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In Canadian criminal law, indecent harassing communications refer to using phones, text messages, emails, social media, or any other telecommunications to send disturbing, indecent, or repeated messages meant to upset, alarm, or harass someone. Under the Uniform Crime Reporting (UCR) system, this behaviour is coded as UCR Code 1626. It is classified as a hybrid offence, meaning the Crown can choose to proceed either by indictment (more serious) or by summary conviction (less serious), depending on the facts of the case. Section 372 of the Criminal Code of Canada creates two closely related offences: indecent communications and harassing communications.
The Legal Definition
Indecent communications (s. 372(2)): “Everyone commits an offence who, with intent to alarm or annoy a person, makes an indecent communication to that person or to any other person by a means of telecommunication.”
Harassing communications (s. 372(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.”
In plain English, Section 372 of the Criminal Code makes it a crime to misuse telecommunications to bother or torment someone. For indecent communications, the focus is on the content of the message: it must be “indecent” and sent with the intent to alarm or annoy. This typically covers sexually explicit, grossly offensive, or morally shocking messages that go beyond ordinary rudeness or harsh language.
For harassing communications, the focus is more on the pattern and purpose of the contact than on the content itself. The messages do not have to be indecent or explicit. Instead, the law targets repeated calls, texts, messages, or other communications that are sent with the intent to harass someone, and done without lawful excuse. This can include constant late-night calling, repeated hang-up calls, or relentless messaging even if the words themselves are not threatening or obscene.
Penalties & Sentencing Framework
- Offence type: Hybrid (prosecuted either summarily or by indictment).
- Mandatory minimum penalty: None.
- Maximum penalty (indictable): Up to 2 years’ imprisonment.
- Maximum penalty (summary): Punishable on summary conviction (subject to the general maximums in section 786 of the Criminal Code).
Because indecent and harassing communications are hybrid offences, the Crown prosecutor decides whether to proceed by indictment or by summary conviction. This decision is usually based on factors such as the seriousness and duration of the conduct, the impact on the victim, whether there are related offences (like uttering threats or criminal harassment), and the offender’s prior criminal record. Proceeding by indictment opens the possibility of a longer sentence (up to two years in jail) and can signal that the case is considered more serious.
When the Crown proceeds by summary conviction, the case is treated as less serious, with lower maximum penalties under the general summary provisions in section 786 of the Criminal Code. Even on a summary basis, courts may impose a combination of jail, probation, fines, and conditions such as no-contact orders or restrictions on the accused’s use of telecommunication devices. In many first-offence or lower-level cases, judges may consider non-custodial sentences, especially where the harm is limited and there is a realistic plan for rehabilitation.
There is no mandatory minimum sentence for indecent or harassing communications. This gives sentencing judges significant discretion. They must balance sentencing principles such as denunciation, deterrence, rehabilitation, and protection of the public. Aggravating factors can include a vulnerable victim, communications linked to intimate partner violence or stalking, persistent or long-term harassment, or use of anonymous or blocked numbers to evade detection. Mitigating factors may include early guilty pleas, genuine remorse, steps taken to obtain counselling (for example, for anger management or addictions), and a lack of prior criminal record. Even where jail is not imposed, a conviction will create a permanent criminal record unless later addressed with a record suspension.
Common Defenses
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Lawful excuse
For harassing communications under section 372(3), the Crown must prove that the communications occurred “without lawful excuse”. A lawful excuse could arise where repeated communication is legally required or clearly justified—for example, a creditor following up on a legitimate debt within reasonable limits, a lawyer or process server attempting to contact someone for legal reasons, or a parent urgently trying to reach a child about safety. If the defence can show that the repeated contact was a reasonable and necessary exercise of a legal right or duty, the repeated communications may not be criminal, even if the recipient found them annoying.
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Lack of intent to alarm/annoy or harass
Both forms of indecent harassing communications require proof of a specific mental element. For indecent communications under section 372(2), the Crown must show that the accused intended to alarm or annoy someone. For harassing communications under section 372(3), the Crown must prove an intent to harass. If the evidence suggests that the accused’s purpose was something else—such as attempting to resolve a genuine dispute, making a clumsy but honest attempt to reconcile a relationship, or sending a one-off message with no intent to alarm—this can undermine the required intention. Accidental pocket dials, misdirected messages, or communications made in good faith (even if poorly worded) may not satisfy the intent requirement. The defence may argue that, at most, the behaviour was inconsiderate or rude but not criminal.
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Freedom of expression (Charter section 2(b))
Section 2(b) of the Canadian Charter of Rights and Freedoms protects freedom of expression, including many forms of speech that others may find offensive or unpopular. In some cases, the defence may argue that the accused’s communications—while harsh, critical, or controversial—constitute protected expression and do not cross the line into “indecent” or “harassing” as intended by section 372. For example, strong criticism of a public official, a heated political message, or blunt commentary on public issues generally falls within protected speech. However, Charter protection is not absolute. The courts have consistently held that criminal laws can justifiably limit expression that is genuinely harmful, targeted, and abusive, such as obscene, sexually explicit messages sent solely to shock, or relentless private communications intended to torment a specific person. A Charter-based defence will usually focus on showing that the communication has legitimate expressive value and does not amount to the type of targeted, harmful conduct section 372 is designed to prevent.
Real-World Example
Imagine a person begins receiving repeated phone calls late at night from the same number. Sometimes the caller hangs up without speaking; other times, the caller leaves sexually explicit and degrading voicemails clearly meant to upset and humiliate the recipient. The calls continue for weeks, despite the recipient asking the caller to stop and blocking the number, only for the caller to start using new phone numbers and social media accounts to send similarly indecent messages. In this scenario, police would likely view the behaviour as indecent harassing communications under section 372. The explicit, degrading content of the messages could support a charge of indecent communications, because the messages are indecent and clearly sent with intent to alarm or annoy. The volume and persistence of the late-night calls and messages, even when there is little or no content, could support a charge of harassing communications, as they represent repeated contact with an obvious intent to harass and disturb. The courts would examine the pattern, the content, the victim’s reactions, and any admissions or digital evidence (such as phone records and message logs) to decide whether the elements of the offences are proven beyond a reasonable doubt.
Record Suspensions (Pardons)
A conviction for indecent or harassing communications results in a criminal record that can affect employment, travel, volunteering, and immigration status. However, many individuals can eventually apply for a record suspension (formerly known as a “pardon”) through the Parole Board of Canada. Eligibility and timing depend on how the offence was prosecuted and the sentence imposed. For a summary conviction under section 372, the general waiting period is 5 years after completion of the entire sentence, including any jail time, probation, and payment of fines or surcharges. For an indictable conviction, the waiting period is generally 10 years from the date the sentence is fully completed. During the waiting period, the person must remain crime-free and demonstrate law-abiding behaviour. A record suspension does not erase the conviction but sets it apart from other records, reducing its visibility in most criminal background checks within Canada. The hybrid nature of indecent/harassing communications means that the waiting period will depend on whether the Crown chose to proceed summarily or by indictment in the specific case.
Related Violations
- Criminal Harassment
- Uttering Threats
- Stalking
