In today’s highly connected world, it is easier than ever to reach out to someone. However, there is a distinct legal line between persistence and criminality. When repeated attempts to contact, follow, or monitor someone cross that line, it can lead to criminal charges. Often referred to as “stalking,” criminal harassment is a serious offence under Section 264 of the Criminal Code of Canada.
At White and Jeet Law, we frequently defend clients who find themselves facing criminal harassment charges in Alberta, often stemming from relationship breakdowns, high-conflict divorces, or misunderstandings. It is crucial to understand exactly what constitutes criminal harassment under the Criminal Code.
1. What is Criminal Harassment?
Under Section 264(1) and (2) of the Criminal Code, no person shall, without lawful authority, engage in the following conduct knowing that another person is harassed or being reckless as to whether the other person is harassed:
Repeatedly following the person (or anyone known to them) from place to place.
Repeatedly communicating with, either directly or indirectly, the person or anyone known to them.
Besetting or watching the dwelling-house, or place where the person, or anyone known to them, resides, works, carries on business, or happens to be.
Engaging in threatening conduct directed at the person or any member of their family.
To secure a conviction, the Crown must prove that the conduct in question caused the other person to reasonably, in all the circumstances, fear for their safety or the safety of anyone known to them.
2. Section 264 of the Criminal Code Broken Down: What the Crown Must Prove
To secure a conviction for criminal harassment in Alberta, the Crown must prove the following essential elements beyond a reasonable doubt:
1. The Prohibited Conduct Occurred
The Crown must prove you actually engaged in one of the four behaviors listed in section 264 of the Criminal Code.
2. The Accused Had the Requisite Intent (Mens Rea)
The Crown must prove that you knew your conduct was harassing the complainant, or that you were reckless to that fact. If you honestly and reasonably believed the contact was welcome (for instance, if the complainant was sending mixed signals or actively engaging in the conversation), this can form the basis of a strong defence.
3. The Fear was Objectively Reasonable
This is often the most contested element in a trial. Alberta courts apply an objective test: would a reasonable person, in the same circumstances and possessing the same background knowledge as the complainant, fear for their safety? If the fear is deemed irrational or exaggerated based on the actual conduct, the charge may not hold up.
3. Penalties for Criminal Harassment
Criminal harassment is a hybrid offence in Canada. The Crown can choose to proceed by summary conviction or by indictment, largely depending on the severity of the conduct, the presence of any threats, and the accused’s prior criminal record.
Summary Conviction: Carries a maximum penalty of up to two years less a day in a provincial jail.
Indictable Offence: Carries a maximum penalty of up to 10 years in a federal penitentiary.
In addition to incarceration, a conviction typically carries a lengthy probation order with no-contact and no-go orders prohibiting the accused from contacting and being a certain distance from the complainant.
4. Defending a Section 264 Charge in Alberta
A charge of criminal harassment is not a guaranteed conviction. Given the subjective and objective elements required by law, an experienced defence lawyer can challenge the Crown’s case on multiple fronts. Potential defences include:
Lack of Mens Rea: Demonstrating that you did not know, and were not reckless as to whether, the complainant was harassed. This is particularly relevant in cases of mutual communication or unclear boundaries.
Fear Was Not Reasonable: Arguing that a reasonable person in their shoes would not have feared for their safety based on the conduct.
Lawful Authority: Demonstrating that the conduct was legally justified.
Exaggerated or False Allegations: Unfortunately, in high-conflict family disputes, criminal harassment charges are sometimes weaponized. Through rigorous cross-examination, skilled counsel can expose inconsistencies or ulterior motives.
5. Protect Your Future with White and Jeet Law
Criminal harassment is a complex area of law where the line between lawful communication and criminal conduct is heavily dependent on context and perception. If you have been charged under Section 264 of the Criminal Code, or if the police are investigating you for repeated contact, do not attempt to explain yourself to the authorities.
Contact White and Jeet Law. Our legal team will meticulously review the evidence, analyze the context of the communications, and build a strategic defence based on the strict standards of the Criminal Code to protect your freedom and reputation.
