Harassing Communications vs Criminal Harassment

The short answer

Both offences can involve repeated messages, but they are not the same. Harassing communications under s. 372(3) is about repeated phone, text or online contact meant to harass, and it does not require any fear for safety. It carries up to 2 years. Criminal harassment under s. 264 requires conduct that could reasonably make someone believe their safety is threatened, and it carries up to 10 years. The difference has a large effect on the penalty and the consequences.

The two offences side by side

Harassing communications (s. 372(3))

• Conduct: Sending repeated calls, texts or messages, or causing others to send them.
• How: The communication must be by phone, text, email or online.
• Mental element: The Crown must prove an intent to harass.
• Safety: No fear for safety is needed.
• Excuse: The communication must be without lawful excuse.
• Maximum: The maximum is 2 years by indictment, or the charge can be prosecuted summarily.

Criminal harassment (s. 264)

• Conduct: Following, monitoring, repeated communication, watching a home or threatening conduct.
• How: The conduct can happen in person, by telecommunication or in any other way.
• Mental element: The Crown must prove intent to harass, or knowledge or recklessness about it.
• Safety: The conduct must be such that it could reasonably make the person believe their safety is threatened.
• Excuse: The conduct must be without lawful authority.
• Maximum: The maximum is 10 years by indictment, or the charge can be prosecuted summarily.

Harassing communications explained

Harassing communications is the narrower offence. It only covers communication by phone, text, email or online, and it requires a specific intent to harass, so recklessness is not enough.

For example, someone who sends a flood of insulting texts to an ex, meaning to upset them, may be charged with harassing communications even if nothing in the messages suggests a risk to safety.

Other offences in section 372

• False information (s. 372(1)): Sending information you know is false, by letter or telecommunication, to injure or alarm someone.
• Indecent communications (s. 372(2)): Sending an indecent message by telecommunication to alarm or annoy someone.

Both carry up to 2 years by indictment, or they can be prosecuted summarily.

Why the charge matters

• Penalty: Criminal harassment has a 10-year maximum, compared with 2 years for harassing communications.
• Weapons ban: Criminal harassment brings a mandatory weapons prohibition on a conviction or discharge, while harassing communications does not.
• Record and reputation: Employers and immigration authorities often see criminal harassment as more serious.
• Immigration: Criminal harassment's 10-year maximum can mean serious criminality for a permanent resident, while harassing communications usually would not unless the sentence is more than 6 months.

When the safety evidence is weak, a criminal harassment charge can sometimes be resolved as harassing communications, or with a peace bond.

Police can lay both charges for the same conduct, but as a rule you cannot be convicted of both for the same act.

How a charge is chosen

Police and the Crown decide which charge to lay based on the evidence they have. If the messages include threats, references to where the person is, or a pattern of following or monitoring, criminal harassment is more likely. If the messages are insulting or upsetting but do not suggest any risk to safety, harassing communications may fit better. Your lawyer can argue that the evidence supports only the lesser offence.

What happens after you are charged

1. Release: You will usually be released with no-contact conditions covering all forms of communication.
2. Disclosure: The Crown provides the messages and account records.
3. Charge review: Your lawyer reviews whether the evidence supports criminal harassment or only harassing communications.
4. Resolution or trial: The case may resolve through a withdrawal, a peace bond or a plea to the lesser charge, or go to trial.

What to do now

• Stop all communication with the complainant, including through apps and other people.
• Keep your full message history, including the complainant's messages to you.
• Do not post about the complainant or the case online.

Possible outcomes

There are several ways a case like this can end. The Crown may withdraw the charge if the evidence is weak. In suitable cases, the charge may be withdrawn in exchange for a peace bond. A criminal harassment charge may also be resolved as harassing communications. If you are found guilty of either offence, the result may be a discharge, probation or, in serious cases, jail.

Effects beyond the sentence

The two offences have very different effects on your life. A finding of guilt for criminal harassment brings a mandatory weapons ban. A conviction can also cause serious problems with immigration, travel and background checks. Harassing communications has a lower maximum. It does not bring the mandatory weapons ban. But a conviction is still a criminal record.

Release conditions

Both charges usually come with no-contact conditions. These conditions cover calls, texts, emails, social media and messages sent through other people. Breaking a condition is a separate offence under s. 145. It can also be used as evidence against you. If you are unsure whether something counts as contact, ask your lawyer before you act.

A simple way to compare them

Here is a simple way to tell the two offences apart. Harassing communications is about messages that are meant to upset or annoy. Criminal harassment is about conduct that could make a person fear for their safety. Both can involve many messages. The key question is whether the messages, read as a whole, would make a reasonable person feel unsafe. If they would not, the lesser charge may be the better fit.

The evidence in a typical case

In both kinds of case, the Crown relies on the messages themselves. It may also use call logs, account records and the complainant's statement. The Crown must prove that you sent the messages. It must also prove what you meant by them. Reading the full conversation, not just a few screenshots, often changes how the messages look.

How we can help

We can review whether the evidence supports criminal harassment or only a lesser charge, and argue for the outcome that fits. Call (647) 223-1980 for a free consultation.

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