A Handbook for Police and Crown Prosecutors on Criminal Harassment
Part 3: The Law
3.1 Prohibition of Criminal Harassment
As outlined in 1.2 Legislative History of Criminal Harassment, the criminal harassment provisions have been in force since 1993. A significant factor in the swift enactment of section 264 was the increasing concern among criminal justice personnel that existing Criminal Code provisions did not adequately capture "stalking" conduct, which was gaining recognition as a significant form of violence against women.
The need for the criminal law to evolve and address new forms of criminal conduct such as criminal harassment was expressly recognized by Madame Justice L'Heureux-Dubé in Hinchey,  3 SCR 1128:
The notion of criminality, thus, is not a static one, but one which very much changes over time. As society changes, the conception of what types of conduct can properly be considered criminal evolves. There are a myriad of different activities which at one point in time were considered legal, but which we now consider criminal. The offence of criminal harassment is one obvious example. For many years, it was not recognized as criminal to persistently follow someone and cause them to fear for their safety, so long as no contact was made. Now, that has distinctly changed with the addition of s. 264 of the Code, which makes this conduct a crime.
3.2 Criminal Code Provisions
- 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
- (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 made or entered into under the common law or a provision of this or any other Act of Parliament or of a province 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.
MURDER IN COMMISSION OF OFFENCE
- 231(6) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under section 264 and the person committing that offence intended to cause the person murdered to fear for the safety of the person murdered or the safety of anyone known to the person murdered.
3.3 Charter Challenges
Charter challenges have argued unsuccessfully that section 264 is vague and overly broad and, therefore, void under subsection 2(b) (freedom of expression) and section 7 (life, liberty and security of the person). See Hau,  BCJ No 677 (Prov Ct) (QL) (see also Hau,  BCJ No 1047 (SC) (QL)), which upheld the constitutionality of the section but allowed an appeal and ordered a new trial). In Sillipp, 1997 ABCA 346, leave to appeal to SCC refused,  SCCA No 3 (QL), Berger JA found that subsection 2(b) of the Charter was not engaged by paragraphs 264(2)(a) or (c) of the Code, and denied a section 7 argument that section 264 allows the morally innocent to be punished. At trial, Murray J found that the type of expression which may flow from behaviour as contemplated by section 264 was not protected by the Charter. In other words, when a person knowingly or recklessly engages in conduct specified in subsection 264(2), resulting in a reasonable apprehension of fear, there can be no exculpation by characterizing such conduct as a legitimate exercise of the freedoms guaranteed in section 2 of the Charter. In the event that he erred in his analysis, Justice Murray went on to justify any subsection 2(b) violations under section 1 by characterizing this form of "expression" as "attempts by persons to convey meanings of latent physical violence and direct psychological violence to other persons" (Sillipp (1995), 99 CCC (3d) 394 at 413 (Alta QB), aff'd 1997 ABCA 346, leave to appeal to SCC refused,  SCCA No 3 (QL)). In Doody,  QJ No 934 (CA) (QL), Michaud CJA dismissed an application for leave to appeal, finding, among other things, that there was no merit to a constitutional challenge of paragraph 264(2)(c) of the Code.
In Davis (1999), 143 Man R (2d) 105 (QB), aff'd 2000 MBCA 42, the Court followed Sillipp with respect to the section 7 challenge on the vagueness of the mens rea component of the offence and found that the legislation does not violate rights of association under subsection 2(d) of the Charter. While accepting the Crown's concession that the communication component of the provision violates subsection 2(b), the Court found "that the laudable objective of the criminal harassment legislation far outweighs the negative impact that it has on freedom of expression." In Krushel (2000), 142 CCC (3d) 1 (Ont CA), leave to appeal to SCC refused,  SCCA No 293 (QL) the Ontario Court of Appeal followed the Alberta Court of Appeal decision in Sillipp with respect to section 7 challenges for vagueness and insufficient mens rea requirements, and the Sillipp Queen's Bench decision in relation to the freedom of expression challenge. See also Cloutier,  Montreal No 500-01-005957 (Qc (Cr Div)).
The constitutionality of subsection 231(6) of the Criminal Code, relating to murder committed in the course of criminal harassment, has been challenged several times. In Linteau,  JQ No 16722 (CS) (QL), leave to appeal refused 2006 QCCA 1106, the accused argued that the minimal sentence of life imprisonment constitutes cruel and unusual punishment contrary to section 12 of the Charter. In dismissing the application, Beaulieu JCS emphasized the gravity of the crime of criminal harassment and stated that the objective of subsection 231(6) is to protect the life, liberty and security of women and other victims of such conduct.
Subsection 231(6) was also challenged in Ratelle-Marchand, 2008 QCCS 1172,(QL) where the defendant argued that subsection 231(6) did not follow the principles of fundamental justice in depriving him of his liberty under section 7 of the Charter, and violated his right to be presumed innocent under subsection 11(d). Charbonneau JCS found that as with subsection 231(5), subsection 231(6) is a sentencing classification provision. Before applying subsection 231(6), the Court must be satisfied that murder was committed; therefore the provision in no way reduce the Crown's burden of proving of subjective foresight of death beyond a reasonable doubt."Footnote 133 Moreover, Charbonneau JCS reviewed the proportionality of the penalty in subsection 231(5):Footnote 134
Parliament's decision to treat more seriously murders that have been committed while the offender is exploiting a position of power through illegal domination of the victim accords with the principle that there must be a proportionality between a sentence and the moral blameworthiness of the offender and other considerations such as deterrence and societal condemnation of the acts of the offender.
Charbonneau JCS found that section 231 establishes a sentencing classification regime for a particular group of murderers who commit murder while perpetrating other offences of illegal domination of their victims. The Court found that consistent with this regime, a rational link exists between the offences of criminal harassment and murder.
In responding to a Charter challenge, Crown counsel may also wish to review the legislative history of the criminal harassment provisions. That history is summarized in Appendix B—Legislative History of Section 264 of the Criminal Code.
3.4 Key Elements
The following key elements of the offence of criminal harassment must be established, as indicated in the Alberta Court of Appeal's summary of the elements of the offence in Sillipp, 1997 ABCA 346, leave to appeal to SCC refused,  SCCA No 3 (QL):
- The accused engaged in conduct described in subsection 264(2);
- The complainant was harassed;
- The accused knew that the complainant was harassed, or he or she was reckless or wilfully blind as to whether the complainant was harassed;
- The conduct caused the complainant to fear for his or her safety, or that of someone known to him or her; and
- The complainant's fear was reasonable in all of the circumstances.
3.4.1 The Accused Engaged in Conduct Described in Subsection 264(2)
The accused must be shown to have engaged in any of the conduct prohibited in subsection 264(2).
