If you were to respond to the above headline, you would likely say something along the lines of, “Yes, of course, cyberstalking is against the law in Canada.” However, you might be surprised to learn that no Canadian Criminal Code provisions distinctly categorize cyberstalking as a crime. For that matter, the Criminal Code does not include any provisions that specifically categorize stalking as a criminal offence.
Well, don’t be, because anyone who engages in cyberstalking — or its twin activity of cyberbullying — is likely committing any number of Criminal Code offences and is probably running afoul of the federal law against criminal harassment. With expertise in criminal law and working experience defending clients against cyberstalking-related offences, the Greater Toronto Area criminal defence lawyers of Mass Tsang can help you understand how cyberstalking is treated as a criminal offence in Canada.
Before we delve into the nuances of cyberstalking under Canadian law, know that the information in this blog should not be read as “legal advice” and is only posted for educational purposes. And, if Ontario Provincial Police have arrested you on cyberstalking-related charges, seek the services of a skilled criminal defence lawyer — like those at Mass Tsang — to ensure the most favourable outcome possible.
To understand cyberstalking, you must understand stalking, which is commonly characterized as a pattern of repeated, unwanted attention and harassment targeting a person to the extent that it causes them to fear the stalker or believe they represent a threat to personal safety. Activities commonly associated with stalking include:
Stalking is considered cyberstalking when the stalker uses communications technologies to commit the acts commonly associated with stalking. That is repeated unwanted attention and harassment via the use of the Internet, social media feeds, emails, texting, or other online or high-tech avenues. The critical point in all stalker-like activities is that they must make the victim feel fearful before police can charge the stalker with the most severe charge of criminal harassment.
Common cyberstalking activities that have led police to charge alleged offenders with criminal harassment and/or other offences include:
Canadian legislators made harassment a distinct Criminal Code offence in 1993 due to the relative weakness of other laws that could be applied against stalkers. Before 1993, police could only charge alleged stalkers with intimidation, mischief, trespassing, loitering, or uttering thefts, when warranted. Of these, only uttering threats carries severe punishment — a maximum of five-years imprisonment — to curtail stalkers, and many stalkers often prove threatening even without making any threats.
Section 264 of the Criminal Code asserts that criminal harassment charges must be predicated on the victim’s fear, in that the offender’s prohibited conduct must cause a victim to “reasonably, in all circumstances, fear for their safety or the safety of anyone known to them.” Section 264(2) specifically lists four prohibited activities that constitute criminal harassment under the law. Anyone—stalker or not—who knowingly or recklessly engages in any of these actions can be found guilty of the offence:
Criminal harassment is a hybrid offence that the Crown can pursue by indictment or summary conviction. When charged as an indictable offence, the maximum sentence is 10 years imprisonment, while a summary conviction carries a maximum of up to 18 months and a $5,000 fine. In determining an appropriate sentence, judges are encouraged to consider aggravating factors suggesting the offender could be a more distinct danger to the victim. Judges will consider whether the offender has been charged with any sexual offences or assaults or is under any no-contact-type court orders. As part of sentencing, judges can also impose weapons possession bans and order the offenders to submit their DNA to the national DNA data bank.
To successfully prosecute an alleged offender on criminal harassment charges, the Crown must prove the following:
If the Crown does not have enough evidence to successfully prosecute an alleged cyberstalker on criminal harassment charges, numerous other offences may prove applicable depending on the type and nature of cyberstalking activities. Likewise, even if charged with criminal harassment, an alleged cyberstalker may also be subject to prosecution for the following offences:
If you’ve been charged with criminal harassment and/or other offences related to alleged cyberstalking activities, you face potential jail time, fines, and a criminal record. As such, you cannot afford to mount an effective defence without the experience and legal skills of expert criminal defence lawyers like those of Mass Tsang. With decades of expertise strategizing effective defences to secure positive outcomes for our clients in the Greater Toronto area, contact us for a free consultation if you are facing cyberstalking-related charges.
