Criminal Harassment Lawyers in Victoria
What is Criminal Harassment?
Criminal harassment is commonly referred to as stalking and is classified as an ‘Offence Against the Person and Reputation’ in the Criminal Code. The Department of Justice explains that the behaviour that makes someone fear for their personal safety must occur more than once to constitute criminal harassment, unless it is overtly threatening.
The relevant provision for criminal harassment in the Canadian Criminal Code is:
Criminal harassment
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.
Prohibited conduct
(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.
This offence covers activity from incessantly phoning the same person all the way to making threats against a person, their friends, pets or family.
Some of the most common examples in Victoria include:
- Following someone home,
- Leaving threatening voicemails, and
- Contacting someone repetitively on the internet.
Other harassment offences, including sexual harassment and workplace harassment, are covered in provincial human rights legislation. Neither are criminal offences on their own, but both can amount to a criminal charge if the circumstances fulfill the elements of criminal harassment or sexual assault.
Whatever the harassing behaviour involves, it must give the complainant good reason to fear for their personal safety in order to constitute criminal harassment. The actions also cannot be derived from lawful authority, such as messages from a peace officer or lawyer.
Investigation of Criminal Harassment Charges in Victoria
Investigations of criminal harassment allegations are typically initiated by the alleged victim. They contact the local Victoria, Oak Bay or Saanich Police Service and report it. The police will request a written statement from the complainant and any witnesses, and will then launch an investigation.
The police will typically engage in a thorough investigation to find sufficient evidence to charge. This may include interviewing all witnesses, reviewing any video surveillance, seizing any evidence involved and photographing the scene.
After the police have gathered their evidence, they will arrest you if they believe you are the perpetrator. If you are not present at the scene, police will track you down or issue a warrant for your arrest.
After you have been charged, police will provide a package with all the evidence they collected, known as the “disclosure package,” to the Crown Prosecutor. You will have the right to access this disclosure package to see the evidence against you. Once you retain one of our lawyers, we will assist you in obtaining the disclosure package, and we will review it with you to assess the strengths and weaknesses of the Crown’s case, as well as any legal defences that may be available to you.
Bail Process and Conditions for Criminal Harassment Charges in Victoria
How do I get myself or a loved one out on bail for criminal harassment charges in Victoria?
If you have been charged with criminal harassment, it is not uncommon for police to release you at the scene on a release order. Police will provide you with a Promise to Appear document outlining your charges, and any required appearances you must make. This document may also include conditions that you are required to follow while on release.
However, a formal bail hearing may be required to secure your release, particularly if you have a criminal record, or if the charges you are facing are more serious.
The bail hearing must be held within 24 hours, a period that starts from the moment of arrest or detention rather than the time when you are brought to the district office or Courthouse.
On a weekday, you will be transferred from the district office to the Victoria Courthouse for your bail hearing.
The address of the Courthouse is as follows:
Victoria Courthouse
850 Burdett Ave
Victoria, BC V8W 1B4
(250) 356-1478
If you are arrested after approximately 3 p.m., you will be held at the detachment until the following morning, at which time you will be transported to the Courthouse for your bail hearing. Your hearing will be conducted in front of a Provincial Court Judge.
If you are arrested on Friday after approximately 3 p.m., or if you are arrested on a weekend, your bail hearing will be conducted at the detachment via telephone with a Justice of the Peace from the Justice Centre.
Loved ones are not able to contact you while you are detained. The police will not release any information to friends or family due to privacy laws. Your lawyer is the only person allowed to contact you. Once the police have verified your lawyer’s details, they will pass on information about your whereabouts, if requested.
Because of these difficulties, while you are held in custody, it is best to appoint a competent defence lawyer as soon as possible to manage the legal processes and communicate with your loved ones. After an arrest, the police must provide you with the opportunity to call a lawyer in private and, if that happens, stop questioning you.
Once you retain one of our experienced criminal defence lawyers, we will begin working to secure your release on bail.
We will immediately do the following:
- Call the district office where you are being held, or the Victoria Courthouse if you have been transported, and speak to you.
- Contact the Prosecutor assigned to the bail hearing to start negotiating your release.
- Order and secure a copy of the police information package that details the allegations against you in advance of the bail hearing. This allows the lawyer to make meaningful representations to the Court about why you should be released on bail.
- Conduct either an in-person or teleconference bail hearing to secure your release.
When you attend your bail hearing, the Judge will consider:
- Is detention necessary to secure your attendance in court?
- Is detention necessary to protect the public from a substantial risk of re-offence?
- Is detention necessary in all the circumstances to maintain confidence in the administration of justice?