Accused engaged in prohibited conduct via an agent or third party: In Ladbon,  BCJ No 3056 (Prov Ct) (QL), the accused, who was subject to a no-contact order, hired a private detective to follow his estranged wife, the victim. The Court found that the accused had engaged in the prohibited conduct through his agent, the private detective. See also Detich,  QJ No 25 (CA) (QL), where the offender's repeated attempts to communicate with the victim included such an attempt through a private detective.
Repeatedly Following From Place to Place: Paragraph 264(2)(a)
Meaning of "repeatedly": Referred to in paragraphs 264(2)(a) and 264(2)(b), "repeatedly" means more than once but not necessarily more than twice. In Ohenhen(2005), 200 CCC (3d) 309 (ONCA), leave to appeal refused,  SCCA No 119 (QL), the Ontario Court of Appeal changed the definition of the term, which used to be understood as more than once or twice. See also Saloio, 2010 ONCJ 164, and Vanin, 2006 SKPC 86. The repeated conduct must be viewed in its context to determine whether it is "repeated" (Ryback (1996), 105 CCC (3d) 240 (BCCA), leave to appeal refused,  SCCA No 135 (QL)).
Do not need distinct repeated time periods: In Belcher (1998), 50 OTC 189 (Gen Div), the Court determined that the repeated conduct does not have to occur on a number of occasions separated by time—the word "repeatedly" means "persistently". See also Thélémaque, 2008 QCCQ 2308, in which it was found that criminal harassment can occur when the victim is a stranger and repeated communications and following take place on just one occasion over a half-hour period. The accused was convicted of criminally harassing a stranger on the subway; he sat beside her and took her hand, asking her if she had a pimp. He followed her off the subway and out of the station despite observing that she appeared agitated and scared of him.
When following takes place in public places: It appears more difficult to prove that the accused is following the complainant when the accused appears at the same random public location as the complainant. For example, in Weinstein,  OJ No 3012 (Sup Ct) (QL), the accused was acquitted of a criminal harassment charge under paragraph 264(2)(a). Even though on one occasion it was reasonable to infer that he was following the complainant, all of the other communications occurred in public places and did not involve locations where the accused should have expected to find the complainant, such as near her home or workplace. See also Potvin,  OJ No 4339 (Ct J) (QL), where the fact that the accused appeared to time his appearance at a public restaurant with the arrival of the complainant was not enough to conclude that repeated following had occurred.
Repeatedly Communicating: Paragraph 264(2)(b)
Meaning of "repeatedly": Referred to in paragraphs 264(2)(a) and 264(2)(b), "repeatedly" means more than once but not necessarily more than twice. In Ohenhen(2005), 200 CCC (3d) 309 (ONCA), leave to appeal refused,  SCCA No 119 (QL), the Ontario Court of Appeal changed the definition of the term, which used to be understood as more than once or twice. See also Saloio, 2010 ONCJ 164, Vanin, 2006 SKPC 86. In Di Pucchio, 2007 ONCJ 643, two phone calls made after the complainant hung up the phone were found to constitute three distinct communications, as opposed to a single interrupted attempt.
Communicating with persons known to the victim: The courts will look to ascertain the real target of the accused's communications, which may appear to be directed at another person who was not harassed by the contact. In MRW,  BCJ No 2149 (SC) (QL), the accused was convicted of criminally harassing the victim by repeatedly communicating with persons known to the victim; the accused had been convicted approximately 16 years earlier of attempted murder of the victim and was allegedly attempting to re-establish contact with their two children. In Di Pucchio, 2007 ONCJ 643, the Court found that even though the accused may have intended to speak with his daughter when he called his ex-wife's house, the communication was directed at his ex-wife, toward whom he had previously been physically violent and threatening. When she picked up the phone, the accused proceeded to speak with the complainant, even though she had previously asked him not to contact her and unlisted her telephone number. He called back once after she told him not to call her house again and had a police officer call on his behalf as well.
Importance of the context in which the communication occurs: The trial judge must consider both "the content and the repetitious nature" of the communication, in the context in which it is made (Scuby, 2004 BCCA 28). The entire context of the communication must be taken into consideration, as "[t]he very nature of the offence of criminal harassment is that it consists of accumulation of what may appear in isolation as innocuous communications" (Bell, 2009 ONCJ 312). In Di Pucchio, the complainant's fear was found to be reasonable "in light of the history of threatening, acrimony and abuse in this relationship", the repeated nature of communications, and the fact that the victim's telephone number was unlisted and had not been given to the accused.
Significance of requests to cease communication: Continuing to pursue contact after having been asked to stop is a relevant consideration in favour of conviction (Sihota (2008) 79 WCB 2d 702 (ONSC)). See also Bell, 2009 ONCJ 312, where only those communications made after the date on which the complainant told the accused to stop contacting her were found to constitute harassment.
Content of communications: Evidence of threats, violent behaviour or in-person contact on behalf of the accused is not required for a conviction under paragraph 264(2)(b) (Liang, 2004 NBCA 80, leave to appeal to SCC refused,  SCCA No 520 ). In Bielicz,  OJ No 3633 (Sup Ct), repeated, emotional and aggressive phone calls were found to have clearly demonstrated intent to harass. See also Sihota (2008), 79 WCB 2d 702 (ONSC), where the Court found that fax and voice mail messages containing bizarre and frightening expressions (such as, "When are you going to stop drinking my blood?") sent to a company employee by a client were neither regular business communications nor a harmless joke.
Besetting or Watching: Paragraph 264(2)(c)
Since paragraph 264(2)(c) refers to besetting or watching, rather than besetting and watching, either action would satisfy the section (Pastore, 2005 ONCJ 332).
Meaning of "watching": "Watching" is to be given its ordinary dictionary meaning, such as "observing attentively, with the intention to control"Footnote 135 (Gagné,  JQ no 11994 (CQ crim & pen) (QL)).
Meaning of "besetting": "Besetting" means "conduct by someone that causes another person to feel hemmed in or a person to feel surrounded, for a person to feel attacked on all sides." (Smysniuk, 2007 SKQB 453.) Driving by the complainant's home repeatedly qualified as "besetting" in view of the parties' complicated relationship. The meaning of "beset" includes "to trouble", "harass", "assail", "hem in or surround" (Fujimori, 2005 BCPC 110, citing Vrabie,  MJ No 247 (Prov Ct) (QL), which applied an ordinary dictionary meaning to "besetting" and held that besetting includes "to harass"—in other words, the conduct must be so blatant or vexatious as to constitute besetting). In Vrabie, the Court took judicial notice of the fact that the incidents took place in an extremely public location in a small town. For example, one of the incidents was alleged to have taken place at a bakery that was across the street from the only post office in Flin Flon.
