Stalking

Stalking is a crime which Canadian criminal law calls criminal harassment.

It is clearly defined at §264 of Canada's Criminal Code.

The Code states that no person shall, without lawful authority and knowing that another person is harassed (or recklessly as to whether the other person is harassed):

  • Repeatedly follow the other person, or anyone known to them, from place to place;
  • Repeatedly communicate with, either directly or indirectly, the other person or anyone known to them;
  • Beset or watch a place where the other person is visiting, lives or works; or
  • Engage in threatening conduct directed at the other person or any member of their family.

The punishment for stalking can be as high as a five year jail term.

This new section of the Criminal Code, passed in 1993, makes it much easier for the police to charge a stalker.

The Code did contain other sections that were helpful in blatant cases of stalking but they were ineffective against the more passive but just as frightening forms of stalking.

For example, the Code prohibits trespassing on another's property at night, uttering threats, indecent or harassing phone calls, intimidation and mischief to another person's property.

Under the Criminal Code, you can also get a restraining order or a peace bond against a person, measures which might, in certain circumstances, be preferable in some cases of aggressive or predatory stalking.

The new law now protects you even if the conduct of the stalker is not done with the intent to scare you. It is enough if it does scare you.

Actions that might be acceptable in a normal, loving relationship could become criminal harassment when one of the persons wants the relationship to end and the other does not.

stalking signFor example, in these circumstances, giving someone roses could, in some cases, be considered to be stalking as could repeated visits, telephone calls or waiting for the victim after work.

Everybody has a right to end a relationship. A former spouse or partner should stop communicating with you if you have told them that their attention is not welcome.

It's always best to make the unwelcome nature of the communication clear to the would-be stalker. No one will help an alleged damsel in distress who has teased or played on the alleged stalker who for reasons other than fear, has not been clear on the unwelcome nature of the advances being made.

If the advances persist, it could be staking and §264 is there to help.

Federal Department of Justice Canada research conducted in 1996 found that of 601 stalking cases examined, 91% of the accused were male and 88% of the victims were female.

One of the key parts of §264 of the Criminal Code is the requirement that when the conduct being complained of is "following" or "communicating", it has to be "repeated." There is no set rule on this. It can mean persistent or frequent behaviour but the "following" or "communicating" has to happen more then once for it to constitute criminal harassment.

But if the conduct is watching, prowling or "besetting" a place where you are visiting, live or work, or if there has been threatening conduct, one incident would suffice in getting a conviction under §264.

In all cases, the conduct must be such that apprehension or "fear for their safety" is "reasonable." This means having a fear for which there is a reason; not a fear based on exaggeration of the situation or on imagined problems.

The law also excuses those that have "lawful authority" from being convicted under this section. One example of this has been given as the private investigator that has been hired to check into an insurance claim that you have filed.

Some cases which have gone to court under §264 include:

  • the accused made telephone calls and left threatening messages on the victim's answering machine;
  • the accused visited the victim's work place for no legitimate reason and followed the victim on buses; or
  • the accused made rude or obscene gestures towards the victim.

If you are being harassed, we suggest you talk to the police, a lawyer or a victim services agency. Any of the above should be able to counsel you on your best course of action. You may be advised, for example, to stay away from your home for a short period of time.

You should certainly keep a diary of the harassing behaviour in case your memory should later fail when explaining what you've been through to the police or in court.

If calls are coming in, get a tracing device connected through your telephone company. If you have a restraining order or peace bond, carry it with you at all times.

If you are being stalked, call the police. If you know that the suspect carries or owns weapons, this is important information for the police.

The section has been challenged under sections 2(b) and 7 of the Charter of Rights and Freedoms and, in R. v. Sillip (1995) Canadian Criminal cases, page 394, was found to be compatible with the Charter.

Cyber-stalking

According to the 2004 edition of the Justice Canada publication A Handbook for Police and Crown Prosecutors, not all stalking that occurs through the Internet ("cyber-stalking"):

"... falls within Canada's definition of criminal harassment. For example, "cyber-stalking" or "on-line harassment" is often used to refer to direct communication through e-mail, Internet harassment, where the offender publishes offensive or threatening information about the victim on the Internet, and unauthorized use, control or sabotage of the victim's computer.

"In some cyber-stalking situations, criminal harassment charges may be appropriate. However, depending on the activity involved, charges under unauthorized use of a computer, possession of device to obtain computer service (or) mischief in relation to data should also be considered.

"Variations of cyber-stalking include the following:

  • sending inappropriate electronic greeting cards;
  • posting personal advertisements in the victim's name;
  • creating Web sites that contain threatening or harassing messages or that contain provocative or pornographic photographs, most of which have been altered;
  • sending viruses to the victim's computer;
  • using spy-ware to track Web site visits or record keystrokes the victim makes; and
  • sending harassing messages to the victim's employers, co-workers, students, teachers, customers, friends, families or churches or sending harassing messages forged in the victim's name to others."

Readers might also want to consult our article on Family Violence - Legal Remedies for more information.

Published: Monday, May 07, 2007
Last updated: Monday, October 31, 2011
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