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Understanding Harassment in Canadian Criminal Law?

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If you come across a news headline that references someone police have arrested for “criminal harassment,” you might pause to wonder what forms of harassment rise to the level of criminality. However, if the headline instead referenced someone arrested for “stalking,” you probably understand why it is a criminal offence. And while the terms “stalk,” “stalked,” “stalker,” and “stalking” are not used in the text, criminal harassment is essentially stalking according to Canada’s Criminal Code.

Criminal harassment is a serious criminal offence that carries severe penalties upon conviction. According to the latest Statistics Canada data, police charged almost 11,000 people with criminal harassment nationwide in 2022 out of 27,324 stalking incidents they investigated during the year. Nearly 11,000 of the incidents were reported in Ontario, where police arrested 3,809 people for criminal harassment. Broken down further, Toronto police investigated 3,503 incidents and laid charges against just over 1,000 alleged stalkers.

Because you don’t want to become part of these statistics, the criminal defence lawyers of Toronto’s Mass Tsang are using this blog to detail what might constitute criminal harassment under Canadian law. Be advised that the information provided in this blog should not be taken as “legal advice” and is posted here purely for educational purposes. Anyone facing stalking-related charges should seek the services of a skilled criminal defence lawyer to ensure the most positive outcome. Mass Tsang lawyers have successfully defended thousands of Greater Toronto Area clients and can help you mount an effective criminal defence against your charges.

The Emergence of Harassment as a Criminal Code Offence in Canada

Criminal harassment as a distinct offence was enacted into the Criminal Code in 1993 as part of a drive to combat gender-based violence against women. Researchers had identified stalking, whether conducted by a stranger or ex-romantic partner, as a frequent precursor to acts of violence committed against women. However, prior to the 1993 legislation, police could do little to curtail stalking-related behaviours beyond charging them with intimidation, mischief, trespassing, loitering, or uttering threats when warranted. According to the Canadian Department of Justice’s “Handbook for Police and Crown Prosecutors on Criminal Harassment,” the codified offence is designed to prevent and punish deliberate conduct that is psychologically harmful to the victim.

Despite the criminalization of stalking and the significant number of annual arrests for the offence, stalking remains a critical national concern, and Canadian women continue to be violently assaulted by their stalkers. The most recent noteworthy example is a Coquitlam, British Columbia, woman who was murdered last month by her estranged husband, who had been incessantly stalking her for six months. As noted by the executive director of Battered Women Support Services, “Stalking is homicide in slow motion.”

According to the Public Health Agency of Canada’s Stop Family Violence program, more than one out of 10 Canadian women aged 15 and over have been victimized by stalking. Of these, about one-third of the victims have reported the stalking to police. Most stalking victims know their stalker, and those whom a former intimate partner stalks are more likely to experience physical violence than those whom a stranger or acquaintance pursues.

Criminal Harassment According to the Criminal Code

As codified under Section 264 of the Criminal Code, criminal harassment charges must be predicated on fear. That is, the stalker’s conduct must cause the victim to “reasonably, in all circumstances, fear for their safety or the safety of anyone known to them.” And not just any conduct, as Section 264(2) specifically lists four “prohibited conduct[s]” that constitute criminal harassment under the law. An Alleged stalker who knowingly or recklessly engages in any of these conducts can be found guilty of the offence:

  • Repeatedly following the victim or anyone they know.
  • Repeatedly communicating with the victim or anyone they know, directly or indirectly.
  • Besetting or watching the victim’s or those known to the victim’s home, workplace, or other places where they might frequently be.
  • Engaging in any threatening conduct directed at the victim or any family members.

Criminal Harassment Conviction Penalties

Criminal harassment is a hybrid offence that the Crown can charge under either an indictment or summary conviction. When charged as an indictable offence, the maximum penalty is 10 years imprisonment, while a summary conviction carries a maximum penalty of up to 18 months in jail and a $5,000 fine. As part of the sentence, judges can also impose a weapons possession prohibition order and submission of the offender’s DNA to the national DNA data bank.

How Courts Address Criminal Harassment

To successfully criminal harassment charges, the Crown must prove the elements of its case beyond a reasonable doubt. Elements the Crown must prove include:

  • The victim had a reasonable fear for their safety.
  • The alleged harassment constituted any of the prohibited conduct listed under Section 264(2).
  • That the alleged offender committed the prohibited conduct.
  • That the alleged offender knew that the conduct was harassing or was otherwise reckless or willfully blind to its impact.

Criminal harassment court cases increasingly involve incidents of cyberstalking and cyberbullying and make use of new technologies. Online and technology-related activities that have resulted in criminal harassment charges include:

  • Sending harassing messages via email or text to a victim or those known to them.
  • Tracking a victim’s location with GPS technology.
  • Watching or listening to a victim through hidden cameras or other monitoring devices.
  • Cybersmearing.
  • Using spyware to track a victim’s website activity or record keystrokes.
  • Constructing online fake identities to engage with a victim.
  • Creating websites about the victim that include provocative messages or pornography.
  • Sending viruses to a victim’s computer that automatically transmit unwanted messages.

Defending Against Criminal Harassment Charges

Mounting a defence against criminal harassment charges often involves raising reasonable doubts about crucial elements of the Crown’s case. Common challenges the defence can make to dispute the charges include:

  • The alleged prohibited conduct did not constitute harassment.
  • The defendant did not intend to commit the prohibited conduct and was not reckless or willfully ignorant about it.
  • The victim’s fear was unreasonable under the circumstances.
  • The victim was motivated to fabricate the claim of harassment.
  • The defendant had lawful authority to engage in the conduct alleged as part of the harassment.
  • The defendant’s Charter Rights were breached during the investigation or arrest.

Consult with the Criminal Defence Experts at Mass Tsang

Even when charged as a summary conviction offence, a criminal harassment conviction can result in jail time, fines, and a criminal record. As such, you cannot afford to defend such charges without the experience and legal skills of a criminal defence lawyer like those at Mass Tsang. With decades of experience developing effective criminal defence strategies that secure positive outcomes for our clients, contact us for a free consultation if you or a loved one is facing criminal harassment charges in the Greater Toronto Area.

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