Criminal harassment can transcend physical boundaries, and it is important to understand its various forms and the legal measures in place to combat this menacing offence. Criminal harassment is not defined by a stranger lurking in the shadows; rather, it takes on multifaceted dimensions that can manifest in different arenas of life. From online stalking to persistent and menacing behaviour in the real world, this form of harassment has the potential to shatter a person’s sense of security and well-being. As such, being accused of criminal harassment can be a daunting experience, as it carries significant consequences and has the potential to tarnish reputations. It is a serious matter that demands a careful and comprehensive response.

This blog will review the potential complexities involved when defending against claims of criminal harassment, and will examine the legal strategies, nuances, and considerations that can help individuals navigate this challenging terrain.

What is Criminal Harassment?

Section 264 of the Criminal Code governs charges of criminal harassment. The Criminal Code dictates that a person may be charged with criminal harassment where the offender has engaged in conduct that has harassed another person to the point where the victim fears for their own safety or that of anyone known to them. In order to prove a criminal harassment charge, it must be established that the offender either knowingly or recklessly engaged in one or more of the following categories of conduct:

  1. repeatedly followed someone from one place to another place,
  2. repeatedly communicated, directly or indirectly, with either the victim or anyone known to the victim,
  3. watched and observed the victim’s place of work, place or residence, or any other place the victim happened to be, or
  4. or engaged in threatening conduct toward the victim or any member of the victim’s family.

Some examples of criminal harassment include:

  • repeated phone calls or emails
  • waiting for someone outside of their home or workplace
  • following someone around (stalking)

A single act alone may constitute criminal harassment, particularly when it comes to making outright threats to cause harm to another person or their property. A statement that implies the possibility of violence may also be considered criminal harassment.

Proving Criminal Harassment in Court

In order for someone to be convicted of a charge of criminal harassment, the Crown must prove that the elements of section 264 of the Criminal Code, as detailed above, have been satisfied. The Crown bears the burden of proof and must convince the judge or jury, beyond a reasonable doubt, that the person charged with the crime committed both the actus reus (physical act) and the mens rea (mental intention) of the offence. For example, in order for the Crown to be successful on a charge of criminal harassment, it must prove both that the defendant engaged in the actual harassing behaviour (the “physical act”) and that they did so with the mindset (or “mental intention”) of intending to harass the victim.

Moreover, the elements of a charge of criminal harassment that must be proven have been dictated by the Court of Appeal decisions in R v Kosikar and R v Kordrostami, as summarized by the court in the 2024 decision R v Walker:

  1. The defendant repeatedly communicated, directly or indirectly, with the complainant;
  2. The complainant was harassed;
  3. The defendant knew the complainant felt harassed (or, was reckless or willfully blind as to whether the complainant was harassed);
  4. The defendant’s conduct caused the complainant to fear for their safety; and
  5. The complainant’s fear was reasonable.

If these charges lead to a conviction, they may result in serious consequences, including incarceration.

Additional Legal Principles

It was noted in the recent Walker decision that, in addition to the elements of the offence as dictated by section 264 of the Criminal Code, and further to the obligation of the Crown to prove all elements of the alleged offence beyond a reasonable doubt, there are several additional legal principles that apply to charges of criminal harassment:

“Conduct that causes a person to be ‘vexed, disquieted, or annoyed’ does not amount to harassment. A person is harassed if they are ‘tormented, troubled, worried continually, or chronically plagued, bedeviled, and badgered’. These words are not cumulative… The phrase ‘to fear for their safety’ is not limited to a fear of physical safety. Parliament also intended to address psychological safety. This means a fear of mental, emotional, or psychological trauma.”

Defending Against Charges of Criminal Harassment

In order to be acquitted of such a charge, an accused must be able to provide evidence that either they did not engage in any such behaviour, or that such behaviour, if engaged in, did not constitute harassment. To that end, it is noted that a successful charge of harassment will only be made out where the Crown can demonstrate that an accused engaged in behaviour that was not merely worrisome, annoying or bothersome, but amounted to torturous badgering and bedevilment of another. Mere incivility, such as posting four or five times on social media over the course of several months, is unlikely to rise to the level of criminal harassment.

Contact the Criminal Defence Lawyers at Hicks Adams in Toronto for Trusted Representation in Criminal Harassment Matters

Our knowledgeable team of criminal defence lawyers at Hicks Adams regularly advise clients on how to protect their rights and defend against serious charges in court, including claims of harassment or uttering threats. We defend individuals charged with a variety of offences, including criminal harassment, assault and property offences. To learn more about how we can assist you, call us at 416-975-1700 or contact us online to schedule a confidential consultation.