Criminal harassment carries significant legal consequences and is considered a serious offence in Canada. Criminal harassment, often referred to as stalking or persistent harassment, including repeated unwanted communication, following, or threatening behavior that makes someone fear for their safety.
This article explores what constitutes criminal harassment under Canadian law and the possible legal repercussions individuals may face if convicted.
What is Criminal Harassment?
Under Section 264 of the Criminal Code of Canada, criminal harassment is engaging in conduct that reasonably causes another person, or anyone known to them, to fear for their safety. This conduct is defined as stalking, and it is against the law. Criminal harassment can include these, found in Section 264 (1) of the Criminal Code:
- Repeatedly and constantly following the other person or anyone known to them from place to place;
- Directly or indirectly, repeatedly communicating with the other person or anyone known to them;
- Watching or besetting the place or dwelling-house where the other person, or anyone known to them, resides, carries on business, works, or happens to be;
- Threatening conduct against the person or their family members
The conduct mentioned above is considered to be criminal harassment. Other conduct, like repeated calls, stealing mail, sending unwanted gifts, letters, or emails, harming their pets, or showing up uninvited to their home or workplace, harassing people known to the victim, is also covered under the Code. The Government of Canada says that more than one in 10 women (15 years of age and over) were victims of stalking in Canada.
Statistics of Canada show that women are mostly stalked 39% by an ex-husband, 2% by a current husband, and 17% by a current/former boyfriend, while one in four female victims were stalked by a casual acquaintance, most of whom were male. These actions often harm the victim emotionally and physically.
How to Prove Criminal Harassment in Canada?
Criminal harassment is a serious offence under Section 264 of the Criminal Code of Canada. To prove criminal harassment in Canada, the prosecution must demonstrate that the accused engaged in one or more of the behaviors listed in Section 264(2), like repeatedly following, communicating with the complainant, watching or besetting their residence, workplace, or place of frequent attendance, or engaging in threatening conduct.
The Crown prosecutor also needs to prove the Mens Rea, where the accused knew that their conduct was harassing, or they were reckless or wilfully blind to the impact of their actions. Also, the complainant must have experienced a genuine, reasonable fear for their safety.
The prosecutor also needs to submit some evidence to prove the criminal harassment. The court will examine the entire context of the relationship between the accused and the complainant, because harassment often involves behavior patterns. The evidence should include witness testimony, electronic evidence, surveillance & digital footprints, police reports & restraining orders, and victim impact statements.
Proving criminal harassment can be complex because many cases rely heavily on circumstantial and testimonial evidence. It can be challenging sometimes to prove criminal harassment, as the court will assess whether the complainant’s fear is reasonable under the circumstances. The prior history with the harasser may also impact whether the conduct is considered harassment.
What is the Penalty for Criminal Harassment in Canada?
Criminal harassment causes a person to fear for their safety or the safety of someone known to them. In Canada, criminal harassment is considered quite serious and generally worse than most simple assaults, carrying a maximum penalty of 10 years in prison if the Crown proceeds by accusation.
Criminal harassment, described in Section 264 (3) of the Criminal Code, is classified as a hybrid offence. Section 264(3) of the Criminal Code states:
“Every person who commits an offence under this section is guilty:
(a) of an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) of an offence punishable on summary conviction.”
The Crown prosecutor can decide whether to proceed by Summary conviction or Indictment. A summary conviction is a less serious charge, while an indictable offense is a more severe charge. The key difference lies in the potential penalties and the court that handles the case. A provincial court typically handles summary convictions, while indictable offenses may be tried in a superior court.
If the Crown proceeds by summary conviction, the maximum penalty is typically a fine of up to $5,000 or a maximum jail sentence of up to 18 months, probation, and a criminal record. An indictment charge is considered quite serious in Canadian law, with the maximum penalty being up to 10 years of imprisonment.
The potential consequences rely mostly on the Crown’s election. Courts will then consider aggravating factors and mitigating factors before imposing a sentence.
How to Defend Against Criminal Harassment Charges in Canada?
A conviction can result in a criminal record, probation, or even imprisonment of up to 10 years if someone is charged with criminal harassment under Section 264 of the Criminal Code of Canada. Still, several possible defences and legal strategies can be raised, depending on the facts of the case to defend. Here are the possible ways to defend against criminal harassment:
Reasonable Fear
The prosecution must prove the complainant was harassed in a way that caused an objectively reasonable fear for safety. The offense may not be satisfied, and the charge may not succeed if the complainant’s fear was unfounded, exaggerated, or not objectively reasonable.
No Prohibited Conduct Under Section 264(2)
A defence may show that the accused’s actions did not fall within these behaviours that qualify as harassment, such as following, repeated communication, watching, or threatening conduct.
Lack of Knowledge or Recklessness
A defence strategy may be to demonstrate that the accused believed their behaviour was friendly communication, no intent to harass, and unaware that their behaviour was causing distress.
Consent or Mutual Contact
The claim of harassment may be weakened if the complainant may have consented to or engaged in communication or contact, and the conduct was not unilateral or unwanted.
Mistaken Identity or Lack of Evidence
The defense may challenge whether the accused was responsible for the conduct, whether the evidence is reliable, complete, or admissible in court, and whether the Crown can prove the case beyond a reasonable doubt, since many harassment cases rely on circumstantial evidence (texts, calls, surveillance).
Conclusion
The penalties for criminal harassment in Canada are serious. Depending on how the Crown proceeds and the case’s specific circumstances, the maximum punishment is 10 years’ imprisonment if prosecuted by indictment, or up to 2 years less a day and/or a fine for a summary conviction.
Anyone facing criminal harassment charges should seek immediate guidance from an experienced criminal defence lawyer to understand their rights and options, because a conviction can carry long-term consequences, including a criminal record and restrictions on personal freedom.