Criminal harassment Lawyers in Canada

The Crown is the prosecutor. A person charged with an offence is presumed innocent until proven guilty, as section 11(d) of the Canadian Charter of Rights and Freedoms says, so the Crown is the side that has to prove the charge.

Section 264(1) sets out the offence in one sentence. Everyone commits it who, with intent to harass another person or knowing that, or being reckless as to whether, they would be harassing that person, engages without lawful authority in the conduct listed in section 264(2). The section adds one more test. In all the circumstances, the conduct must be conduct that could reasonably be expected to cause the other person to believe that their safety, or the safety of anyone known to them, is threatened.

Section 264(2) lists the conduct. It can be done in person, by a means of telecommunication or by any other means. The list is: repeatedly following from place to place the other person or anyone known to them; monitoring their location, movements, actions or social interactions; repeatedly communicating with them, directly or indirectly; besetting or watching the dwelling-house or the place where they reside, work, carry on business or happen to be; and engaging in threatening conduct directed at them or at anyone or any animal known to them.

Under section 264(6), a person's safety includes their psychological safety. Which form of conduct is alleged, and what evidence is offered for each part of the offence, is part of the case.

Section 264(3) sets two routes. On indictment, the maximum is imprisonment for a term of not more than 10 years. The other route is an offence punishable on summary conviction. The section sets no minimum term.

For an offence punishable on summary conviction, section 787(1) sets the general penalty unless the law provides otherwise: a fine of not more than $5,000, or imprisonment of not more than two years less a day, or both. A maximum is the ceiling the law allows. It does not say what a court would order in any case.

Sentencing has its own rules. Under section 264(4), when a person is convicted, the court shall consider it an aggravating factor that, at the time of the offence, the person was contravening the terms of a recognizance under section 810, of certain other court orders, or of another order, recognizance or undertaking that is similar in effect. Under section 264(5), a court that decides not to give effect to that factor shall give reasons.

A conviction also has a weapons consequence. Section 109 lists criminal harassment under section 264, and the court that sentences the person shall, in addition to any other punishment, make an order prohibiting the person from possessing firearms, weapons, ammunition and explosive substances. For a first conviction, section 109(2) says the order ends not earlier than ten years after the person's release from imprisonment or, if the person is not imprisoned, after the conviction or discharge. In other cases, section 109(3) prohibits possession for life.

The words of section 264 show where a case can turn. The Crown must prove that the conduct was one of the listed forms, that it was engaged in without lawful authority, that the person acted with intent to harass or knew or was reckless as to whether the conduct would be harassing, and that the conduct could reasonably be expected to cause the safety belief that the section describes. Whether a particular defence applies is a question for the court on the evidence, and a lawyer can explain it.

Charter rights also apply. Section 10 gives everyone on arrest or detention the right to be informed promptly of the reasons and the right to retain and instruct counsel without delay and to be informed of that right. Section 24(1) lets anyone whose Charter rights were infringed apply to a court for a remedy. Under section 24(2), evidence obtained in a manner that infringed Charter rights is excluded if admitting it would bring the administration of justice into disrepute.

A peace bond under section 810 is a separate process from a criminal charge. Under section 810(1), a person who fears on reasonable grounds that another person will cause personal injury to them or to their intimate partner or child, or will damage their property, may lay an information before a justice. If the justice or court is satisfied that the fear has reasonable grounds, section 810(3) says it may order the defendant to enter into a recognizance to keep the peace and be of good behaviour for a period of not more than 12 months.

In Ontario, every charge under the Criminal Code starts in the Ontario Court of Justice, and about 95% of charges are completed there.

A person who is arrested may be taken before a justice for a release decision. Under section 515, the justice shall make a release order without conditions unless the prosecutor shows cause why detention in custody is justified or why another order under that section should be made. Section 493.1 says that release at the earliest reasonable opportunity, on the least onerous conditions that are appropriate, is the primary consideration. Section 11(e) of the Charter protects the right not to be denied reasonable bail without just cause. If an order has conditions, section 515(4) lists what the justice may direct, which includes abstaining from communicating with a victim, witness or other person named in the order, and abstaining from going to a place or entering a geographic area that the order names.

In Ontario, an appeal from a conviction on a summary conviction offence goes to the Superior Court of Justice sitting in the region, district or county where the case was decided. Section 813 lets the defendant appeal a conviction or a sentence. After a conviction on indictment, an appeal goes to the court of appeal. A person may appeal as of right on a question of law alone. An appeal on a question of fact, or of mixed law and fact, needs leave, and so does an appeal against sentence.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. Duty counsel can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown, for people who qualify and have no lawyer.

A legal aid certificate pays a roster lawyer, one approved to take legal aid clients, for the length of the criminal case. Applications are online or by phone at 1-800-668-8258.

The Law Society of Ontario keeps a public Lawyer and Paralegal Directory, where a lawyer's licence can be looked up. The Ontario lawyers on this site are listed by city. Nothing on this page ranks or recommends any of them.