The terms criminal harassment and stalking are often used interchangeably in everyday conversations. But under Canadian criminal law, they are not synonymous. The Criminal Code recognizes criminal harassment as the specific criminal act that is associated with “stalking,” which usually refers to persistent or unwanted behaviour towards another person.
It is vital to recognize the difference if you are the victim of an allegation, suffering from unwelcome conduct, or seeking to comprehend your rights under the law.
What is Criminal Harassment in Canada?
The Criminal Code of Canada defines criminal harassment as a crime. Typically, the offence is committed by certain actions by another person that are likely to lead to another person’s reasonable apprehension for their own safety or the safety of another whom they know. In addition, the law states the defendant had to have known they were harassing the individual or have been “reckless as to whether he or she was” harassing the individual.
The Criminal Code defines several types of behaviour that may constitute criminal harassment, such as:
- Following another person or someone familiar to the person on a repeated basis from one location to another
- Continuously reaching out to the person (direct or indirect)
- Watching or monitoring the person’s home, workplace, business, or other locations
- Becoming involved in threatening behaviour towards the person or their family members
Not all unwelcome contact is necessarily considered criminal harassment. It is important to consider the circumstances, nature of the conduct, frequency of the behaviour, and what impact it has had on the complainant.
What is Stalking?
In Canada, “stalking” is not a crime unto itself, as opposed to criminal harassment. It is a term that is often used to refer to an intrusive, persistent, and unwanted behaviour towards another person. If a person is stalking another person, it might be considered stalking, for example, if they:
- Repeatedly appear at places the person visits
- Constantly send unwanted messages or calls
- Follow the person, track the person’s movements
- Oversee their social media use too much
- Keep an eye on their home, where they work, or their usual places.
The behaviour could be criminal harassment under section 264 if certain conditions are met.
However, it is important to note that individuals can be charged with “stalking,” but the criminal offence is actually criminal harassment or another offence, depending on the facts of the case.
Criminal Harassment vs Stalking: Key Differences
The most significant distinction is in terms of legal status. Criminal harassment is a crime in itself under Canadian law, and stalking is more of a description of an offence.
There are also variations in the interpretations given to the terms:
Criminal harassment: conduct that is required for it to be criminal under section 264 of the Criminal Code.
Stalking: A sustained pattern of unwelcome and/or intrusive behaviour towards another person that could be considered criminal harassment or another offence.
This is important because if someone does not commit an offence by ‘stalking ‘, they cannot be convicted of it as such. The prosecution is responsible for proving the specific elements of the specific crime alleged.
When is “stalking” Not a Criminal Offence?
No. Not all interactions that might be uncomfortable, awkward, or unwanted are necessarily a criminal offence. An example of this is if someone sees someone a couple of times in the streets, they are not always considered criminal harassment. Similarly, a single communication, without more, may not meet the requirements of section 264.
The context of the behaviour is essential. Courts will take into account whether the behaviour was of a serious nature and frequent, the nature of the relationship, what was said or done, and whether the complainant had reasonable cause for concern about their safety. The law also acknowledges that some actions could have a legitimate purpose or authorisation. Therefore, context is very crucial when deciding if the behaviour is criminal or not.
Penalties for Criminal Harassment?
Criminal harassment is a hybrid offence and may be prosecuted by indictment or by summary conviction. An indicted person may be sentenced to up to 10 years in jail. However, the repercussions are not confined to possible jail time. A criminal harassment case can have a profound personal and professional impact, especially if there is a condition attached to the case that prevents contact with the complainant.
In addition to the above, an accused may be subject to conditions relating to:
- No-contact requirements
- Limited ability to communicate with some people
- Probation conditions
- Weapons & Firearms Restrictions
The exact ramifications will vary based upon the facts, history, nature, and judgment of the defendant.
What Can You Do If You’re Charged with Criminal Harassment?
A person is not a criminal harasser simply because they have been accused of it. The prosecution will need to show the elements of the offence beyond reasonable doubt.
A defence could include attacking any of the following arguments:
- Whether the alleged conduct occurred or not
- If the behaviour was repeated, then whether or not the behaviour was repeated
- Whether or not the accused had some lawful authority or purpose
- Whether the accused was aware or was negligent in ascertaining whether the complainant was being harassed or not.
- Whether the complainant’s concern for their safety was justified based on all of the circumstances
- Determining if the accused is the right person or not.
In these instances, evidence can be very important. Evidence in the form of text messages, emails, phone records, social media posts, surveillance video, and witness statements can be used to try to determine what actually occurred. The context of the relationship between the individuals can also be important. A disagreement or relationship breakdown, a workplace dispute, or any other interpersonal conflict can lead to allegations that must be closely examined to identify the underlying evidence.
The importance of knowing the difference
Knowing the difference between stalking and criminal harassment can help prevent misunderstandings about Canadian criminal law. The word “stalking” might seem to define the manner in which a complainant perceives certain conduct, but the court does not make a determination of guilt based on that word alone. The court, however, considers whether the evidence proves the elements of the criminal offence alleged in the Criminal Code.
This distinction can become a major one for those who are charged with criminal harassment. While an allegation is a serious charge, it is still the prosecution’s job to establish the necessary elements of the case. If you continue to have unwanted behaviour and/or you have been accused of unwanted behaviour, getting legal advice will assist you in understanding your rights.
Talk to a Criminal Defence Lawyer
An accusation of criminal harassment can result in limitations of your liberty, harm to your reputation, and even result in a conviction. If you have been accused of criminal harassment or believe your actions may be deemed as stalking, it is essential to talk to a competent criminal defence lawyer immediately.
A lawyer will examine the allegations, assess the evidence, discuss possible consequences, and help you develop a defense strategy.
f you are facing a bail hearing in Toronto, do not navigate the process alone. Contact our criminal defence team to discuss your situation and learn about your legal options.
Speak with our legal team today for assistance with your bail hearing.
