How Serious is a Section 264 Charge of Criminal Harassment?
A Criminal Harassment Charge per section 264 of the Criminal Code is a Serious Concern with the Possibility of Ten (10) Years in Jail. The Good News is that There Are Defence Strategies that May Beat the Charge.
Understanding Criminal Harassment Charges Including Potential Penalties and Defence Strategies That May Apply
A criminal harassment charge may arise when a person, known as the complainant, alleges that another person is engaging in conduct that creates a fear of harm to the complainant or another person. With this said, it takes proof beyond reasonable doubt for a charge of criminal harassment to convert into a conviction against the accused.
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.
(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.
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
(b) the terms or conditions of any other order or recognizance, or of an undertaking, made or entered into under the common law, this Act or any other Act of Parliament or of a provincial legislature that is similar in effect to an order or recognizance referred to in paragraph (a).
As shown above, criminal harassment may be alleged to occur when a person holds a reasonable fear for safety due to:
- The repeated following of a person;
- The repeated communication with a person;
- The watching of a person at home, work, or other place; or
- The threatening behaviour directed at a person or family member of a person.
In addition to providing a person protection from the conduct listed above, the criminal harassment charge is often viewed as an intervention to help prevent escalation into violence.
The potential penalty for criminal harassment depends on whether the prosecutor elects to proceed with the charge as an indictable offence proceeding or as a summary conviction proceeding. It is notable that where a criminal harassment charge is prosecuted as an indictable offence, then only a lawyer is authorized to provide legal representation on behalf of the accused; however, if a criminal harassment charge is prosecuted as a summary conviction offence, then either a lawyer or a paralegal may provide legal representation on behalf of the accused.
As shown above, section 264(3) of the Criminal Code specifies two possibilities as penalties for criminal harassment. For a criminal harassment charge prosecuted as an indictable offence, a maximum ten (10) year term of imprisonment is expressly stated; however, for a crimimal harassment charge prosecuted as a summary conviction offence, the penalty is unstated; and accordingly, refering to section 787(1), which provides the General Penalty details applicable to a summary conviction offence, is necessary. Specifically, section 787(1) states:
787 (1) Unless otherwise provided by law, every person who is convicted of an offence punishable on summary conviction is liable to a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both.
As shown per section 787(1) above, the potential General Penalty for a criminal harassment charge prosecuted as a summary conviction offence is a fine up to $5,000 or two years less a day imprisonment or both.
In addition to the potential for a significant fine and imprisonment, a conviction for criminal harassment may result in a criminal record that adversely affects future employment opportunities as well as travel privileges into the United States, and possibly other places. Accordingly, a strategic defence against criminal harassment allegations is worthy and warranted.
Fighting Harassment Charges
As per the above potential penalties, a criminal harassment charge may involve significant penalties upon conviction. Additionally, where criminal harassment charges arise within the context of a domestic relationship, such as during the separation of a married couple or the breakup of an unmarried couple, the prosecution will likely be especially aggressive.
A person accused of criminal harassment may defend the charge by demonstrating that:
- The person charged was acting lawfully, such as making communications for a legally authorized purpose or attending at places for a legally authorized purpose;
- The person charged was acting without wrongful intentions or without recklessness;
- The fear alleged by the complainant was unreasonable; or.
- The allegations are a falsification or manipulative.
As with all criminal charges, the prosecution must prove allegations beyond a reasonable doubt; and accordingly, a person charged with an offence, including a criminal harassment offence, needs only to create a reasonable doubt that the allegations are true. Sadly, especially in consideration for how serious the potential penalties are for criminal harassment as well as the importance of the criminal harassment charge when prosecuted for legitimate purposes, criminal harassment allegations are sometimes falsified as a means to gain an improper advantage in divorces or separations.
The charge of criminal harassment is a serious offence with potential penalties involving significant jail time. Criminal harassment allegations may be defended by showing that the conduct alleged as harassing was lawful, the conduct was without improper intentions, the conduct was reasonable, or that the allegations are false and perhaps illicitly alleged.