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Family Violence Initiative

CRIMINAL HARASSMENT:

A HANDBOOK FOR POLICE AND CROWN PROSECUTORS

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3.4 Key Elements

The offence of criminal harassment contains the following key elements.

The offender engaged in conduct described in subsection 264(2).
The offender did not have lawful authority to engage in the prohibited conduct.
The offender knew that the victim was harassed or he/she was reckless or wilfully blind as to whether the victim was harassed.
The conduct caused the victim to fear for their safety or that of someone known to them.
The victim’s fear was reasonable in all of the circumstances.

See also the Alberta Court of Appeal’s summary of the elements of the offence in R. v. Sillipp (1997), 120 C.C.C. (3d) 384; leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 3 (QL).

The accused must be shown to have engaged in any of the conduct prohibited in subsection 264(2). See as well R. v. Ladbon, [1995] B.C.J. No. 3056 (Prov. Ct) (QL), where 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 R. v. Detich, [1999] Q.J. No. 25 (C.A.) (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 – Subsection 264(2)(a)

“Repeatedly” refers to “conduct that is engaged in on more than one occasion.” This conduct must be viewed in its context to determine whether it is “repeated”: R. v. Ryback (1996), 105 C.C.C. (3d) 240 (B.C.C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 135 (QL) (interpreted three communications in that context as amounting to “repeatedly” under subsection 264(2)(b)); R. v. Lafreniere, [1994] O.J. No. 437 (Prov. Div.) (QL) (conduct that is engaged in persistently by the accused is repeated); R. v. Belcher (1998), 50 O.T.C. 189 (Gen. Div.) (determined that the repeated conduct does not have to occur on a number of occasions separated by time); and R. v. Gerein, [1999] B.C.J. No. 1218 (Prov. Ct.) (QL) (following the victim in three segments over a one-hour period constituted repeated following). See also R. v. Dupuis, [1998] O.J. No. 5063 (Gen. Div.) (QL).

Repeatedly Communicating – Subsection 264(2)(b)

“Repeatedly” means many times over. It means more than once or twice: R. v. Hertz (1995), 170 A.R. 139 (Prov. Ct.); R. v. Theysen (1996), 190 A.R. 133 (Prov. Ct.); R. v. Lafreniere, [1994] O.J. No. 437 (Prov. Div.) (QL); and R. v. States, [1997] B.C.J. No. 3032 (Prov. Ct.) (QL) (e-mail and written notes). See also R. v. M.R.W., [1999] B.C.J. No. 2149 (S.C) (QL), where the accused was convicted of criminally harassing the victim by repeatedly communicating with persons known to the victim (at least six communications over two days). 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. See also R. v. Davis (1999), 143 Man. R. (2d) 105 (Q.B.), aff’d (2000) 148 Man. R. (2d) 99 (C.A.), where the accused harassed the complainant through his contact with her friends; and R. v. Scuby, 2004 BCCA 28, where the Court held that the trial judge must consider both “the content and the repetitious nature” of the communication, in the context in which it is made.

Besetting or Watching – Subsection 264(2)(c)

“Watching” is to be given its ordinary dictionary meaning: R. v. Dupuis, [1998] O.J. No. 5063 (Gen. Div.) (QL). Watching can be non-criminal, but if it is done in circumstances and to an extent that are objectively capable of demonstrating an intention to harass and generating reasonable fear, it can fall within subsection 264(2)(c): R. v. Belcher (1998), 50 O.T.C. 189 (Gen. Div.).

R. v. Vrabie, [1995] M.J. No. 247 (Prov. Ct.) (QL) 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). 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.

R. v. Diakow, [1998] M.J. No. 234 (Prov. Ct.) held that besetting required at least some knowledge or awareness on the part of the victim that she was the subject of the besetting.

Subsection 264(2)(c) does not require that the watching or besetting be “repeated”: R. v. Belcher (1998), 50 O.T.C. 189 (Gen. Div.). See also R. v. Kosikar (1999), 138 C.C.C. (3d) 217 (Ont. C.A.), leave to appeal to S.C.C. refused (2000), [1999] S.C.C.A. No. 549 (QL).

