What are my defences against a harassment charge?
Every criminal charge of harassment must be treated differently. The biggest factor is the relationship between the complainant and the accused. Maybe a relationship has ended and the complainant alleges you are stalking them or monitoring their activity. Whatever the case, an experienced criminal lawyer can listen to your account of what happened and suggest your best defence.
What if the allegations are not true?
When relationships and marriages end badly, people feel hurt. There will be tension and mistrust, and one person may allege that the other one is harassing or stalking them. I can look at the evidence and advise you on whether the court will find the complainant's fear was reasonable in the circumstances.
If the alleged victim is fabricating information or exaggerating, I can also suggest ways to defend you. It is not uncommon for people to lie or embellish accounts of what happened, sometimes as a way to punish the accused. If the complainant is not truthful, that will become evident to the court as I cross-examine them.
In deciding whether the complainant’s fears are reasonable, the judge will consider the prior relationship between the accused and the complainant.
What if I didn’t mean to harass the other party?
To win a conviction, the crown must prove that you committed an illegal act (actus reus) and you had the intent (mens rea) to do that. The crown must prove both elements of the offence beyond a reasonable doubt.
Perhaps it can be shown that you did not mean to make the complainant feel harassed or afraid, or that your behaviour would reasonably cause them to feel fear. For this defence to be successful, we will have to show that you were not reckless or wilfully blind about how your actions would be seen by the complainant or by an unbiased observer.
What if I had a valid reason to make contact?
After a marriage or relationship ends, there are many reasons why one person may want to contact the other. If there are children, there will need to be discussions about their welfare and upbringing. Even if there were no dependents, you may have mutual investments or other financial obligations to tend to.
Maybe your attempts to reach out to the person for valid reasons have been misconstrued as harassment. If that is the case, I can show that to the court.
Is it important to keep records of my contact with the complainant?
If the person is alleging that you sent them harassing emails or texts or that you made phone calls that were untoward, it is beneficial to your defence to be able to show that any messages were reasonable. Save any electronic correspondence with the complainant so that we can show the court that it had a purpose and was not meant to be threatening.
What if the police violated my rights?
The Canadian Charter of Rights and Freedoms ensures that all Canadians have rights while being investigated by the police. These include the right to be:
- secure against unreasonable search and seizure, meaning that police cannot search your personal belongings without clear legal reasons;
- protected against arrest without good reason. Officers need reasonable grounds to believe you have committed a crime. They must tell you why you are being arrested and detained. You have the right to consult a lawyer without delay; and
- tried within a reasonable amount of time and not be expected to testify at your own trial.
What is a peace bond?
One alternative to going to trial for harassment is for you to agree to a peace bond.
It is a protection order made by a court under s. 810 of the Criminal Code. A criminal court can impose specific conditions in the bond that last up to one year.
Common conditions include:
- keeping the peace and being of good behaviour;
- not contacting a specific person or a child(ren);
- not calling the person on the phone or contacting them electronically;
- abstaining from using non-prescription drugs or alcohol;
- not owning or using weapons; or
- paying, or promising to pay, a refundable cash bond to the court that may be forfeited if any conditions of the peace bond are breached.
You can be put in jail if you contravene the terms of a peace bond. If you successfully complete the terms of the bond, you will not have a criminal record.
What are diversion programs?
Another way to deal with criminal harassment charges is through a diversion program that may involve community service, counselling or additional forms of treatments. If you complete the program you will avoid a criminal conviction.
What is an absolute discharge?
An absolute discharge is the least severe sentence available for the charge of harassment. A finding of guilt will be made but no conviction is registered. You will also not have conditions to follow and you will not have to return to court or check in with a probation officer. An absolute discharge will stay on your criminal record for one year. You do not have to apply for a pardon for the discharge to be removed from your record.
What is a conditional discharge?
A conditional discharge is similar to an absolute discharge. There is a finding of guilt made though no conviction is registered. The differences are that there are conditions that you must follow accompanied by a probation order of up to three years. Conditions could include:
- community service;
- regular meetings with a probation officer; or
- targeted treatment, if addiction or anger issues are a factor.
As with an absolute discharge, you do not have to apply for a pardon for it to be removed from your record.
What is needed to convict?
To gain a conviction, the crown must demonstrate that the complainant felt your behaviour caused them to fear for their safety. It is my job to present evidence to show that fear was unfounded. If you have been charged with harassment, contact me for more information and a free consultation.