Criminal Harassment (Offence)
|s. 264 of the Crim. Code|
|Election / Plea|
summary proceedings must initiate within 12 months of the offence (786(2))
Sup. Court w/ Jury (*)
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)|
|Avail. Disp.||same as summary|
|Maximum||10 years incarceration|
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offence
- 4 Interpretation of the Offence
- 5 Participation of Third Parties
- 6 Sentencing Principles and Ranges
- 7 Ancillary Sentencing Orders
- 8 Record Suspensions and Pardons
- 9 History
- 10 See Also
Offences relating to criminal harassment are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".
|Crown Election||Defence Election
|s. 264 [harassment]||Hybrid Offence(s)||Yes||Yes, if Crown proceeds by Indictment||(under 14 years max)|
Offences under s. 264 [harassment] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.
by Peace Officer
by Judge or Justice
s. 508(1), 512(1), or 788
s. 498, 499, and 501
a Judge or Justice
on a Release Order
s. 515 to 519
|Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
|s. 264 [harassment]|
When charged under s. 264 [harassment] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
- Reverse Onus Bail
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)).
- Fingerprints and Photos
A peace officer who charges a person under s. 264 [harassment] 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 criminal or regulatory prosecutions, 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
|AG Consent Required||Serious Criminality|
s. 36 IRPA
|s. 264 [harassment]|
Offences under s. 264 [harassment] 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.
Draft Form of Charges
|"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"AND FURTHER at the same time and place aforesaid, he [or she]..."|
|Code Section||Subject of Offence||Draft Wording|
|264||"... contrary to section 264 of the Criminal Code."|
Proof of the Offence
Proving criminal harassment under s. 264 should include:
Interpretation of the Offence
- 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.
To establish harassment, the crown must prove "that the prohibited conduct tormented, troubled, worried continually or chronically, plagued, bedeviled or badgered the complainant" Each of these terms are synonymous with harassment and are not cumulative. 
- Threatening Conduct
Threatening conduct is "a tool of intimidation which is designed to instil a sense of fear in the recipient." 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."
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".
Whether conduct is threatening is to be considered from "the perspective of the complainant". It can be from a "single act provided it carries as a consequence that the complainant is in a state of being harassed."
The offences should not include conduct that is merely "mean, petty, uncooperative and spiteful".
- "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".
Watching is the passive act of "continually observing for a purpose".
Merely looking at someone and smiling while standing alone is not sufficient to be "watching".
- Fear for Safety
Safety extends beyond simply fear of physical harm but also includes psychological and emotional security.
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". But a mere fear for one's "financial well-being" is not enough.
"Reasonable fear" is determined on an objective standard.
R v Ohenhen, 2005 CanLII 34564 (ON CA), per MacFarland JA, at para 32
- R v Kosikar, 1999 CanLII 3775 (ON CA), per Goudge JA
- R v Kordrostami, 2000 CanLII 5670 (ON CA), (2000), 47 O.R. (3d) 788, per Sharpe JA, at para 11 (C.A.)
- Kosikar, supra, at para 25
- see R v Petrenko, 2009 CanLII 66612 (ON SC),  OJ No 5094, per Durno J, at para 10 (S.C.J.)
R v MH, 2014 ONSC 36 (CanLII), per Hackland J, at para 60
See also R v Burns, 2008 ONCA 6 (CanLII), per curiam, at para 2
- R v Sims, 2017 ONCA 856 (CanLII), per Laskin JA, at para 20
MH, supra, at para 60
MH, supra, at para 58
Kosikar, supra, at para 22
R v Kohl, 2009 ONCA 100 (CanLII), per Armstrong JA (single instance of accused jumping out of bushes and chasing the victim who was a stranger)
MH, supra, at para 59
MH, supra, at para 61
- R v McDougall (1991), 1990 CanLII 6788 (ON CA), 62 CCC (3d) 174 (Ont. C.A.), per Doherty JA, at para 47 - in reference to another offence
R v Eltom, 2010 ONSC 4001 (CanLII), per Trotter J, at para 13
Eltom, ibid., at para 13
Eltom, ibid., at para 14
- R v Gowing,  OJ No 2743 (Gen.Div.)(*no CanLII links) , at para 5 (aff’d on appeal Gowing,  OJ No 90)
- R v Szostak, 2012 ONCA 503 (CanLII), 111 O.R. (3d) 241, per Rosenberg JA, at para 31
- see R v Lincoln, 2008 ONCJ 14 (CanLII), per Brewer J
MH, supra, at para 66
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.
There is no requirement that it be proven that the "accused subjectively intended to engage in threatening conduct".
The harassment need not be foreseeable to the accused.
There is no requirement to prove the mens rea of the offence where it can be inferred from the facts.
The level of intent can be proven by way of pre-offence conduct and details of the relationship between the accused and victim.
R v Kosikar, 1999 CanLII 3775 (ON CA), (1999), 124 O.A.C. 289, per Goudge JA
R v MH, 2014 ONSC 36 (CanLII), per Hackland J, at para 57
R v Davis, 1999 CanLII 14505 (MB QB), (1999), 143 Man. R. (2d) 105, per Beard J, at para 35
R v Sim, 2017 ONCA 856 (CanLII), per Laskin JA, at para 15
- Davis, supra, 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")
R v Holmes, 2008 ONCA 604 (CanLII),  OJ No 3415 (C.A.), per curiam
MH, supra, at para 65
Circumstances of Offence
- Lawful Authority
The phrase "lawful authority" means merely rendering legally permissible that which would otherwise be prohibited.
Section 486.3(2) creates a mandatory prohibition for a self-represented accused to cross-examine the alleged victim (regardless of age) on application of the Crown or victim where the accused is charged with criminal harassment (264), sexual assault (271), sexual assault with a weapon/causing bodily harm (272) or aggravated sexual assault (273) and it is not necessary for the "proper administration of justice".
Participation of Third Parties
- 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
s. 606(4.1), (4.2)
|Victim Notice |
of Impact Statement
|s. 264 [harassment]|
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
- Maximum Penalties
|s. 264.1 [harassment]||summary election||2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)|
|s. 264.1 [harassment]||indictable election||10 years incarceration|
Offences under s. 264.1 [harassment] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
s. 718.3, 787
|s. 264.1 [harassment]||summary election|
|s. 264.1 [harassment]||indictable election|
Offences under s. 264 [harassment] 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.
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."
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.
- see also: Criminal Harassment (Sentencing Cases)
Ancillary Sentencing Orders
- Offence-specific Orders
|DNA order||s. 264 [harassment]||
|Weapons Prohibition Orders||s. 264 [harassment]||
|SOIRA Orders||s. 264 [harassment]||
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 [harassment]||
- General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).|
- General Forfeiture Orders
|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.|
Record Suspensions and Pardons
Convictions under s. 264 [harassment] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".