Author: Ernst Ashurov

In Canada, the two charges commonly associated with drunk driving are impaired operation, section 320.14(1)(a) of the Criminal Code, and ’80 over, section 320.14(1)(b) of the Criminal Code. These charges carry similar penalties and are often laid together and the accused may be found guilty of both although a conviction can be entered for only one of the charges at a time.

While to a layperson the two charges appear the same, they do have important differences which require different methods of proof on the part of the prosecution and different defenses on the part of the accused.

Impaired Operation

Simply put, the offense of impaired driving consists of operating a motor vehicle, vessel, or aircraft while your ability to do so is impaired by alcohol or drug. Notice that this offense does not necessarily involve alcohol, a person may be charged with impaired driving if his ability to drive is impaired by drugs as well. Drug-impaired driving became especially prominent after the legalization of marijuana.

In the case of impaired driving, we are not really concerned with the level of alcohol in the accused’s blood but only with the effect of alcohol or other intoxicating substance on the accused’s ability to drive. In other words, some people may be impaired even with a low level of alcohol in their system while others may not be impaired even though the level of alcohol in their blood far exceeds the legal limit.

In order to prove the charge of impaired driving the Crown has to show that the accused’s ability to drive was impaired and this is normally done through observations of police officers and other witnesses which normally focus on the manner of driving, balance, speech, and other signs or indicia of impairment.

It is very common at the impaired driving trial to hear the testimony of the police officer reciting the following observations, which lawyers often refer to as “boilerplate” signs of impairment: red, bloodshot, and watery eyes, slurred speech, difficulty with balance, and bizarre or erratic driving. While each of these signs sounds bad enough on its own and taken together they present a grave picture of a drunk driver out of control, it often turns out that probing by an experienced defense counsel reveals that such observations are either untrue or groundless or have an innocent explanation which has nothing to do with impairment. In many cases, the video recordings of the accused following the arrest are of great assistance to the defense as often times such recordings are sharply at odds with the officers’ reported observations.

’80 Over

The charge of ’80 over, on the other hand, is only invoked in the cases involving alcohol and has nothing to do with impairment. In other words, you can be as sober as you want, however, if the Crown can prove that the concentration of alcohol in your blood exceeded the legal limit at the time of driving, you are guilty of this offense. The legal limit in Canada is now under 80 milligrams of alcohol in 100 milliliters of blood, hence the common name of the charge – ’80 over.

This charge used to be known as “over ‘80”, however, in December 2018, the new legislation made it a crime to have 80 or more mg of alcohol in 100 ml of blood, so now the more appropriate name is ’80 over.

The level of alcohol in the blood is determined by breath tests or, in certain cases, by blood tests. In case of breath tests, an accused person has to supply at least two suitable samples into a special instrument designed to analyze such breath samples and determine the concentration of alcohol in his blood.

In addition, the new legislation made it an offense to be over the legal limit not only at the time of driving as used to be the case but also during the two hours after that time unless the accused person reasonably did not believe he or she will be subjected to testing.

Although at the first glance it seems that once your breath samples are obtained and the results are over the legal limit your case is finished, in many cases it is very far from the truth.

Although the new legislation prevented many previously available defenses, there are ways of challenging the admissibility of the results as evidence against you either under the Criminal Code or the Canadian Charter of Rights and Freedoms.

For example, the Criminal Code provides for certain conditions under which the certificate confirming results can constitute evidence of your blood/alcohol level. If these conditions are not met, the prosecutor may lose evidence necessary for establishing your blood/alcohol level and hence your guilt.

Under the Charter, every person has certain rights which have to be observed in cases where the police want to obtain the person’s breath samples. For example, the police have to have reasonable and probable grounds to demand breath samples from an individual, such an individual has the right to consult a lawyer prior to providing breath samples, etc. If the person’s rights under the Charter are breached, the defense can request that the breath sample results be excluded from evidence.

Without breath sample results the prosecution has no case against you on the charge of ‘80 over since these results are the main piece of evidence on this charge. Accordingly, once the results are excluded from evidence, this charge must necessarily be dismissed.

The above information is definitely not exhaustive but clearly illustrates how technical and complex the drinking and driving charges are and why it is so important to be represented by an experienced impaired driving lawyer if you intend to fight them.

Over the years of my practice, I developed special expertise in defending my clients against various drinking and driving offenses.

How Serious Are Drinking and Driving Offenses?

Although they do not sound serious and many people mistake them for simple traffic violations, the offenses of impaired operation, ’80 over and refuse to provide a breath sample are criminal offenses with long-lasting negative consequences.  If found guilty of any of those crimes, at a minimum, a person acquires a criminal record, loses his driver’s license, and is ordered to pay a fine.  In addition, the car insurance premiums for people convicted of drinking and driving offenses may skyrocket for a long time following their conviction.

Due to the policy aimed at eradicating drunk driving and an overwhelming number of drinking and driving prosecutions, the government constantly tries to discourage the accused from pursuing their cases to trial by taking away defenses that were available to them before.  Some of the government’s initiatives in this regard were found unconstitutional in November of 2012 by the Supreme Court of Canada, however, the government continued to expand the punishing reach of the law with respect to impaired driving.

