Table of Contents
Criminal harassment, often called stalking, is a serious criminal offence in Canada. Under Section 264 of the Criminal Code, criminal harassment Canada (UCR Code 1625) covers repeated or threatening behaviours that make someone reasonably fear for their safety or the safety of someone they know. It is classified as a hybrid offence, meaning the Crown can choose to prosecute it either summarily (for less serious cases) or by indictment (for more serious cases). Even where there is no physical violence, the law recognizes that ongoing fear, intimidation, and psychological harm are themselves serious and punishable.
The Legal Definition
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.
(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.
In plain English, criminal harassment occurs when a person repeatedly follows, contacts, monitors, or threatens someone in a way that would cause a reasonable person, in the same situation, to fear for their safety or the safety of someone close to them. The focus is not just on what the accused actually did, but also on how that conduct would be understood in all of the circumstances—for example, past conflicts, the tone of communications, and any prior threats.
Section 264 requires both a mental and a physical element. The physical element is the specific type of conduct listed in subsection (2): repeated following, repeated communication (including indirect or online contact), watching or “besetting” someone’s home or workplace, or engaging in threatening behaviour. The mental element is that the accused either knew the other person felt harassed, or was reckless about whether they were harassed, and that this conduct caused a reasonable fear for safety. The law does not require that any actual physical harm occur—fear alone, if objectively reasonable, is enough for a conviction.
Penalties & Sentencing Framework
- Offence type: Hybrid (can proceed by summary conviction or indictment).
- Mandatory minimum penalty: None.
- Maximum on summary conviction: Up to 2 years less a day imprisonment and/or a fine of up to $5,000.
- Maximum on indictment: Up to 10 years imprisonment.
Because criminal harassment is a hybrid offence, the Crown prosecutor decides whether to proceed summarily or by indictment based on the seriousness of the alleged conduct, the impact on the victim, the accused’s criminal record, and other public interest factors. Less serious or first-time cases may proceed summarily, where the maximum jail time is lower and procedures are generally faster. More serious cases—such as long-term stalking, harassment that escalates toward violence, or harassment in breach of a court order—are more likely to be prosecuted by indictment, exposing the accused to a potential 10-year sentence.
There is no mandatory minimum sentence for criminal harassment under Section 264. This means judges have flexibility to craft a sentence that fits the individual case. Sentences can range from discharges (in rare, low-level cases) and probation with strict conditions, to months or years in custody, particularly where there are aggravating factors. Aggravating factors can include a pattern of control or intimate partner violence, use of threats, involvement of children or other vulnerable persons, violation of restraining orders, or a significant criminal record.
In practice, sentencing in criminal harassment Canada cases often includes protective orders designed to prevent future contact. These can include probation conditions, no-contact orders, and non-communication clauses, frequently accompanied by mandatory counselling (such as anger management or domestic violence programs). The court will also consider the psychological harm to the victim, any ongoing fear or disruption to their life, and the need to deter both the offender and others from similar behaviour. Even where no physical injury occurred, sustained harassment is treated seriously because of its impact on victims’ mental health and sense of security.
Common Defenses
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Lawful authority or lawful excuse
Section 264(1) begins with the words “without lawful authority,” which means the Crown must prove that the accused did not have a legal justification for the conduct. A defence of lawful authority may arise where the person was performing a legal duty or acting under a valid court order or statutory power. Examples include a peace officer conducting surveillance as part of an investigation, a process server attempting to serve legal documents, or a parent following and contacting a child under a lawful custody or access order. In such cases, the accused may argue that their conduct, though perhaps unwanted, was expressly or implicitly authorized by law and therefore does not meet the “without lawful authority” requirement of Section 264.
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Lack of knowledge that the other person was harassed (mens rea)
To secure a conviction, the Crown must prove that the accused either knew the complainant was being harassed, or was reckless about whether they were harassed. This is the mental element (mens rea) of the offence. A defence may be available where the accused can show that they genuinely did not realize their behaviour was causing distress and that this lack of awareness was reasonable in the circumstances. For example, if two people had an ongoing, mutual pattern of communication or joking that suddenly became unwelcome, but the accused had no reasonable way of knowing the line had been crossed, the knowledge or recklessness requirement may not be met. Evidence that the complainant never clearly expressed that the contact must stop, or continued to engage in friendly communication, can be relevant. However, once someone has clearly told the other person to stop contacting or following them, it becomes much harder to argue lack of knowledge or recklessness.
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No reasonable fear for safety (objective standard)
Section 264 requires that the complainant be caused, “reasonably, in all the circumstances,” to fear for their safety or the safety of anyone known to them. This involves a subjective and an objective component. The complainant must actually have felt fear, and that fear must be objectively reasonable when viewed from the perspective of a typical person in the same situation. A defence may focus on showing that, even if the complainant felt upset or annoyed, the conduct would not reasonably cause fear for safety. For instance, persistent but non-threatening attempts to resolve a business dispute, or a small number of communications that are civil in tone, might be argued not to rise to the level of criminal harassment. Courts look at the entire context: the nature of the relationship, any history of threats or violence, how many contacts occurred, their content, the time of day, and whether there were implied menaces. If the fear is found to be exaggerated or not supported by the objective circumstances, the “reasonable fear” element of the offence is not made out.
Real-World Example
Imagine receiving constant messages and being followed by someone you have clearly told to stop contacting you. After a breakup, your former partner begins sending dozens of texts and social media messages each day, shows up unexpectedly outside your workplace several times, and is seen parked outside your home late at night. Some messages hint that “you’ll be sorry if we can’t work this out,” and they ignore repeated requests to stop. You start changing your routines, avoid going out alone, and feel genuinely afraid they might harm you or someone close to you.
In this scenario, police would likely view the conduct as potential criminal harassmentSection 264. There is repeated communication and following, possibly besetting your home and workplace. The repeated, unwanted nature of the behaviour, combined with implied threats and disregard of clear boundaries, would support the conclusion that your fear for your safety is reasonable in all the circumstances. Officers could arrest and charge the individual with criminal harassment, and prosecutors would decide whether to proceed summarily or by indictment based on the severity and duration of the conduct, any prior incidents, and the overall risk to your safety.
Record Suspensions (Pardons)
For criminal harassment Canada, eligibility for a record suspension (commonly called a pardon) depends on whether the conviction was handled as a summary or indictable offence. Under the federal record suspension regime administered by the Parole Board of Canada, summary conviction offences generally carry a shorter waiting period after completion of the sentence (including any probation and payment of fines), while indictable offences require a longer waiting period. Since criminal harassment is a hybrid offence, the applicable waiting time will align with whichever procedure the Crown used in the specific case.
Once the waiting period has passed, and assuming there have been no subsequent serious offences and the individual meets all other eligibility criteria, they may apply for a record suspension. A successful record suspension does not erase the conviction but sets it apart from other criminal records in federal databases, helping reduce barriers to employment, housing, and travel. However, the underlying conviction can still carry weight in certain legal settings, such as future sentencing if further offences occur, and in specific high‑security or vulnerable‑sector contexts. Because stalking and criminal harassment can be seen as serious conduct involving personal safety, applicants should be prepared to demonstrate rehabilitation and law‑abiding behaviour since the offence.
Related Violations
- Uttering Threats
- Assault
- Mischief
