Under the Criminal Code of Canada, it is an offence to engage in certain types of conduct which have the effect of making an individual feel scared or harassed. A charge for “criminal harassment” under the Criminal Code is often synonymous with “stalking”, and is designated as a major offence in Ontario. The consequences for a charge of criminal harassment can be severe, so it is vital for Ontario residents to understand what type of behaviour constitutes criminal harassment.
Overview of Criminal Harassment in Canada
What is Criminal Harassment (Stalking)?
Harassment is often referred to as stalking in Canada. Personal harassment is any unwelcome action that makes an individual feel intimidated, harassed or concerned for one’s safety. Harassment can come in many different forms including; calling, texting or otherwise digitally communicating directly with someone, following someone physically, or by showing up uninvited to various locations such as someone’s home or work. However, harassment can also be more indirect, including posting threatening messages on social media or otherwise acting in a manner that is meant to frighten someone.
One’s intention and the effect of one’s behaviour on a victim is what makes harassment criminal in Canada. A conviction for criminal harassment requires that the harassment occurred when the perpetrator knew or should have known that their acts were undesirable and made people afraid. In addition to intention, the specific harmful conduct (such as sending someone unwanted texts), must also meet particular requirements to be criminal. To constitute criminal harassment in most cases, there needs to be some element of “repetition” in the conduct, and the victim’s perception of fear must be reasonable in the circumstances.
The Legal Definition (Section 264 of the Criminal Code)
Section 264 of the Criminal Code states:
Criminal harassment
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) [criminal harassment – prohibited conduct] that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
Prohibited conduct
(2) The conduct mentioned in subsection (1) [criminal harassment – offence] 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.
Punishment
(3) Every person who contravenes this section is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
Offences relating to criminal harassment are found under Part VIII of the Criminal Code concerning “Offences Against the Person and Reputation”. Harassment offences under s. 264 are hybrid offences, meaning that there is a Crown election. If prosecuted by indictment, there is a defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.
Prohibited Conduct and Examples
Repeatedly Following or Communicating
“Repeated” following or communicating in the context of criminal harassment means following or communicating with a person more than once, but not necessarily more than twice. The ‘following’ or ‘communicating’ does not need to occur over distinct time periods, as an accused individual can be convicted of criminal harassment where they follow or communicate with a victim twice over the span of a short time period. For example, an accused individual can be convicted of criminal harassment where they approach a victim on the subway, and proceed to follow that person off the subway and out of the station.
Besetting or Watching a Dwelling or Workplace
Criminal harassment can also include situations where an accused individual observes a victim’s place of residence or employment with the intention to control their behaviour (“watching”) or where the individual’s conduct at these places makes the victim feel surrounded (“besetting”). This conduct can include sitting outside of a victim’s place of employment, repeatedly driving past a victim’s home, or spying on a victim’s new partner at their place of residence.
Threatening Conduct
To be “threatening conduct” that rises to the level of criminal harassment, the Crown would be required to establish that the accused individual was intimidating a victim in a way which was designed to instill a sense of fear in them. These threats can be present in conversations, text messages, social media posts, and any other medium where an accused is able to communicate with a victim.
When Does Harassment Become Criminal?
Harassment becomes criminal when the elements of the offence for criminal harassment under s. 264 of the Criminal Code are present. This means that the accused individual has committed the act of criminal harassment, and the Crown has established that the accused individual had the requisite mental intent to commit the act. These elements are discussed in further detail below.
Proof of the Offence: What the Crown Must Prove
The Actus Reus (The Guilty Act)
In order to be convicted of criminal harassment, the court is required to first establish that the accused individual engaged in any prohibited conduct that has been classified as “criminal harassment”. Under s. 264 of the Criminal Code, these acts include subjecting a victim to threatening conduct, besetting or watching an individual’s place of residence or employment, or repeatedly following or communicating with a victim where that following or communication is unwanted.
The actus reus element of criminal harassment also includes the requirement that the individual victim feared for their physical, psychological and emotional safety as a result of the conduct, and that their fear was reasonable in the circumstances.
The Mens Rea (The Guilty Mind and Intent)
To be convicted of criminal harassment, the Crown is required to prove that an individual intended to commit the prohibited act. This “intention” includes any direct willingness by the accused individual to harass the victim, but can also include any recklessness or wilful blindness towards the fact that the act caused the victim to be harassed. The Crown is not required to prove that harassment was foreseeable to the accused, and is also not required to prove that the accused individual subjectively intended to engage in threatening conduct.
Intent can be established in a number of ways. If the factual circumstances of the case suggest that the accused purposely harassed a victim, intent can be inferred. If the accused individual had a pre-existing relationship with the victim, or engaged with the victim prior to the alleged offence, intent can be established by looking at these prior interactions.