Engaging in Threatening Conduct – Subsection 264(2)(d)

Subsection 264(2)(d) is not ambiguous and can be given its ordinary meaning. One incident of threat is sufficient and need not be of a repetitive nature to satisfy subsection 264(2)(d): R. v. Riossi (1997), 6 C.R. (5th) 123 (Gen. Div.). In Riossi, Boyko, J. considered and rejected the reasoning in R. v. Johnston, [1995] O.J. No. 3118 (Prov. Div.) (QL), which held that subsection 264(2)(d) required a pattern of conduct and not just a single discrete incident. Boyko, J. accepted the decision in R. v. Zienkiewicz, [1994] B.C.J. No. 3141 (Prov. Ct.) (QL) that realistic fear can arise from a single incident. See also R. v. Fuson, [1998] B.C.J. No. 1441 (Prov. Ct.) (QL); and R. v. Ryback, [1997] B.C.J. No. 2824 (S.C) (QL). See also R. v. Lamontagne (1998), 129 C.C.C. (3d) 181 at 187 (Qc. C.A.), which 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 instil a sense of fear in the recipient.”

See also R. v. Kosikar (1999), 138 C.C.C. (3d) 217 (Ont. C.A.), leave to appeal to S.C.C. refused (2000), [1999] S.C.C.A. No. 549 (QL) (one letter by the offender to the victim that contained sexual innuendoes, considered together with the offender’s past conduct towards the victim, constituted threatening conduct); and R. v. George (2002), 162 C.C.C. (3d) 337 (Y.C.A.).

Evidence of Pre-charge Conduct/Similar Fact Evidence

R. v. Ryback (1996), 105 C.C.C. (3d) 240 (B.C.C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 135 (QL), 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 R. v. J.G.T. (1999), 257 A.R. 251 (Q.B.), aff’d (2003), 320 A.R. 251 (C.A.), the trial judge admitted evidence concerning unrelated allegations by two different complainants, as “internal similar fact evidence for a number of purposes: as evidence of the accused’s intent with respect to the assault, harassment and confinement charges; to support or corroborate the complainants’ evidence; to put into context the complainants’ fear; and to assist in assessing the accused’s knowledge of the effect of his conduct in relation to the allegations of criminal harassment”(para. 70). The trial judge stated that he had attributed little weight to the evidence, but nonetheless had found that its probative value outweighed its prejudicial effect on the basis that there were “sufficient similarities to establish a pattern of behaviour”(para. 71).

In R. v. Henson, [1994] O.J. No. 1767 (Prov. Div.) (QL), similar fact evidence was allowed to rebut the defendant’s defence of accident and to address the issue of motive. See also“R. v. Hau, [1996] B.C.J. No. 1047 (S.C.); and R. v. Zunti (1997), 161 Sask. R. 55 (Q.B.). In R. v. Archer, [1999] O.J. No. 950 (Gen. Div.) (QL), Killeen, J. applied R. v. Arp, [1998] 3 S.C.R. 339, by treating some of the evidence (relating to numerous counts of arson) as “similar fact evidence with cross-corroboration effects.”

R. v. S.B., [1996] O.J. No. 1187 (Gen. Div.) (QL) held that in domestic violence cases, evidence of pre-charge conduct is frequently admissible to provide narrative context or background to the charges before the court.

3.4.2 Without Lawful Authority

The defendant must engage in the prohibited conduct without lawful authority. R. v. Shapira (1997), 203 A.R. 299 (Prov. Ct.) held that the phrase “without lawful authority” must be restricted to authority that emanates from the state through a court order, legislative approval or some other executive power of the state. It could not be construed to include the victim’s permission to the accused to contact the victim by telephone where the telephone calls amounted to “harassment.”

See also R. v. Browning (1995), 42 C.R. (4th) 170 (Ont. Ct. Prov. Ct.), which held that in determining whether there is any lawful reason for the accused to communicate with the victim, the nature of the relationship between the two is relevant (in this case, the parties had a working relationship). However, marriage or cohabitation is not a bar to a conviction under section 264: R. v. Skoczylas (1997), 99 B.C.A.C. 1 (C.A.); and R. v. Sanghera, [1994] B.C.J. No. 2803 (Prov. Ct.) (QL). See also R. v. Rahman (1999), 97 O.T.C. 32 (Sup. Ct.) (section 264 can apply to a case where the offender and victim are members of a subsisting family).

In R. v. Sousa, [1995] O.J. No. 1435 (Gen. Div.) (QL), Cusinato, J. did not accept the defendant’s evidence that he had a legitimate purpose in following the victim (his estranged wife) in order to see his children. If the defendant had really wanted to see his children, he should have followed the terms and conditions of the existing access order.