Although it is unlikely that you will be denied bail for this type of charge, tight restrictions may nevertheless be applied to your release.
Rest assured, we will work to not only secure your release but also to ensure the least restrictive set of bail conditions (including the minimum cash deposit).
In order for our lawyers to secure less stringent conditions, the Judge will need to be satisfied that you will attend court as required and that you pose no significant risk of harm to the public.
Our lawyers are often successful at persuading the Crown Prosecutor in charge of bail to let our clients out. If we can’t convince the Prosecutor, we can conduct a formal bail hearing and work to convince the Court. Even if you are ultimately detained, we can appeal that decision on very short notice through a bail review, which is conducted at the Supreme Court of British Columbia.
Where can I pay for bail for criminal harassment charges in Victoria?
If you or a loved one are charged with criminal harassment in Victoria and granted bail, you may be required to provide a cash deposit to secure release. You can pay bail at any court registry (courthouse) in British Columbia. If you live in Vancouver, you can pay bail there for someone detained in Victoria.
The Victoria court registry is open from 8:30 – 4:30, Monday to Friday.
The contact details of the registry office at the Victoria Courthouse are as follows:
Victoria Courthouse
850 Burdett Ave
Victoria, BC V8W 1B4
(250) 356-1478
To pay your own bail, you can make a payment after your hearing, assuming you have sufficient funds with you to do so.
How do I change my release conditions for criminal harassment charges in Victoria?
Release on bail with criminal harassment charges may include restrictions that impact your day-to-day life.
This could include conditions to refrain from:
- Interacting with any alleged victim,
- Attending the alleged victim’s home or place of work,
- Leaving your house (i.e. house arrest),
- Staying out beyond a certain time (i.e. curfew),
- Breaking any laws,
- Using drugs or alcohol,
- Possessing weapons,
- Visiting certain places, and/or
- Travelling.
The Judge may also impose some additional conditions such as:
- Attending counselling,
- Residing where approved,
- Reporting to probation, and/or
- Maintaining or seeking employment.
A variety of factors will be considered when determining your precise restrictions, including:
- Your criminal history,
- Your physical and mental condition,
- The nature of the alleged criminal harassment,
- The likelihood that you will flee,
- Your history of drug/alcohol usage,
- Whether you have stable employment,
- Whether you have stable living arrangements, and
- Whether you have ties to the community.
If you have already been released, at least for the short term, it is critical that you make arrangements to abide by your conditions until they can be changed. Breaching the terms of your release can result in further charges or a revocation of your bail, as well as a forfeiture of any cash paid to secure your release. It is important to take these conditions seriously.
Once the matter is in court, we can work with the Crown Prosecutor to alter your conditions. This includes either adding exceptions to some of the conditions or eliminating them altogether.
If your court date is far away and you cannot wait until then, we can arrange to have the matter dealt with sooner. Our first priority is always to stabilize your release conditions. That way, you will not feel pressured to plead guilty because of the restrictive terms of your release. Once the conditions are manageable and minimally intrusive to your daily routine, we can focus 100% of our attention on defending the case.
Penalties for Criminal Harassment Charges in Victoria
Criminal harassment is a hybrid offence, meaning that the Crown can elect to proceed by way of indictment or summary offence. This choice will impact the severity of punishments that you are given, with indictment being the more severe of the two.
Although criminal harassment has no mandatory minimum penalties, the Criminal Code does list the maximum punishments as follows:
- Indictment: Up to 10 years’ imprisonment,
- Summary: Up to 2 years’ less a day imprisonment and a $5,000 fine.
In addition to the immediate penalties resulting from a conviction for criminal harassment, it can have wide-ranging negative consequences on your future. You may have trouble securing employment, especially in roles that require working with children, the elderly, or other vulnerable sectors of society. The lifelong criminal record that results from a conviction can hinder immigration and travel. Finally, because of the nature of criminal harassment charges, your friends and family may perceive you as unworthy of their trust, and it can heavily impact your reputation.
Therefore, even if you intend on accepting responsibility for this type of offence, it is worthwhile to explore your options and consider all the possible penalties. Often, good representation can result in no criminal record. Furthermore, a community-based sentence may be obtained even where the Crown is seeking jail time.
Rest assured, our lawyers will work hard to defend you so that you are not saddled with the consequences that stem from a criminal conviction for criminal harassment. In fact, we can canvass a range of sentencing options with the Prosecutors that will either leave you with no criminal record or impose minimal restrictions on your liberty after sentencing. To learn more about potential non-criminal resolutions, please visit our Resolutions page, or read our FAQ on resolutions and other sentencing options.
Defending Criminal Harassment Charges in Victoria
What are the best defences to criminal harassment charges in Victoria?
