Extortion is a serious criminal offence with a maximum penalty of imprisonment for life. However, many people don’t realize how broad the offence of extortion is, and assume it is only committed by violent actions such as pointing a gun to someone’s head and asking them to do something such as pay a drug debt. In fact, people have been found guilty of extortion for threatening to tell the press about newsworthy stories, and threatening to write damaging letters to employers. The purpose of this article is to outline the law of extortion and, in particular, to explain the type of threats required to constitute the offence of extortion.
Section 346 of the Criminal Code, R.S.C. 1985, c. C-46 sets out the offence of extortion:
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.
(2) A threat to institute civil proceedings is not a threat for the purposes of this section.
In other words, if you try to get someone to do something, and you do it by “threats, accusations, menaces or violence”, then you may be guilty of extortion.
Section 346 covers attempts by the accused to obtain “anything” by unreasonable threats. In R. v. Davis (1999), 139 C.C.C. (3d) 193 (S.C.C.) the Supreme Court of Canada said that the word “anything” must be interpreted broadly:
[The word] "anything" should be given a "wide, unrestricted application" and … sexual favours fall "squarely within the meaning of the word 'anything' as used in the section".
In R. v. Davis the accused held himself out as a photographer with connections to a modelling agency and, under that guise, convinced the complainants to pose nude for photographs to launch their modelling careers. The accused then threatened to send some of the revealing photographs to their parents, or to a pornographic magazine, if they did not agree to perform sexual favours for him. The accused was convicted for extorting sexual favours and the convictions were upheld on appeal.
R. v. Davis confirms that the threats do not have to be of violence. Therefore, not surprisingly, the Quebec Court of Appeal confirmed in R. v. Pelletier (1992), 71 C.C.C. (3d) 438 (Que. C.A.) that even when violent threats are made, it is not necessary that the victim actually be afraid:
It is essentially the threatening act which is more important than the effect that it creates, and in this sense, one must consider that threats of violence are made even though they do not create any fear at all, just as one must admit that even if the victim of the [extortion] experiences momentary fear, it does not necessarily follow that threats were made to him…[T]he threats must be considered in an objective manner, that is from the perspective of a reasonable ordinary person.
The offence of extortion is committed even if the accused is not successful in getting the victim to do what the accused wanted done. Merely making the threat with the intention that the person do the requested thing is enough. For example, in R. v. Noel, 2001 NBCA 80 the accused met with two women to discuss a drug debt owed to him by one woman's son. The trial judge found that Noel threatened them with the intention of having them pay the money owed to him. But the women did not comply with the request and no money was handed over. Noel argued that he was only guilty of attempted extortion because the victim did not actually comply with the request made. In convicting Noel of extortion the court rejected that argument, and held that even if the request is not complied with, the offence of extortion may be complete.
The accused may be guilty of extortion even if the harm threatened will not be inflicted by the accused himself. In R v. Swartz (1977), 37 C.C.C. (2d) 409 (Ont. C.A.) aff’d on other grounds (1979), 45 C.C.C. (2d) 1 (S.C.C.), the accused told the victim that if he did not pay $300,000 he would be killed or seriously injured by certain other persons from Montreal who had suffered losses by reason of the victims financial operations. The accused was found guilty of extortion even though he said the harm would be inflicted by others.
Clearly threats of violence will support a conviction for extortion. On the other hand, according to s. 346(2) “a threat to institute civil proceedings is not a threat” that would lead to a conviction for extortion. But where does one draw the line between those extremes? Must the threat be one that itself would be illegal, such as one that would support a conviction for uttering threats under s. 264.1 of the Criminal code, or can threats to do otherwise lawful things support a conviction for extortion?
Before considering what type of threat will support a conviction, it is important to emphasize that some threat must actually be made. For example, in R. v. Rousseau (1985), 21 C.C.C. (3d) 1 (S.C.C.) the Supreme Court of Canada found that no threat was actually made and so acquitted the accused of the charge of extortion. In that case goods were stolen from a premises a security company was guarding, and the guards looking after the premises were charged with having committed the theft. A lawyer acting for the guards illegally negotiated a deal with the police to lay fewer charges against the guards in exchange for money. The lawyer then asked the security company to contribute some of the money to be paid to the corrupt police officer. This would have minimized the bad publicity for the security company. In acquitting the lawyer on the extortion charge, the Supreme Court of Canada said that the lawyer did not attempt to induce the security company to provide the money by “threats, accusations, menaces or violence”. The lawyer just said that if the security company provided the money, the charges would be dropped.
So, assuming a threat is actually made, what type of threat will support a conviction for extortion? R. v. Davis, discussed above, confirms that the threat need not be a threat that is otherwise unlawful. In that case the accused threatened to send nude pictures of the victims to their families if they did not perform sexual favours for him. Sending such pictures would not itself be illegal, but the accused was still convicted of extortion.
Similarly in R. v. Alexander (2005), 206 C.C.C. (3d) 233 (Ont. C.A.) the accused was convicted of extortion for a threat that was not otherwise criminal. In that case the accused’s wife was owed $7,000 by another women, M.M. The accused sent M.M. a draft of a letter explaining that M.M. was involved in “highly questionable ethical and moral conduct”. The accused explained to M.M. that if she did not pay the debt, the accused would send the letter to M.M.’s employer and M.M. would likely be fired. Sending such a letter would not, in the absence of a threat, be a criminal offence (although it may found an action for defamation if the claims were false), but the court found that the accused was guilty of extortion:
A distinction between threats used to collect legitimate debts that is based exclusively on whether the conduct constituting the threat is in and of itself unlawful would undermine the rationale for the crime of extortion. The potential for a threat to overwhelm a person's free choice and compel that person to act in the manner dictated by the threat is not necessarily tied to the lawfulness of the conduct constituting the threat. Some threats, while not per se unlawful (e.g., the threat to disclose some despicable act from one's distant past), will have a much more coercive effect than a threat to do something which is in and of itself unlawful (e.g., a threat to trespass on property).
