Criminal Harassment (Offence)

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Criminal Harassment
s. 264 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum six months jail and/or a $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to criminal harassment are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 264 [harassment] Hybrid Offence(s) Yes Yes, if Crown proceeds by Indictment

Offences under s. 264 are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release

Offence(s) Attendance Notice
Without Arrest

s. 496
Summons
Without Arrest
s. 497
Release By
Arresting Officer
On Attendance Notice
s. 497
Release By
Officer-in-Charge
On a Promise to Appear
Undertaking or Recognizance
s. 498
Release By
a Judge or Justice
on a PTA, Undertaking or Recog.

s. 515
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 264 OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 264, the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

A peace officer who charges a person under s. 264 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offences under s. 264 are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Criminal harassment
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.
Prohibited conduct
(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.

Punishment
(3) Every person who contravenes this section is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.

...
R.S., 1985, c. C-46, s. 264; R.S., 1985, c. 27 (1st Supp.), s. 37; 1993, c. 45, s. 2; 1997, c. 16, s. 4, c. 17, s. 9; 2002, c. 13, s. 10.


CCC

Proof of the Offence

Proving criminal harassment under s. 264 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit has engaged in the conduct set out in s. 264(2)(a), (b), (c) or (d) of the Criminal Code;
  5. the complainant was harassed by the conduct;
  6. the culprit, who engaged in such conduct, knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed;
  7. the conduct caused the complainant to fear for their safety or the safety of anyone known to them; and
  8. the complainant’s fear was, in all the circumstances, reasonable. [2]
  1. R v Coppola, 2007 ONCJ 184 (CanLII)
    R v Sillipp, 1997 ABCA 346 (CanLII) at para 18
    R v Sanchez, 2012 BCCA 469 (CanLII)
  2. See R v Kosikar, 1999 CanLII 3775 (ON CA), 138 CCC (3d) 217 (Ont. C.A.) at para 19

Interpretation of the Offence

Actus Reus

Repeated Communications
The requirement for the accused to be "repeatedly communicating" with the victim under s. 264(2)(b) can be made out with as few as two instances depending on the circumstances.[1]

Harassed
To establish harassment, the crown must prove "that the prohibited conduct tormented, troubled, worried continually or chronically, plagued, bedeviled or badgered the complainant"[2] Each of these terms are synonymous with harassment and are not cumulative. [3]

Harassment requires a "sense of being subject to ongoing torment."[4] Harassment is more than merely being “vexed, disquieted or annoyed”.[5]

Threatening Conduct
Threatening conduct is "a tool of intimidation which is designed to instil a sense of fear in the recipient."[6] The consideration of the "design" is upon the "effect of the accused's conduct on a reasonable person in the shoes of the target of the conduct."[7]

The conduct must be assessed "objectively", "with due consideration for the circumstances in which they took place" and "with regard to the effects those acts had on the recipient".[8]

Whether conduct is threatening is to be considered from "the perspective of the complainant".[9] It can be from a "single act provided it carries as a consequence that the complainant is in a state of being harassed."[10]

It is not necessary that the conduct "contain threats or violent behaviour".[11] It is also not necessary that there be spoken words at all.[12]

The offences should not include conduct that is merely "mean, petty, uncooperative and spiteful".[13]

"besetting or watching"
Besetting is active in nature that involves a "physical element of approaching and, with respect to another person, importuning or seeking to argue with that person".[14]

Watching is the passive act of "continually observing for a purpose".[15]

Merely looking at someone and smiling while standing alone is not sufficiently to be "watching".[16]

Fear for Safety
Safety extends beyond simply fear of physical harm but also includes psychological and emotional security.[17]

Fear for safety includes "a state of anxiety or apprehension concerning the risk of substantial psychological harm or emotional distress, in addition to physical danger or harm".[18] But a mere fear for one's "financial well-being" is not enough.[19]

"Reasonable fear" is determined on an objective standard.[20]

  1. R v Ohenhen, 2005 CanLII 34564 (ON CA) at para 32
  2. R v Kosikar, 1999 CanLII 3775 (ON CA)
  3. R v Kordrostami, 2000 CanLII 5670 (ON CA), (2000), 47 O.R. (3d) 788 at para 11 (C.A.)
  4. Kosikar at para 25
  5. see R v Petrenko, 2009 CanLII 66612 (ON SC), [2009] O.J. No. 5094 at para 10 (S.C.J.)
  6. R v M.H., 2014 ONSC 36 (CanLII) at para .60
    See also R v Burns, 2008 ONCA 6 (CanLII) at para 2
  7. R v Sims, 2017 ONCA 856 (CanLII), per Laskin JA, at para 20
  8. MH, supra at para 60
    Burns, supra
  9. R v M.H., at para 58
  10. Kosikar at para 22
    R v Kohl, 2009 ONCA 100 (CanLII) - single instance of accused jumping out of bushes and chasing the victim who was a stranger
  11. M.H. at para 59
  12. M.H. at para 61
    R v Kohl, 2009 ONCA 100 (CanLII)
  13. R v McDougall (1991), CanLII 6788 (ON CA), 62 CCC (3d) 174 (Ont. C.A.) at para.47 - in reference to another offence
  14. R v Eltom, 2010 ONSC 4001 (CanLII) at para 13
  15. Eltom at para 13
  16. Eltom at para 14
  17. R v Gowing, [1994] O.J. No. 2743 (Gen.Div.)(*no link) at para 5 (aff’d on appeal Gowing, [1998] O.J. No. 90)
  18. R v Szostak, 2012 ONCA 503 (CanLII), 111 O.R. (3d) 241 at para 31
  19. see R v Lincoln, ONCJ 14 (CanLII)
  20. M.H. at para 66

