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 Elements of Criminal Harassment

Criminal harassment is no laughing matter. It can cause serious disruption in the victim’s life. But when does conduct by one person constitute harassment of another?

First, there must be an act or series of acts (actus rea or ‘guilty act’) which, taken together, that rise above the level of ‘insignificant (‘lex minimus or ‘minimal at law’).  Section 264 of the Criminal Code sets out the offence of criminal harassment and the Court of Appeal in R. v. Kosikar, [1999] set out the five elements of the offence: Elements of Criminal Harassment

(1) It must be established that the accused has engaged in the conduct set out in the Criminal Code s. 264(2)(a), (b), (c), or (d). 
(2) It must be established that the complainant was harassed;
(3) It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or willfully blind as to whether the complainant was harassed;
(4) It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and
(5) It must be established that the complainant's fear was, in all of the circumstances, reasonable. 

So, there must be specific conduct mentioned in subsection (1) that consists of:
(a) repeatedly following from place to place the other person or anyone known to them;
(b) repeatedly communicating with, directly or indirectly, with 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.

Subsection (2) says it must e established that the complainant was harassed.  But to what extent does any of these actions rise to be an offence?  What is harassment?   

In R. v. Kordrostami, 2000 the judge stated:

[10] In Sillip, supra, Lamontagne, supra and Kosikar, supra, "harassed" is defined as "tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered".

[11] I do not view the list of words used in Lamontagne, supra and Kosikar, supra as cumulative. Nor do they replace the word "harassed" in the Criminal Code. In their origin in R. v. Sillip, supra, at p. 393, they were stated to be individually synonyms for "harassed": see also R. v. Ryback (1996), 1996 CanLII 1833 (BC CA), 105 C.C.C. (3d) 240 at p. 248, 47 C.R. (4th) 108 (B.C.C.A.), where this point is made. Thus, it would be harassment to be "plagued" in one context and "bedeviled" in another.

[14] In my view, on these findings, the complainant was harassed within the meaning of s. 264(1). To the extent the synonyms adopted from Sillip, supra, serve to elucidate the meaning of harassment, I have no difficulty in concluding on the findings of the trial judge that the complainant was "tormented", "troubled", "plagued" or "bedeviled" as a result of the appellant's conduct. Where a 39-year-old man persists in making several hang-up calls to a young girl after having invited her to engage in a threesome and having been told that she regards him as a "pervert" on account of his unwanted overtures, the young girl has been harassed.

Does it matter that the accused doesn’t themselves believe their conduct is harassing? 
In R. v. Sillipp, 1997
[15]               But repeated following, repeated communication and besetting or watching will not suffice. Section 264 (ss.1) also requires that the acts complained of be accompanied by knowledge on the part of the accused that the complainant was harassed. In the alternative, it is sufficient if the Crown establishes beyond a reasonable doubt that the accused was reckless or wilfully blind as to whether the complainant was harassed.

[19]               In my view, taken as a whole, the charge to the jury satisfies this test and is otherwise unassailable. In so concluding, I reject the Appellant’s contention that the trial judge’s definition of “harassment” was deficient. Nor is there any air of reality to the Appellant’s submission that, given the trial judge’s definition of recklessness, there existed any risk that the jury may have convicted the Appellant of mere carelessness. This is particularly so in the light of the Appellant’s testimony acknowledging that on one occasion his presence had a traumatic effect on Ms. Ferland. The extant restraining orders, indeed, constituted evidence that the complainants viewed the Appellant’s conduct as a matter of serious concern. In the light of all of the evidence at trial, it would not be an error for a trial judge to tell a jury that “reckless” means “indifference to the consequence of one’s actions”.

[22]               Given this record, it is not necessary to deal with the issue of “psychological safety”. The record is replete with testimony that is consistent with the conclusion that the complainant, Dr. Orr, feared for her physical safety, quite apart from the issue of psychological harm. She said, inter alia:
“I am afraid to go anywhere on my own.”
“I am afraid at home.”
“Well, I do not know if he is going to turn violent, I do not know whether he is going to hurt me or my kids …”

In this consideration the so-called ‘eggshell skull’ rule is applicable. That ‘rule’ simply states that a victim’s particular and even unique ‘condition’ (mental or physical) can be taken into account in determination of the effect that the act causes.  “You take your victim as you find them’ is the operative cliché here. 

[27]               I would add only that the application of the reasonable person test to the objective evaluation of “all the circumstances” does not mean that the particular vulnerabilities of the complainant are excluded from consideration. A jury may be so instructed. In the case at bar, the Appellant cannot be heard to complain. The judge’s charge to the jury on this issue was more favourable to the Appellant than it needed to be.

It has been argued that while the provision requires proof of knowledge that the other person is harassed, it does not require knowledge that it is the accused’s subsection (2) conduct that is causing the harassment.  This is a nuanced argument put more clearly here.

[29]               This latter point draws from the premise that to “vex or annoy” someone by the sort of conduct described in subsection (2) is not in itself unlawful or immoral conduct. Thus, the culpable mental state proscribed in s. 264 attaches only to what is otherwise lawful conduct, requiring no link between the accused’s consciousness and the reasonable fear caused by the conduct. The unacceptable result is argued to be that lawful activity can shift into criminal activity through consequences entirely unrelated to the accused’s awareness or moral culpability.

R. v. Nguyen; R. v. Hess (1991) 59 C.C.C. (3d) at p. 161, for the proposition that criminal offences punishable by imprisonment must, at minimum, allow the accused a defence of mistake of fact or due diligence defence. Here it was said ..

[34]     “The doctrine of mens rea reflects the conviction that a person should not be punished unless that person knew that he was committing the prohibited act or would have known that he was committing the prohibited act if, as Stroud put it, ‘he had given to his conduct, and to the circumstances, that degree of attention which the law requires, and which he is capable of giving.”

However, the provision does not contain a mens rea requirement attaching to the consequence of reasonable fear so it appears that there does not have to be direct correlation between the act and the knowledge that the act results in the consequent feeling of harassment. The argument put forward failed. 
Such harassing act(s) does not have to be illegal in itself. the law recognizes that in certain circumstances perfectly legal activity can become criminal. As simple review of the four categories in ss. 264(2) are nor per se unlawful. “If it were, there would have been no need to enact s. 264. It is not per se criminal to follow someone, to communicate with them, or even to watch and beset a place where they are.

[32]               In my view, the actus reus of the offence of criminal harassment is constituted by volitional subsection (2) conduct which meets discernable standards of nature, cause and effect, with the mens rea requirement being that of an intention to engage in that conduct or, at minimum, recklessness or wilful blindness, relative to that conduct.

[33]               That which is prohibited is a person engaging in subsection (2) conduct with knowledge (recklessness or wilful blindness) that such conduct is causing the complainant to be harassed. The mens rea of the offence is the intention to engage in the prohibited conduct with the knowledge that the complainant is thereby harassed. To interpret the section in this way is not, as the Appellant suggests, “to take excessive interpretive liberties for the sake of preserving an unconstitutional provision”. On the contrary, it gives the section its obvious intended meaning.

So there must be
1. an act(s) by the accused
2. that is harassing, (regardless of whether the act itself is criminal)
3. which must have actually have caused the victim to be"tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered" (known as the subjective test), 
4. and the accused knew, or was reckless or willfully blind to the fact that the actions caused result and,
5. that the fear must be reasonable (known as the objective test). 

Theresa Forrest, Paralegal

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