When Actions Can Become Criminal Harassment

Criminal Harassment

Criminal harassment is an offence under section 264 of the Criminal Code of Canada. Criminal harassment charges often result from former domestic relationships, or when one person attempts to initiate a romantic relationship with another person who does not wish to do so. Another example of where criminal harassment charges are often laid is with ongoing disputes between neighbours, co-workers, or a person with whom you had prior business dealings with. Some individuals charged with criminal harassment genuinely are not aware that their behaviour could be considered harassment to another person. However, there are equally many others who know or ought to have known that they were harassing another individual. The following is intended to help you understand when your actions can become criminal harassment.

Actions that can be Criminal Harassment

Section 264 of the Criminal Code outlines conduct that can constitute criminal harassment. Conduct that can constitute criminal harassment includes;

Repeatedly following from place to place the other person or anyone known to them,
Repeatedly communicating with, either directly or indirectly, the other person or anyone know to them,
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
Engaging in threatening conduct directed at the other person or any member of their family.

Our courts have further held that actions such as persistent requests, solicitations, or incitements can be harassing behaviour. While any one of these actions is likely going cause another person to feel they are being harassed, it does not necessarily mean that criminal harassment has occurred.

When Actions can become Criminal Harassment

The conduct listed above does not constitute criminal harassment unless the following 4 elements are also present;

The complainant felt harassed by the conduct,
You knew or were recklessly or wilfully blind to the fact that your conduct was harassing the complainant,
Your conduct caused the complainant to fear for their safety or the safety of anyone known to them, and
The complainant’s fear was reasonable.

The Crown Attorney must prove all of these elements beyond a reasonable doubt before a finding of guilt can be made.

Defending Criminal Harassment Charges

The first step in defending criminal harassment charges is holding the Crown Attorney to its burden of proving all the elements of the offence beyond a reasonable doubt. While there are some cases where identity may be an issue regarding who actually engaged in the harassing behaviour, this is usually not where a defence is raised in criminal harassment cases. Similarly, the Crown Attorney will often be in a position to prove that any of the conduct listed above did cause the complainant to feel harassed.

Most charges for criminal harassment are defended on the basis (1) that you were not aware or reckless to the fact that your behaviour caused the complainant to fear for their safety, and (2) that the complainant did not actually fear for their safety or that complainant’s fear, in the all the circumstances, was not reasonable. When considering whether the complainant’s fear was reasonable, a judge will consider all the circumstances surrounding the specific conduct that lead to the complainant to fear for their safety.

Unfortunately, criminal harassment is an offence which does not require the Crown Attorney to prove that you specifically knew and intended that your actions were harassment. The Crown Attorney only needs to only needs to prove that you acted recklessly in regards to whether another person was harassed by your conduct. However, depending upon the facts of the case, it may be that the defence of honest mistake may be available. In these circumstances you would need to demonstrate that you honestly believed that your actions were not causing the complainant to feel harassed or fearful, and that this honest belief is objectively reasonable. Again, the judge will consider all of the circumstances surrounding your conduct to determine whether your honest, mistaken belief was reasonable.

Penalty for Criminal Harassment

A summary offence conviction for criminal harassment carries a maximum penalty of 6 months in jail, a $1,000 fine, or both. If the Crown Attorney proceeds by indictment, the maximum penalty is 10 years imprisonment.