What Is Criminal Harassment Under Section 264?
Section 264 of the Criminal Code creates the offence of criminal harassment. Unlike common assault, criminal harassment does not require physical contact. The offence targets a pattern of conduct that causes the complainant to reasonably fear for their safety.
To secure a conviction, the Crown must prove four elements beyond a reasonable doubt:
- The accused engaged in one of the prohibited forms of conduct listed in section 264(2).
- The complainant was harassed — meaning they were tormented, troubled, worried, or plagued by the conduct.
- The accused knew that the complainant was harassed, or was reckless as to whether the complainant was harassed.
- The conduct caused the complainant to reasonably fear for their safety or the safety of anyone known to them.
The requirement that the fear be “reasonable” is an objective standard — assessed from the perspective of a reasonable person in the complainant’s circumstances. The Supreme Court of Canada confirmed this framework in R v. Davis.
Types of Prohibited Conduct
Section 264(2) lists four categories of conduct that can constitute criminal harassment. A charge can be based on any one category or a combination of them.
| Type of Conduct | Criminal Code | Examples |
|---|---|---|
| Repeatedly following | s.264(2)(a) | Following someone to work, school, or home; driving past their residence repeatedly; physically trailing them in public |
| Repeatedly communicating | s.264(2)(b) | Excessive texts, phone calls, emails, social media messages, letters; contacting through third parties |
| Besetting or watching | s.264(2)(c) | Sitting outside someone’s home or workplace; surveilling their movements; waiting at places they frequent |
| Threatening conduct | s.264(2)(d) | Threatening the complainant or their family directly or indirectly; intimidating gestures; implied threats through actions |
A single incident of any of these behaviours is generally not enough. The word “repeatedly” in paragraphs (a) and (b) requires the Crown to show a pattern. However, paragraph (d) — threatening conduct — does not require repetition. A single course of threatening behaviour directed at the complainant or their family can be sufficient.
Cyberstalking and Online Harassment
Section 264 was enacted in 1993, before widespread internet use, but courts have consistently held that online conduct falls within its scope. Cyberstalking — using digital technology to harass, monitor, or intimidate another person — is prosecuted under the same provision as in-person stalking.
Common forms of cyberstalking that lead to criminal harassment charges include:
- Excessive messaging — sending dozens or hundreds of texts, emails, or social media messages after being asked to stop or blocked.
- Creating fake accounts — using alternate profiles to continue contacting someone who has blocked the accused’s primary accounts.
- Online monitoring — tracking the complainant’s social media activity, location sharing, or digital movements obsessively.
- Posting about the complainant — publishing personal information, intimate images, or defamatory content about the complainant online.
- GPS tracking — installing tracking software or devices on the complainant’s phone or vehicle.
Digital evidence — screenshots, phone records, IP logs, and metadata — plays a central role in cyberstalking prosecutions. This evidence can be powerful for the Crown but also creates opportunities for the defence: messages can be taken out of context, screenshots can be selectively edited, and the identity of an anonymous account holder may be difficult to prove.
Penalties for Criminal Harassment
Criminal harassment is a hybrid offence. The Crown can proceed summarily (maximum 2 years less a day) or by indictment (maximum 10 years imprisonment). There is no mandatory minimum sentence.
The sentence depends on several factors: the duration and intensity of the harassment, whether threats or violence were involved, the impact on the complainant, whether the accused breached an existing court order, and the accused’s criminal record. The domestic context of the relationship is treated as an aggravating factor under section 718.2(a)(ii) of the Criminal Code.
Typical sentencing outcomes for criminal harassment:
| Scenario | Typical Outcome (First Offence) | Typical Outcome (Prior Record) |
|---|---|---|
| Unwanted communications only (no threats) | Peace bond or conditional discharge | Suspended sentence with probation |
| Following and watching with escalating behaviour | Suspended sentence; 12–18 months probation | 3–12 months custody |
| Harassment with threats of violence | 3–9 months custody | 12–24 months custody |
| Harassment in breach of court order | 6–12 months custody | 18–36 months custody |
In addition to imprisonment or probation, a conviction typically results in a weapons prohibition order under section 109 and may include a no-contact order lasting years beyond the sentence.
