The charge of criminal harassment can cover a whole spectrum of activity and individuals can be charged based on the most minimal manifestations of objective behaviour. That is because the essence of the charge can be formulated in very subjective terms. What to an alleged victim can be criminal misconduct can at the same time be seen as persistent and consistent action to confront an unpopular provocation or misguided venture. The section of the Criminal Code which defines the offence uses such vague terms as assuming the alleged perpetrator knows that the behaviour is unwanted and a cause of concern such as to invoke the nuclear status of the Code which can disrupt lives out of all proportion to the cause of the issue.
The cause is only made out when the court concludes that the initiator knows that the actions caused the recipient to be harassed or was willfully blind to that potential conclusion. When does persistence in attempting to contact a person for example by phone cross the line? Does calling ten times constitute a crime? Maybe 20? More? Less? And why should it be criminal by the state of the mind of the recipient? The court has held that a single incident can be interpreted as threatening conduct and in other circumstances multiple incidents might not be. Of course the context is everything but there is no objective standard against which to measure the offending actions. If requests alone which have the effect of bothering someone can invoke the criminal code, how can one be sure as to what constitutes the crime?
Because the section is so elastic, a good defence is often possible by putting the appropriate context to the totality of the relationship or circumstance which precipitated the intervention of the police and the laying of a charge. Often a properly prepared defence can take the vitriol out of what had been an explosive situation and attempt to remove the scenario from the criminal context to a more appropriate resolution. If you are charged with such an offence, you need help which is what we have offered to clients for over 30 years.
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