What is Criminal Harassment?
Criminal Harassment is informally known as “stalking”, and is a criminal offence under s. 264 of the Criminal Code of Canada.
The section reads that: “(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) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.”
The prohibited conduct referred to above involves:
(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.
The most common of the above noted forms of criminal harassment is paragraph (b), which is repeated communication. Often, Criminal Harassment charges occur in the aftermath of an intimate relationship, as a commonly laid type of Domestic-related charge (the other being Domestic Assault).
What Does the Crown Have to Prove for Someone to Be Found Guilty?
For every criminal offence, the Crown must prove two separate things – one being the prohibited act (legally, referred to the Actus Reus), and the other being the guilty state of mind (which is known as Mens Rea). The prohibited act or behaviour that the Crown must prove is:
- One of the types of actions referred to in (a) to (d) above (repeated contact; repeated following etc)
- That the complainant was “harassed”. Courts have held that this constitutes “being tormented, troubled, worried continually and chronically, being plagued, bedeviled and badgered”
- The complainant feared for their safety as a result of the behaviour mentioned above, and that fear was reasonable in the circumstances
For the guilty state of mind to be proved, the Crown must establish that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed.
Potential Defences
While the offence of criminal harassment / stalking might, on its face, appear to be a straightforward crime to prove, there are several legal issues that can be raised, including:
- Whether the behaviour in question actually falls within one of the paragraphs indicated above (the police do not always correctly charge people!);
- Whether there is evidence that the complainant had a subjective fear for his/her safety;
- Whether the complainant’s fear, if they stated they had one, was objectively reasonable in the circumstances;
- Whether the accused had the “lawful authority” to engage in the behaviour in question
Andrew Captan – Criminal Lawyer routinely takes on Criminal Harassment cases, particularly those that arise in a current or former Domestic context. Call (647) 878-6355 to speak to him today about your case.