Criminal Harassment is a criminal offence, often referred to as "stalking." It involves repeated behaviour towards a person, as well as the circle of people known to that person, such as repeatedly texting, calling, or messaging on social media, continually showing up at a person’s residence or place of work, following a person around. You can still be charged with Criminal Harassment even if the conduct in question does not involve any form of verbal communication, threats, or violent behaviour.

What is Criminal Harassment?

Under section 264(1) of the Criminal Code, no person shall, without lawful authority and knowing that another person is harassed, or being reckless as to whether the other person is harassed, engage in conduct that causes the other person reasonably, in all of the circumstances, to fear for their safety or the safety of anyone known to them.

The type of conduct that is prohibited is set out in section 264(2):

• repeatedly following from place to place the other person or anyone known to them;
• repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
• 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
• engaging in threatening conduct directed at the other person or any member of their family.

What is a "reasonable" fear?

The reasonable person test is used to assess whether or not a complainant’s fears about the accused were reasonable in all of the circumstances. This is an objective test. It is not simply an assessment based on what the complainant subjectively felt; rather, the test is whether a reasonable person in the same circumstances as the complainant would reasonably fear for her safety or the safety of anyone known to her.

Possible Penalties if Convicted of Criminal Harassment

Criminal Harassment is a hybrid offence, meaning the Crown can choose to proceed by summary conviction or by indictment.

• If the Crown proceeds by summary conviction: the maximum punishment is a fine of not more than $5000 or a term of imprisonment of not more than two years less a day, or both.

• If the Crown proceeds by indictment: the maximum punishment is a term of imprisonment not exceeding ten years.

Aggravating Factors on Sentencing

If convicted of Criminal Harassment, the sentencing judge is required to consider the following factors as aggravating if they exist in that particular case:

• At the time the Criminal Harassment offence was committed, the accused person also breached the terms or conditions of a Prohibition Order or a Peace Bond;
• At the time the Criminal Harassment offence was committed, the accused person also breached the terms or conditions of any other order, recognizance, or undertaking entered into under the common law.

Defences Available for a Charge of Criminal Harassment

As in every case, the defences that may be available to you depend on the specific facts of your case.

The following list includes defences that may be available in a Criminal Harassment case:

• Factual Innocence: If the Crown is unable to prove the following elements beyond a reasonable doubt, they will have failed to discharge their burden:
  • the identity of the accused;
  • the date and time of the incident and jurisdiction;
  • that the accused has engaged in conduct set out in section 264(2);
  • that the complainant was actually harassed;
  • that the accused knew or was reckless to the fact that the complainant was being harassed;
  • that the conduct in question caused the complainant to fear for his or her safety or the safety of anyone known to him or her;
  • that the accused knew or was reckless to the fact that an accident had occurred;
  • that the complainant’s fears were reasonable, considering all of the circumstances.

• Lawful Authority: Someone who has lawful reason to repeatedly contact a person – i.e. a Probation Officer, a debt collector, or a medical professional – will not be guilty of criminal harassment.
• Violation of Charter Rights: Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights, including:
  • the right against unreasonable search and seizure;
  • the right to not be arbitrarily detained;
  • the right to be informed promptly of the reasons for arrest;
  • the right to retain and instruct counsel without delay; and
  • the right to be tried within a reasonable time.

A successful Charter challenge may also result in a stay of proceedings or evidence from your case being excluded.

Alternative Outcomes

In some instances, it is possible that your charge(s) may be resolved without going to trial or pleading guilty. The availability of these alternative outcomes depends on a number of factors; each case is fact-specific. The following is a list of examples of alternative outcomes in a criminal case:

• Withdrawal of Charge(s): The Crown may decide to withdraw a defendant’s charge(s) where:
  • The Crown does not believe they have a reasonable prospect of conviction at trial, due to various reasons; or
  • It is not in the public interest to prosecute.
• Stay of Proceedings: A stay of proceedings effectively stops a legal proceeding in its tracks, and is a rarely granted remedy. The difference between a stay of proceedings and a withdrawal is that, with a stay of proceedings, the Crown may decide to continue the proceedings at a later date.
• Diversion: Diversion (often referred to as "Direct Accountability" or "DAP") is an alternative way of resolving charges in the criminal justice system, and provides offenders with an opportunity to take accountability for their actions without incurring a criminal record. Diversion is usually reserved for minor offences and first-time offenders. To successfully complete a diversion program involves some form of upfront work by the accused, including but not limited to:
  • A written apology letter;
  • Charitable donation(s);
  • Community service/volunteer hours;
  • Counselling and/or programming; and
  • Restitution/compensation.

Next Steps

The information above provides a general overview of Criminal Harassment, as well as potential penalties and defences. However, no two cases are alike. Every criminal case is fact-specific and ranges in complexity, depending on the issues at play.

Were you charged with Criminal Harassment?Contact our office today at 416-924-5969 to learn more about how we can help you. Our team of lawyers is prepared to conduct a thorough review of your situation and develop an approach that is tailored to your needs. Obtaining proper legal representation is the first step in preparing a successful defence.