A. OFFENCE ELEMENTS
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.
Punishment
(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).
Reasons
(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.
In R v Sillipp, the Alberta Court of Appeal set out a widely-cited five-part test for criminal harassment:
- It must be established that the accused has engaged in the conduct set out in s. 264(2) (a), (b), (c), or (d) of the Criminal Code;
- It must be established that the complainant was harassed;
- It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed;
- It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and
- It must be established that the complainant’s fear was, in all of the circumstances, reasonable.[1]
Furthermore, in R v Kosikar, the Ontario Court of Appeal held that “[h]arassment means causing someone to be tormented, troubled, worried continually or chronically plagued, bedevilled and badgered.”[2] If a complainant is only “vexed, disquieted or annoyed”, criminal harassment will not be made out.
[1] 1997 ABCA 346 at para 18.
[2] R v Kosikar, [1999] OJ No 3569 at para 24.
OFFENCE ELEMENTS - CRIMINAL HARASSMENT:
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).
Reasons
(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.[1]
[1] Criminal Code, RSC 1985, c C-46, s 264.
OFFENCE ELEMENTS - CRIMINAL HARASSMENT:
In R v Sillipp, the Alberta Court of Appeal set out a widely-cited five-part test for criminal harassment:
“1. It must be established that the accused has engaged in the conduct set out in s. 264(2) (a), (b), (c), or (d) of the Criminal Code;
- It must be established that the complainant was harassed;
- It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed;
- It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and
- It must be established that the complainant’s fear was, in all of the circumstances, reasonable.”[1]
Furthermore, in R v Kosikar, the Ontario Court of Appeal held that “[h]arassment means causing someone to be tormented, troubled, worried continually or chronically plagued, bedevilled and badgered.”[2] If a complainant is only “vexed, disquieted or annoyed”, criminal harassment will not be made out.
[1] 1997 ABCA 346 at para 18.
[2] R v Kosikar, [1999] OJ No 3569 at para 24.
SELECTED CASE LAW
TABLE OF CONTENTS:
ALBERTA:
2018 ABQB 178
2017 ABCA 204
2016 ABQB 648
2015 ABPC 234
2012 ABPC 338
2012 ABPC 229
2012 ABCA 127
2009 ABCA 328
2007 ABCA 38
2006 ABCA 295
2006 ABCA 168
2003 ABCA 184
2002 ABPC 137
2002 ABPC 115
BRITISH COLUMBIA:
2018 BCSC 2286
2017 BCCA 349
2017 BCSC 2361
2017 BCSC 2135
2017 BCPC 233
2016 BCPC 300
2016 BCCA 76
2016 BCPC 50
2016 BCPC 24
2015 BCPC 203
2014 BCPC 279
2014 BCPC 327
2014 BCCA 304
2013 BCCA 177
2012 BCCA 469
2011 BCCA 116
2009 BCPC 61
2007 BCPC 257
2006 BCCA 498
2006 BCCA 100
2005 BCPC 288
2004 BCSC 683
2004 BCCA 28
1997 CanLII 3717 (BCCA)
1994 CanLII 2309 (BCCA)
MANITOBA:
2016 MBQB 171
2015 MBCA 103
2007 MBCA 69
2001 MBCA 69
NEW BRUNSWICK:
1999 CanLII 13126 (NBCA)
NEWFOUNDLAND & LABRADOR:
2018 CanLII 1161 (NLPC)
2017 CanLII 32769 (NLPC)
[2016] NJ No 303 (NLPC)
2015 CanLII 14186 (NLPC)
2014 CanLII 74041 (NLPC)
2007 CanLII 18 (NLPC)
2002 CanLII 28410 (NLPC)
NOVA SCOTIA:
2018 NSSC 156
2017 NSSC 292
2014 NSPC 79
1997 NSCA 91
ONTARIO:
2018 ONCA 535
2018 ONSC 471
2017 ONCJ 943
2017 ONSC 1434
2016 ONCJ 547
2016 ONSC 2154
2016 ONCJ 35
2015 ONCJ 741
2013 ONCJ 829
2014 ONCJ 712
2014 ONCJ 103
2014 ONCA 324
2012 ONCJ 691
2012 ONCA 503
2012 ONCA 419
2011 ONCA 834
2011 ONCJ 133
2010 ONCJ 3584
[2009] 84 WCB (2d) 716 (ONSC)
2007 ONCJ 194
2005 CanLII 34564 (ONCA)
[2003] 58 WCB (2d) 163 (ONCJ)
[2001] OJ No 2053 (ONCJ)
2000 CanLII 5759 (ONCA)
2000 45 WCB (2d) 394 (ONCA)
PRINCE EDWARD ISLAND:
2017 PESC 3
[1995] PEIJ No. 177, (PEIAD)
QUEBEC:
2014 QCCQ 12216
SASKATCHEWAN:
2017 SKPC 49
2016 SKQB 177
2011 SKCA 2