What is harassment - and when is it criminal?

Since the original article came out reporting Justice Pollak's January 3rd 2023 decision which received some press coverage, I have had a number of people call me and tell me their stories of defamation and harassment.  My best advice to them begins by advising them to let the perpetrator know that what they are doing is unwanted attention - and begin to document any further contact or harassment.

As many people know - before I moved forward with launching the lawsuit that I eventually won, I felt harassed.  Many would agree that I was being harassed - and the police, after taking my statement and reviewing the evidence also agreed.  As a result, they laid a criminal harassment charge on the individual.

Many people, both men and women, have in their lifetime - felt harassed.  In general, if they are able - they resolve the issue without involving the police.  In some cases, the harassment is not considered criminal.  There is a distinction between criminal harassment and just feeling harassed.

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What is Criminal Harassment?

Criminal harassment is defined clearly in the Criminal Code of Canada, which lists all the statutes that we call 'laws' in Canada.  These laws are federal laws and are enforced by municipal police forces (such as York Regiona Police Service), provincial police forces ( such as Ontario Provincial Police) and our federal police force - the RCMP or Royal Canadian Mounted Police.

Committing a crime usually is referring to violating a federal statute.

There are also provincial statutes -  and each province has their own set of statutes that apply only in their province.  In Ontario one example is the "The Highway Traffic Act"  In general, violating a provincial statue is not considered a 'crime' but an offence.

Criminal harassment is a federal law - across Canada.  Violating any part of this statute is a crime and punishments are prescribed in each section for each violation. 

A Handbook for Police and Crown Prosecutors on Criminal Harassment

Below is the downloadable handbook also available on the Government of Canada website.  Read it online here or download the pdf below.

police_handbook_on_criminal_harassment.pdf
File Size:	1125 kb
File Type:	pdf

Download File

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Violating section 264 (1)and(2) of the Criminal Code of Canada is called Criminal Harassment.  

It reads: (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.

As it is written - it may in fact seem to the average person - that this law is very clear on what  behaviour is unacceptable under Canadian law.  Unfortunately - it's not that simple and is subject to interpretation by a judge in court.

Section (a) is pretty straightforward and can be proven by keeping a log of a person who is following you and causes you to fear for your safety - and reporting it to the police.  Any videos or witnesses are evidence that can support your allegation.

​Section (b) mentions repeated communication, directly or indirectly AND that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.  An example is someone who mails, calls or emails a person directly or indirectly and harasses them to the point that they feel afraid that the perpetrator will cause them harm or escalate the communications to incite violence, threatens violence or become violent.  

One of the questions I received when I was a police officer - is what does 'indirectly' mean.  Usually this means sending a message to someone through or via another person.  When the law was written however, it did not consider the possibility that social media post or posting something on a blog on the internet.  The Criminal Code does address this somewhat.​

Harassing Communications

Another harassment charge is "harassing communications".  Section 372 of the Criminal Code of Canada says:

"(1) Everyone commits an offence who, with intent to injure or alarm a person, conveys information that they know is false, or causes such information to be conveyed by letter or any means of telecommunication."

and

"(3) Everyone commits an offence who, without lawful excuse and with intent to harass a person, repeatedly communicates, or causes repeated communications to be made, with them by a means of telecommunication."

What does injure or alarm mean?

(The following definitions are taken from several sources and dictionaries.)

ALARM
To alarm someone means to cause them to have " a sudden feeling of fear or suspense caused by an awareness of danger"  or "to make someone worried or frightened".

Psycologically, the alarm reaction stage refers to the initial symptoms the body experiences when under stress. 

INJURE
To injure someone means: to do or cause harm of any kind - Collins Dictionary

This could be physical, mental or emotional

Considering the prolific use of the internet in our day to day lives - something posted on social media that someone intends for us to see - does not need to send the message directly to us. Posting a message they intend us to see may be seen by someone else who knows us - and refers us to the message - is considered to be conveying a message - and the internet is a 'means of communication'.   The key here is they must know that the information is FALSE.

So for example, if someone posts online - on a blog perhaps - that they "had someone arrested for assault", when in fact that person was never arrested and the person knows this, this may be considered "harassing communications".  This is especially true if the person posting had been told by the police that they "were NOT assaulted" and the police did not arrest that person and there is evidence of this.

If that posting intentionally injures that person, physically or emotionally, or it causes that person to become alarmed - fearing arrest or other, it is considered harassing communications.  

Determining if it was intended to injure or alarm the person is the job of the Judge - not the poster or the police.  If the victim is injured or alarmed as a result of the post, intent to injure may be fairly easy to prove.  So bloggers - beware.  Ensure that what you post is factual.  (If you wonder about truth or fact - read more here)

If you are being bullied or harassed, please contact the police.  If you fear for your safety because someone is harassing you - please call 911.  

If you are a blogger, or post things online that you know are not true - or should know are not true because of infotmation you have received -  be aware that if your post causes injury or alarm to someone - or that you know it may cause injury or alarm and you do so recklessly - you may be arrested for harassing communications and charged with the same. 

Under Canada'a Charter of Rights and Freedoms - "Everyone has the right to life, liberty, and security."  When someone takes that from us it is a crime. And the perpetrator will have to answer to a judge.