Complainant's knowledge of besetting: In Zorogole, 2004 NSPC 16, the Nova Scotia Provincial Court held that in order to fall under paragraph 264(2)(c), the "persistent conduct, which need not be violent, must cause the other person to feel at risk of being in danger and, it must also result in the other person having a reasonable apprehension of violence." See also Diakow,  MJ No 234 (Prov Ct), which held that besetting required at least some knowledge or awareness on the part of the victim that she was the subject of the besetting.
Watching or besetting need not be repeated: Though the text of section 264 clearly requires communication and following to be repeated to constitute criminal harassment, there is no such requirement for watching and besetting under paragraph 264(2)(c), or threatening under paragraph 264(2)(d). Nevertheless, there has still been debate whether a single incident of watching or besetting can harass an individual. In Kosikar (1999), 138 CCC (3d) 217 (Ont CA), leave to appeal to SCC refused (2000),  SCCA No 549 (QL), the Ontario Court of Appeal established that a single act of watching or besetting may be sufficient to convict depending on the overall context. Goudge JA wrote: "while being in a harassed state involves a sense of being subject to ongoing torment, a single incident in the right context can surely cause this feeling." It was followed in AA, 2006 ONCJ 107, which held that even in the absence of prior contact, a single incident that carried a real risk of continuing torment to the complainant was sufficient for a conviction. See also Ohenhen (2005), 200 CCC (3d) 309 (ONCA), leave to appeal refused,  SCCA No 119 (QL).
Fact of "watching" can be inferred from the content of communications: In Bielicz,  OJ No 3633 (Sup Ct) (QL), the defendant stated the complainant's current location, as well as details that made it clear that he had been spying on her new partner.
Non-criminal watching: The court may dismiss charges where the accused has a legitimate reason to watch the complainant, as in Wease,  OJ No 1938 (Sup Ct) (QL). In that case, the defendant, who was separated from the complainant, had been seen sitting outside her workplace in a parked car and taking pictures on several occasions, solely to gather evidence for ongoing family law proceedings (he was trying to prove that his wife was working full time). On the other hand, in Alverson, 2008 ONCJ 89, it was found that sitting outside the complainant's house in a parked car and staring constituted watching and besetting. Though the parties were in ongoing family law proceedings, the defendant not only did not have a legitimate reason to be sitting outside the house, but also, around the time of the incident, had been repeatedly following and threatening his son-in-law, who had custody of his granddaughter.
Odd or suspicious behaviour: Behaviour that constitutes watching or besetting within the meaning of paragraph 264(2)(c) must be distinguished from behaviour that is merely odd or suspicious. In Zorogole, 2004 NSPC 16, the accused, who was a complete stranger to the complainant, was seen standing in front of the complainant's house and watching the children play for about 15 minutes. He was wearing a camera over his shoulder. He also knocked on the door and said that he was trying to make friends. He did not make any threats, left after being asked to do so and never returned. Even though his behaviour could be seen as odd or suspicious, it was held that there was no reasonable indication of a risk of violence on his behalf.
Engaging in Threatening Conduct: Paragraph 264(2)(d)
Meaning of "threatening conduct": "Threatening conduct" is defined as "a tool of intimidation which is designed to instill a sense of fear in the recipient" (McGraw,  3 SCR 72; Lamontagne (1998), 129 CCC (3d) 181 (QCA); George, 2002 YKCA 2; Burns, 2008 ONCA 6; Kohl, 2009 ONCA 100; MacDuff, 2011 BCSC 534).Footnote 136
Objective standard in context: Whether the "tool of intimidation" was "designed to instill a sense of fear in the recipient" is to be determined from the perspective of a reasonable person in consideration of the context in which the alleged threats occurred. In other words, whether the impugned conduct was threatening is a question of fact to be determined from the perspective of a reasonable person in a similar context to the complainant (McGraw,  3 SCR 72; Ryback (1996), 105 CCC (3d) 240 (BCCA), leave to appeal refused,  SCCA No 135 (QL); Lamontagne (1998), 129 CCC (3d) 181 (QCA); and Burns, 2008 ONCA 6).
In Burns at paragraph 2, the Ontario Court of Appeal set out the three criteria by which impugned threatening conduct is to be viewed:
- "with due consideration for the circumstances in which they took place, and"
- "with regard to the effects those acts had on the recipient."
Consideration for the context in which conduct took place: A sinister comment followed by "just kidding" may not be viewed as a joke if the target has been threatened or otherwise harassed previously (Noble, 2009 MBQB 98, aff'd 2010 MBCA 60). In Burns, 2008 ONCA 6, the accused was a police officer, dressed in full uniform when he wolf-whistled at and made vulgar comments to the complainant as she was walking down the street with her five-year-old daughter. The Court held that although the complainant justifiably felt scared and upset, the conduct did not rise to the level of "a tool of intimidation…designed to instill a sense of fear" and did not fall under paragraph 264(2)(d). Similarly, the obvious difference in size and strength between the defendant and the complainant can be taken into account when establishing the extent to which the conduct was threatening (Kohl, 2009 ONCA 100).
mens rea—No need to prove the accused intended the conduct to intimidate or cause fear: Davis (AA) (1999), 44 WCB (2d) 222 (MBQB), affirmed 2000 MBCA 42, which the Manitoba Court of Appeal recently followed in Noble, 2010 MBCA 60, states at paragraph 35:
"The mental element of the offence does not include a requirement that the accused foresee that his conduct will cause the complainant to be fearful."[italics in original] Davis further clarifies that there are only two mens rea requirements for this offence: (1) the defendant must have intended to engage in the alleged prohibited conduct, and (2) the defendant must have known that his or her conduct would harass the complainant (or have been willfully blind or reckless as to whether the complainant would have been harassed). Although in Lukaniuk, 2009 ONCJ 21, the Court's comments in obiter, in paragraph 17, might be taken to mean that the defendant must intend to intimidate or cause fear, the Court's acquittal of the defendant turned on its finding that the conduct did not cause fear in the complainant. The Court's comments regarding an intention to intimidate or cause fear relate to Clemente,  2 SCR 758, which is based on the offence of uttering threats in section 264.1, not section 264. (See also 3.4.4 The Complainant Feared for Her or His Safety, or That of Someone Known to Her or Him)
Single act of threatening conduct sufficient: Paragraph 264(2)(d) is not ambiguous and can be given its ordinary meaning. A single act of threatening is sufficient and need not be repeated to satisfy paragraph 264(2)(d). Lamontagne (1998), 129 CCC (3d) 181 at 187 (Qc CA) accepted that a single incident (
"You will see, tomorrow I will be out and you are going to regret it, God damn it") could be viewed by a reasonable person in the victim's situation as a threat or a "tool of intimidation which is designed to instill a sense of fear in the recipient." See also Kosikar (1999), 138 CCC (3d) 217 (Ont CA), leave to appeal to SCC refused,  SCCA No 549 (QL), in which one letter by the offender to the victim that contained sexual innuendoes, considered together with the offender's past conduct toward the victim, constituted threatening conduct; Hawkins, (2006)BCCA 498; George (2002), 162 CCC (3d) 337 (YCA); and Bertrand, 2011 QCCA 1412.
