Criminal Harassment Charges: Everything You Need To Know

Criminal harassment, often referred to as a form of stalking, is a serious crime in Canada.  The legal basis for criminal harassment in Canada is found in Section 264 of the Criminal Code of Canada. This section criminalizes behaviour that involves repeatedly following, communicating with, or watching someone in a way that causes the person to reasonably fear for their safety. The legislation was introduced in the early 1990s in response to increasing awareness of the seriousness of stalking and its potential to escalate into more severe forms of violence, including violent assaults and even murder.

People have been charged with criminal harassment in a variety of situations  including: Neighbour disputes, bad break ups and dissolving marriages, and even business relationships that fall apart.

According to Section 264 of the Criminal Code:

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 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.

In order to secure a conviction for criminal harassment, the Crown must prove beyond a reasonable doubt that:

(1) The accused has engaged in the conduct set out in s. 264(2)(a), (b), (c), or (d) of the Criminal Code (see above);

(2) The complainant was harassed;

(3) The accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed;

(4) The conduct caused the complainant to fear for her safety or the safety of anyone known to her; and

(5) The complainant’s fear was, in all of the circumstances, reasonable.

To be convicted of criminal harassment, an accused person must either know that the prohibited acts would harass the complainant or be reckless to the effects of their action. Recklessness means that the perpetrator understood there was a risk that their behavior was harassing but chose to proceed regardless.

The Crown must establish that as a consequence of the conduct of the defendant, the alleged victim felt “tormented, troubled, worried continually or chronically, plagued, bedevilled and badgered”. For someone to be harassed means much more than simply being annoyed. For instance, Courts are often reluctant to convict individuals in situations where the allegations of harassment are simply nothing more than stress and anxiety relating to a difficult marriage break-up or high-stakes custody negotiations. In addition, the conduct must cause the alleged victim to reasonably fear for his or her safety. Safety includes both physical safety and “emotional and psychological well-being”. The question a Court must ask in a criminal harassment trial is: Would any or all of the accused’s conduct cause a reasonable person to fear for their safety?

Criminal harassment is quite often a charge that gets laid in domestic violence cases in Calgary. Often, the unique facts are what make the difference between a conviction and an acquittal. By way of example:

• In R v Erickson, 2015 ABPC 234, the complainant and accused were married for 15 years and had three children. In the midst of the divorce proceedings the complainant alleged that the accused would follow her, insist on speaking to her, and send numerous emails after a police officer had spoken to him. She testified that the accused’s actions scared her. The accused testified and denied threatening or being physically abusive to the complainant. The evidence did not prove beyond a reasonable doubt that the complainant was in fear for her physical safety or the physical safety of anyone around her. Even if this fear did exist, it was not reasonable in the circumstances. The accused was acquitted.

• In R v Hnatiuk, 2000 ABQB 314, The complainant moved into a house beside the accused’s. The accused and her husband engaged in a course of conduct intended to annoy the complainant and her family. Their actions included use of foul language and threats, complaints to police and fire department, spraying a garden hose over fence, leaving the lawn mower running, bouncing a basketball against fence, and displaying a large sign with insulting words. The Accused was acquitted of criminal harassment. While she obviously knew she was harassing, the requirement of reasonable fear for safety was not satisfied as the complainant was merely annoyed. Under the circumstances fear would not have been reasonable. The accused was acquitted.

• In R v MacLean, 2008 ONCJ 30, the accused made repeated phone calls to his wife between November of 2006 and March of 2007 while they were separated. The repeated phone calls obviously caused the wife unwarranted distress but, viewed objectively and in context of their marital history, it was not clear that any fear the wife had for her safety was reasonable. The accused was acquitted.

