Criminal Harassment
Under s. 264.(1) of the Criminal Code, it is an offence for an individual, without lawful authority, and knowing that the other person is harassed or being reckless as to whether the other person is harassed, engage in four types of conduct that causes the other person to reasonably fear for their safety or the safety of anyone known to them. The four types of prohibited conduct are:
- Repeatedly following the other person, or anyone known to them, from place to place;
- Repeatedly communicating directly or indirectly with the other person or anyone known to them;
- Besetting or watching the home or place where the other person, or anyone known to that person, lives, works, carries on business or happens to be;
- Engaging in threatening conduct directed at the other person or any member of their family.
To prove that you committed the offence of criminal harassment, the Crown must demonstrate:
- That you engaged in at least one of the four types of conduct;
- That the complainant was harassed by the conduct;
- That you knew the complainant was harassed, or were reckless or willfully blind as to whether the complainant was harassed;
- That the conduct caused the complainant to fear for his or her safety, or the safety of anyone known to him or her; AND
- That the complainant’s fear was reasonable in the circumstances.
FAQ
What does it mean to be ‘harassed’?
Harassment occurs where the complainant feels tormented, troubled, continually worried, or chronically plagued. It is not sufficient for the Crown to show that the complainant was merely annoyed by unwanted contact or unwelcome behaviour. Similarly, behaviour that is only mean, petty, uncooperative, or spiteful will not rise to the level of harassment.
What if I never intended to harass the complainant?
The Crown is not required to prove that you knew your behaviour was harassing the complainant or that you intended to harass the complainant. Even if you did not deliberately harass the complainant, you can still be convicted if you were aware of a risk that the complainant would be harassed by your conduct and were reckless or willfully blind as to the consequences of your actions.
Can I be charged with harassment even if I never threatened to physically harm the complainant?
Yes. Courts have repeatedly held that “safety” includes not just physical safety, but also psychological safety. This means that conduct that causes a complainant to fear for their emotional or psychological well-being can constitute harassment, even where there is no concern about physical harm.
How will the Court determine if the complainant’s fear is reasonable?
The Court will examine the context surrounding the alleged harassing behaviour and consider what a hypothetical reasonable person would have felt in the same circumstances. This analysis involves looking at the relationship between the two parties, their respective ages and genders, events leading up to the allegation, and the behaviour of both parties following it, among other factors. If the court concludes that a reasonable person in the same circumstances would not have felt afraid as a result of the accused’s behaviour, the complainant’s fear is not reasonable.
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