Threatening conduct can be entirely non-verbal: In Kohl, 2009 ONCA 100, leave to appeal to SCC refused,  SCCA No. 130 (QL), the accused, who was a stranger to the victim, jumped out of the bushes, blocked a jogger's way and chased her down the street. It was held that even though the accused neither touched nor spoke to the victim,
"[h]is conduct alone, without the spoken word, was more than sufficient to establish threatening conduct within the meaning of s. 264(2)(d)." Although it was an isolated incident of relatively short duration, the conduct was deemed to be
"highly threatening and persistent."
Threatening conduct can also reach the target indirectly: In Sauvé,  OJ No 4928 (CA), leave to appeal refused,  SCCA No 149 (QL), documents containing threats were filed in court with the knowledge that the complainant and the complainant's lawyer would see them. This was held to be prohibited conduct directed at the complainant. See also Coppola,  OJ No 1624 (Ct J) where the Court found that communicating false allegations of criminal conduct to the complainant's employer was an attempt to carry out the accused's earlier threat to cause her to lose her employment, and thus constituted threatening conduct.
3.4.2 The Complainant Was Harassed
Meaning of "harassed": Being harassed implies "being tormented, troubled, worried continually or chronically, being plagued, bedeviled and badgered."Footnote 137 See Sillipp (1995), 99 CCC (3d) 394 (Alta QB), aff'd 1997 ABCA 346, leave to appeal to SCC refused,  SCCA No 3 (QL); followed in Ryback (1996), 105 CCC (3d) 241 at 248 (BCCA), leave to appeal refused,  SCCA No. 135 (QL); Lamontagne (1998), 129 CCC (3d) 181 (Qc CA); and numerous other decisions. The terms are not cumulative. They do not replace but are individual synonyms for the word "harassed" in the Criminal Code (Kordrostami, (2000) 143 CCC (3d) 488 (OCA)). For the conduct to constitute "harassment," it is not sufficient that the complainant was "vexed, disquieted or annoyed"Footnote 138 (Sillipp, 1997 ABCA 346). See also Yannonie, 2009 ABQB at paragraph 33, in which the Court found that "the complainant was upset and vexed at the socially maladroit antics of the Accused" (frequent unwelcome visits to the mall kiosk where she worked, during which he made inappropriate remarks), which fell "somewhat short of establishing that the complainant was harassed."
The fact that the prohibited conduct harassed the complainant is established by the effect the conduct has on the complainant: In Thélémaque, 2008 QCCQ 2308, the accused sat beside the complainant on a subway car, held her hand and started talking to her as if he knew her. He followed her when she got off the subway and walked away from him appearing scared. The Court stated that it was clear from her conduct and demeanour that she was harassed. The police who responded to her 911 call testified that she was crying, and had red eyes and a trembling voice, when they arrived. The accused acknowledged in his testimony that he could tell she was scared of him.
Abusive conduct during the course of a relationship can amount to harassment: In Chugh, 2004 ONCJ 21, the accused was extremely controlling and abusive toward his wife. The Court found that his conduct was threatening and even though the wife was not afraid for her life, she reasonably feared that "some harm" would occur if she remained in the relationship. The Court
"was satisfied that Ms. Chugh was 'tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered'" and said that the accused was being wilfully blind if he was not aware of the impact that his demands, threats, insults and minor assaults had on his wife. See also Rosato,  OJ No 5481 (Sup Ct) (QL).
3.4.3 The Accused Knew That the Complainant Was Harassed or Was Reckless or Wilfully Blind as to Whether the Complainant Was Harassed
mens rea—Knew or was reckless or wilfully blind as to whether the complainant was harassed: The Crown must prove that the accused intended to engage in the prohibited conduct knowing that the complainant was harassed, or being reckless or wilfully blind as to whether the complainant was harassed (Sillipp,1997 ABCA 346).
Meaning of "reckless": In Frohlich,  ABQB 260, the Alberta Court of Queen's Bench relied on the definition of recklessness in the recent Supreme Court decision Briscoe, 2010 SCC 13, which quotes Sansregret,  1 SCR 570: "Recklessness involves knowledge of the danger or risk and persistence in the course of conduct bringing about a result prohibited by criminal law, that is the person is conscious of the risk and proceeds in the face of it."
Meaning of wilful blindness: Briscoe, 2010 SCC 13, also distinguishes between recklessness and wilful blindness by describing wilful blindness as follows:
Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where she sees the need for further inquiries, but deliberately chooses not to make those inquiries.Footnote 139
The Court emphasized the point that "wilful blindness" is equivalent to "knowledge" and quotes Glanville Williams on the following: "A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realized its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge … It requires in effect a finding that the defendant intended to cheat the administration of justice."Footnote 140 The Court further solidifies this concept by quoting Professor Don Stuart's characterization of "deliberate ignorance" as a more accurate label than "wilful blindness."
Direct evidence of the accused's state of mind is not required: Whether the accused has the required mens rea is a question of fact, to be determined based on the evidence presented. The trial judge may make a reasonable inference, based on the proven facts, that the accused was reckless as to whether the complainant was harassed (Holmes, 2008 ONCA 604).
Intent vs. motive: In Cromwell, 2008 NSCA 60, where the accused stated that he was writing letters from prison to his ex-wife, contrary to court orders, because he believed the complainant was open to reconciliation, the Court stated: "The mens rea on a charge of criminal harassment contrary to section 264 of the Criminal Code is whether the accused knew, or was reckless, or wilfully blind as to whether the complainant was harassed. The mental element is the intention to engage in prohibited conduct with knowledge, or with recklessness, or with willful blindness that such conduct causes the victim to be harassed." The Court goes on to say that the motive of the accused is not relevant to the mens rea of this offence, thus even if the Court believed that the actions of the accused were based on an honest but mistaken belief that the complainant was open to reconciliation, the mens rea of the offence is satisfied if the accused intended to engage in the prohibited conduct and knew, or was reckless or willfully blind as to, whether his conduct was harassing the complainant. See also Krushel (2000), 142 CCC (3d) 1 (Ont CA).
