The mens rea or mental element for this offence is that the Accused knew that his/her conduct caused the complainant to be harassed or that s/he was aware of such a risk and was reckless or willfully blind as to whether or not that person was harassed.
A single incident can constitute criminal harassment.
Harassment is proven if as a consequence of the prohibited act, the complainant was in a state of being harassed or felt harassed in the sense of feeling tormented, troubled, worried continually or chronically plagued, bedevilled and badgered.
The courts have found that “harassment” should not be given a restrictive definition and includes requests, solicitations, incitements that have the effect of bothering someone because of their continuity or repetition.
An objective standard must apply in determining whether the threatening conduct amounts to intimidation designed to instil a sense of fear in the complainant under par (2)(d) below.
Evidence of prior incidents of discreditable conduct may be admissible to provide context to assess the effect of the incident on the complainant and whether the accused knew that the conduct would cause the complainant to be fearful of that the accused was reckless as to whether the complaint would be fearful.
What behaviours comprise stalking?
Stalking can include a number of different behaviours intended to control and frighten the person being stalked.
Most commonly, this can involve:
– repeated telephone calls (the caller may hang up or remain silent on the line) to your home, cell phone or workplace in order to “track” your whereabouts
– repeated letters or stealing mail
– repeated emails [threatening or obscene e-mail or text messages; spamming (in which a stalker sends a victim a multitude of junk e-mail); live chat harassment called flaming; leaving improper messages on message boards or in guest books; sending electronic viruses; sending unsolicited e-mail; and electronic identity theft]
– sending unwanted gifts (flowers, candy, etc.)
– showing up uninvited at work or home
– following, watching, tracking
– threatening harm to the person being stalked, her family, friends, pets
– harassing her employer, colleagues or family
– vandalizing her car or home
– harming pets – assault (physical, sexual, emotional)
– kidnapping, holding hostage
Criminal Harassment in the Criminal Code:
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.
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, 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).
(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.
Penalty for Criminal Harassment:
The penalties range from probation to jail. It depends on the severity of the allegations and the mode of election by the Crown.