The best defences for a criminal harassment charge depend on the circumstances of your case.
Generally, however, some good defences are:
- Factual innocence: This is usually the strongest defence because the facts and the evidence do not support you being there, observing or recording, or other basic elements of the offence.
- Identity: In some circumstances where the offence was not recorded by surveillance footage, or the footage is poor quality, you may be able to raise an identity defence. For example, authorities could have made a mistake in identifying you as the perpetrator based on the poor quality of the footage. In order to effectively raise this defence, you may need corroborative evidence, such as an alibi to where you were at the time of the offence.
- Unreasonable fear: One possible defence for criminal harassment is to challenge the reasonableness of the complainant’s fear. By pointing to your relationship with the complainant as well as the nature, context and history of your communications, we can argue that their fear is unreasonable.
- No intent to cause fear: If you can prove that you were unaware that your behaviour would cause the complainant to fear for their personal safety, and that you did not intend to cause the fear, this can help challenge a criminal harassment charge. You must be able to prove, however, that you did not know it would cause fear, and that you shouldn’t have known that it would.
- Lawful authority: If you had lawful authority to ‘harass’ someone, then you cannot be convicted of criminal harassment. For example, a debt collector calling someone incessantly to obtain owed funds is not criminal, because they have lawful authority to do so.
- Violation of constitutional rights: The Canadian Charter of Rights and Freedoms sets out your rights before and after your arrest. If the police fail to abide by these rights, it could aid in your defence.
To be convicted, the Crown must prove that you harassed a person, causing them to reasonably fear for their safety or the safety of anyone they know. While the Crown must prove beyond a reasonable doubt that you committed the offence, you may bear some responsibility in raising certain defences at trial.
The availability and strength of any defence depends entirely on the specific facts of your case. Our lawyers have significant experience assessing the availability and strengths of various potential defences in criminal harassment cases, as well as presenting any and all available defences to the Court at trial. Even if you believe that you will be found guilty, it is important that you obtain a legal opinion about defences that may be available to you.
How can I help defend criminal harassment charges in Victoria?
If you have been charged with criminal harassment in Victoria, the following can help your lawyer build a strong defence:
- Provide your lawyer with a statement about what happened;
- Collect and maintain all documents and records about the event;
- Gather a list of witnesses that may support your version of events; and
- Log any relevant texts, emails, phone calls or photographic evidence.
As soon as you are released on bail, you should start to gather any information that may be of use to your lawyer. What information is relevant will depend on the facts in your case. If you are uncertain what information to collect, you should contact one of our lawyers immediately to create a plan of action.
If you are truly proactive about the matter, consider doing the following:
- Secure proof of employment;
- Secure reference letters;
- Enroll in counselling (anger management/substance abuse/parenting);
- Secure a record of prescriptions; and
- Secure a record of any mental health conditions you suffer from.
These steps can be very helpful for building an effective defence (or convincing the Prosecutor to drop the charges altogether).
What can a lawyer do to help me defend against criminal harassment charges in Victoria?
As we start preparing your defence by examining police actions and the evidence against you, there are certain defence strategies that can be used to aid your cause, including:
- Assembling documents, photographs, texts, etc. that contradict the allegation and support your defence;
- Gathering evidence from witnesses that support your version of events;
- Identifying mistakes in the actions of the police, such as Charter breaches;
- Uncovering administrative/systemic errors, such as “Jordan delay,” non-disclosure, lost or destroyed evidence, etc.; and
- Finding weaknesses or “holes” in the Crown’s case that may make it difficult or impossible for them to establish the elements of the offence.
Further Reading
Below are a few notable cases dealing with various aspects of criminal harassment charges:
In R v Sanchez, 2012 BCCA 469 the Court noted that ignored text messages and unanswered calls can constitute repeated communication as communication need not be verbal. The Court also noted that repeated communications of this kind must be viewed in the context of the relationship between the parties – even seemingly benign communication may cause reasonable fear and constitute criminal harassment when received in the context of an abusive relationship.
In R v Koskar, 124 OAC 289 the Court noted that repeated threatening conduct is not required to make out the offence pursuant to s.264(2)(d). The Court found that a single threatening act can make out the offence where it causes reasonable fear on the part of the complainant.
What’s Next?
Most of the information above relates to simple criminal harassment cases, which can still be complex and fact-specific.
We have tried our best to provide a general outline of what you can expect if you find yourself in this situation, but this is just the tip of the iceberg.
To learn more about how we can help, please contact our team of Criminal Harassment Lawyers. We will conduct a thorough review of your situation and tailor a precise strategy that targets your successful defence.
Criminal Harassment FAQs
