Criminal Harassment
Criminal Harassment - S. 264 of the Criminal Code of Canada
Summary of the Offence
What is a charge of criminal harassment under the Criminal Code?
Criminal Harassment is found in Part VII of the Criminal Code under section 264, which states:
264 (1) 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 referred to in subsection (2) that causes that person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
Prohibited Conduct (s. 264(2)):
The conduct referred to in subsection (1) includes:
(a) repeatedly following another person or anyone known to them;
(b) repeatedly communicating with, either directly or indirectly, another person or anyone known to them;
(c) watching or besetting the dwelling-house or workplace of another person or anyone known to them; or
(d) engaging in threatening conduct directed at another person or any member of their family.
In general, criminal harassment involves repeatedly following, communicating with, watching, or threatening a person directly or indirectly, in a manner that causes them to fear for their safety or the safety of someone they know.
How Serious is the Offence?
Under s. 264(3), criminal harassment is classified as a "hybrid" offence, meaning the Crown may choose to prosecute it either summarily or by indictment, depending on the circumstances and severity of the conduct.
Examples of Criminal Harassment:
- Repeated unwanted contact through calls, texts, or emails
- Following someone from place to place
- Unwanted surveillance (e.g., waiting outside someone's home or workplace)
- Sending unsolicited gifts or messages, even if not overtly threatening
Elements of the Offence
To secure a conviction for criminal harassment, the Crown must prove both the actus reus (guilty act) and the mens rea (guilty mind) beyond a reasonable doubt.
The Guilty Act (Actus Reus)
Whether conduct amounts to criminal harassment is assessed objectively, without requiring a specific intent to instill fear. The reasonableness of the complainant's fear is evaluated by considering whether a reasonable person in their position would fear for their safety.
Some prohibited conduct, like repeated following or communication, must occur more than once—typically three or more times (R. v. Lenser). However, other types of conduct, such as threatening behavior, may suffice even if they occur just once (R. v. Kohl).
A person is considered "harassed" when they are "tormented, troubled, worried continually or chronically, plagued, bedeviled, or badgered" (R. v. Kosikar). Ultimately, this is determined based on the specific context of each case (R. v. Kordrostami).
Threatening Conduct:
The Ontario Court of Appeal defined "threatening conduct" in R. v. Burns (2008) as an act meant to intimidate and instill fear in the recipient. In R. v. D.S. (2017), the court clarified that the Crown does not need to prove the accused's subjective intent to intimidate.
The fear experienced by the complainant/target of criminal harassment must be for their safety or the safety of someone they know. This includes "psychological safety" (R. v. Wisniewska, at para. 36; R. v. Doherty, at para. 15).
The Guilty Mind (Mens Rea)
The mens rea for criminal harassment is knowledge that the complainant is harassed, or recklessness as to whether they are harassed. This requires a subjective analysis—an accused cannot be found guilty based on the standard that they should have known the complainant was being harassed (R. v. Mandell, at para. 18; R. v. Eltom, at para. 12).
Criminal Harassment is a general intent offence, meaning it does not require proof that the accused specifically intended to harass or cause fear.
Possible Defences
- Lawful Authority/No Harassment: Lawful authority makes otherwise prohibited conduct legally permissible (R. v. Sillipp, 1997 ABCA 346). A possible defense could argue that the conduct in question was not prohibited or had a lawful excuse, such as a legitimate purpose other than harassment.
- No Reasonable Fear: The complainant’s fear must be reasonable and caused by the specific conduct alleged in the charge (R. v. Weinstein). If the complainant's fear is not objectively reasonable, this could be grounds for a defense.
- Lack of Intent: The defense may argue that the accused lacked awareness of the harassment or acted without recklessness, and did not intend to instill fear in the complainant. While the actions themselves may meet the definition of harassment, proving a lack of the necessary mens rea could prevent a conviction.
- Applicable Charter Arguments: Violations of your Charter rights before or during your arrest could provide grounds for excluding evidence. If the police failed to respect your rights, this could bolster your defense.
Possible Punishment if Convicted
- If Proceeded Summarily: A conviction for criminal harassment prosecuted summarily could result in a maximum sentence of two years less a day in jail, and/or a $5,000 fine.
- If Proceeded by Indictment: A conviction for criminal harassment prosecuted by indictment carries a maximum sentence of 10 years in prison.
