Criminal harassment is a criminal offence under the Criminal Code of Canada. It is also sometimes referred to as “stalking.” Criminal harassment involves engaging in repeated, unwanted behaviour toward someone that causes that person to fear for their safety or for someone they know. Given that the maximum sentence is 10 years in jail, if you have been charged with criminal harassment you should consult with an experienced criminal lawyer.
This article will provide an overview of criminal harassment in Canada, including how the offences is defined in the Criminal Code, some examples of the crime and some of the common defences to the offence.
What is Criminal harassment – Criminal Code
The Criminal Code lists Criminal Harassment under section 264 as:
264 (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
(2) The conduct mentioned in subsection (1) consists of
(a) repeatedly following from place to place the other person or anyone known to them;
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
(d) engaging in threatening conduct directed at the other person or any member of their family.
What Qualifies as Harassment – The Act of Criminal Harassment
The courts have repeatedly stated that the following activities constitute the criminal behaviour, or the prohibited conduct, of criminal harassment:
- When an accused person repeatedly follows another person (stalking)
- When an accused person attempts repeatedly communicating either with the victim or another person known to the victim
- Watching or “besetting” a place where the complainant is expected to be
- Engaging in threatening behaviour towards the victim or their family
To be found guilty of criminal harassment, the accused must either know or be reckless as to whether the complainant is harassed by one or more of the above-mentioned forms of conduct. Further, the complainant must reasonably in the circumstances be fearful for their safety or the safety of someone known to them as a result of the conduct.
Some Examples of Criminal Harassment
Some common examples of criminal harassment may include the following:
- Persistently sending the complainant unsolicited messages, phone calls live chats, or emails;
- Repeatedly following the complainant;
- Repeatedly watching the complainant;
- Sending the complainant unwanted gifts;
- Engaging in threatening conduct directed at the complainant or any member of their family;
- Leaving threatening voicemails; and
- Showing up uninvited to the complainant’s work or home
What Does Repeated Communications Mean?
One of the activities that constitutes criminal harassment is when an accused person repeatedly attempts to communicate with the complainant. This often happens with repeated and unwanted phone calls. The courts have said that the requirement for the accused to be found guilty of “repeatedly communicating” with the victim under s. 264(2)(b) there needs to be some evidence of as few as two instances of attempts to communicate, but this also depends on all the surrounding the circumstances.
What is Harassment? Its More than annoying.
For the Crown to establish harassment, they must prove the accused person’s acts “tormented, troubled, worried continually or chronically, plagued, bedeviled or badgered” the complainant. These terms are synonymous with harassment and the Crown does not need to prove each, and they not cumulative, just need to establish one.
Harassment, at least to qualify as criminal harassment, the Crown needs to establish that the victim felt a “sense of being subject to ongoing torment.” The harassment must be more than the victim just merely being “vexed, disquieted or annoyed”.
What is Threatening Conduct?
What constitutes threatening conduct? The definition of threatening conduct is subjective and can vary depending on the person’s interpretation and the surrounding circumstances. In general, however, threatening conduct refers to any behavior or action that causes another person to feel fear, anxiety or intimidation. Some common examples of threatening conduct include making verbal threats, sending harassing emails or text messages, and stalking.
The courts have stated that threatening conduct is “a tool of intimidation which is designed to instill a sense of fear.” That threatening conduct must be assessed “objectively” with consideration for the circumstances surrounding the incident or incidents, and the impacts on the victims. It is not necessary that the threatening conduct contain explicit threats or violent acts. There also does not necessarily be any spoken words at all.
Also, judges must consider and assess the threatening conduct from the perspective of the complainant. A single threatening act can be considered criminal harassment depending on the impact on the complainant and the circumstances.
Courts have stated that criminal harassment offences should not include conduct that is merely “mean, petty, uncooperative and spiteful”.
What is besetting OR Watching?
Besetting is a legal term that refers to threatening conduct that intimidates or harasses another person to the point where they are unable to carry out their daily activities. This can include behaviour like following someone around, making threatening phone calls, or sending unwanted emails or text messages. Besetting does not require physical proximity to the victim.
While watching is the act of simply looking and observing for a person or place. The courts have said the act of merely looking at someone and smiling at them is not sufficient to be watching.
Victims Fear for Their Safety
A victims fear for their safety now extends beyond fear of being physical harmed or injured, it also includes psychological harm and emotional security. It includes a state of anxiety or apprehension or emotional distress, in addition to any potential physical harm. The fear for one’s “financial well-being” is not enough, the reasonable fear is determined on an objective standard.
How Does the Crown Prove Criminal Harassment Beyond a Reasonable Doubt?
For the Crown to secure a conviction for criminal harassment they must prove beyond a reasonable doubt that a complainant, as a result of a prohibited act or prohibited conduct, was being harassed. Repeatedly attempts at communication or repetition of threatening conduct can amount to harassment. But also a single act can amount to harassment.
- When & where the harassment took place
- The the accused engaged conduct outlined in s.264(2)
- The complainant was harassed by the conduct
- The accused knew the complainant was harassed, or was reckless or willfully blind as to the complainant being harassed
- The conduct caused fear
- The complainants fear was reasonable in the circumstances
The Crown will also need to prove the victim had a reasonable fear for their safety and the accused knew that, or was reckless as to whether, the conduct was harassing.
Defences – How to Defend Criminal Harassment Charges
Depending on the circumstance surrounding the criminal harassment charges there can be several real viable defences. Most often defences focus on attacking the circumstances that support the elements of the offence. Some defences to a criminal harassment charges include:
- Demonstrating that the alleged act was not harassment
- There was no intention to commit the act of harassment
- That the complainant’s fear was not reasonable in the circumstances
- There were Charter Rights issues surround the accused’s arrest
- Proving that the victim had motive to fabricate
Punishment – Sentencing for Criminal Harassment
Sentencing for criminal harassment in Canada, much like most criminal offences, can be a complex process, with many sentencing considerations. There are no mandatory minimum sentences for criminal harassment, therefore the punishment for this crime after conviction can range from an absolute discharge, suspended sentence, a fine or up to a maximum of 10 years if the Crown proceeds by indictment.
Needless to say, how a Crown chooses to proceed, either by summary conviction or by indictment, will impact the severity of the final punishment. A judge’s final sentence will be a weighing of the sentencing principles as outlined in the criminal code, the seriousness of the allegations, the impact on the accused person and the aggravating and mitigating sentencing factors that are present.
As mentioned if the Crown elects to proceed by indictment the maximum sentence can be up to 10 years imprisonment. If the Crown elects summary conviction the sentence could be up to 2 years less a day in jail and a $5000 fine.
The consequences of being found guilty and convicted of a criminal harassment can be serious and long lasting. While jail and a criminal record is real possibility in some cases, the impacts on travel and employment could last for many years. There will also likely be mandatory weapon prohibition orders and orders to have DNA stored on the Canadian DNA data bank.
Toronto Criminal Lawyer for Criminal Harassment Charges
If you have been charged with criminal harassment you need a criminal lawyer that understands the law surrounding stalking. William Jaksa has been practicing criminal defence law for over 15 years and understands that all clients matter and all charges matter.