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Criminal Harassment

ontario court of appeal osgoode hall exterior, Toronto Criminal Harassment Lawyer

Criminal Harassment

Toronto Criminal Harassment Lawyer

Criminal harassment charges often arise in the context of domestic relationships. Typically, criminal harassment charges arise out of allegations of “stalking.” There are, of course, many different fact situations outside of a domestic relationship where repeated unwanted conduct may arise to the point of criminal harassment. Brian Weingarten is a Toronto criminal lawyer who has successfully defended a number of criminal harassment cases.

What is Criminal Harassment?

Not every instance of unwanted or repeated communication arises to the level of criminal harassment. Section 264 of the Criminal Code outlines the types of prohibited conduct that may result in a charge. The section provides:

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.

(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.

What Does the Crown Have to Prove to Secure a Conviction for Criminal Harassment?

Caselaw has established the five elements that the Crown must prove before an individual may be convicted of criminal harassment. The Crown must prove:

• that the accused has engaged one of the types of conduct set out in s. 264 (2)(a), (b), (c) or (d);
• that the complaint was actually harassed;
• that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed;
• that the conduct caused the complainant to fear for her safety or the safety of anyone known to her;
• that the complainant’s fear was, in all of the circumstances, reasonable.

How Many Times Must the Conduct Occur Before It Amounts to Criminal Harassment?

Under section 264, there are two types of conduct that require repetition before the elements of the offence are made out. These include:

• repeatedly following an individual from place to place;
• repeatedly communicating with the complainant or anyone known to them.

Courts have held that the word “repeatedly,” requires that the conduct occur on two or more occasions.

What Types of Conduct Amounts to Harassment?

Even if particular conduct is committed repeatedly, not all conduct is harassment. In order to constitute harassment, the complainant must be harassed in the sense of feeling: tormented, troubled, worried, bedeviled, or badgered.

What If the Complainant Felt Harassed but Was Overly Sensitive?

It is possible that repeated conduct might meet the definition of harassment, but still fail to constitute an offence under the section. The Crown must always prove that the complainant feared for their safety or the safety of anyone known to them. The Crown must also prove that the complainant’s fear in all of the circumstances was reasonable. Repeatedly annoying another individual should not attract criminal sanctions. However, Courts have held that the term “safety” consists of safety from both physical and psychological harm. Whether the complainant actually feared for their safety, or was merely overly sensitive, is to be determined objectively.