(R. v. Alexander at para. 79).
In R. v. McClure (1957), 118 C.C.C. 192 (Man. C.A.) the accused threatened to sell a story to a newspaper unless the victim paid the accused a sum of money ($200). The story would provide the details of the victim's recent criminal conviction on a charge of disorderly conduct, and publication of those details would likely harm the victim's standing in the community and his employment. In that case the threat and the demand taken together constituted powerful intimidation calculated to overcome the free choice of even the strongest person. The Manitoba Court of Appeal upheld the accused's conviction for extortion.
What constitutes a threat that founds a conviction for extortion is determined, in part, by what is considered reasonable justification i.e. s. 346 says that extortion is threatening “without reasonable justification or excuse”. So what may be a reasonable excuse? In R. v. Natarelli,  S.C.R. 539 the Supreme Court of Canada confirmed that even if the accused thought he was entitled to the thing demanded, that is not a reasonable justification or excuse to make a threat that would otherwise be unlawful. In Naterelli the accused was owed money and shares by the victim, and demanded that they be handed over. The accused threatened to harm or kill the victim if the money and shares were not returned.
The Supreme Court of Canada said that even if the demand (to return the money and shares) is reasonable, and there exists a basis for making the request (the property is in the possession of the victim), it is not lawful to seek to enforce compliance by making threats which are unlawful (e.g. threats of violence). Thus Natarelli, stands for the proposition that a legitimate demand does not alone provide a reasonable justification or excuse, and threats which are violent will not be reasonably justified.
The court in R. v. Alexander, supra, at para. 83-85 provided an excellent explanation of the scope of the justification defence:
I think the phrase "reasonable justification or excuse", used in the context of the crime of extortion where the accused seeks to collect a debt, exists to distinguish between situations where individuals use what could reasonably be regarded as warranted or legitimate -- albeit perhaps harsh -- tactics to collect debts and situations where the means used to attempt to collect those debts goes beyond what could reasonably be regarded as warranted or legitimate. The "reasonable justification or excuse" defence seeks to draw the line, for criminal purposes, between hard bargaining and criminal blackmail. That line may be difficult to draw in any given case. Like any factual issue in a criminal trial, the dividing line between guilt and innocence will turn on the trier of fact's assessment of the evidence and the application of the burden of proof to that assessment. In this regard, the defence of "reasonable justification or excuse" to an extortion charge is no more uncertain than other contextual defences that depend in part at least on an assessment of the reasonableness of the conduct of the accused in the circumstances measured against a necessarily general standard.
When an accused charged with extortion has used threats in an attempt to collect a legitimate debt, the trier of fact must consider all of the circumstances, including the nature of the threat and the nature of the demand, to determine whether the Crown has proved beyond a reasonable doubt that there was no reasonable justification or excuse for the threat. In jury cases, trial judges will instruct juries that it is not every distasteful threat used to support a legitimate demand for repayment of a debt that will constitute extortion. The jury will be told that the threat must go beyond that which a reasonable person in the circumstances of the accused would view as a legitimate or warranted means of attempting to collect the debt.
As is evident from my analysis to this point, the phrase "reasonable justification or excuse" in s. 346 requires a fact-specific inquiry. In some circumstances, a trier of fact may find that a threat to contact a debtor's employer was a reasonable means of seeking to collect a debt. For example, if the debt was somehow connected to the employment and if the purpose for involving the employer was to obtain repayment of the debt from the employer, a trier of fact could well have a reasonable doubt as to whether an accused's threat to go to the employer was made without reasonable justification or excuse.
The court in R. v. Alexander went on to say at para. 88 that there is no distinction between “justification” and “excuse”; the “or” is not disjunctive and just one test is applied:
Throughout my analysis of the "reasonable justification or excuse" defence, I have treated the phrase as creating one rather than two discrete defences. I recognize the distinction between justifications and excuses as applied to criminal law defences. I see no purpose, however, in drawing that distinction when addressing the "reasonable justification or excuse" defence in s. 346. In my view, the approach outlined above proper1y draws the distinction between threats used to collect legitimate debts that do attract criminal liability under the extortion provision and those that do not.
The foregoing demonstrates that the type of threat needed for the offence of extortion depends on the circumstances. Every case will turn on its own facts, but threats of violence will never be justified. However, threats to take lawful action if the “victim” does not do what they are legally obliged to do (such as repay a debt) may be justified so long as the threatened action is proportional to the wrong committed by the “victim” in not having already complied with his or her legal duty. However, the danger of making any type of threat, is that if it turns out that the victim was not legally obliged to perform the requested act (for example, because the debt was not actually due) then it is unlikely that any threat would be justified and the offence of extortion will be complete. Therefore, the only safe type of threat one can make is to institute civil proceedings.
The offence of extortion covers a broad range of activity. Extortion is not only committed by gangsters using guns to collect drug debts, but may be committed by threatening to report an employee’s misconduct to their employer, or a person’s misfortunes to the press. Threats need not themselves be unlawful to support a conviction for extortion. Extortion may be committed by threatening lawful, although unreasonable, combined with a demand. However, the burden is on the Crown to prove, beyond a reasonable doubt, that the threat was unreasonable in the circumstances. Therefore, when the accused is requesting the victim to comply with a legitimate legal duty, only clearly unreasonable threats will attract criminal liability.