Mens Rea

The mens rea requires an intent to commit the prohibited act. The knowledge requirement can be satisfied by recklessness or willful blindness that the act caused the victim to be harassed.[1]

There is no requirement that it be proven that the "accused subjectively intended to engage in threatening conduct".[2]

The harassment need not be foreseeable to the accused.[3]

There is no requirement to prove the mens rea of the offence where it can be inferred from the facts.[4]

The level of intent can be proven by way of pre-offence conduct and details of the relationship between the accused and victim.[5]

  1. R v Kosikar 1999 CanLII 3775 (ON CA), (1999), 124 O.A.C. 289
    R v M.H., ONSC 36 (CanLII) at para 57
    R v Davis, 1999 CanLII 14505 (MB QB), (1999), 143 Man. R. (2d) 105 at para 35
  2. R v Sim, 2017 ONCA 856 (CanLII), per Laskin JA, at para 15
  3. R v Davis, at para 35 ("The mental element of the offence does not include a requirement that the accused foresee that his conduct will cause the complainant to be fearful")
  4. r v Petrenko
    R v Holmes, 2008 ONCA 604 (CanLII), [2008] O.J. No. 3415 (C.A.)
  5. R v M.H. at para 65

Circumstances of Offence

Lawful Authority
The phrase "lawful authority" means merely rendering legally permissible that which would otherwise be prohibited.[1]

  1. R v Sillipp, supra at para 20

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
s. 264.1 [harassment] Summary Election six months jail and/or a $5,000 fine
s. 264.1 [harassment] Indictable Election 10 years custody

Offences under s. 264.1 are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is six months jail and/or a $5,000 fine.

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 264.1 Summary OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 264.1 Indictment OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 264 are ineligible for a conditional sentence order, when prosecuted by indictment, as the offence is enumerated as ineligible under s. 742.1(f).

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Principles

Harassment in a domestic context is considered "particularly heinous because they are not isolated events in the life of the victim. Rather, the victim is often subjected not only to continuing abuse, both physical and emotional, but also experiences perpetual fear of the offender."[1]

The absence of physical violence does not reduce the seriousness of the offence and is not mitigating. The offence targets the use of "psychological violence" that is done over a "prolonged period" of time.[2]

Factors

264.
...
Factors to be considered
(4) Where a person is convicted of an offence under this section, the court imposing the sentence on the person shall consider as an aggravating factor that, at the time the offence was committed, the person contravened

(a) the terms or conditions of an order made pursuant to section 161 or a recognizance entered into pursuant to section 810, 810.1 or 810.2; or
(b) the terms or conditions of any other order or recognizance made or entered into under the common law or a provision of this or any other Act of Parliament or of a province that is similar in effect to an order or recognizance referred to in paragraph (a).

Reasons
(5) Where the court is satisfied of the existence of an aggravating factor referred to in subsection (4), but decides not to give effect to it for sentencing purposes, the court shall give reasons for its decision.
R.S., 1985, c. C-46, s. 264; R.S., 1985, c. 27 (1st Supp.), s. 37; 1993, c. 45, s. 2; 1997, c. 16, s. 4, c. 17, s. 9; 2002, c. 13, s. 10.


CCC

  1. R v Bates, 2000 CanLII 5759 (ON CA), (2000), 134 O.A.C. 156 at para 30 (C.A.)
  2. R v Finnessey (2000), O.A.C. 396, 2000 CanLII 16862 (ON CA), at para 16 (C.A.)
    R v M.H., 2014 ONSC 36 (CanLII)

Ranges

see also: Criminal Harassment (Sentencing Cases)

Ancillary Sentencing Orders

Offence-specific Orders

Order Conviction Description
DNA order s. 264
Weapons Prohibition Orders s. 264
  • For offences under s. 264 that are enumerated under s. 109(b) or (c), the prohibition order is mandatory regardless of election. The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive"The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
SOIRA Orders s. 264
  • On conviction under s. 264, as listed under s. 490.011(b), a SOIRA Order shall be ordered under s. 490.011(1)(b), on application of the prosecutor, "if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit" any SOIRA designated offence listed under s. 490.011(a), (c), (c.1), or (d):
      • If there is a concurrent or prior conviction for a designated offence listed under s. 490.013(2)(a), (c), (c.1) or (d), the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years where the offence has been "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years" (s. 490.013(2)(a))) or 20 years where the offence has a "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b)).
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order), 10 years (if 20 year order), or 20 year (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Delayed Parole Order s. 264
  • Periods of imprisonment of 2 years or more for convictions under s. 264 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

History

See also: List of Criminal Code Amendments

See Also

References