Criminal Harassment and Uttering Threats

What is Criminal Harassment?

Under section 264(1) of the Criminal Code, criminal harassment occurs when one person’s conduct causes another person to fear for their safety or the safety of someone known to them.[1] To be convicted, the Crown must show the following: the defendant engaged in conduct outlined in s.264(2), the complainant felt harassed, the defendant was aware of that effect, the defendant’s conduct caused the complainant to fear for their safety or that of someone they know, and the complainant’s fear was reasonable within context.[2]

Under s.264(2), four types of conduct directed at the complainant or a person they know can constitute harassment: repeatedly following them from place to place; repeatedly communicating with them; besetting or watching the place they work, reside, or happen to be; and engaging in threatening conduct.[3] Context such as the past relationship between the parties, how the defendant acquired the complainant’s contact information, and requests to refrain from conduct is always relevant to determining whether the conduct could constitute harassment.[4] Each is explored in more detail below.

Repeatedly Following and Communication

 “Repeated” may be satisfied by as few as two instances, depending on the background of the relationship between the parties and the intent of the defendant.[5] Repeated instances do not need to be separated by time. For example, following someone from one place to another, then to a third in a continuous sequence is considered repeated.[6] Similarly, multiple calls in quick succession may be considered separate instances.[7]

Communications do not have to be made directly with the victim. Repeatedly contacting people known to the victim, such as their friends, coworkers, and family, may still constitute harassment if they appear to be the “real target.”[8] The content of communications will also be considered in addition to their context in determining whether communications constitute harassment.

Besetting or Watching

Besetting is conduct that makes a person feel surrounded, unable to move, or attacked on all sides.[9] It may include physically approaching someone to make forceful requests or to start an argument, or conduct such as repeatedly driving by a person’s house.[10] The victim must also feel at risk and have a reasonable apprehension of danger.[11]

Watching is the passive act of “continually observing for a purpose.”[12] It can be inferred from context. For example, stating a person’s current location may indicate that the defendant is watching them.[13]

Odd or suspicious behaviour alone is not enough to constitute watching or besetting if there is no reasonable indication of a risk of violence.[14] Similarly, watching for a justifiable purpose, such as to take pictures as evidence for an upcoming divorce proceeding, may not be criminal.[15]

Threatening Conduct

Conduct is considered threatening if a reasonable person in shoes of the complainant would feel it was “designed to instil a sense of fear” or intimidate them.[16] The conduct does not need to contain actual threats of violent behaviour or even spoken words so long as it satisfies the above condition.[17]

 The Complainant Felt Harassed

A conviction also requires that the complainant subjectively feel harassed and the defendant was aware of this effect. The courts have used numerous synonyms for harassed, including “tormented, troubled, worried continually or chronically, being plagued, bedevilled and badgered.”[18] However, it is insufficient that they feel only “vexed, disquieted, or annoyed;” they must be genuinely distressed by the conduct.[19]

The Crown only needs to show that the defendant engaged in the conduct knowing that their actions had the above effect on the complainant, not that they actually intended to cause distress or fear.[20] It is also sufficient if the Crown can show that the defendant was reckless (proceeded with the conduct despite knowing that it could have that effect) or wilfully blind (saw the need to question the effect of their conduct but chose not to).[21]

 Complainant’s Fear for Safety

The Crown must establish that, as a result of the defendant’s conduct, the complainant feared for their own physical, psychological, or emotional safety, or that of someone they know.[22] Furthermore, this fear must be objectively reasonable in the particular circumstances of the case. Relevant circumstances include the complainant’s characteristics (e.g., their gender, age, and personal history), the defendant’s characteristics (e.g., previous charges or conduct), and the overall context (including the parties’ relationship).[23]

 Uttering Threats

Closely related to Criminal Harassment is Uttering Threats under s.264.1(1) of the Criminal Code. Unlike threatening conduct under Criminal Harassment provisions, which only needs to cause fear, threats under s.264.1(1) are more severe. A charge of Uttering Threats can be laid under s.264.1(1) where a person knowingly utters, conveys, or causes another person to receive a threat either: (a) to cause death or bodily harm to any person; (b) to burn, destroy or damage real or personal property; or (c) to kill, poison or injure an animal or bird that is the property of any person.[24]

What Constitutes Threatening Words?

