Criminal harassment charges under Section 264 (3) of the Criminal Code

Criminal harassment is an offence in Canada which carries a maximum penalty of up to 10 years in prison. It refers to behaviour that most people would describe as stalking. The actions of the accused must be repeated and unwanted and often include things like:

1. Attending a residence, parking lot, or street of the complainant,


2. Parking or loitering near their home, place of work, or school, etc.,


3. Repeated phone calls or text messages (via SMS or social media),


4. Following the complainant around,


5. And generally, any form of contact that causes someone else to reasonably fear for their safety.

Criminal harassment charges can be classified as both domestic and non-domestic. If the alleged victim is a current or former non-platonic partner the charges will be classified as domestic by the Crown Attorney. Criminal harassment charges often are laid in addition to charges of uttering threats, assault, and mischief. They are considered quite serious and generally worse than most simple assaults and uttering threats charges mainly because of the repeated nature of the behaviour.

In the Toronto / Southern Ontario area, criminal harassment is usually considered the most serious offence when combined with other commonly related charges such as assault, mischief and uttering threats.

Criminal harassment is often considered more serious than other possibly included charges such as assault, uttering threats, and mischief. This is reflected in the fact that the maximum punishment of 10 years for criminal harassment is twice that of assault and uttering threats and five times more than mischief under $5000.

The punishment for criminal harassment is codified in Section 264 (3) of the Criminal Code which reads:

264 (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.

As a Crown elect hybrid offence the maximum penalty of 10 years in prison is only available if the Crown Attorney chooses to proceed by indictment. If the Crown Attorney chooses to proceed by summary conviction the accused faces a maximum of 6 months in a provincial jail, probation and a criminal record.

Some people who are charged with criminal harassment may have only originally been charged with assault or uttering threats by the police but will have the criminal harassment charges added by the Crown Attorney after reviewing the case disclosure. We often see the prosecutor upgrade the seriousness of the charges by adding criminal harassment in domestic cases.

What is the exact sort of conduct that can cause a person to be charged with and convicted of criminal harassment / stalking in Canada?

The behaviour that constitutes criminal harassment is found in Section 264 (1) of the Criminal Code which reads as follows:

Criminal harassment

264 (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

Prohibited conduct

(2) The conduct mentioned in subsection (1) consists of

• (a) repeatedly following from place to place the other person or anyone known to them;


• (b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;


• (c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or


• (d) engaging in threatening conduct directed at the other person or any member of their family.

The standard of proof in a criminal harassment case goes beyond intent meaning that if a person is reckless as to the result of their behaviour they can still be convicted. Simply acting in a way that causes a person to fear for their safety can lead to charges and a finding of guilt/conviction.

In terms of what the definition of reasonable or reckless is that will ultimately be a decision left to the Judge or Jury if the case goes to trial. This means they will listen to what each party has to say, consider the law and previous cases (precedents), and make a decision. Factors such as the length of the relationship, gender, and backgrounds of all parties will be taken into consideration. If the accused is found guilty the case will proceed to sentencing and the punishment will depend on how extreme the circumstances are and the accused prior criminal record (if any).

What cases are classified as domestic criminal harassment?

The classification of domestic or not will depend on the current or past relationship between the accused and the complainant (victim). Domestic classifications are always assigned to people who are married, separated, divorced, boyfriend/girlfriend, common law, in same sex relationships, or those who dated in the past.

Even in circumstances where both parties simply met for a date, from online dating or otherwise, in hopes of a potential relationship that did not work out the case will be classified as domestic. Some cases arise when one party is offended by the other’s lack of interest in future dating and responds by making repeated phone calls, text messages, or other behaviour that is construed as threatening. This often happens after one person ignores/doesn’t reply back and essentially ghosts the other after meeting online for a date.

The classification of domestic or not is important because the Crown Attorney is bound by policy to treat these cases more seriously and in the Toronto area they are assigned to special courts that only deal with domestic violence charges.

Non-Domestic Criminal Harassment charges involving business and other disputes

Not all cases involve a spouse, partner, girlfriend, bad date, etc. Sometimes criminal harassment cases are based on disagreements over business disputes and other civil issues. Cases where the accused is completely unknown to the alleged victim are extremely rare but do happen sometimes when public figures are involved. Most involve civil issues, monetary loss, neighbour disputes, and other disagreements between known parties.

Some examples of non-domestic criminal harassment cases

If a contractor performs a renovation or construction job and the person does not pay their bill they may engage in retributive behaviour that if reported to the police will be classified as criminal harassment such as repeated phone calls or texts. In some cases they may also attend the jobsite and take down or destroy the work that they did leading them to also be charged with mischief under or over $5000.

While the contractor or worker has not been paid, once they engage in repeated behaviour that can be considered threatening they may be charged with criminal harassment. When criminal charges are laid it becomes an issue of the government (Crown Attorney) versus the accused as opposed to the accused versus the business that may have ripped them off. Just because an accused is charged with criminal harassment or mischief does not mean they cannot still sue the business or other third party for breach of contract.

Despite the ability to sue civilly this is separate from the criminal charges they face which can result in having to go to jail and a criminal record even if a civil court (small claims or other) agrees they were owed the money and ultimately ripped off.

If someone is found guilty of criminal harassment what punishments do they face?

As previously mentioned the maximum sentence is 10 years in prison if the Crown proceeds by indictment and 6 months in jail if by summary conviction. They also may be sentenced to probation for up to 3 years, be ordered to submit their DNA (in addition to fingerprints), be ordered to not possess any weapons, and receive a permanent criminal record.

Being charged with criminal harassment can have many other consequences beyond the direct punishments and restrictions imposed by the court. The accused may find themselves unable to get a job because of a criminal record and be denied entry to travel to the United States and other countries for life.

If the accused person is not a citizen of Canada, the government (IRCC) may refuse their visa application when they conduct a background search of their criminal record. This can apply to tourists, students, work permits, PR, and citizenship applications. In some cases, they may be deported from Canada because of the charges.

How can I get my criminal harassment charges dropped?

Your lawyer may be able to convince the Crown Attorney that there is no reasonable prospect of conviction (no RPC ie. unprovable in court) or because it is not in the public interest to proceed with your prosecution. The latter is usually because you have taken steps up front to address any underlying psychological issues that led to the out of character behaviour. If the Crown Attorney (prosecutor) is convinced of either of these two factors they should withdraw the charges against you.

Sometimes the accused may be able to avail themselves of counselling programs in exchange for a deal to have the charges withdrawn (dropped) or discharged. This can mean counselling for alcohol or drug abuse, anger management, relationship boundaries, jealousy, etc. In the eyes of the Crown, the mitigation of counselling has lowered the person's risk to reoffend and it is no longer in society’s best interest to jail the accused and/or give them a permanent criminal record.


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You don't need to be apart from your spouse and family, spend tens of thousands of dollars, and risk getting a criminal record because of an unfortunate domestic incident. Have a skilled criminal lawyer protect you and your future from the stigma and consequences of a criminal record.





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