What Are Ways to Defend Against a Charge of Criminal Harassment?

There Are Various Ways to Defend Against a Criminal Harassment Charge Brought Per section 264 of the Criminal Code. As a Serious Charge that Brings the Possibility of Ten (10) Years in Jail, Putting Forward a Strong Defence is Warranted.

Understanding Criminal Harassment Charges Including Potential Penalties and Available Defence Strategies

Woman Being Stalked In a Parking Garage The offence of criminal harassment is a very common charge laid by the police and is intended as a tool to help provide protection for a person who is the victim of unwanted or repeated communication, or other harassing conduct, from another person that raises a reasonable fear for safety and security within the harassment victim. Of course, as with all criminal charges, the allegations must be proven beyond a reasonable doubt.

The Law

The conduct that may give rise to criminal harassment allegations is prescribed at section 264 of the Criminal Code, R.S.C. 1985, c. C-46, where it is said:

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.


(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

(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.

As shown above, criminal harassment may be alleged to occur when a person holds a reasonable fear for safety due to:

  1. The repeated following of a person;
  2. The repeated communication with a person;
  3. The watching of a person at home, work, or other place; or
  4. 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.

Potential Penalties

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.

Per section 264(3) of the Criminal Code as shown above, there are two potential penalty ranges applicable to criminal harassment charges.  The first relates to a criminal harassment charge that is prosecuted as an indictable offence where the maximum penalty of ten (10) years imprisonment is stated; however, for the second potential penalty range, where a criminal harassment charge is prosecuted as a summary conviction offence, the Criminal Code section fails to state the penalty; and accordingly, reference to section 787(1) of the Criminal Code whereat the General Penalty provisions that are applicable to a summary conviction offence, becomes necessary.  Specifically, section 787(1), of the Criminal Code says:

General penalty

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.

Per section 787(1) of the Criminal Code as shown above, the General Penalty applicable to a criminal harassment charge that is prosecuted as a summary conviction offence involves a potential fine that ranges up to a $5,000 maximum or imprisonment of up to two years less a day or the possibility of both punishments.

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.

Summary Comment

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.

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