Recent Changes in The Law

In December 2018, the most recent amendments made it a crime to be over the legal limit within two hours after ceasing to operate a motor vehicle unless an accused reasonably believed he or she will not be subjected to testing.  In addition, due to the most recent amendments to sentencing provisions, a permanent resident of Canada or a foreign national convicted of these offenses is also subject to removal from Canada.

So Should I Plead or Should I Fight?

Notwithstanding the serious consequences listed above, people charged with the drinking and driving offenses are still pressured into early (and often ill-informed) guilty pleas by the prospect of regaining their driver’s license sooner.  It works like this: under the Criminal Code, for the first conviction, the accused loses his driver license for a minimum of one year, however, if you plead guilty within the first 90 days after the date of the offense and if the Court and Crown Attorney do not oppose it, you can lose your license for three months and the remaining nine months you can drive as long as you enroll into the Interlock Program administered by the Ministry of Transportation which involves, among other things, an installation of special interlocking ignition device on any motor vehicle you drive which prevents you from starting the engine unless you have no alcohol in your system.  I see many problems with this approach including the following:

1. The ultimate decision as to whether or not you are admitted into the Interlock Program is not up to the judge or the prosecutor and definitely not up to you, the decision is made by the Ministry of Transportation after you enter your guilty plea;
2. Once you plead guilty, you get a criminal record;
3. Oftentimes you simply do not have time to properly assess your chances at trial because the materials required for your lawyer to properly advise you in this regard are simply not available within 90 days after the date of the offense.  I had a case, for example, where my client was charged in August but his case first got to Court only in October and then no video recording made of him at the police station (showing whether he looked impaired) was not available until after the expiration of the 90 day period;
4. Even though you get your license sooner, you may still be unable to drive because your insurance premiums are so high that you simply cannot afford this luxury;
5. As noted above, depending on your immigration status, a drinking and driving conviction may result in your removal from this country.

On the other hand, if you take your case to trial, the advantages include the following:

1. With the assistance of an experienced impaired driving lawyer you can beat the charges;
2. Even if you do not succeed at the end of the day, the new legislation still allows you to get your license back sooner than one year only in this case you cannot drive for six months and then can drive with an interlocking device for twelve months (versus three and nine months in case of a guilty plea).

As you can see the incentive to plead guilty is not as compelling as the government would want you to think.  In my opinion, in the current state of affairs, it makes more sense to take your case to trial than plead guilty.  However, if you want to fight the drinking and driving charges, you need a lawyer specializing in this area of criminal law to have a fighting chance.

How Can I Fight The Charges?

The drinking and driving offenses are indeed very complex and not all criminal lawyers even take them on.  The defenses are there but many of them are very technical and there are literally tons of precedents (previous court decisions) that may or may not be applicable depending on the specific fact scenario of your particular case.  I usually walk into a courtroom armed with a briefcase full of different precedents which can be relied upon to advance one type of argument or another depending on how the evidence comes out at trial.

The police use different types of breath testing instruments to gather evidence of concentration in blood.  The officer’s lack of knowledge or improper operation of breath testing device may afford you a defense and in order to challenge the officer on these issues, the experienced impaired driving lawyer must himself have sufficient knowledge and understanding of the workings of this equipment.

A lot of impaired driving cases are dismissed based not on the merits but on constitutional violations which occur in the course of interaction between the police and individual accused.  Not surprisingly, a lot of famous Charter of Rights decisions which established general constitutional principles involved drinking and driving offenses.

In some other cases, your impaired driving lawyer has to engage a toxicologist who may provide expert evidence on your behalf to establish your defense.

In short, a good impaired driving lawyer has to possess specialized knowledge of issues specific to impaired driving cases and also must have deep knowledge of the Charter jurisprudence.

One thing is for sure – “charged” does not necessarily mean “convicted” in many impaired driving cases as long as you have an experienced impaired driving lawyer by your side.

The prosecutions of drug-related offenses are governed by the Controlled Drugs and Substances Act (CDSA) which was brought into force on May 14, 1997, and created a new scheme for the regulation of certain dangerous drugs and narcotics, now known as “controlled substances”.  The CDSA repealed and replaced the Narcotic Control Act and Parts III and IV of the Food and Drugs Act, and effectively consolidated in one Act, the major provisions dealing with illicit drugs.

How Big of a Deal is It?

The drug offenses are considered to be very serious especially when the drugs involved are dangerous, such as cocaine, heroin, or fentanyl, and where the amount of drugs involved is significant.  The offenses themselves range from simple possession of drugs to possession for purpose of trafficking, trafficking, and conspiracy to traffic.

So What Am I in For?

Persons convicted of drug offenses often face jail sentences.  In fact, section 10 of the CDSA specifically lists certain aggravating factors which require the sentencing judge to give reasons for declining to impose a jail sentence if any of those factors are present in the case.