Prior discreditable conduct is admissible as going to whether the accused had requisite mens rea that the complainant was harassed: In Ryback (1996), 105 CCC (3d) 240 (BCCA), leave to appeal refused,  SCCA No. 135 (QL), the Court held that evidence of prior conduct by the accused may be relevant to two elements of the charge of criminal harassment: whether the victim had a reasonable fear for her safety; and whether the defendant knew or was reckless as to whether his conduct harassed the victim. In Kosikar (1999), 138 CCC (3d) 217 (Ont CA), leave to appeal to SCC refused,  SCCA No. 549 (QL), the Court dismissed an appeal against conviction under paragraph 264(2)(d) for a letter to the victim containing sexual innuendoes. The trial judge appropriately relied on the history of the offender's conduct toward the victim (which included a previous conviction for criminal harassment) as relevant to the offender's intention, and knowledge of or recklessness regarding, the harassment. See Di Pucchio, 2007 ONCJ 643, where although nothing said in any of the three phone calls the offender made to his ex-wife was threatening, and he did not necessarily intend to harass her, the Court found that
"he was aware of the danger that [she] would be harassed". This was due to the abusive history of the parties' relationship and the fact that he recklessly persisted in attempting to communicate with the complainant, through an unlisted number that she had not shared with him, despite the fact that she stated she would call the police if he continued. (See also "Prior discreditable conduct is admissible as going to reasonableness of fear" in 3.4.5 The Complainant's Fear Was Reasonable in All of the Circumstances)
Evidence that the accused was asked to stop the contact/conduct as evidence of knowledge: The victim does not have to be forceful in rebuffing the defendant's attention (Ryback (1996), 105 CCC (3d) 240 at para 41 (BCCA), leave to appeal refused,  SCCA No 135 (QL)). See also Rehak (1998) 125 Man R (2d) 181 (QB), in which the complainant had indicated by her actions and gestures that she was displeased by the defendant's attention. In considering whether the defendant knew that the complainant was harassed by his conduct or was reckless as to whether she was harassed by his conduct, the Court stated that "[a] party need not be warned that his or her conduct is criminal before that conduct actually becomes criminal." If the accused's conduct persists after a police warning, he or she cannot be said to have been unaware that the complainant felt harassed. The warning can be viewed as an "objective indicator" of the complainant's fear (Pennell (2007), 73 WCB (2d) 737 (Ont SCJ)). See also McLeod,  AJ No 644 (Prov Ct) (QL), where it was held that the accused should have known that his conduct was scaring his ex-fiancée after she called security, which resulted in his being banned from the mall.
The complainant's indication of feeling/being harassed may vary depending on personal characteristics of the victim, such as age: In Ratelle-Marchand, 2007 QCCA 1854 at para 34, the Quebec Court of Appeal found that it was open for the trier of fact on a charge of first degree murder under subsection 231(6) of the CodeFootnote 141 to find that the accused had knowingly or recklessly harassed his partner's two-and-a-half-year-old daughter, who had expressed in an age-appropriate way that she felt harassed, that she feared for her safety and that she feared the accused.
mens rea in an accused with mental illness: In Rosato,  OJ No 5481 (Sup Ct) (QL), after a determination of fitness to stand trial, the accused was convicted under paragraph 264(2)(d) of criminally harassing his wife by controlling every aspect of her life based on his paranoid delusions. He insisted she not have contact with friends and family and often performed bizarre rituals and said strange and frightening things. The court decided that "even if he didn't appreciate all the nuances of his conduct…the complainant's protestations [about his conduct] were known to the accused and he was aware of and knew his conduct harassed the complainant. He was also aware that there was a risk that his conduct harassed her, but went ahead anyway, not caring whether the conduct harassed [her] or not".Footnote 142
mens rea in abusive controlling relationships: In Chugh, 2004 ONCJ 21, the Court stated: "If Mr. Chugh honestly did not observe what his demands, threats, minor assaults, constant quarrelling and insulting his wife [were] doing to his wife and his marriage, then he was willfully blind to the situation."Footnote 143
mens rea in harassing attempts to reconcile: In Denkers (1994), 23 WCB (2d) 149, the Ontario Court of Appeal made the following statement, which is often relied upon in Canadian jurisprudence: "This victim, and others like her, are entitled to break off romantic relationships. When they do so they are entitled to live their lives normally and safely. They are entitled to live their lives free of harassment by and fear of their former lovers."Footnote 144 In Larivière, 2009 QCCQ 3584, where the complainant abruptly put an end to a short dating relationship, the accused refused to accept the end of the relationship and phoned and emailed the complainant and came to her house. On the issue of mens rea, the Court stated: [TRANSLATION]
"The accused claims that he only wanted the best for the complainant, to win her back and free her from the control of her former spouse. However, the Court finds that the accused knew that the complainant felt harassed by his behaviour and that he did not care."Footnote 145 See also Hyra, 2007 MBCA 69; Scuby, 20c04 BCCA 28; and Cromwell, 2008 NSCA 60.
Aggressive protests: In Bertrand, 2007 QCCQ 6509, the accused was an animal rights activist who was found guilty of criminal harassment for engaging in threatening conduct by aggressively protesting at the offices of a research company that conducted tests on laboratory animals. The accused was disguised, yelled obscenities, knocked on windows, kicked doors, and used a loudspeaker and a megaphone to amplify the noise. The Court found that the accused was wilfully blind regarding whether the staff felt harassed by his conduct. The accused had tried more peaceful methods of protesting but found them to be ineffective
"used more aggressive methods to ensure that their message was understood, regardless of whether people felt harassed."Footnote 146 The Court also stated that it believed that the accused wore masks to avoid being found guilty of a criminal offence.
3.4.4 The Complainant Feared for Her or His Safety, or That of Someone Known to Her or Him
The targets of harassment must actually fear for their safety or that of someone known to them as a result of the conduct of the accused: See Sillipp, 1997 ABCA 346; Josile (1998) WCB (2d) 249; and Hyra, 2007 MBCA 69. For example, in Fujimori, 2005 BCPC 110, the Court found that obtaining a peace bond against the accused, making changes to her lifestyle and immediately retreating to her apartment upon finding the accused in her building supported an inference of fear on behalf of the complainant. See Hassan,  OJ No 1378 (SC) (QL), where the accused was acquitted on all counts of criminal harassment related to threats to distribute, and actual distribution of, intimate photographs of his former girlfriend, which he mailed to several people known to her. While the actions of the accused were characterized as "inappropriate and extremely nasty," it was not established that she "feared for her safety (psychological or physical) or that of anyone known to her."Footnote 147
Fear for mental, psychological or emotional safety: Victims' fear for their safety or that of someone known to them is not restricted to fear of physical harm but, rather, includes fear for their mental, psychological or emotional safety. See Sillipp, 1997 ABCA 346, leave to appeal to SCC refused,  SCCA No 3 (QL); Ryback (1996), 105 CCC (3d) 240 (BCCA), leave to appeal refused  SCCA No. 135; and Finnessey (2000), 47 WCB (2d) 326 (Ont CA). According to widely accepted dicta in Gowing,  OJ No 2743 leave to appeal to ONCA refused  OJ No 90,
"it was the intention of the legislature that a victim's fear for his or her safety must include psychological and emotional security. To restrict it narrowly, to the risk of physical harm by assaultant behaviour would ignore the very real possibility of destroying a victim's psychological and emotional well-being by a campaign of deliberate harassment." However, fear for one's financial well-being is not sufficient. In Lincoln, 2008 ONCJ 14, though the trial judge found that the complainant was threatened by her former fiancé's numerous threats that he would do everything in his power to get the engagement ring back, the offence of criminal harassment was not made out since the complainant did not specify that she felt her safety was threatened, as opposed to her financial well-being. See also Lukaniuk, 2009 ONCJ 21.
