Criminal Harassment Lawyers Victoria

Criminal harassment is commonly referred to as stalking and is classified as an ‘Offence Against the Person and Reputation’ in the Criminal Code. The Department of Justice explains that the behaviour that makes someone fear for their personal safety must occur more than once to constitute criminal harassment, unless it is overtly threatening.

The relevant provision for criminal harassment in the Canadian Criminal Code is:

This offence covers activity from incessantly phoning the same person all the way to making threats against a person, their friends, pets or family.

Some of the most common examples in Victoria include:

• Following someone home,
• Leaving threatening voicemails, and
• Contacting someone repetitively on the internet.

Other harassment offences, including sexual harassment and workplace harassment, are covered in provincial human rights legislation. Neither are criminal offences on their own, but both can amount to a criminal charge if the circumstances fulfill the elements of criminal harassment or sexual assault.

Whatever the harassing behaviour involves, it must give the complainant good reason to fear for their personal safety in order to constitute criminal harassment. The actions also cannot be derived from lawful authority, such as messages from a peace officer or lawyer.

Penalties for Criminal Harassment Charges in Victoria

Criminal harassment is a hybrid offence, meaning that the Crown can elect to proceed by way of indictment or summary offence. This choice will impact the severity of punishments that you are given, with indictment being the more severe of the two.

Although criminal harassment has no mandatory minimum penalties, the Criminal Code does list the maximum punishments as follows:

• Indictment: Up to 10 years’ imprisonment,
• Summary: Up to 2 years’ less a day imprisonment and a $5,000 fine.

In addition to the immediate penalties resulting from a conviction for criminal harassment, it can have wide-ranging negative consequences on your future. You may have trouble securing employment, especially in roles that require working with children, the elderly, or other vulnerable sectors of society. The lifelong criminal record that results from a conviction can hinder immigration and travel. Finally, because of the nature of criminal harassment charges, your friends and family may perceive you as unworthy of their trust, and it can heavily impact your reputation.

Therefore, even if you intend on accepting responsibility for this type of offence, it is worthwhile to explore your options and consider all the possible penalties. Often, good representation can result in no criminal record. Furthermore, a community-based sentence may be obtained even where the Crown is seeking jail time.

Rest assured, our lawyers will work hard to defend you so that you are not saddled with the consequences that stem from a criminal conviction for criminal harassment. In fact, we can canvass a range of sentencing options with the Prosecutors that will either leave you with no criminal record or impose minimal restrictions on your liberty after sentencing.

Defending Criminal Harassment Charges in Victoria

What are the best defences to criminal harassment charges in Victoria?

The best defences for a criminal harassment charge depend on the circumstances of your case.

Generally, however, some good defences are:

• Factual innocence: This is usually the strongest defence because the facts and the evidence do not support you being there, observing or recording, or other basic elements of the offence.
• Identity: In some circumstances where the offence was not recorded by surveillance footage, or the footage is poor quality, you may be able to raise an identity defence. For example, authorities could have made a mistake in identifying you as the perpetrator based on the poor quality of the footage. In order to effectively raise this defence, you may need corroborative evidence, such as an alibi to where you were at the time of the offence.
• Unreasonable fear: One possible defence for criminal harassment is to challenge the reasonableness of the complainant’s fear. By pointing to your relationship with the complainant as well as the nature, context and history of your communications, we can argue that their fear is unreasonable.
• No intent to cause fear: If you can prove that you were unaware that your behaviour would cause the complainant to fear for their personal safety, and that you did not intend to cause the fear, this can help challenge a criminal harassment charge. You must be able to prove, however, that you did not know it would cause fear, and that you shouldn’t have known that it would.
• Lawful authority: If you had lawful authority to ‘harass’ someone, then you cannot be convicted of criminal harassment. For example, a debt collector calling someone incessantly to obtain owed funds is not criminal, because they have lawful authority to do so.
• Violation of constitutional rights: The Canadian Charter of Rights and Freedoms sets out your rights before and after your arrest. If the police fail to abide by these rights, it could aid in your defence.

To be convicted, the Crown must prove that you harassed a person, causing them to reasonably fear for their safety or the safety of anyone they know. While the Crown must prove beyond a reasonable doubt that you committed the offence, you may bear some responsibility in raising certain defences at trial.

The availability and strength of any defence depends entirely on the specific facts of your case. Our lawyers have significant experience assessing the availability and strengths of various potential defences in criminal harassment cases, as well as presenting any and all available defences to the Court at trial. Even if you believe that you will be found guilty, it is important that you obtain a legal opinion about defences that may be available to you.

How can I help defend criminal harassment charges in Victoria?

If you have been charged with criminal harassment in Victoria, the following can help your lawyer build a strong defence:

• Provide your lawyer with a statement about what happened;
• Collect and maintain all documents and records about the event;
• Gather a list of witnesses that may support your version of events; and
• Log any relevant texts, emails, phone calls or photographic evidence.

As soon as you are released on bail, you should start to gather any information that may be of use to your lawyer. What information is relevant will depend on the facts in your case. If you are uncertain what information to collect, you should contact one of our lawyers immediately to create a plan of action.

If you are truly proactive about the matter, consider doing the following:

• Secure proof of employment;
• Secure reference letters;
• Enroll in counselling (anger management/substance abuse/parenting);
• Secure a record of prescriptions; and
• Secure a record of any mental health conditions you suffer from.

These steps can be very helpful for building an effective defence (or convincing the Prosecutor to drop the charges altogether).

What can a lawyer do to help me defend against criminal harassment charges in Victoria?

As we start preparing your defence by examining police actions and the evidence against you, there are certain defence strategies that can be used to aid your cause, including:

• Assembling documents, photographs, texts, etc. that contradict the allegation and support your defence;
• Gathering evidence from witnesses that support your version of events;
• Identifying mistakes in the actions of the police, such as Charter breaches;
• Uncovering administrative/systemic errors, such as “Jordan delay,” non-disclosure, lost or destroyed evidence, etc.; and
• Finding weaknesses or “holes” in the Crown’s case that may make it difficult or impossible for them to establish the elements of the offence.

Further Reading

Below are a few notable cases dealing with various aspects of criminal harassment charges:

In R v Sanchez, 2012 BCCA 469 the Court noted that ignored text messages and unanswered calls can constitute repeated communication as communication need not be verbal. The Court also noted that repeated communications of this kind must be viewed in the context of the relationship between the parties – even seemingly benign communication may cause reasonable fear and constitute criminal harassment when received in the context of an abusive relationship.

In R v Koskar, 124 OAC 289 the Court noted that repeated threatening conduct is not required to make out the offence pursuant to s.264(2)(d). The Court found that a single threatening act can make out the offence where it causes reasonable fear on the part of the complainant.