• In R. v. Monahan, 2010 SKPC 46: In May and June 2009, the complainant alleged that accused was following her and this caused her to fear for her safety. The accused repeatedly followed complainant in May and June 2009. The evidence of the complainant, her friend, and her father, that accused was repeatedly following complainant from place to place in May and June 2009, was believed. The evidence of the complainant that she also followed the accused from place to place in May and June 2009 was believed. It could not be determined who began the following behaviour first. The complainant’s actions in driving by the accused’s house once or twice per week, including driving down alley behind accused’s home and taunting or goading accused, did not establish beyond reasonable doubt that she was harassed by accused’s conduct or that such conduct caused her to fear for her safety. The Complainant’s actions in following accused from time to time were not consistent with someone experiencing fear. Their conduct was described as “cat and mouse game”. The accused was acquitted.

The consequences of a conviction for criminal harassment in Canada can be severe. The offense is hybrid, meaning the Crown can choose to prosecute it either as an indictable offense or a summary offense. As an indictable offense, it carries a maximum penalty of ten years imprisonment. As a summary offense, the maximum penalty is six months imprisonment and/or a $5,000 fine. In addition to imprisonment or fines, individuals convicted of criminal harassment may face several ancillary orders, including probation, prohibitions against owning firearms, and mandatory participation in counseling or treatment programs. These measures aim not only to punish the offender but also to protect the victim and prevent future harassment.

Defending a criminal harassment charge in Canada can be a complex and daunting process. Hiring a lawyer is essential for several reasons, ranging from understanding the legal intricacies to ensuring a fair trial. Here are the key reasons why someone would need a lawyer to defend a criminal harassment charge in Canada:

1. Understanding Legal Framework and Charges: Criminal harassment charges involve specific legal definitions and requirements under Section 264 of the Criminal Code of Canada. A lawyer can help the accused understand the exact nature of the charges, the elements the Crown must prove, and the potential penalties involved. This includes interpreting the legal language and explaining the implications of terms like “reasonable fear,” “recklessness,” and “repeated conduct.”
2. Legal Strategy and Defense: A criminal lawyer can develop a robust defense strategy tailored to the specifics of the case. Often this involves negotiating a plea to a lesser charge, or a peace bond. If the case goes to trial, this may involve challenging the Evidence by questioning the credibility and reliability of the evidence presented by the prosecution.
3. Procedural Expertise: Criminal proceedings involve numerous procedural rules and deadlines. A lawyer ensures that all paperwork is correctly filed, all court appearances are attended, and all legal procedures are followed. This helps prevent technical errors that could negatively impact the defense.
4. Protecting Your Rights under the Charter of Rights and Freedoms: A lawyer ensures that the accused’s rights are protected throughout the legal process. This includes the right to a fair trial, the right to remain silent, protection against self-incrimination, and upholding the right to be free from unreasonable search and seizure. If any of the accused rights are violated, a lawyer can file motions to exclude suppress evidence or dismiss charges based on these violations.
5. Appeals and Post-Conviction Relief: If the accused is convicted, a lawyer can assist with filing an appeal if there are grounds to believe that legal errors affected the trial’s outcome. An appeal is a process by which a higher court reviews the decision of a lower court. There are two kinds of appeals that are conducted in the criminal context: 1) conviction and 2) sentencing:

1) A conviction appeal deals with the decision of the lower court in relation to a finding of guilt. Some of the more common grounds in a conviction appeal include: unreasonable verdict, insufficiency of reasons, questions of law, and incompetent or ineffective assistance of counsel.

2) A sentencing appeal deals with the decision of the lower court in deciding the appropriate sentence and ancillary orders (ie. driving prohibitions, restitution, discharges) after a conviction. Some of the more common grounds in a sentence appeal include: errors in principle as well as a failure to consider or overemphasis of relevant sentencing factors.

Hiring a lawyer to defend a criminal harassment charge in Calgary is crucial due to the complexity of the legal system, the serious nature of the charges, and the potential long-term consequences of a conviction. If you have questions or wish to retain a lawyer in relation to criminal harassment charges in Calgary, you can contact Yoav Niv here.