Defences to Criminal Harassment Charges
No Reasonable Fear
The Crown must prove that the complainant reasonably feared for their safety. If the accused’s conduct — while perhaps annoying or unwelcome — would not cause a reasonable person in the complainant’s position to fear for their safety, the charge fails. This is a common defence in cases involving persistent but non-threatening communications after a relationship breakdown.
Lack of Knowledge or Recklessness
Section 264(1) requires that the accused knew the complainant was harassed, or was reckless as to whether they were harassed. If the accused genuinely did not know their conduct was unwelcome — for example, if the complainant never asked them to stop and continued to respond to communications — this element may not be proven. The mental element is subjective: the Crown must prove what the accused actually knew or was reckless about, not what they should have known.
Lawful Authority or Justification
Section 264(3) provides a defence where the accused was acting in the exercise of lawful authority. This can apply to law enforcement officers conducting surveillance, process servers attempting to deliver legal documents, private investigators engaged in legitimate work, or journalists covering a story. The defence also extends to conduct that is constitutionally protected, such as peaceful labour picketing.
Identity and Attribution
In cyberstalking cases, proving that the accused is the person who sent the messages or created the accounts can be challenging. IP addresses can be shared or spoofed, devices can be accessed by multiple people, and accounts can be created using false information. If the Crown cannot prove beyond a reasonable doubt that the accused was the person behind the harassing conduct, the charge fails.
Credibility and Motive
Criminal harassment charges frequently arise in the context of relationship breakdowns, custody disputes, and domestic conflict. The complainant’s account must be tested through cross-examination. Where the complainant has a motive to fabricate or exaggerate — such as gaining an advantage in family court proceedings — the defence can challenge the reliability of their evidence.
Protective Orders and Bail Conditions
Criminal harassment charges almost always result in strict bail conditions, including no-contact and no-communication orders with the complainant. In domestic cases, this can mean being excluded from a shared home.
Beyond bail conditions, the court can impose a section 810 peace bond — either as a standalone measure or as a condition of charges being withdrawn. Upon conviction, a probation order with conditions including no-contact, geographical restrictions, and a ban on possessing weapons is standard.
The complainant can also seek a civil restraining order under Ontario’s Courts of Justice Act, which operates independently of the criminal process. Breaching any court order — criminal or civil — can result in additional charges under section 127 (disobeying a court order) or section 145 (breach of bail conditions).
Impact on Family Law Cases
Criminal harassment charges have significant consequences in family court. Under section 24(4) of the Children’s Law Reform Act, the court must consider any history of violence or harassment when determining custody and access. A criminal harassment charge — even without a conviction — can affect:
- Custody and access — the family court may restrict or supervise the accused parent’s time with children.
- Restraining orders — the complainant can obtain family court restraining orders that mirror criminal bail conditions.
- Property access — no-contact orders can prevent the accused from entering the matrimonial home.
- Negotiating position — the existence of criminal charges creates leverage in settlement discussions.
Because of these overlapping consequences, coordinating the criminal defence with family law strategy is essential. What happens in the criminal case can directly affect the family case, and vice versa.
How We Defend Criminal Harassment Cases
Criminal harassment cases require careful analysis of the evidence — particularly digital evidence — and a clear understanding of the legal elements. At RH Criminal Defence, our approach includes:
- Reviewing all disclosure including communications records, phone records, social media data, and GPS evidence to identify gaps and inconsistencies.
- Assessing whether the complainant’s fear was objectively reasonable given the full context of the relationship and communications.
- Challenging the mental element — whether the accused knew or was reckless as to whether the complainant was harassed.
- Identifying motive to fabricate, particularly in cases arising from custody disputes or relationship breakdowns.
- Negotiating with the Crown for alternative resolutions including peace bonds and withdrawn charges where the evidence supports it.
As a Toronto criminal defence firm, we have defended criminal harassment charges at courthouses across Ontario including Old City Hall, College Park, 1000 Finch Court, 2201 Finch, and Brampton. If you are facing a criminal harassment charge, call us to discuss your case.