3.4.3 Knowingly or Recklessly Harassed

Knowingly or Recklessly

The Crown must prove that, by engaging in the prohibited conduct, the accused intended to harass the victim or that the accused was in fact reckless as to whether the conduct harassed the victim: R. v. Lafreniere, [1994] O.J. No. 437 (Prov. Ct.) (QL). R. v. Yonik, [1996] O.J. No. 3765 (Prov. Div.) (QL) applied Sansregret’s definition of recklessness at para. 12: “The conduct of one who sees the risk (of a result prohibited by criminal law) and who takes the chance.” It is not necessary that the Crown prove that the defendant knew that the victim feared for her safety: R. v. Pierce (1997) N.S.R. (2d) 183 (C.A.).

The victim does not have to be forceful in rebuffing the defendant’s attention: R. v. Ryback (1996), 105 C.C.C. (3d) 241 at 248 (B.C.C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 135 (QL); and R. v. Hau, [1996] B.C.J. No. 1047 (S.C.) (QL). See also R. v. Rehak (1998) 125 Man. R. (2d) 181 (Q.B.), which in considering whether the defendant was wilfully blind to the fact that he was engaging in prohibited conduct, held that “[a] party need not be warned that his or her conduct is criminal before that conduct actually becomes criminal.” In this case, the victim had indicated by her actions and gestures that she was displeased with the defendant’s attention.

The test is whether it would be reckless or wilfully blind for a reasonable person not to believe that their conduct might harass the victim: R. v. Dupuis, [1999] O.J. No. 1860 (Gen. Div.) (QL), as per R. v. Sillipp (1997), 120 C.C.C. (3d) 384 (Alta. C.A.), leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 3 (QL). Sillipp was followed recently on this issue in R. v. Rivet, [2002] O.J. No. 4863 (Sup. Ct. J.) (QL), aff’d [2003] O.J. No. 502 (C.A.) (QL). In R. v. Gerein, [1999] B.C.J. No. 1218 (Prov. Ct.) (QL), the offender followed the victim in her car in three segments over a one-hour period. The victim drove at high speed, making random turns, to lose the offender. The Court held that in such circumstances it was not possible for the offender to have been unaware of the effect of his conduct on the victim: “his mental state went beyond being reckless as to the effect of his conduct on [the victim] and amounted to actual knowledge of the obvious.”

See also R. v. Shadwell, [1997] O.J. No. 3340 (Prov. Div.) (QL).

In R. v. Kosikar (1999), 138 C.C.C. (3d) 217 (Ont. C.A.), leave to appeal to S.C.C. refused (2000), [1999] S.C.C.A. No. 549 (QL), the Court upheld the dismissal of an appeal against conviction under subsection 264(2)(d) (letter to the victim containing sexual innuendoes). The trial judge appropriately relied on the history of the offender’s conduct towards the victim (which included a previous conviction for criminal harassment) as relevant to the offender’s intention and knowledge/recklessness of the harassment.

Harassment

As to whether the conduct constitutes “harassment,” R. v. Sillipp (1995), 99 C.C.C. (3d) 394 (Alta. Q.B.), aff’d (1997), 120 C.C.C. (3d) 384 (Alta. C.A.), leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 3 (QL), held at trial that harassment implies “being tormented, troubled, worried continually or chronically, being plagued, bedeviled and badgered.” This definition was accepted in R. v. Ryback (1996), 105 C.C.C. (3d) 241 at 248 (B.C.C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 135 (QL); R. v. Lamontagne (1998), 129 C.C.C. (3d) 181 (Qc. C.A.) (which held that “harass” can also signify the fact of “bothering someone with requests, solicitations, incitements ... which conveys rather well the idea that the conduct must have the effect of bothering someone because of its continuity or its repetition”); and R. v. J.G.T. (1999), 257 A.R. 251 (Q.B.), aff’d (2003), 320 A.R. 251 (C.A.). See also R. v. M.R.W., [1999] B.C.J. No. 2149 (S.C.) where the Court found that the accused was “reasonably sure” that his six separate inquiries to persons known by the victim would be communicated back to the victim (the accused had been convicted of attempted murder of the victim approximately 16 years earlier).⁴⁶

3.4.4 Fear for Safetyx

The victim must actually fear for their safety or that of someone known to them as a result of the defendant’s conduct: R. c. Josile, [1998] A.Q. No 1280 (C.S. crim.) (QL); and R. v. Barnard, [1998] O.J. No. 3304 (Gen. Div.) (QL).

