Criminal Harassment

Criminal harassment can include many different behaviours intended to control and frighten the victim. It can cause fear, depression, alienation, isolation, loss of confidence, confusion, powerlessness and hopelessness. The victim may feel detached and believe their personal safety has been diminished. Stalking is predatory in nature and can turn violent.

According to the Criminal Code, criminal harassment can include: 

• repeatedly following the victim of anyone known to them from place to place;
• repeatedly communicating with, either directly or indirectly, the victim or anyone known to them;
• watching the place where the victim, or anyone known to them, resides, works, carries on business or happens to be; or
• engaging in threatening conduct directed at the victim or any member of their family.

Conduct covered under the Code could include stealing mail, repeated calls, letters or emails, sending unwanted gifts, harassing people known to the victim, harming their pets or showing up uninvited to their home or workplace.

According to the Government of Canada (Criminal Harassment: Stalking) “the main motivation for stalking another person is the desire to control, particularly in cases where the subject is a former partner.” 

The government states:

• More than one in 10 women (15 years of age and over) were victims of stalking in Canada.
• Obscene phone calls are the most frequently reported form of stalking for female victims.
• Most stalking victims know their stalker.
• More than one-third of stalking victims reported stalking to police.
• One in 10 stalking victims sought out a protective order against the stalker, of which almost one-half were violated.
• Female victims stalked by a former intimate partner experienced more physical violence relative to victims pursued by a stranger or acquaintance.

Female victims were most frequently stalked by a current or former partner, according to Statistics Canada: 39 percent by an ex-husband, two per cent by a current husband and 17 per cent by a current / former boyfriend while one in four female victims were stalked by a casual acquaintance, most of whom were male.

The Crown does not have to prove that the complainant actually feared for their safety. The question is whether, in all the circumstances, the conduct could reasonably be expected to cause the complainant to believe that their safety, or the safety of someone known to them, was threatened.

If you can prove it was not reasonable for the complainant to be afraid you can be found not guilty. You can also argue that you did not realize the person felt harassed and wanted you to stop contacting them. As well, your lawyer may be able to show that your rights under the Canadian Charter of Rights and Freedoms were breached during the police investigation.

Criminal harassment is a hybrid offenceAn offence the Crown can proceed with summarily or by indictment., meaning the Crown can proceed with the charge as an indictable offenceA more serious type of Canadian criminal offence. or by summary convictionUsed for lesser offences. Being found guilty of an indictable offence carries more severe penalties than a summary conviction.

The Crown will consider such factors as the seriousness of the incident and your prior criminal record when deciding how to proceed.

The maximum sentence for criminal harassment under the Criminal Code is 10 years in prison if the Crown proceeds by indictment. If the Crown proceeds by summary conviction, the maximum penalty is two years less a day in jail, a fine of up to $5,000, or both.

Often when someone is being harassed, they can seek a protection orderA broad term for an order intended to protect a person from contact, harm, or harassment. that lists conditions the person named must follow, including restricting contact.

The Code says that if a person is convicted of criminal harassment and the offence violated a protection order, undertaking, recognizance, or similar order or condition, the court must consider that as an aggravating factor under s. 264(4).

Depending on the case, the judge could sentence the person to probation for up to three years, order a fine, and order them to submit DNA to the National DNA Data Bank. They could also face a firearms prohibition and be required to forfeit weapons or guns to the Crown.