permit money to be extorted or to confer or procure an appointment or office of profit or trust, publishes or threatens to publish a defamatory libel.
(3) Every person who commits an offence under this section is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction..
346 (1) Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done.
(1.1) Every person who commits extortion is guilty of an indictable offence and liable
(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
(1.2) In determining, for the purpose of paragraph (1.1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:
(a) an offence under this section;
(b) an offence under subsection 85(1) or (2) or section 244 or 244.2; or
(c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 279.1 or 344 if a firearm was used in the commission of the offence.
However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
Sequence of convictions only
(1.3) For the purposes of subsection (1.2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
(2) A threat to institute civil proceedings is not a threat for the purposes of this section.
[ix] R v. Davis, para. 45
[x] R v. Davis, para. 59
[xii] https://www.canlii.org/en/on/onca/doc/2005/2005canlii32566/2005canlii32566.html?, para 83-85