The number of messages alone does not define criminal harassment. What matters is the overall relationship between the individuals, how frequently the contact occurs, and how the contact affects the parties involved.
Therefore, a person can face a criminal harassment charge despite the fact that the majority of the alleged misconduct took place via cell phone.
What Is Criminal Harassment in Canada?
Criminal harassment is defined in section 264 of the Criminal Code. This legislation describes conduct where a person knowingly harasses another individual, or is reckless as to whether that individual is being harassed, causing them to reasonably fear for their safety or the safety of someone known to them.
The conduct described under section 264 includes:
- Repeatedly communicating with an individual, directly or indirectly
- Repeatedly following an individual from one location to another
- Watching or attending an individual’s home, workplace, or another location
- Engaging in threatening conduct directed at an individual or a member of their family
Communication via cell phone can be particularly relevant in allegations based on text messaging.
As discussed in more detail in our article about criminal harassment under section 264 of the Criminal Code, the surrounding circumstances are very relevant when determining whether an accused person’s conduct crossed the line into criminal behaviour.
How Many Text Messages Must I Send to Be Found Guilty of Criminal Harassment?
There is no predetermined number.
Sending two messages, five messages, twenty messages, one hundred messages, or any other number does not inherently constitute criminal harassment. Courts will examine the nature of the communications and the circumstances in which they were made. There is no set number for establishing criminal harassment.
For instance, multiple messages may be perceived as completely normal if exchanged between two parties engaged in a continuous conversation.
On the other hand, repeatedly sending unwanted messages to an individual who has clearly requested that you cease all communication may support an allegation of criminal harassment.
Frequency can also play a role. Although dozens of messages sent within a short period may establish a repetitive pattern of communication, courts will still analyze the content of the messages and the underlying circumstances in which they were communicated.
Must My Text Messages Threaten the Recipient?
No. While an obviously threatening message, such as “I am going to harm you,” could become significant evidence in a criminal harassment investigation, repeated messages can become much more complex when each message appears harmless on its own.
Examples of non-threatening messages that could collectively contribute to an alleged pattern of harassment include:
- Continuously asking an individual where they are located
- Stating that you observed them at a particular location
- Continually requesting that they reply to you
- Contacting them using multiple telephone numbers after they have blocked you
Regardless of whether an individual message is perceived as non-threatening on its own, when examined in conjunction with other messages and the surrounding circumstances, these types of communications may support an allegation of criminal harassment.
Is It Required That the Person Expressly Tells Me to Stop Texting?
Being explicitly informed to discontinue communication can serve as valuable evidence that the sender was aware that the recipient did not wish to engage in further communication. However, an express request to stop is not necessarily required.
Consider this example:
“Do not contact me again.”
If the individual has given you clear notice to cease all contact and you continue to send numerous messages over the course of several days, that request may be considered when determining whether you knew your continued communication was unwanted.
Other circumstances may also indicate that communication is unwanted. These can include:
- The person repeatedly blocking your attempts to contact them
- The person consistently failing to reply to your communications
- A third party telling you to stop contacting the person
- Attempts to circumvent a court-imposed no-contact order using alternate methods of communication
Anyone subject to bail conditions that prohibit contact should take those conditions seriously. Attempting to communicate despite a no-contact condition could result in further legal problems.
What Happens if I Text From a Different Phone After I’ve Been Blocked?
Attempting to evade another person’s efforts to prevent further contact can become significant evidence in a criminal harassment investigation.
Possible examples include:
- Using a different mobile device or telephone number
- Creating another social media profile
- Asking a friend or family member to communicate on your behalf
- Sending emails after being blocked by text message
- Requesting others to forward your communications
- Contacting the individual through their employer
Section 264 addresses direct and indirect communication. As a result, switching from one method of communication to another does not necessarily change the legal issue.
Repeated attempts to discover alternative means of contacting someone may also be considered when determining whether you knew your communication was unwanted.
What if the Other Person Was Texting Me Back?
Two-way communication can make the circumstances more complicated.
Where two individuals maintain regular dialogue, viewing only one side of a conversation presented in the form of screenshots may provide an entirely different perspective compared with viewing the complete conversation.
A response also does not necessarily mean that all future communication is welcome.
For example, the recipient may respond because they are trying to de-escalate a volatile situation. They may respond simply to tell you they do not want further communication.
The timing, wording, and context of the conversation can therefore be important.
This is one reason the complete message history may need to be reviewed when defending against allegations of criminal harassment.
Can Deleted Texts Be Used as Evidence in a Criminal Harassment Case?
Yes. Text messages can represent an important source of evidence in investigations involving criminal harassment.
Screenshots may be provided to police by complainants. Devices containing records of communications may be examined. Records may also be obtained through lawful processes, and stored information from online services may become relevant.
Evidence can extend beyond the actual words contained in the messages. Investigators may also review:
- When messages were sent
- The frequency of communication
- Call records
- Voicemail recordings
- Social media messages and posts
- Emails
- Photos and videos
- Location information
- Third-party communications
The defence may also investigate whether screenshots provide a complete representation of the communications between the parties.
For example, screenshots depicting five messages from the accused without showing the messages that preceded them may provide an incomplete view of what was occurring.
What Does “Fear for Safety” Mean?
Repeated unwanted communication alone does not automatically amount to criminal harassment under section 264 of the Criminal Code.
An important aspect of the offence involves the complainant reasonably fearing for their safety or the safety of someone known to them as a result of the alleged conduct.
Courts may evaluate the allegations with reference to:
- The previous relationship between the accused and complainant
- Previous threats or violent behaviour
- The content of the communications
- The frequency of the communications
- The circumstances surrounding the alleged conduct
The context surrounding the messages can therefore become just as important as the words contained within them.
What Should I Do if Police Contact Me About Repeated Messages?
If police advise you that someone has complained about your text messages, continuing to communicate with that individual can make the situation worse.
Trying to clarify the situation directly with the complainant may also create additional evidence.
Deleting previous messages can create problems as well. Those messages may contain important details that provide context or assist your defence.
Anyone being investigated for repeatedly engaging in unwanted communication should consider speaking with a criminal defence lawyer before providing police with a detailed statement about the allegations.
Charged With Criminal Harassment Due to Text Messages?
Criminal harassment allegations involving text messaging are highly dependent on context.
Important questions may include how frequently the messages were sent, what the messages said, the history between the parties, whether the communication was clearly unwanted, and whether the complainant reasonably feared for their safety.
Screenshots showing only portions of an exchange between two individuals may not always tell the full story.
If you have been charged with criminal harassment involving text messages, social media, phone calls, or other forms of communication, speaking with a criminal harassment lawyer can help you better understand the allegations and possible defence options.
A. Dhillon Law represents clients facing criminal harassment and other criminal charges in Brampton and across Southern Ontario. If you are facing criminal charges, contact us at A. Dhillon Law to discuss your case.