The victim’s 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 and emotional safety: R. v. Hau, [1996] B.C.J. No. 1047 (S.C.); R. v. Skoczylas (1997), 99 B.C.A.C. 1 (C.A.); R. v. Lafreniere, [1994] O.J. No. 437 (Prov. Ct.) (QL); R. v. Hertz (1995), 170 A.R. 139 (Prov. Ct.)); and R. v. Gowing, [1994] O.J. No. 1696 (Prov. Div.) (QL). R. v. Goodwin (1997), 89 B.C.A.C. 269 (C.A.) held that victims of harassment do not have to “suffer ill health or major disruption in their lives before obtaining the protection of section 264.”

Someone Known to the Victim

The victim may be harassed by the defendant and may be found to hold a reasonable fear for the safety of someone known to the victim where the defendant engages in prohibited conduct in relation to the victim’s daughter: R. v. Dupuis, [1998] O.J. No. 5063 (Gen. Div.) (Q.L.). See also R. v. Dunnett, [1999] N.B.J. No. 122 (Q.B. (T.D.)) (QL), where the victim—the offender’s ex-wife—feared for the emotional health of the couple’s daughter as a result of the offender’s repeated telephone calls to the daughter (hundreds of calls a day).

3.4.5 Reasonableness of Fear

The victim must reasonably, in all of the circumstances, fear for their safety or that of someone known to them.

In determining the reasonableness of the victim’s fear, all of the evidence must be taken into account, including, “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” (per Greco Prov. Ct. J., in R. v. Lafreniere, [1994] O.J. No. 437 (Prov. Div.) (QL) and applied in R. v. Hertz, [1995] 170 A.R. 139 (Prov. Ct.). See also R. v. Sousa, [1995] O.J. No. 1435 (Gen. Div.) (QL), in which Cusinato, J. held that in assessing the reasonableness of the victim’s fear, consideration may be given to the victim’s sex, race and age, but that section 264 did not require that the victim have knowledge of the defendant’s capabilities. Conclusions regarding the reasonableness of a complainant’s fear are “predicated on the findings of fact”: R. v. Bourque (1999), 140 C.C.C. (3d) 435 (Nfld. C.A.).

In R. v. Martynkiw (1998), 234 A.R. 185 (Q.B.), an appeal was allowed from a conviction for watching and besetting the defendant’s neighbours. In this case, the defendant and the victim were engaged in a property dispute. As part of this dispute, the defendant stared at the neighbours from his property and took pictures of their activities as they concerned the property line. The Court held that while the neighbours were justifiably upset by the defendant’s rude and annoying conduct, their fear for their safety was not reasonable in all of the circumstances. See also R. v. Geller, [1994] O.J. No. 2961 (Prov. Div.) (QL), which came to a similar conclusion regarding the victim’s fear for her safety arising from an ongoing dispute with her neighbour regarding the victim’s dogs.

3.5 Murder Committed in the Course of Criminal Harassment

Subsection 231(6) of the Criminal Code, which came into effect in 1997,⁴⁷ 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 the Criminal Code provisions in Part 3.2 for the full text of this subsection.)

The first reported reference to subsection 231(6) was in R. v. Russell, [2001] 2 S.C.R. 804, 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. In contrast, the constructive murder provisions in s. 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.

R. v. Bradley (2003), 223 Nfld. & P.E.I.R. 225 (P.E.I.S.C. (T.D.)) is the first reported case of a successful prosecution under s. 231(6), although the trial judge also found that the murder was otherwise first degree because it had been planned and deliberate. In R. v. Zasidko, [2003] O.J. No. 1942 (Ct. J.) (QL), at a preliminary inquiry on a charge of first degree murder, the Court committed the accused for trial for second degree murder, rather than first degree murder pursuant to s. 231(6), where it found that the following test in Bradley was not met.

[T]he relevant inquiry breaks down into four parts:

At the time of the murder, was the accused engaged in any conduct that would constitute criminal harassment, as set out in section 264(2)?
If so, did the accused know that the victim was harassed or was the accused reckless as to whether or not the victim was harassed by such conduct?
Did the accused have any lawful authority for such conduct?
Did any such conduct cause the victim, reasonably in all the circumstances, to fear for their safety or the safety of anyone known to them? (para. 234)

Endnotes

⁴⁶

See also Nicholas Bala, “Criminal Code Amendments to Increase Protection to Children & Women: Bills C-126 and C-128” (1993) 21 C.R. (4th) 365 at 379.

⁴⁷

Bill C-27, An Act to amend the Criminal Code (child prostitution, child sex tourism, criminal harassment and female genital mutilation), proclaimed in force on May 26, 1997. See S.C. 2001, c. 13, s. 10.