Accused need not have knowledge of fear: It is not necessary that the Crown prove that the accused knew that the victim feared for her safety, only that the accused had the requisite mens rea that the complainant was harassed. See Ryback (1996), 105 CCC (3d) 240 (BCCA), leave to appeal refused,  SCCA No. 135 (QL); and Pierce (1997), 34 WCB (2d) 437 (NSCA).
The complainant does not have to use the words "fear for safety": The victim's failure to testify as to his or her fear, or to use the word "fear", need not bar the court from drawing an inference based on the totality of the evidence. In Szostak, 2012 ONCA 503, Rosenberg JA stated that fear can often reflect a state of uncertainty regarding what someone is capable of or intends to do. The Court of Appeal upheld Fairgrieve J's reasoning at trial that in the context of section 264, "fear for [one's] safety" included "a state of anxiety or apprehension concerning the risk of substantial psychological harm or emotional distress, in addition to danger of physical harm."
Other actions of complainants that have been found not to negate a finding of fear include:
- Pretending to remain friends with the harasser in order to prevent the harassment from getting worse (Haddad, 2008 ONCJ 486);
- Staying in an abusive marriage, since even though the complainant was highly educated, she didn't realize the extent of her rights in Canada and came from a culture that she felt wouldn't be responsive to her fears for her safety in her marriage (Chugh, 2004 ONCJ 21);
- Following her ex-husband's car as he drove away after watching her house in the middle of the night, to confirm his identity (Pastore, 2005 ONCJ 332); and
- Having contact with the defendant after separating from him after a 20-year intimate relationship, and moving in to take care of him during an illness (Saloio, 2010 ONCJ 164).
In contrast, in JW, 2010 ONCJ 194, the Court found that the continuous contact with the 18-year-old accused that was encouraged—and, at times, initiated—by the 15-year-old complainant cast doubt that she was harassed or that she feared for her safety.
Offence can be established where the victim fears for the safety of her or his child: In Colquhoun, 2007 ONCJ 499, the accused was convicted of criminal harassment when the Court accepted that the complainant reasonably feared for her own safety or the safety of her daughter, after the accused angrily used a derogatory term in reference to the child. This occurred in the context of repeated harassment of the complainant after she had ended her relationship with the accused. See also Pennel, (2007) 73 WCB 737 (Ont SCJ), where the Court found that the complainant reasonably feared for the safety of her daughter. The accused had been trying to re-establish a relationship with their daughter, whom he'd had no contact with for 10 years, after being convicted of sexually assaulting her when she was four.
Fear for the safety of non-family members: The "safety of anyone known to the complainant" is not restricted to immediate family members or people with whom the complainant has had an intimate relationship. In Cowan (2004), 61 WCB (2d) 646 (Ont SCJ), even though the complainant said she was not afraid for the safety of herself or her daughter, the Court found that her concern for her co-workers (and implied concern for the residents of the nursing home at which she worked) was evidence that could satisfy the fear for "the safety of anyone known to them" element of section 264 of the Code.
Not necessary for a harassed person to identify a particular person as the subject of the feared threat to safety: When a threat is not specifically directed at one particular person, threatening communications may be taken to be directed at a particular group of people generally (Hawkins, 2006 BCCA 498). In this case, the accused threatened several government employees over the telephone, regarding his driver's licence suspension, saying "there was an 85% chance he would kill government employees within a year."Footnote 148 He then argued that those employees who were not directly responsible for his file might not have felt personally threatened. The British Columbia Court of Appeal rejected this argument and held that "[it] would not be sensible to require a recipient to identify a particular individual as the subject of a threat stated in indiscriminate terms."Footnote 149
3.4.5 The Complainant's Fear Was Reasonable in All of the Circumstances
The Crown must establish that the complainant's fear was reasonable, in all of the circumstances: See Lamontagne (1998), 129 CCC (3d) 181 (Que CA); and Krushel (2000), 142 CCC (3d) 1 (Ont CA). In Hyra, 2007 MBCA 69, the key issue for the Manitoba Court of Appeal was whether the complainant's fear was objectively reasonable where the accused, who had been on one coffee date with the complainant, engaged in relentless and unwanted communication over a three-year period. In finding that the fear was reasonable, the Court described the conduct of the accused as
"manifest[ing] unpredictability and an unwillingness or inability to exercise restraint or self-control, as shown by his disregard for police cautions and the charge." In Chaves,  OJ No 1551 (Ct J) (QL), the threatening conduct and the reasonableness of the complainant's fear, for his own safety and that of his family, could be implied from the context of the relationship between the target and the accused. The complainant was a police officer who was investigating charges against the accused, whom he knew to be a member of a motorcycle gang. Though the particular words of the accused might appear innocuous in and of themselves, the Court held that it "cannot disabuse itself of the context in which these remarks are being spoken and whether or not these words are to be taken as words of a sinister, intimidating, or threatening nature when it is apparent that by speaking those words in reference to his residence, that is the purpose for which Mr. Chaves has spoken those words…"Footnote 150
Prior discreditable conduct is admissible as going to reasonableness of fear: See Ryback (1996), 105 CCC (3d) 240 (BCCA), leave to appeal refused,  SCCA No 135 (QL); Hau,  BCJ No 1047 (SC); and Krushel (2000), 142 CCC (3d) 1 (Ont CA). In DD (2005), 203 CCC (3d) 6 (Ont CA), the Ontario Court of Appeal reviewed the leading cases on this issue and set out the probative purposes for which discreditable conduct occurring prior to the criminal harassment conduct is most frequently admitted. Those purposes are to provide context related to the following:
- the effect that the incident had on the complainant
- whether the accused knew that the conduct was harassing the complainant
- whether the complainant's fear for her or his safety was reasonable
The Court confirmed that the trial judge is required to weigh the probative value of the evidence against its prejudicial effect. The Court followed Ryback's dicta that while such evidence cannot
"be used to establish any part of the actus reus of the charge, it is admissible to establish the mental elements required of both the accused and the complainant."Footnote 151 Thus, this evidence cannot be used to establish the propensity of the accused to do the alleged acts, but it can be used to provide context within which to determine the mental states of the parties, as well as the reasonableness of the complainant's fear. This is a different issue than similar fact evidence. Hau also cites SB,  OJ No 1187 (QL) (Ct J (Gen Div)), which is frequently cited for its holding that in cases of intimate partner violence, evidence of pre-charge conduct is frequently admissible to provide narrative context or background to the charges before the court. Moreover, a minor incident of harassment directed at someone known to the complainant that took place a long time ago may be regarded as a relevant factor in the decision DD (2005), 203 CCC (3d) 6 (Ont CA)). See also "Prior discreditable conduct is admissible as going to whether the accused has requisite mens rea that complainant was harassed" in 3.4.3 The Accused Knew That the Complainant Was Harassed or Was Reckless or Wilfully Blind as to whether the Complainant Was Harassed.
