Someone has a bail or probation term not to have “any oral communications” with a victim. Would nodding his head up and down in the affirmative, or side to side in the negative, be an oral communication? What about clicking one’s tongue, clucking, or hissing – is that an oral communication?
Section 183 of the Criminal Code defines a “private communication” as, inter alia, “…any oral communication”. So what is legally considered an “oral communication”?
Oral communication includes non-verbal sounds made by mouth:
BIASI (NO 3),  B.C.J. No. 2216:
10 However, in any event, one must consider the meaning of oral communication. In the context used in the Criminal Code, it seems to me an oral communication must be one of spoken words. That is words transmitted by voice. Physical acts and gestures, even those from which one may be able to infer what has been said, still do not by themselves constitute oral communication; there is no sound. It is true that one definition of the word “oral” has a wider meaning than that pertaining only to spoken words, but pertaining to all things of the mouth as, for example, an oral examination by a doctor. But when one puts that word together with the word “communication” and puts those in the context of the privacy sections of the Criminal Code, it seems to me that they can only be interpreted as referring to interceptions of voice communications and that simply has not been done here. In a word, no voices have been intercepted by these video tapes and I think that is the end of the matter.
Therefore, “paralanguage” is included in oral communications.
Examples like clicking of tongue, shushing, laughing, crying, shrieking and moaning, all are oral communications, even though non-verbal.
Therefore, there is a difference whether one is nodding the head and clicking the tongue.
Threatening Bodily Harm or Death: “I am going to get you”, “Do it or else…”, “I will fix you up”, “You got something coming”
It is an offence to threaten another person with bodily harm or death. Words matter! But what about words that can mean a threat – are they considered a criminal threat?
Is it a criminal offence to threaten someone with: “I am going to get you”, “Do it or else…”, “I will fix you up”, “You got something coming”?
See discussion and analysis in Bunbury,  Y.J. No. 20 para 18 – 32:
Abdallah, 2002 ABPC 126, there an accused who uttered the phrase “I’m going to get you for ratting me out” was acquitted on the basis that the phrase did not expressly contain a threat to cause death or bodily harm and the court was unprepared to draw the necessary inference in the circumstances in which the phrase was uttered.
G.P.,  O.J. No. 167 decision out of the Ontario General Division, the accused young person told another young person not to tell anyone about their meetings “or else”. The judge found that to the extent the words “or else” were ambiguous the accused was entitled to the benefit of that ambiguity. Moreover, even if the words did imply an intention to hurt the complainant, there was no indication that this would amount to the type of serious physical interference contemplated by the predecessor 264.1 section.
Mobarakizadeh,  A.Q. no 320, the Quebec Court of Appeal overturned a conviction for uttering a threat to cause death or serious bodily harm. The appellant, while being removed from an unrelated court proceeding for causing a scene, had told the sheriff “I’ll fix you up” and added “I’ll get someone higher than me to fix you up”. While the court was of the view that the appellant was threatening physical violence with his words, they found that “fix you up” could refer to anything from a simple slap to serious injury, and therefore could not support a conviction on a charge of uttering a threat to cause serious bodily harm.
Brouilette,  M.J. No. 420, the Manitoba Court of Queen’s Bench convicted the accused pimp who in response to one of his prostitutes indicating she could not work said he would “do her in and her children in”. While the words were acknowledged to be ambiguous, the court found that the nature of the accused’s relationship to the complainant was one of power and control, and despite the imprecise language, the trial judge found this to be a threat to cause serious bodily harm from an objective perspective.
Grellette,  O.J. No. 3801, the Ontario Superior Court convicted the accused of uttering a threat to cause bodily harm to a former girlfriend as a result of a drunken phone call in which he uttered “you got something coming to you”. The conviction was upheld by the Court of Appeal who noted the context including the accused’s subsequent attempt to break into the complainant’s apartment and a history of angry confrontations by the accused towards the complainant while under the influence of alcohol.
Lowry,  O.J. No. 3954, the accused was convicted of uttering a threat for telling his common law partner “if you do not stop bugging me, you will get it”. The conviction was upheld by the majority on appeal who noted the accused’s intoxicated state and his history of assaulting the complainant while under the influence.
See also discussion and analysis in Taylor,  N.J. No. 269 para 33 – 42.
So words do matter! They are taken seriously. Sometimes they can also constitute a criminal offence.