Criminal Harassment in Canada

This article is an overview, in layman’s terms, of the requirements to prove a charge of criminal harassment in Canada. For a fuller understanding of how Canadian courts have interpreted this relatively new criminal law, reference should be made to legal information websites that recite actual court decisions and legal scholarly literature on what is a somewhat complex area of ​​law.

Throughout my nearly three decades of practice as a criminal defense attorney, I have been repeatedly shown that criminal law in relation to certain areas of human behavior and the average public’s perception of what the law is in relation to that subject, they often differ widely. It is this disconnect between perception and reality that led Mr. Bumble to coin the famous phrase “the law is an ass” over a century ago, nowhere more apparent than with respect to the law known in Canada as harassment. criminal.

Anyone who has seen a classic Cary Grant romantic movie or read the EL James bestseller. fifty Shades of Gray, could justifiably conclude that perseverance is entirely good, it is what wins you the object or your affections. After all, you can’t just take no for an answer if you ever hope to woo or win back that girl or guy of your dreams. Well, in Canada, under criminal harassment legislation, both Cary Grant and Christian Gray could very well find themselves involved in criminal prosecution.

While its scope is broad, encompassing a wide range of conduct including more obvious examples of criminal conduct such as stalking and threats, Criminal Harassment is, in most cases, dealt with by criminal attorneys and the courts, about unwanted communication.

The Criminal Harassment section of the Canadian Penal Code state:

264. (1) No person, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, shall engage in conduct referred to in subsection (2) that would cause that other person to reasonably, in all circumstances, fear for their safety or the safety of anyone known to them.

prohibited conduct

(2) The conduct referred to in subsection (1) consists of

(has) repeatedly following the other person or any person known to them from one place to another;

(b) repeatedly communicate with, either directly or indirectly, the other person or anyone known to them;

(against) harass or monitor the home, or the place where the other person, or any person known to him, resides, works, conducts business or is; Prayed

() engage in threatening conduct directed at the other person or any member of their family.

Punishment

(3) Any person who violates this section is guilty of

(has) an indictable offense and is liable to imprisonment for a term not exceeding ten years; Prayed

(b) an offense punishable by summary conviction.

As can be seen, subsections 2 (a), (c), and (d) describe fairly obvious forms of prohibited conduct: stalking and threatening behavior. However, the vast majority of charges brought under this section of the Penal Code are under 2(b) and deal with a much more subtle issue: persistent communication with another individual. Cary Grant and Christian Gray beware.

In our age of the Internet and ubiquitous smartphones, instant and whimsical communication is easy. But she takes the lead; too many emails, texts, or Facebook messages can land an abandoned lover or persistent suitor in criminal trouble.

So when does unwanted communication become criminal? In fact, section 264 (2) (b) of the encoded has fairly precise requirements before proof can be found. Based on the legislation and its interpretation by the courts, to establish the elements of criminal harassment by communication, the following must be demonstrated:

1. Communication must be repetitive (however, courts have interpreted this to mean simply more than one occasion of communication).

two. The addressee of the communication must be harassed (a definition of harassment often cited approvingly by Canadian courts is “The complainant must be more than annoyed, disturbed or annoyed by the prohibited conduct. The Crown must show that the complainant was tormented, troubled, continually troubled or chronically, harassed, harassed and annoyed”-note the use of the disjunctive “or”).

3. The defender must to know that the complainant is harassed (on the other hand, note that such knowledge need not be proven by direct proof; the necessary knowledge on the part of the respondent may be inferred from the circumstances of the communication and may include a reference to the nature of the relationship prior to the conduct that forms the basis of the allegation).

Four. The reported conduct must cause the complainant to fear for his or her safety or the safety of anyone known to him or her. (ounce Again, the caveat in point 3 above applies here as well: the necessary fear can be inferred from the context in which the communication takes place.including the history of the relationship between the parties).

So, in fact, there is much more to be tested than just a couple of indiscreet emails or text messages. However, it should always be kept in mind that what satisfies the courts beyond a reasonable doubt is much more than most police officers require to bring a charge and more than the typical prosecutor considers sufficient. to proceed with processing. The requirements for conviction are, with a conscientious judge and a capable attorney defending you, relatively strict, there is little or no protection against the financial and psychological stress of tenuous indictment and prosecution. As with other crimes that tend to be gender-disaggregated, criminal harassment decisions by authorities are often politicized. Unfortunately, an accusation from the mother in most cases results in an ugly charge.

In the end result, anyone who communicates with another person in a context of anger or, yes, unrequited love, needs to be careful.

David G. Bayliss, September 2012.

The Canadian Institute of Legal Information website, www.canlii.ca, is open to all and free.