I want to talk to you today a little bit about criminal harassment under section 264.1 of the Criminal Code. So first of all, this is a dual procedure offence which means the crown can elect by indictment for a very serious charge or elect summarily for a less serious charge.
Now for an indictable charge such as a very serious stalking or harassment charge, the maximum penalty is actually 10 years in prison, which is pretty high maximum. Of course the crown will elect summarily for a less aggravated harassment charge.
A harassment charge can result from a wide range of different activities, including, repeatedly stalking and following someone, repeated communications, watching and besetting a dwelling house or generally threatening conduct directed towards a person over time. Genuine harassment causes a lot of fear in people. An element of the offence which must be proven beyond a reasonable doubt, is that the person who is being harassed must have reasonable fear. Someone could have reasonable fear if an accused has repeatedly made unwanted communication with them, even though each contact was not threatening in nature by itself. For example, in the context of a break of a relationship, when someone persistently keeps sending unwanted emails or text messages, at some point, it becomes criminal harassment.
It is hard to draw the line where ongoing communication such as phone calls, emails or text messages becomes harassing behavior. I have done many of these cases over the years and I have seen so many cases that are perhaps right on the line. However, I know from the case law when the line has actually been crossed. Sometimes in that grey area where the charge is defendable, you can win a case involving some degree of persistent communication.
Winning these cases often depends on how the client comes across in court in terms of being credible and reliable compared to the alleged victim. I hate to say it, but sometime the alleged victim may be exaggerating their fear or the alleged fear does not even exist. Harassment will not be proven when there is, for example, a break-up of a relationship and a woman sends a man or vice versa, 6 pleasant and non-threatening emails over the course of 6 days professing their love and asking to get back together. Well, maybe the person who has received the 6 emails may feel they are being subjectively harassed and it is causing them subjective fear, but their fear is not objectively reasonable. But at some point, it crosses the line where the crown may be able to prove criminal harassment.
An experienced criminal lawyer will apply the case law to a given fact situation and will know whether the conduct in question supports a harassment charge. A good lawyer is going to know whether harassment can be proven when they see it and advise the client accordingly. For criminal harassment cases that are not defendable, for a less aggravated offence sometimes you can avoid a criminal record. Occasionally, you can get a conditional discharge which is not a criminal record Sometimes you can even negotiate a peace bond and get the harassment charge withdraw. But those are for pretty minor harassment cases to be honest with you because the judges and crown attorneys take these cases very seriously. When it is more serious stalking and significant harassing behaviour causing a lot of fear, an accused will often face a short jail term. Even in these more serious factual situations, you can sometimes avoid a jail term with a very good personal background, no prior criminal record etc. and through involved plea negotiations.
There is also a separate charge in the Criminal Code which is basically similar to criminal harassment. You could also be charged under the criminal harassment section for this type of charge, but repeatedly making phone calls for the purpose of harassing someone is a similar type of offence, with its own similar type of penalties. But it is really kind of analogous because criminal harassment also encompasses repeated communications as well. Criminal harassment is an offence with a wide range of possible outcomes or consequences; it is also an offence which is often defendable, depending on whether the conduct in question has crossed the line. Obviously, if you intentionally follow someone on two or three different days that is going to cause fear and meets the definition of harassment in and of itself. However, there can be grey areas such as where there are ongoing text messages or emails that are innocuous and non-threatening where the victim has not advised you to stop contacting them. But at some point the sheer volume of ongoing contact will instill both subjective and objective fear in the victim and clearly meets the definition of criminal harassment.
So there you have it. We represent a lot of clients who have been charged with criminal harassment and I wanted to share with you today exactly what it’s all about.