While the terms criminal harassment and stalking are often used interchangeably in everyday conversation, they have specific meanings under Canadian criminal law. Understanding the distinction is important if you’ve been accused of either, or if you’re trying to defend yourself against unwarranted allegations.
What Is Criminal Harassment?
Under section 264 of the Criminal Code of Canada, criminal harassment occurs when one person engages in conduct that causes another person to reasonably fear for their safety, or the safety of someone they know. The law focuses on the impact on the victim rather than the intentions of the accused.
Common examples of behaviour that can constitute criminal harassment include:
- Repeatedly following someone from place to place
- Communicating with someone in a threatening or persistent manner (calls, texts, emails, social media messages)
- Watching or “staking out” someone’s home, workplace, or other frequent locations
- Engaging in threatening conduct directed at the individual or someone they care about
The behaviour must be unwanted, and the complainant must have expressed some form of objection—either directly or clearly through avoidance. The accused must also know, or be reckless as to whether, their behaviour is causing fear.
What Is Stalking?
“Stalking” is not a separate criminal offence in Canadian law. Instead, it is a term commonly used by the public and media to describe certain types of persistent and invasive behaviour that often fall under the legal definition of criminal harassment.
The confusion arises because stalking is sometimes used to describe:
- Long-term observation of a person
- Persistent uninvited communication
- Obsessive surveillance or following
These actions, when done without lawful purpose and when they cause the victim to fear for their safety, are almost always prosecuted under the criminal harassment provisions of the Criminal Code.
In short, stalking is typically considered a form of criminal harassment in Canada. The legal charge you would face is “criminal harassment,” even if the behaviour is informally described as stalking.
Is Stalking Always a Crime in Canada?
No. It’s important to distinguish between innocent behaviour and criminal conduct. For example:
- Accidentally running into someone multiple times in public spaces
- Sending a message that is not threatening or repeated
- Observing someone in a public place without any threatening intent
These may be described as “creepy” or uncomfortable, but they are not necessarily criminal harassment unless the elements of the offence are met—especially the presence of fear and repeated, unwanted conduct.
Penalties for Criminal Harassment
Criminal harassment is a hybrid offence in Canada. This means it can be prosecuted:
- Summarily, with a maximum penalty of 2 years less a day in jail and/or a fine
- Indictably, with a maximum sentence of up to 10 years imprisonment
The court may also issue:
- Restraining or no-contact orders
- Probation with strict conditions
- Firearm prohibitions
The presence of prior convictions, breach of trust, or a history of domestic violence can increase the severity of the sentence.
How to Defend Against a Criminal Harassment Charge
If you’ve been charged with criminal harassment, it’s critical to act quickly. Possible defences include:
- The complainant’s fear was not reasonable
- There was no repeated conduct
- You had a lawful reason for the contact
- The communication was consensual or misunderstood
- Identity is in question (i.e., mistaken person)
A strong defence often includes a thorough analysis of digital evidence, phone records, surveillance footage, and the nature of the relationship between the parties involved.
Why the Distinction Matters
Understanding the difference between criminal harassment and the term “stalking” can help you recognize:
- Whether a criminal charge is being exaggerated or mischaracterized
- Whether your conduct may be misinterpreted
- How to navigate accusations that may stem from a messy breakup or personal dispute
It also helps in framing your defence strategy. Since stalking is not a standalone charge, the focus in court will be on the specific behaviours that make up the alleged harassment and how they affected the complainant.
Schedule a Free Consultation with LichtmanLaw
If you’re facing an allegation of criminal harassment—or fear your actions are being misinterpreted as stalking—it’s essential to seek legal advice immediately. The consequences can be life-altering, including jail time and a permanent criminal record.
Contact us now to schedule a free, confidential consultation.