Evidence that the accused has previous charges, non-contact orders, and/or convictions against the same complainant indicates that the accused knew the conduct was unwelcome and the complainant likely had an increased level of fear that the accused did not cease after justice system involvement: See Hau,  BCJ No 1047 (SC) (QL); and Kosikar (1999), 138 CCC (3d) 217 (Ont CA). See also Palermo,  OJ No 3191 (Sup Ct) (QL), where the accused called the complainant and said
"You can't win with me," and then laughed and hung up after he was acquitted of several charges involving the same complainant, including criminal harassment after the relationship had ended. While such a comment may not appear threatening on its face, the Court found that the conduct was threatening. The fact that the accused had been acquitted of the previous conduct was equivalent to a finding of innocence on the previous charges, but the trial judge was still permitted to admit the evidence of the acquittal as being relevant to the current charges since that "verdict did not eliminate the relevance of the complainant's belief that she was being harassed [prior to the period covered by the current charges]" and that the accused called her after the acquittal and taunted her, suggesting that there was nothing she could do to stop him. This was relevant to assessing whether his conduct was threatening and the reasonableness of her fear with respect to the conduct currently before the Court. See also Cromwell, 2008 NSCA 60, where the complainant's fear, caused by a series of letters written by her common-law spouse while he was in prison and subject to a no-contact order, was found to be reasonable in the context of his previous conviction for assault, criminal harassment and breach of no-contact orders against the same complainant, as well as his continuous references to his wish to resume the relationship and for her to stay faithful to him.
Fear of what the accused might be capable of: In Szostak, 2012 ONCA 503, even though the complainant demonstrated concern for the well-being of the accused, her former common-law spouse, and was sympathetic to his unfortunate circumstances, her fear of him was reasonable, since he had assaulted her in the past, had unpredictable behaviour, and continued to harass her with multiple insulting and sometimes threatening voice messages. In Birsely, 2009 ONCJ 458, the accused was found guilty of criminal harassment even though he had never threatened the celebrity complainant. The cumulative effect of his actions of persistently contacting the television personality, whom he'd never met, as well as her friends and family, and expressing his love and desire to marry her, despite numerous requests to stop, caused the victim to fear for her safety. On the other hand, in Wolfe, 2008 BCPC 119, the complainant's stated fear of her ex-husband, allegedly caused by his repeated offensive and aggressive phone calls, was found to be unreasonable in the absence of any actual threat by the accused to do anything, other than go to court.
The "reasonable person" standard must take into account all of the victim's circumstances in order to effectively protect the most vulnerable members of society: See Gauthier,  JQ no 5751 (CS)(QL). In this case, the complainants were children and the accused could not rely on the reasoning that an adult would not be fearful of his behaviour. However, the Court found that even though the children's fear was reasonable, the accused had not engaged in any prohibited conduct. In determining the reasonableness of the victims' fear, the court must take all circumstances into account. As per Greco J at paragraph 23, in Lafreniere (1994), 22 WCB (2d) 519 (Ont Ct J (Prov Div))(QL), and applied in Hertz,  27 WCB (2d) 321 (Alta Prov. Ct.) this context can include:
…the gender of the victim and the story and circumstances surrounding the relationship which existed or which had existed, if any, between the accused and the victim. As per Lavallee, it is legitimate to take gender into account due to the differences which recognizably exist between the size, the strength, and the socialization of women when compared to their male counterparts.
See also Kordrostami, 143 CCC (3d) 488 (CA), where in affirming the trial court's finding of reasonableness of the complainant's fear, the Ontario Court of Appeal considered personal characteristics of the complainant, such as her young age.
3.4.6 Without Lawful Authority
The Crown must establish that the accused did not have lawful authority to engage in the harassing conduct: In Vandoodewaard (2009), 86 WCB (2d) 90 (Ont Sup Ct), Durno J upheld the trial judge's finding that
"lawful authority should not be limited to more official types of authority such as police authority or government sanctioned authority. The common law could also provide sufficient authority."Footnote 152 He further referred to the Ontario Specimen Jury Instructions, which provide that
"to have lawful authority to do something means that the law specifically allows a person to do what the accused did in the circumstances in which he or she did it."
A legal right to see one's child does not in and of itself constitute lawful authority in the sense of section 264: In BD, 2006 ONCJ 249, it was not a lawful contact where the accused, who had a substantial history of violence and psychological abuse against the complainant, repeatedly contacted her, in contravention of a court order, to pressure her to bring their daughter to visit him in jail. There were other lawful means available for him to exercise his right to contact his daughter, and the Court made an inference that he
"intended, as was his pattern, to overwhelm [the complainant's] refusal to submit to his demands." In Wolfe, 2008 BCPC 119, the accused was acquitted of criminally harassing his estranged wife by making repeated obnoxious and offensive phone calls, sometimes making explicit sexual references. Although the calls bothered and upset the complainant, the Court found that they were not threatening and the accused was communicating for the legal purpose of abiding by the separation agreement with regard to their children.
Harassing elements can be found in communications otherwise made for a legitimate purpose: In Vandoodewaard (2009), 86 WCB (2d) 90 (Ont Sup Ct), it was held that, despite the fact that the appellant had a legitimate interest in having the complainant return his property, the Court could not turn a blind eye to the
"constant repetition of the vitriolic and generally threatening comments in his communication to the complainant." See also Lincoln, 2008 ONCJ 14, where the Court found that the accused might have had a legal claim to the return of an engagement ring, though
"he had no lawful authority to repeatedly leave offensive and threatening messages for [his former girlfriend]." See also Milani, 2007 ONCJ 394, where the Court emphasized that even if communications have a legitimate purpose, such as discussing ongoing matrimonial issues between ex-spouses who have children together, it may still be necessary to look at the content of the communications to ascertain their true purpose. In this case, the Court found that the true purpose of the accused's threatening phone calls was to pressure the complainant to
"see things his way" in their matrimonial disputes. On the other hand, in Moyse, 2010 MBPC 21, it was decided that the accused's repeated communications had the legitimate purpose of persuading the complainant to return his property to him; her failure to do so was found to be inconsistent with her alleged fear of the accused.
