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Criminal Harassment Charges: Alleged Conduct Contrary to Section 264 of the Criminal Code
Question: What are the penalties for criminal harassment in Canada?
Answer: A conviction for criminal harassment can lead to significant consequences, including up to ten years imprisonment if prosecuted as an indictable offence, or penalties of up to $5,000 or two years less a day if a summary conviction is pursued. With the potential for a lasting criminal record, it's vital to engage a capable legal representative like David Oake, Barrister (o/a MuskokaCriminal.Law™) to effectively defend against these serious allegations.
Understanding Criminal Harassment Charges Including Potential Penalties and Available Defence Strategies
A criminal harassment charge may arise when a person, known as the complainant, alleges that another person, known as the accused, is engaging in conduct that creates a reasonable fear of harm to the complainant or even another person close to the complainant such as a family member, or even a pet or other property of the complainant. Of course, as with all criminal charges, the allegations must be proven beyond a reasonable doubt before a conviction is registered against the accused person.
The Law
The behaviour that may constitute as criminal harassment is described within section 264 of the Criminal Code, R.S.C. 1985, c. C-46, wherein it is stated:
Criminal harassment
264 (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.
Prohibited conduct
(2) The conduct mentioned in subsection (1) consists of
(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.
Punishment
(3) Every person who contravenes this section is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
Factors to be considered
(4) Where a person is convicted of an offence under this section, the court imposing the sentence on the person shall consider as an aggravating factor that, at the time the offence was committed, the person contravened
(a) the terms or conditions of an order made pursuant to section 161 or a recognizance entered into pursuant to section 810, 810.1 or 810.2; or
(b) the terms or conditions of any other order or recognizance, or of an undertaking, made or entered into under the common law, this Act or any other Act of Parliament or of a provincial legislature that is similar in effect to an order or recognizance referred to in paragraph (a).
Reasons
(5) Where the court is satisfied of the existence of an aggravating factor referred to in subsection (4), but decides not to give effect to it for sentencing purposes, the court shall give reasons for its decision.
Per section 264 as shown above, a criminal harassment charge may arise due to conduct that involves:
- The repeated following of a person;
- The repeated communication with a person;
- The watching of a person at home, work, or other place; or
- The threatening behaviour directed at a person or family member of a person.
In addition to addressing conduct as shown above, a criminal harassment charge is often used to help reduce the risk that harassing conduct will escalate into violent conduct.
Potential Penalties
The potential penalty for criminal harassment depends on whether the prosecutor elects to proceed with the charge as an indictable offence proceeding or as a summary conviction proceeding. As an interesting side issue, it is notable that if a criminal harassment charge proceeds as an indictable offence, then only a lawyer may provide legal representation services on behalf of the accused person; however, if a criminal harassment charge proceeds as a summary conviction offence, then either a lawyer or a paralegal may provide legal representation services.
Per section 264(3) of the Criminal Code as shown above, there are two potential penalty ranges applicable to criminal harassment charges. The first relates to a criminal harassment charge that is prosecuted as an indictable offence where the maximum penalty of ten (10) years imprisonment is stated; however, for the second potential penalty range, where a criminal harassment charge is prosecuted as a summary conviction offence, the Criminal Code section fails to state the penalty; and accordingly, reference to section 787(1) of the Criminal Code whereat the General Penalty provisions that are applicable to a summary conviction offence, becomes necessary. Specifically, section 787(1), of the Criminal Code says:
General penalty
787 (1) Unless otherwise provided by law, every person who is convicted of an offence punishable on summary conviction is liable to a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both.
Per section 787(1) of the Criminal Code as shown above, the General Penalty applicable to a criminal harassment charge that is prosecuted as a summary conviction offence involves a potential fine that ranges up to a $5,000 maximum or imprisonment of up to two years less a day or the possibility of both punishments.
Sentencing Principles
Following a conviction for criminal harassment, the court determines an appropriate penalty based upon various factors. The case of R. v. Benyamin, 2023 ONCJ 361, well explained the factors for sentencing consideration in a criminal harassment case whereas it was said:
[14] Section 718 of the Criminal Code directs me to impose a just sanction that will achieve the objectives set out in that section, which include denunciation, deterrence, rehabilitation, the separation of offenders from society (where necessary), making reparations, and to promote a sense of responsibility in offenders and acknowledge the harm they have caused to the victim and society.
[15] Our Court of Appeal has recognized the seriousness of criminal harassment in decisions such as R. v. Bates, 2000 CanLII 5759 (ON CA), [2000] 134 OAC 156. At para. 31, Moldaver and Feldman JJ.A quoted from Bruce MacFarlane’s article "People Who Stalk" (1997) 31:1 U.B.C. Law Review 37, about the fear that is caused by criminally harassing behaviour:
Many stalkers are not violent but all are unpredictable. The irrational mania that drives them to pursue their victims is beyond comprehension within the normal framework of social behaviour. It is this unpredictability that generates the most fear, coupled with the knowledge that, in some cases, the stalker’s behaviour may, without warning or apparent reason, rapidly turn violent. Escalation of the level of threat forms one of the most common features of stalking.
[16] The Court also noted the reason for the creation of the offence in 1993 at para. 37 as enacted due to:
… a growing concern manifested in this country and elsewhere about people who stalk their victims with escalating intensity, in many cases leading to violence… the purpose of the new section was to criminalize the threatening behaviour and to permit punishment of offenders in an attempt to restrain their behaviour before it escalates to physical violence against the victims.
[17] As adopted by the Court in Bates at paras. 38 and 48, the focus of sentencing for criminal harassment must be to strongly denounce this conduct, generally deter others from committing these types of offences, and specifically deter the offender from committing this crime again.
In addition to the potential for a significant fine and imprisonment, a conviction for criminal harassment may result in a criminal record that adversely affects future employment opportunities as well as travel privileges into the United States, and possibly other places. Accordingly, a strategic defence against criminal harassment allegations is worthy and warranted.
Defending Harassment Charges
As per the above potential penalties, a criminal harassment charge may involve significant penalties upon conviction. Additionally, where criminal harassment charges arise within the context of a domestic relationship, such as during the separation of a married couple or the breakup of an unmarried couple, the prosecution will likely be especially aggressive.
A person accused of criminal harassment may defend the charge by demonstrating that:
- The person charged was acting lawfully, such as making communications for a legally authorized purpose or attending at places for a legally authorized purpose;
- The person charged was acting without wrongful intentions or without recklessness;
- The fear alleged by the complainant was unreasonable; or.
- The allegations are a falsification or manipulative.
As with all criminal charges, the prosecution must prove allegations beyond a reasonable doubt; and accordingly, a person charged with an offence, including a criminal harassment offence, needs only to create a reasonable doubt that the allegations are true. Sadly, especially in consideration for how serious the potential penalties are for criminal harassment as well as the importance of the criminal harassment charge when prosecuted for legitimate purposes, criminal harassment allegations are sometimes falsified as a means to gain an improper advantage in divorces or separations.
Summary Comment
The charge of criminal harassment is a serious offence with potential penalties involving significant jail time. Criminal harassment allegations may be defended by showing that the conduct alleged as harassing was lawful, the conduct was without improper intentions, the conduct was reasonable, or that the allegations are false and perhaps illicitly alleged.