In the aftermath of the terrorist attacks in France, a video appeared on YouTube of someone in a Joker mask threatening to kill Muslims in Quebec. In it, the man brandishes what looks like a real gun and threatens to cause the death of one Arab per week.

Shortly after the video appeared, Montreal police arrested 24 year old Jesse Pelletier, husband and father of one, who has since been charged with uttering threats, possession of a false weapon, public incitement of hatred, and involvement in a hoax regarding terrorist activities. Pelletier was released on bail this Monday with various conditions attached to his release.

Shortly after Pelletier was arrested, his lawyer told the press that he meant the video as a joke and sincerely regrets the situation he is now in. Regardless of what Pelletier meant by the video, the joke is on him because arguing that he was just kidding is not a legal defense for any of the charges.

The Canadian Criminal Code is very clear on the matter of uttering threats. If you knowingly utter, convey, or cause any person to receive a threat of death or bodily harm, you are most likely looking at a sentence of 18 months to five years.

Inciting hatred falls under article 319 of the Canadian Criminal Code, which identifies the crime as “communicating statements, other than in private conversation, willfully promotes hatred against any identifiable group.”If convicted, Pelletier is facing a prison term of two years for that particular charge.

The law, however, doesn’t stop at defining what the prohibited behavior is and what the penalties are. It also lists what defenses he and his counsel can use to free him of the charges.

If you’re accused of inciting hatred, you have the following defenses to choose from:

  1. Establish that what you said was actually true.
  2. Claim that you – in good faith – tried to establish via argument an opinion on a religious subject or an opinion based on a religious text.
  3. Argue that the statements you made “were relevant to any subject of public interest, the discussion of which was for the public benefit” and that you had reasonable grounds to believe what you were saying was true.
  4. Prove that you meant the statements in good faith for the sake of pointing out things that produce hatred towards an identifiable group in order to get these matters removed.

Not surprisingly, there is no joker defense here. It should also be noted that in order for Pelletier to be convicted, the burden of proof is on the prosecution, who has to prove beyond a reasonable doubt that he’s guilty of the crime. Should his lawyer try an insanity plea, the burden of proof shifts to her, as defendants are always presumed sane until proven insane.

The fact that Pelletier used what turned out to be a fake gun in the video could add another 14 years to his sentence. Fake guns, called “imitation firearms” in the Criminal Code, are illegal in Canada.

They are defined as anything that imitates a firearm and using one to commit indictable offenses like inciting hatred and hoaxes regarding terrorism could result in a minimum sentence of one year and a maximum sentence of 14 years. As for the first charge, the burden of proof is primarily on the prosecution. All his lawyer has to do is raise a reasonable doubt as to his guilt.

Then there’s the charge of involvement in a hoax regarding terrorist activities. Under 83.231 of the Criminal Code, anyone who “without lawful excuse and with intent to cause any person to fear death” does something to cause a reasonable belief that terrorist activity will occur without believing it actually will, is guilty of involvement in a hoax regarding terrorist activity. The terrorist activity in question is the act that was done with the intention of intimidating a segment of the public with regards to its security, in this case Muslims in Quebec.

Whatever defense he uses, Pelletier is unlikely to escape the charges completely free and clear. All the reports on his court appearance and bail hearing indicate that he is probably guilty. His lawyers’ only hope is to try for the minimum sentence on all the charges by arguing that he had no criminal intent and no awareness that his joke was actually a crime.

Pelletier’s claim that his actions were meant in jest looks more like a feeble attempt to save face in the aftermath of an act most people with a shred of common sense would have realized was both dumb and dangerous before they even turned on their webcams.

Unfortunately for Pelletier, stupidity is not a defense.