3.5 Murder Committed in the Course of Criminal Harassment
Subsection 231(6) of the Criminal Code, which came into effect in 1997,Footnote 153 makes murder committed in the course of criminally harassing the victim a first degree murder offence, irrespective of whether it was planned and deliberate. (See 3.2 Criminal Code Provisions for the full text of this subsection). Bradley, 2003 PESCTD 30, motion for appeal dismissed, 2007 PESCAD 23, is the first reported case of a successful prosecution under subsection 231(6), although the trial judge also found that the murder was otherwise first degree because it had been planned and deliberate.
Elements of criminal harassment murder: The Crown must prove that the accused caused the death of the deceased while the accused was committing or attempting to commit criminal harassment of the deceased as per section 264 of the Criminal Code. In addition to proving the elements of the offence of criminal harassment (see 3.4 Key Elements), to prove that murder was first degree under subsection 231(6), the Crown must also prove the additional element, that the accused subjectively intended to cause the person murdered to fear for her or his safety, or the safety of anyone known to the person murdered (Bradley, 2003 PESCTD 30; Morehouse, 2008 ABCA 225; and Desjardins, 2010 QCCA 2).
The offences of murder and criminal harassment need not occur simultaneously, but the two must make up one continuous sequence of events forming a single transaction: See Tran, 2005 ABQB 852. See also Alaoui, 2009 QCCA 149, leave to appeal to SCC refused,  SCCA No. 126 (QL), where the perpetrator, who had previously harassed his estranged wife, had no contact with her for four months prior to her murder. The interruption between the conduct that would constitute criminal harassment and the murder was held to have been sufficiently lengthy to bar the application of subsection 231(6).
Difference between subsections 231(5) and (6): The first reported reference to subsection 231(6) was in Russell, 2001 SCR 53, where the Court noted the distinction between subsections 231(5) and 231(6). In order for subsection 231(6) to apply, the murder victim must be the same person who was being criminally harassed. (See also Tran, 2005 ABQB 852.) In contrast, the constructive murder provisions in subsection 231(5) do not contain this limitation and did apply in Russell, where the murder victim was not the same person who was unlawfully detained. In Penney,  OJ No 5914 (Sup Ct) (QL), the court quoted Harbottle,  3 SCR 306, in order to clarify another difference between subsection 231(6) and subsection 231(5). The difference lies in two factors: i) the underlying offence; and ii) the additional mental element required by subsection 231(6), which provides that in engaging in a criminally harassing conduct, the accused intended to cause the victim to fear for his or her own or another's safety.
The constitutionality of subsection 231(6) was challenged and upheld in Linteau,  JQ no 16722 (CS) and Ratelle-Marchand,  JQ no 3949 (CS)(QL). (See 3.3 Charter Challenges, for details.)
3.6 Case Law Dealing with Cyberstalking and Online Harassment
The use of technology to stalk and harass has been a growing concern in Canada over the last few years. Not only does it present unique investigatory and evidentiary challenges to police officers and prosecutors, but it also exposes and subjects victims to new types of harms. To date in Canada, because section 264 of the Criminal Code is not restricted to a specific method of communication, it has not been necessary to update it for it to apply to emerging technologies. It remains that so long as the user of the technology has knowledge that his or her conduct is harassing another person, and that person has a reasonable fear for his or her safety, the elements of the offence of criminal harassment will likely be satisfied.
As fact situations involving the use of new technologies to stalk and criminally harass began entering the courts, reported decisions did not reflect any challenges or reluctance in applying the established jurisprudence to these fact situations. In other words, the elements of the offence remain the same, and no new legal tests have appeared. The ways in which these cases do appear to differ, though, is in the kind of evidence that is presented to the court (see, for example, Labrentz, 2010 ABPC 11) and in the recognition that is being given to the unique ways in which this type of harassment affects victims. This impact on victims has been noted both in reference to the reasonableness of the victim's fear and at sentencing.
The courts have recognized that victims of cyberstalking may be more vulnerable than other victims, as they are less capable of escaping or hiding from the offender. Wenc, 2009 ABPC 126; aff'd 2009 ABCA 328, for example, involved two men who entered into an intimate relationship after meeting online. Shortly after the complainant terminated the relationship, the accused began harassing him through repeated phone calls and voice mail messages, as well as numerous email and fax messages. The accused used false identities and third-party computers, making the process of tracing the source of the harassment difficult and lengthy. In addition, the accused spread false online rumours that the complainant was spreading HIV, sent nude photographs of him to their friends and assumed the identity of the complainant in chat rooms, causing strangers to come to the victim's residence expecting sexual encounters. The trial court stated:
"Courts have noted that the intimidation caused by the harassment is a real form of harm, and unlike with more conventional modes of harassment, the victim of cyber-stalking is less able to escape or hide from their tormentor."Footnote 154 See also Fader, 2009 BCPC 61, in which the accused was found guilty of criminal harassment for conduct that included sending sexually explicit pictures and videos of the complainant to the complainant's new boyfriend, threatening to send nude pictures of her to numerous people who knew her, and posting pictures of her and her contact information on an adult dating website, which resulted in people contacting her.
In Barnes,  AJ No 965 (Prov Ct)(QL), aff'd 2006 ABCA 295, the accused used his computer skills to obtain details of the complainant's personal life, steal her identity and electronically distribute her photographs. He continued to do so despite a no-contact order, even while living overseas, where he fled after warrants for his arrest were issued. The complainant described his relentless campaign of harassment as a systematic attempt to destroy her life. Cioni J stated that
"cyber stalking can cause harm to people in their essential lives [and] is close to and a form of identity theft."Footnote 155
In Cholin, 2010 BCPC 417, the accused had first become fixated on the complainant in 2004 when she was a 12 year old actress, and he was 33 years old. Two years later, when she was a regular cast member in a television drama, she belonged to a social networking site whose security measures were still in development. The accused indicated in his profile on the same site that he was friends with many of the same people as the complainant and then initiated contact with her. She initially replied, but then blocked him from her site once his messages became odd and disturbing. The accused persisted in trying to contact her through various means, including sending overtly threatening sexual messages through her friends. The Court found that the conduct had a life-changing and serious effect on the victim and her family, and that the accused had little appreciation for the impact of his conduct. In sentencing the offender to 18 months incarceration, in addition to the 5 months spent in pre-trial detention, the Court imposed a 3 year probation order, which included a prohibition from accessing the Internet and not being in possession of any electronic device with capacity to access to the Internet.
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