Criminal Harassment

If you have been charged with criminal harassment in Ontario, it is important to understand the seriousness of the allegation and the potential consequences that can follow a conviction. Criminal harassment charges often arise from disputes involving former partners, neighbours, co-workers, or online communications. Even where there is no allegation of physical violence, the offence can still lead to jail, strict release conditions, a criminal record, and lasting damage to employment and reputation.

At Glass Gavel Law, we assist individuals facing criminal harassment charges. A criminal harassment allegation does not automatically mean you are guilty. Many cases involve misunderstandings, exaggerated complaints, relationship conflicts, or situations where the legal elements of the offence cannot be proven beyond a reasonable doubt..

WHAT IS CRIMINAL HARASSMENT?

Criminal harassment is found under section 264 of the Criminal Code of Canada. The offence is commonly referred to as “stalking.” The law prohibits repeated conduct that causes another person to reasonably fear for their safety or the safety of someone known to them. Under section 264(1), a person commits criminal harassment when they:

• Engage in prohibited conduct under section 264(2) such as repeatedly following another person from place to place, repeatedly communicating directly or indirectly with them, watching or besetting their home, workplace, business, or another place they happen to be, or engaging in threatening conduct toward them or a family member;
• Know the other person is harassed or are reckless about whether they are harassed; and
• Cause the complainant to reasonably fear for their safety or the safety of another person.

The offence is broader than many people realize. A person can face charges even where there was no physical assault, direct threats, the complainant never explicitly said “stop”, or if the communication occurred online.

The word “repeatedly” generally means more than once. Courts will examine how many times the conduct occurred, the time period involved, the context of the communications, and whether the behaviour became persistent or obsessive. Depending on the circumstances, even a single act can be considered harassment if the Crown can prove that as a consequence of the prohibited act the complainant was in a state of being harassed or left with a sense of feeling tormented, worried continually, or badgered. (R v. Kosikar, 1999 CanLII 3774 (ONCA)).

Criminal harassment under section 264 is a hybrid offence. This means the Crown can proceed either by summary conviction or by indictment. The Crown’s decision usually depends on the seriousness of the allegations, whether court orders were breached, whether violence or threats were involved, the accused’s criminal record, and the impact on the complainant. A paralegal may only act for an accused where the Crown is proceeding by way of summary conviction.

WHAT ARE THE POTENTIAL CONSEQUENCES IF CONVICTED FOR CRIMINAL HARASSMENT?

The penalties for criminal harassment can be severe. If the Crown chooses to prosecute by indictment, the maximum penalty is up to 10 years imprisonment. If the Crown prosecutes summarily, the maximum penalty is up to 2 years less a day of imprisonment and/or a $5,000 fine. If convicted of criminal harassment, there may be further collateral consequences such as difficulty obtaining employment, travel restrictions, firearm prohibitions, immigration consequences, and DNA orders in some cases.

WHAT THE CROWN HAS TO PROVE

To obtain a conviction for criminal harassment, the Crown must prove each essential element beyond a reasonable doubt. Generally, the Crown must establish:

1. The accused engaged in prohibited conduct;
2. The conduct was repeated or threatening;
3. The accused knew the complainant was harassed or was reckless;
4. The complainant feared for their safety or another person’s safety; and
5. The fear was objectively reasonable in the circumstances.

If the Crown cannot prove even one element beyond a reasonable doubt, the accused should be found not guilty. The Crown may rely on many forms of evidence, including text messages, social media messages, emails, call records, surveillance footage, GPS or location evidence, witness statements, or police testimony.

HOW TO DEFEND AGAINST CRIMINAL HARASSMENT CHARGES?

Every case is unique. A proper defence depends on the evidence, the communications involved, witness credibility, and the surrounding circumstances. Some common defences include the following.

1. No reasonable fear for safety: One of the strongest possible defences is that the complainant did not reasonably fear for their safety. Even if communication was annoying or unwanted, criminal harassment requires fear for safety that is objectively reasonable.
2. Lack of Intent or Knowledge: The Crown must prove the accused knew the complainant was harassed or was reckless about it. If communication appeared welcome, mutual, or ambiguous, the Crown may not be able to secure a conviction.
3. Identity Issues: Especially in online harassment cases, identity can become a major issue. The defence may challenge who sent the messages; authenticity of screenshots, hacked accounts, or unreliable digital evidence such as poor-quality surveillance footage.
4. Credibility and Reliability: Harassment charges often arise out of breakdowns in relationships, which may lead to exaggerated or false allegations. The defence may challenge inconsistencies in witness statements, motives to fabricate, or missing context.
5. Lawful Authority: If a person has lawful authority to communicate with the complainant, such as frequent contact to reclaim a debt or follow a family court order, a criminal harassment prosecution is unlikely to succeed.
6. Charter Violations: In some cases, the defence may argue police violated the accused’s rights under the Canadian Charter of Rights and Freedoms. Some instances may include unlawful searches of phones, unreasonable delay, improper police questioning, or breaches of the right to counsel. Some or all evidence obtained improperly may potentially be excluded under s. 24(2) of the Charter.

WHAT TO DO IF CHARGED WITH CRIMINAL HARASSMENT?

If you are facing harassment allegations in Ontario:

• Seek Legal Representation Quickly: Early legal advice can significantly impact evidence preservation, release conditions, help protect your rights, identify weaknesses in the Crown’s case, and explore resolution options.
• Do Not Contact the Complainant: Even if you want to explain your side, contacting the complainant may breach release conditions or worsen the situation and create new evidence.
• Preserve Evidence: Keep text messages, emails, social media communications, call logs, and witness information. Deleted evidence can create additional complications and may remove potentially helpful context.
• Follow Release Conditions: Carefully comply with all bail/release conditions, no-contact orders, court orders. Breaching conditions can lead to additional criminal charges.

FREQUENTLY ASKED QUESTIONS

Is criminal harassment the same as stalking?

Yes. Criminal harassment is commonly referred to as stalking in Canada.

Can you be charged with criminal harassment without threatening someone?

Yes. Direct threats are not required. Repeated, unwanted communication or monitoring can still lead to criminal harassment charges if the complainant reasonably fears for their safety.

Can I go to jail for criminal harassment in Ontario?

Yes. Criminal harassment can result in jail time, especially in serious cases or where there are prior records, threats, or breaches of court orders. The maximum sentence by indictment is 10 years imprisonment..

Can text messages lead to criminal harassment charges?

Yes. Repeated texts, emails, social media messages, or online communications may form the basis of a criminal harassment allegation.  

What if the complainant kept responding to me?

Continued communication from the complainant may potentially assist the defence, depending on the circumstances. However, each case depends on the full context.

HOW WE CAN HELP

If you have been charged with criminal harassment in Ontario, obtaining legal advice as early as possible can make a significant difference in your case. Understanding your rights, the strength of the evidence, and the available legal options is essential when facing criminal allegations. Paralegals in Ontario are able to represent you before the Ontario Court of Justice if the Crown elects to proceed summarily. Until the Crown elects to proceed by way of summary conviction, a hybrid offence is deemed to be indictable (Interpretation Act, s. 34(1)(a)). If the Crown is proceeding by way of indictment, you need to seek the advice of a licensed lawyer.

It is important to understand that the available defences are unique dependent on your specific case. Glass Gavel Law has the experience to review your case and work with you to put forward the best possible defence. We will review the circumstances of your case, explain the court process, and work toward the best possible resolution. Contact Us or call 1-833-344-2835 for a free 30 minute consultation today.