That, however, is not the end of the matter. Section 264(1) , which was introduced into the Criminal Code in 1985, provides:

Everyone commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

(a) to cause death or serious bodily harm to any person.

The Supreme Court of Canada in the McCraw case has defined "serious bodily harm" to mean any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of another person. ( R. v. McCraw [1991] 3 S.C.R. 72 (S.C.C.) ). The Supreme Court in the same case also held that

The structure and wording of s. 264.1(1)(a) indicate that the nature of the threat must be looked at objectively; that is, as it would be by the ordinary reasonable person . . . Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person? (at pp.82-83.)

In R. v. Clemente ( [1994] 2 S.C.R. 758 ) 28 the accused was told by his social worker that he was to be transferred back to his former social worker. He became excited and said in a loud voice that he would take a shotgun to his former officer’s place of work and blow it up, and that if he was alone with her he would strangle her. He accompanied these words with a gesture demonstrating the act of strangulation. A few days later he told his present social worker that if he were transferred back there would be a dead body in her office, and made a further threat to kill his former social worker in the course of a telephone call made the next day to his present worker. The accused’s defence was that he did not intend these words to be taken seriously. The Supreme Court, in affirming the test in McCraw, stated that "obviously words spoken in jest or in such a manner that they could not be taken seriously would not lead a reasonable person to conclude that the words conveyed a threat," ( Clemente para. 14) but in this case the trial judge had concluded on the evidence that the words were not spoken in jest and that they were intended to convey to the accused’s former social worker that he intended to kill her or cause her serious bodily harm.

Section 264(i) is different from s. 265 in two ways. First, it expands the scope of a threat to assault in that it removes the necessity of showing "present ability." Secondly, it narrows the threat to one of causing death or serious bodily harm. The legal issue that arises from the enactment of 264(i) is whether the disciplinary offence of "assaults or threatens to assault another person" should be read in light of section 264(i), so that a prisoner can be charged with an offence, even if he lacks the present ability to carry out the threat, provided only that it was one that a reasonable person would take seriously. There are legal arguments on both sides of this issue. In support of maintaining the requirement of present ability it can be argued that the offence in the 1992 CCRA, while adding the element of fighting, uses exactly the same language for the offence of ‘assaults or threatens to assault’ as the offence in the 1960 Penitentiary Act. The s.264.1 amendment to the Criminal Code, creating the offence of uttering a threat to cause death or serious bodily injury, took place in 1985. Had Parliament intended to create a new offence in the prison disciplinary code in the CCRA, which extended beyond the Criminal Code definition of assault by as contained in section 265, it could have done so in clear and plain terms using the language of 264.1. The problem with incorporating an expanded definition of threatening to assault, removing the requirement of present ability, is that there is nothing in the definition of the disciplinary offence which limits the threat to one of causing death or serious bodily harm. This would mean that a prisoner would face conviction under an expanded definition of threat, absent the need to show present ability -- but also without proof of the further requirement set out in section 264(I) that the threat was to cause death or serious bodily harm.

The Correctional Service of Canada’s legal advisors have expressed the opinion that the wording of the disciplinary offence is broad enough so that the requirement of present ability is not a necessary element of the offence, and that any threat to apply force would meet the test provided only that it was intended to be taken seriously. However, "words blurted out in anger, bitterness or frustration do not constitute threats unless there is some further indication that they were indeed meant to be taken seriously. ‘Idle threats’ are often stupid, nasty and aggravating but do not amount to a disciplinary offence" (Charles Haskell, Draft Disciplinary Manual for Staff Assistance, p 26).

Even if this interpretation is the correct one and the expanded definition of a threat set out in s. 264(i) should be incorporated into the disciplinary offence of assaults or threatens to assault, it is not clear that Mr. Ratcliff’s conduct would fall within this definition. Accepting the Independent Chairperson’s findings of fact that Mr. Ratcliff did say to the officer, " I wish I had a shotgun -- I’d blow your fucking head away," and that later in the day when told he was going to be charged he again stated, "If I had a shotgun I would shove it up your nose," the issue was one whether these threats could be taken seriously, and were spoken in such a manner that they could lead a reasonable person to conclude that the words conveyed a threat of serious bodily harm. In applying that standard there are some obvious differences between the situation in Clemente and in Mr. Ratcliff’s case. Mr. Clemente was in the community and his freedom of movement was not in any way constrained, unlike Mr. Ratcliff’s. Although in both cases there was a repetition of the threat, in Mr. Clemente’s case that repetition was repeated over a period of days and therefore could not be easily dismissed as a throwaway line. In Mr. Ratcliff’s case the climate of a maximum-security prison, in which "mouthing off" is a fact of life, would lend credence to Mr. Ratcliff’s argument that he did not intend his statements to be taken seriously, that a reasonable officer would not have taken them as such, and that placed in their proper context, they were the expression of anger and frustration and should be viewed as "idle threats."

The third way in which the offence of fighting, assaulting, or threatening to assault can be committed is the way most people understand the meaning of assault -- the application of force by one person to another without that person’s consent. But here also there are important issues of legal interpretation, as reflected in a case involving Mr. Mckay that came before Mr. Routley on April 5, 1994.

Ron McKay was the first prisoner whose case I had observed during my 1983 research at Kent. At that time, aged nineteen, he was serving a two-year sentence for breaking and entering. I predicted that unless the system responded differently to this angry young Aboriginal prisoner, the systen would be seeing more of him in the future. Not long after that he was sent to the Special Handling Unit in Millhaven for his involvement in an assault on a guard at Matsqui. Mr. McKay had put on a good deal of weight since I’d last seen him, and, I suspect, a few more tattoos.

Officer Noon-Ward testified that he had been doing a search of a unit pursuant to a lock-down, and Mr. McKay was asked to strip prior to leaving his cell. He became verbally abusive and called the officer an "f-ing goof." He then pulled his sweatpants and underwear down to his knees and then pulled them up again. Upon being told that he had to take everything off, he again swore at the officer. He removed his sweatpants and tossed them into the officer’s arms, then pulled down his underpants, took them off and threw them in the officer’s face. The officer stated that Mr. McKay had come literally face to face with him, and his right fist was cocked back. The officer pressed his personal alarm and pushed Mr. McKay back with the flat of his hands. Mr. McKay was then restrained.

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