Cyber stalking, sometimes referred to as cyber bullying, refers to the use of information and technological communications to support deliberate, repeated, and hostile behaviour by an individual or group, that is intended to harm others. It has become a growing concern in Canada and the laws are evolving with it. Cyber stalking falls under the criminal offence of criminal harassment under section 264 of the Criminal Code.
The Criminal Code of Canada – Criminal Harassment/Cyber Stalking
Section 264 (1) (Criminal Harassment) of the Criminal Code states the following:
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 (see definition below) 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.
Section 264 (2) The conduct mentioned in subsection (1) above consists of
- repeatedly following from place to place the other person or anyone known to them;
- repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
- 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
- engaging in threatening conduct directed at the other person or any member of their family.
The Punishment for Cyber Stalking
Section 264 (3) Every person who contravenes this section is guilty of
- an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
- an offence punishable on summary conviction.
Essentially, whether the accused, following a conviction, faces jail time will depend on how serious the offence was according to the state. This becomes known when the Crown decides how to proceed with the matter, in other words, did the Crown proceed summarily (which means a less serious offence with less harsher punishment) or by indictment (which means a more serious offence with harsher punishment, namely, imprisonment).
Factors to be considered
The Criminal Code sets out a list of factors that the court takes into consideration when handing down a sentence, if an accused person is convicted. Some of those include the following:
Section 264 (4) Where a person is convicted of an offence under this section, the court imposing the sentence on the person shall consider as an aggravating factor that, at the time the offence was committed, the person contravened
- the terms or conditions of an order made pursuant to section 161 or a recognizance entered into pursuant to section 810, 810.1 or 810.2; or
- the terms or conditions of any other order or recognizance made or entered into under the common law or a provision of this or any other Act of Parliament or of a province that is similar in effect to an order or recognizance referred to in paragraph (a).
There are other aggravating factors not mentioned above that will be taken into account and will depend on the specific circumstances of a given case. The role of a criminal defence lawyer is to minimize the aggravating factors and highlight any mitigating factors in order to reduce the damage and achieve the most favourable results for the accused.
If the court decides to not give effect to an aggravating factor listed above, then the court has a duty to provide reasons.
Section 264 (5) of the Criminal Code states:
Where the court is satisfied of the existence of an aggravating factor referred to in subsection (4), but decides not to give effect to it for sentencing purposes, the court shall give reasons for its decision.
The court has the discretion to rely on both aggravating and mitigating factors in handing down a sentence. A criminal defence lawyer is in the best position to frame these factors in a favourable light for the accused in the case. Lawyers rely on previous case law and other strategies to persuade a court to impose a fair and reasonable sentence for a conviction.
Hiring a Criminal Defence Lawyer from Aitken Robertson for Criminal Harassment Charges
If you are facing a criminal harassment charge, there may be many defences available to you. For instance, the alleged incident may have been misconstrued and our role would be to clear up any misunderstanding. We understand the law and have experience defending against criminal harassment yielding positive results. Let us go to work for you and advocate on your behalf. Give us a call today and book a free 30-minute consultation!