Fingerprints_taken_by_William_James_Herschel_1859-1860This article is an overview, in layman’s terms, of the requirements for proof of an allegation of criminal harassment in Canada. For a more comprehensive understanding of how this relatively new criminal legislation has been interpreted by Canadian Courts, reference should be made to legal information websites which recite actual court decisions and legal academic literature on what is a somewhat complex area of law. For example www.canlii.ca , the website of the Canadian Legal Information Institute, is open to all and free.

Over the course of my almost three decades of practice as a criminal defence lawyer, it has repeatedly been demonstrated to me that the criminal law relating to certain areas of human behaviour and the average member of the public’s perception of what the law in relation to that subject matter, often differ widely. It is this disconnect between perception and reality that caused Mr. Bumble to coin the famous phrase “the law is an ass” over a century ago. With the exception of sexual assault legislation, this disengagement of public perception and the reality of the law is nowhere more evident than with respect to the law known in Canada as Criminal Harassment.

Anyone who has watched a classic Cary Grant romance film, or read E.L. James’ bestseller Fifty Shades of Grey, might justifiably conclude that perseverance is all good—it is what wins you the object of your affections. After all, you can’t just accept no for an answer if you ever hope to woo over or win back that girl or guy of your dreams. Well in Canada, under the Criminal Harassment legislation, both Cary Grant and Christian Grey might well find themselves embroiled in a criminal trial.

While broad in scope, in that it encompasses a wide range of conduct including more obvious examples of criminal behaviour such as stalking and threatening, Criminal Harassment is, in most of the cases criminal lawyers and the courts deal with, about unwanted communication.

The Criminal Harassment section of the Criminal Code of Canada states:

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.

As can be seen, sub-sections 2 (a), (c) and (d) describe rather obvious forms of prohibited conduct—stalking and threatening behaviour. However, the vast majority of charges laid under this section of the Criminal Code are under 2 (b) and deal with a much more subtle issue–persistent communication with another individual. Cary Grant and Christian Grey beware.

In our age of the internet and ubiquitous smartphones, instant and whimsical communication is easy. But take heed; one too many emails, texts, or facebook messages can land a jilted lover or persistent suitor in criminal trouble.

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

The communication must be repetitive (however, this has been interpreted by the courts to mean simply more than one occasion of communication).

The target of the communication must be harassed (a definition of harassment often quoted with approval by Canadian courts is “The complainant must be more than vexed, disquieted or annoyed by the prohibited conduct. The Crown must demonstrate that the complainant was tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered”—note the use of the disjunctive “or”).

The defendant must know that the complainant is harassed (on the other hand, keep in mind that such knowledge need not be proven by direct evidence; the necessary knowledge on the part of the defendant may be inferred from the circumstances of the communication and may include reference to the nature of the relationship prior to the conduct that forms the basis of the charge).

The conduct complained of must cause the complainant to fear for his or her safety or the safety of anyone known to him or her (once again, the caveat in point 3 above also applies here—the necessary fear may be inferred from the context in which the communication takes place including the history of the relationship between the parties).

So, in fact, much more must be proven than just a couple of indiscreet email or text messages. It should always be borne in mind, however, that what satisfies the courts beyond a reasonable doubt is far more that what most police officers require to initiate a charge and more than what the typical prosecutor deems sufficient to proceed with a prosecution. While the pre-requisites to conviction are, with a conscientious judge and a capable attorney defending you, relatively stringent, there are few if any safeguards against the financial and psychological stress of tenuous charge and prosecution. As with other offences which tend to break down along gender lines, criminal harassment decisions by the authorities are often politicized. Unfortunately, a mere allegation more often than not results in a charge being laid.

In the end result, caution must be exercised by anyone communicating with another individual in a context of anger or, yes, unrequited love.

© David G. Bayliss, September 2012.