Criminal Harassment - S. 264 of the Criminal Code of Canada
Summary of the Offence
What is a charge of criminal harassment under the Criminal Code?
Criminal Harassment is found in Part VII of the Criminal Code under section 264, which states:
264 (1) 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 referred to in subsection (2) that causes that person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
Prohibited Conduct (s. 264(2)):
The conduct referred to in subsection (1) includes:
(a) repeatedly following another person or anyone known to them;
(b) repeatedly communicating with, either directly or indirectly, another person or anyone known to them;
(c) watching or besetting the dwelling-house or workplace of another person or anyone known to them; or
(d) engaging in threatening conduct directed at another person or any member of their family.
In general, criminal harassment involves repeatedly following, communicating with, watching, or threatening a person directly or indirectly, in a manner that causes them to fear for their safety or the safety of someone they know.
How Serious is the Offence?
Under s. 264(3), criminal harassment is classified as a "hybrid" offence, meaning the Crown may choose to prosecute it either summarily or by indictment, depending on the circumstances and severity of the conduct.
Examples of Criminal Harassment:
- Repeated unwanted contact through calls, texts, or emails
- Following someone from place to place
- Unwanted surveillance (e.g., waiting outside someone's home or workplace)
- Sending unsolicited gifts or messages, even if not overtly threatening
Elements of the Offence
To secure a conviction for criminal harassment, the Crown must prove both the actus reus (guilty act) and the mens rea (guilty mind) beyond a reasonable doubt.
The Guilty Act (Actus Reus)
Whether conduct amounts to criminal harassment is assessed objectively, without requiring a specific intent to instill fear. The reasonableness of the complainant's fear is evaluated by considering whether a reasonable person in their position would fear for their safety.
Some prohibited conduct, like repeated following or communication, must occur more than once—typically three or more times (R. v. Lenser). However, other types of conduct, such as threatening behavior, may suffice even if they occur just once (R. v. Kohl).
A person is considered "harassed" when they are "tormented, troubled, worried continually or chronically, plagued, bedeviled, or badgered" (R. v. Kosikar). Ultimately, this is determined based on the specific context of each case (R. v. Kordrostami).
Threatening Conduct:
The Ontario Court of Appeal defined "threatening conduct" in R. v. Burns (2008) as an act meant to intimidate and instill fear in the recipient. In R. v. D.S. (2017), the court clarified that the Crown does not need to prove the accused's subjective intent to intimidate.
The fear experienced by the complainant/target of criminal harassment must be for their safety or the safety of someone they know. This includes "psychological safety" (R. v. Wisniewska, at para. 36; R. v. Doherty, at para. 15).
The Guilty Mind (Mens Rea)
The mens rea for criminal harassment is knowledge that the complainant is harassed, or recklessness as to whether they are harassed. This requires a subjective analysis—an accused cannot be found guilty based on the standard that they should have known the complainant was being harassed (R. v. Mandell, at para. 18; R. v. Eltom, at para. 12).
Criminal Harassment is a general intent offence, meaning it does not require proof that the accused specifically intended to harass or cause fear.
Possible Defences
- Lawful Authority/No Harassment: Lawful authority makes otherwise prohibited conduct legally permissible (R. v. Sillipp, 1997 ABCA 346). A possible defense could argue that the conduct in question was not prohibited or had a lawful excuse, such as a legitimate purpose other than harassment.
- No Reasonable Fear: The complainant’s fear must be reasonable and caused by the specific conduct alleged in the charge (R. v. Weinstein). If the complainant's fear is not objectively reasonable, this could be grounds for a defense.
- Lack of Intent: The defense may argue that the accused lacked awareness of the harassment or acted without recklessness, and did not intend to instill fear in the complainant. While the actions themselves may meet the definition of harassment, proving a lack of the necessary mens rea could prevent a conviction.
- Applicable Charter Arguments: Violations of your Charter rights before or during your arrest could provide grounds for excluding evidence. If the police failed to respect your rights, this could bolster your defense.
Possible Punishment if Convicted
- If Proceeded Summarily: A conviction for criminal harassment prosecuted summarily could result in a maximum sentence of two years less a day in jail, and/or a $5,000 fine.
- If Proceeded by Indictment: A conviction for criminal harassment prosecuted by indictment carries a maximum sentence of 10 years in prison.