The Concept of “Reasonable Fear for Safety”
In order for the harassment to be criminal, the victim must have a reasonable fear for their own or another individual’s safety because of the accused’s behaviour. The concern for an individual’s safety can extend beyond fear of physical harm, as it can include psychological and emotional harm as well.
The legal definition for a “fear of safety” is described as a state of anxiety or apprehension concerning the risk of substantial psychological harm or emotional distress, in addition to physical danger or harm. The standard for determining whether a fear is “reasonable” is objective, and not subjective to how the victim may perceive the situation to be at the time. In other words, the behaviour must logically cause an individual to feel threatened or harassed, such as continuous following or unsolicited communications.
If a victim is “fearful”, this does not necessarily mean that they have been criminally harassed by the accused’s behaviour. As an example, a general fear over one’s “financial well-being” will not qualify as criminal harassment.
Court Procedures and Release
Arrest and Release (Appearance Notices and Undertakings)
When charged with criminal harassment under s. 264 of the Criminal Code, the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, the individual can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. If remanded into custody upon arrest, the accused can also be released by a justice under s. 515 of the Criminal Code.
If an accused individual charged with criminal harassment is released from custody, they will be required to appear in court, and follow other conditions specific to their arrest. These conditions will likely include prohibitions against making contact with the victim of the alleged criminal harassment, and against attending at the victim’s places of employment and residence.
Reverse Onus Bail Conditions
If police elect to not release an accused on an appearance notice, they will be required to bring the accused before the court for a bail hearing. Ordinarily, there is a presumption that an accused individual will be granted bail unless the Crown can prove that it is not in the interests of justice to release them. However, there will be a presumption against bail (i.e. a reverse onus) if the criminal harassment offence, prosecuted by indictment, was committed:
- while at large under s. 515 (bail release), 679 or 680 (release pending appeal or review of appeal) (s. 515(6)(a)(i));
- “for the benefit of, at the direction of, or in association” with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not “ordinarily a resident in Canada” (s. 515(6)(b)).
Regardless of whether the crown elects to proceed by indictment or summarily, reverse onus bail will be present if the criminal harassment offence alleged was one:
- where the offence was an allegation of violence (or threat of violence) against an “intimate partner” and the accused had been previously convicted of an offence of violence (or threat of violence) against an “intimate partner” (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the Controlled Drugs and Substances Act that is punishable by life imprisonment (s. 515(6)(d));
Publication Bans and Victim Identity
When prosecuting criminal charges, the Crown, victim or witness can apply to the court for a “publication ban”. If granted, the publication ban will prohibit the publishing of any information that could identify a witness or victim. These types of orders are granted where anonymization is necessary for the proper administration of justice.
In addition to a general publication ban, the Criminal Code allows for specification publication bans in certain circumstances. These include prohibitions against publishing evidence or other information arising from a bail hearing (s. 517), evidence/information from preliminary inquiries (s. 539) or evidence/information arising from a jury trial (s. 648). There is also a mandatory publication ban in all youth prosecutions on information tending to identify young accused or young victims (s. 110–111 of the Youth Criminal Justice Act).
Sentencing Principles and Penalties
Summary Conviction and Indictable Offences
Criminal harassment is a hybrid offence. This type of offence is one which the Crown will have the choice to proceed summarily or by indictment. The Crown will decide which way to proceed by looking at a variety of factors such as previous criminal history, the individual circumstances of the case, and the level of harm allegedly caused by the accused. The Crown will often elect to proceed by indictment where the allegations of criminal harassment are particularly severe, as the Crown will want to seek a higher prison sentence if the accused is convicted. Situations where a Crown may proceed by indictment include harassment in the domestic context, or where there has been severe psychological or physical violence over a prolonged period of time.
Maximum Penalties (Up to 10 Years)
The Crown’s decision to elect to proceed by indictment or summarily impacts the maximum penalties for a criminal harassment conviction. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine. There are no minimum penalties for criminal harassment.
Ancillary Orders (Weapons Prohibitions, DNA Orders, SOIRA)
If convicted of criminal harassment under s. 264 of the Criminal Code, there is a discretionary DNA Order as a secondary designated offence listed under s. 487.04 (c), (d) or (e), regardless of Crown election. Additionally, conviction for criminal harassment also includes a mandatory weapons prohibition under s. 109(1)(b) or (c) of the Criminal Code. The length of this prohibition is 10 years for a first offence, which will increase to a lifetime prohibition if the accused individual is convicted of another offence with consequences under s. 109 of the Criminal Code.
The accused individual may also have their information added to police databases pursuant to Canada’s Sex Offender Information Registration Act if convicted, as criminal harassment is designated as a “secondary offence” under that legislation.
Record Suspensions and Pardons
Criminal harassment convictions under s. 264 of the Criminal Code are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. However, an offender may not have the record suspended where the offender was:
- Convicted of 3 or more offences with a maximum penalty of life; and
- For each 3 offences, the individual was sentenced to imprisonment for two years or more.
