When people think of the term “harassment” in a criminal context, many times the concepts of “sexual harassment” or perhaps “stalking” are what initially spring to mind. However, a recent decision from the Court of Appeal of Quebec, Manrique v. R, provides a good reminder that other types of harassment are illegal under the Criminal Code and that there is a difference between the meaning of the terms “harassment” when made by a series of communications (as an offence against property rights) and “criminal harassment” and how each term is to be interpreted under the Code.
“Criminal harassment” is defined in Section 264 of the Criminal Code as knowingly engaging in prohibited conduct that causes another person to reasonably fear for their safety or the safety of anyone known to them. This prohibited conduct can include (a) repeatedly following someone; (b) repeatedly communicating with that person (either directly or indirectly); (c) watching where that person lives/resides and/or works; or (d) engaging in threatening conduct directed at the other person or any member of their family. If found guilty under this section, an accused can be facing a prison term of up to ten years. This clause essentially contemplates situations of “stalking” and other types of threatening harassment which makes people afraid for their own safety.
Harassment by Communication
There is another type of harassment that is probably less well-known, which deals with “Harassing Communications”, and is found in Section 372 of the Criminal Code. This section of the Code stipulates that “Everyone commits an offence who, without lawful excuse and with intent to harass a person, repeatedly communicates, or causes repeated communications to be made, with them by a means of telecommunication. The maximum prison term here is much less significant, at “just” two years. This section of the Code involves offences using communications as a tool to harm others. Notably the two other sub-sections under 372 deal with making false communications with the intent to harm someone (for example, alarming someone by calling them up and falsely telling them that a loved one has been killed) and “indecent” communications.
In the Manrique case, the accused made a large number of communications to the complainant in a short period of time, following which the appellant was charged with one count of criminal harassment (under section 264) and one count of making harassing communications (under section 372). The accused was acquitted of the criminal harassment charge but was found guilty of making harassing communications under section 372. The trial judge reasoned that while the constant messages he sent were annoying to the complainant, it did not cause her to fear for her safety and thus the criminal charge did not apply.
However, the judge viewed the communications to be in the nature of “persistent complaints, pressure and appeals” which the judge interpreted as qualifying as harassment for the purposes of section 372 of the Code. The accused appealed, arguing that the interpretation of harassment under section 372 of the Code should be consistent with how the term harassment is interpreted under section 264 of the Code, particularly as both sections contain a prohibition against harassment via communications. The advantage to this different interpretation for the accused would be that a higher threshold would have to be met in order for him to be found guilty of harassment.
The Quebec Court of Appeal took the view that the term “harass” (in relation to harassing communications under 372) should not be interpreted as it is in section 264 (criminal harassment). In their view, the term “harass” doesn’t “bear one consistent and coherent meaning” (despite the repeated use of the term) in the Criminal Code. They noted that the two sections of the Code were enacted at different times by Parliament with the intent of prohibiting different activities, a fact which could be borne out by the different severity in the sanctions of punishment for each offence. Basically, the crime for the offence of “stalking” is more severe than the one prohibiting people from annoying others using a telephone or other communication devices).
Additionally, the offence of harassing telecommunications does not require that the communication was received by another person and does not require proof of causing fear or any other effect in another person, which is the case for the “criminal harassment”. Instead, the communication only requires that the mens rea (that is, the intent necessary to make it a crime) is “the intent to transmit a harassing communication”. The Court of Appeal deemed that it would be incorrect to take the higher-threshold mens rea interpretation of “harass” from the more serious offence of stalking and plug it into the lesser offence of annoying people with communications.
This case serves to demonstrate how tricky it can be to understand what conduct may be considered prohibited under the Criminal Code (particularly in regards to criminal intent), as the case contains a clear admission from the Courts that the same term in the Code can be interpreted differently, even when the term is relating to the same activity (in this case, communications). As always, it is highly recommended to seek legal advice in any situation where you may be accused of harassment in any form to see how your rights may be protected.
Contact Hicks Adams LLP in Toronto for Experienced Defence Against Criminal Harassment Charges
Our criminal defence lawyers can advise on how best to protect your rights and defend you in court, including for any situation involving claims of harassment or uttering threats. We defend individuals charged with many variety of offences, including criminal harassment and threats and domestic assault. Contact Hicks Adams LLP in downtown Toronto to discuss the options available to help you through this time. Call us at 416-975-1700 or contact us online to schedule a confidential consultation.