QUICK TAKEAWAY
Criminal Harassment: The Canadian Resource Centre for Victims of Crime describes criminal harassment, more commonly known as stalking, as "behaviour including repeatedly following, communicating with or watching over one's dwelling home. This sort of behaviour is against the law. It is not a sign of love; it is about power and abuse." If you knowingly engage in prohibited behaviour that causes someone to reasonably fear for their safety or causes them to fear for the safety of someone they know you can face a prison term of up to 10 years under s.264 (1) of the Criminal Code.
Table of Contents:
What is 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.
What is Needed to Convict
To win a conviction for criminal harassment, the Crown prosecutor must prove beyond a reasonable doubt that the victim felt they were being harassed by you, that your behaviour caused them to fear for their safety and that you knew certain conduct would make the complainant feel harassed.
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.
Treated as a Summary Conviction or Indictable Offence
Criminal harassment is a hybrid offenceAn offence prosecuted either as a summary conviction or as an indictable offence, meaning the Crown can proceed with the charge as an indictable offenceIndictable offences are more-serious criminal offences 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.
Penalty for Criminal Harassment
The maximum sentence for criminal harassment as set out in the Criminal Code is 10 years in prison if the Crown proceeds by indictment or up to 18 months in jail if it is prosecuted by summary conviction.
Often when someone is being harassed, they can seek a protection orderA court order to help protect one person from another that lists conditions the person named must follow, including restricting contact.
The Code states that if you are convicted of an offence under s.264 (1) and you were subject of a protection order, the court shall consider it as an aggravating factor.
Depending on the case, the judge could sentence you to probation for up to three years, levy a fine and order you to submit DNA to the National DNA Data Bank. You could also face a firearms prohibition and be required to forfeit any weapons or guns to the Crown.
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Patrick McDougall / Barrister
Chs Law
Scharfstein Llp
Saskatoon Criminal Defence Lawyer, Dwayne Z. Braun
Meagan Ward Law
Hodgson-Smith Law
Glossary of Legal Terms
Hybrid offence
Hybrid offences fall between a summary and an indictable offence. The Crown prosecutor chooses whether to treat the offence as a summary or indictable offence.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Protection order
A court order made by a judge to help protect one person from another. The order lists conditions for a named individual to follow that may require that individual to have no contact, or limited contact, with the person being protected or that person's children and/or family.
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