Courts define a threat as any menace or statement that ill or harm will befall the recipient.[25] When deciding whether words constitute a criminal threat courts ask whether a reasonable person would perceive them as a threat of death or bodily harm, with consideration to the circumstances in which they were spoken or written and the particular parties involved.[26] Bodily harm here includes both physical and psychological hurt.[27]

Ambiguous language may be a valid defence where there is a reasonably plausible alternative meaning for the words in context. For example, “I’ll get you!” can have a variety of meanings outside of physical violence or property damage and may not constitute a criminal threat, but “I’ll kick your ass!” has been found to be specific enough to amount to a threat.[28]

The Crown must also show that the defendant intended to intimidate the recipient or intended them to be “taken seriously.”[29] The recipient does not actually need to be intimidated or take the threat seriously to establish this intent, and the defendant does not actually need to intend or be able to carry out the threat.[30] Conversely, statements made while blowing off steam or during an angry outburst may not be interpreted as being intended to be taken seriously.[31]

The Relationship Between Criminal Harassment and Uttering Threats

Threats falling short of threatening death or bodily harm may still constitute “Threatening Conduct” for the purposes of a charge of Criminal Harassment.[32] Conversely, threats under s.264.1(1) can form the basis for a harassment charge. However, if the defendant is found guilty of both, they will only be convicted of harassment.[33]

[1] Criminal Code, R.S.C 1985 c C-46, s.264(1)

[2] R v Sillipp, 1997 ABCA 346 (CanLII), 120 CCC (3d) 384, leave to appeal to SCC refused, [1998] SCCA No 3 [Sillipp]

[3] Criminal Code, R.S.C 1985 c C-46, s.264(2)

[4] R v Scuby, 2004 BCCA 28; R v Bell, 2009 ONCJ 312

[5] R v Ohenhen, 2005 CanLII 34564 (ONCA), 200 CCC (3d) 309 at para 32-33, leave to appeal refused, [2006] SCCA No 119

[6] R v Thélémaque, 2008 QCCQ 2308

[7] R v Di Pucchio, 2007 ONCJ 643

[8] Ibid; R v MRW, [1999] B.C.J. No. 2149

[9] R v Smysniuk, 2007 SKQB 453

[10] Ibid, R. v. Eltom, 2010 ONSC 4001 (CanLII) at para 13 [Eltom]

[11] R v Zorogole, 2004 NSPC 16 at para 6 [Zorogole]

[12] Eltom, supra note 10 at para 13

[13] R v Bielicz, [2008] OJ No 3633 (SCJ)

[14] Zorogole, supra note 11

[15] R v Wease, [2008] OJ No 1938

[16] R. v. McCraw, [1991] 3 S.C.R. 72

[17] Ibid

[18] R v Kosikar,1999 CanLII 3775 (ON CA), 138 CCC (3d) 217 [Kosikar].

[19] Sillipp, supra note 2

[20] Ibid

[21] Ibid; R v Briscoe, 2010 SCC 13 at para 21-22

[22] Sillipp, supra note 2

[23] Kosikar, supra note 18; R v DD (2005), 203 CCC (3d) 6 (ONCA); R v Kordrostami, 143 CCC (3d) 488 (CA)

[24] Criminal Code, R.S.C 1985 c C-46, s.264.1(1)

[25] R v Leblanc, 1988 CanLII 131 (NBCA), 90 NBR (2d) 63, aff’d [1989] 1 SCR 1583 1989 CanLII 56 (SCC) [Leblanc]

[26] R v McCraw, 1991 CanLII 29 (SCC), [1991] 3 SCR 72 [McCraw]

[27] Ibid

[28] R v Gingras (1986) 16 WCB 399; R v Waskewitch, 2011 SKPC 28 (CanLII)

[29] R v McRae, 2013 SCC 68 (CanLII), [2013] 3 SCR 931; R v ML, 2021 NBCA 27 (CanLII), at para 30; R v Butt, 2021 CanLII 64133 (NL PC), at para 31; R v O’Brien, 2013 SCC 2 (CanLII), [2013] 1 SCR 7 at para 13 [O’Brien]

[30] Leblanc, supra note 25; O’Brien, supra note 29; R v Noble (P.D.J.), 2010 MBCA 60 (CanLII), 255 CCC (3d) 451 at para 8

[31] E.g., R v Knox, 2012 CanLII 55973 (NLTD); O’Brien, supra note 29

[32] R v B (OF), 2006 CarswellAlta 500, 2006 ABCA 130, 384 A.R. 102 (Alta CA)

[33] R v Hawkins, 2006 CarswellBC 2989, 215 CCC (3d) 419 (BCCA)

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