Understanding Criminal Harassment

A guide to the legal provisions, examples, and potential defenses.

Criminal Code Provision: 264 (1)

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.
2. The conduct mentioned in subsection (1) consists of:
   1. Repeatedly following from place to place the other person or anyone known to them;
   2. Repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
   3. 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
   4. engaging in threatening conduct directed at the other person or any member of their family.
3. Every person who contravenes this section is guilty of:
   1. an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
   2. An offence punishable on summary conviction.

Understanding Criminal Harassment

Criminal Harassment is commonly known as stalking. The offence occurs when an individual persistently participates in unwanted conduct that causes another person to reasonably fear for their safety or the safety of someone they know.

Examples include:

• Consistently appearing at someone’s residence or job site.
• Delivering unwanted texts, emails, or messages via social media.
• Following someone in a public space.
• Threatening gestures or aggressive demeanor near a person’s residence.

Potential Defences for Criminal Harassment

• Mistaken belief: The accused did not know, or could not have reasonably known, that their conduct was unwanted.
• Lawful authority: Conduct was under legal authority, such as police duties or legitimate workplace conduct.
• Lack of fear: If the complainant was merely annoyed and not actually fearful for their safety.
• Charter Challenges: Evidence from unlawful searches or surveillance could be excluded.

Sentencing for Criminal Harassment

This is a hybrid offence, meaning it can be prosecuted by summary conviction or indictment.

• Summary Conviction: If the Crown proceeds summarily, the maximum penalty is 2 years less a day in jail.
• Indictment: If the Crown proceeds by indictment, the maximum penalty is 10 years in prison.

Factors a court considers include whether the behavior is ongoing, the type of connection to the victim (e.g., domestic partners), whether the harassment was accompanied by threats of violence, the emotional effect on the victim, and the defendant’s criminal history.

Typical Sentencing Ranges

• First-time offender: No prior record: probation, conditional discharge, or short jail (30-90 days).
• Repeated or domestic harassment: 6-18 months imprisonment.
• Serious, threatening, or prolonged harassment: 2-4 years prison, especially if combined with threats of violence.

Landmark Case for Criminal Harassment

In the case of R. v. Sillipp, [1997] 118 C.C.C, the court established that the test for criminal harassment is an objective one. It must be proven that a reasonable person in the complainant’s circumstances would fear for their safety due to persistent, unwanted contact. The court ruled that mere annoyance is not enough to constitute the offense; there must be a genuine, reasonable fear caused by the harassment.