Drug trafficking offenses have been attracting longer and longer sentences over the past years and some drug-related charges are subject to mandatory minimum jail terms.

In addition, there are collateral consequences of drug-related convictions.  For instance, a person convicted in Canada will most likely not be admitted into the United States even for a casual visit.

The drug cases are prosecuted by federal Crown Attorneys specially trained in this area of criminal law and the police devote formidable resources for the investigation of these cases.  It is not uncommon today to encounter massive drug prosecutions based on months or even years of surveillance, involving dozens of accused persons and tremendous volumes of wiretaps and other materials.

Considering the skills and resources the government has against people accused of drug offenses, such people should settle for nothing less than experienced defense counsel ready to take on the challenge and help in refuting the charges or minimizing the consequences of a conviction.

So How Can You Defend Me?

Since the vast majority of drug offenses come to light as a result of various forms of searches, not surprisingly the defense often focuses on the legality of such searches.  Accordingly, any drug lawyer should be well familiar with the constitutional principles governing the validity of searches and the admissibility of evidence derived from them.

Two main groups of searches are (I) warrantless searches and (ii) searches conducted pursuant to search warrants.  In case of warrantless searches, the Crown must show sufficient grounds for the search in order for the search to be legal.  In the case of the searches pursuant to search warrants, the defense must show that the warrant is invalid or the search was not conducted in accordance with the warrant.

However, demonstrating that the search was illegal is only the first step to a successful defense.  Step #2 is to persuade the court that due to the illegality of the search, the results of the search should be excluded from evidence.  This is a mandatory and critical stage in any case where the accused claims violation of his constitutional rights.  After all, if the evidence is not excluded at the end of the day and this evidence is capable of proving guilt beyond a reasonable doubt, any efforts to show constitutional breaches will have been fruitless.  In 2009, the Supreme Court of Canada enunciated the new test for determining whether the evidence obtained as a result of constitutional violations should be excluded and any experienced defense counsel should know the test by heart and should be able to relate the general test provisions to the particular facts of the client’s case to tip the scales in favor of exclusion of evidence.

The outcome of drug prosecutions also often turns on the interplay between the accused and the drugs.  For example, you should not be found guilty of possession of drugs (whether for purpose of trafficking or not) if you do not know that you in fact possess them.  Thus, if a stranger asks you to keep an eye on his suitcase while he runs to a washroom and then a specially trained dog detects that the suitcase contains cocaine, you should not be found guilty of possession of cocaine.  This example, of course, is not meant to encourage anyone in this day and age to do such favors to strangers.

Another scenario involves the degree of control of a vehicle where the drugs are found.  While the driver of such a vehicle clearly has control of it, the same considerations do not necessarily apply to a passenger.

If the drugs are found in a home, the Crown must show the connection between the accused and the home.  In a recent case, my client was acquitted of possession for the purpose of trafficking 221 marijuana plants found in the basement of a home simply because the Crown failed to establish that he was a tenant at the relevant time.

Sometimes, the Crown comes to court armed with audio recordings of telephone conversations purporting to prove the drug transactions.  Then it is common to hear evidence from the police officers “interpreting” what certain words or phrases mean in the drug world and the task of the defense counsel is to discredit the police expertise and demonstrate that the same words or phrases can have perfectly innocent meaning.

While the drug offenses are very complex and often difficult to defend and consequences of a conviction may be extremely serious, just because you have been charged with such an offense does not mean you are necessarily going to jail, however, it is crucial to entrust your case to experienced drug lawyer to achieve success.

Domestic Violence Offences

Over the years of my practice, I have successfully represented my clients in hundreds of cases of domestic assault, threatening death or bodily harm, mischief, sexual assault, criminal harassment, and other domestic violence offenses.

Have you been charged with domestic assault?  Trust me, you are not alone.  Domestic violence offenses comprise a huge percentage of any Court’s docket.  In many Courts, domestic violence offenses have a special dedicated day of the week and a domestic prosecution team.

But I Did Not Even Do Anything

If you think that you were wrongfully charged, nothing really happens and your spouse simply uses (or abuses) the criminal justice system to gain an advantage in a matrimonial dispute or simply to “teach you a lesson”, you are not alone either.  It is amazing how many domestic assault cases boil down to exactly that and also how easy it is for a person to get charged with domestic violence offense based on the uncorroborated complaint of his or her spouse or partner.  It is literally enough for a wife to attend at the police station and make a statement that her husband slapped her (no injuries or even redness on the cheek is required) and the husband can be arrested, charged, held at the police station overnight, and the next morning took to Court for a bail hearing where a justice of the peace will decide whether such person can be released on bail pending his trial.

I Was Offered to Go into the EI Program – What Is It?

Not surprisingly many people lose faith in the system after experiencing such treatment and then are fooled into so-called “early intervention” program which requires them to plead guilty, undergo an anger management program, and then, if the program is successfully completed, get a conditional discharge which is a finding of guilt but not a conviction.  Many do so to avoid legal fees thinking that discharge is not really a criminal record.  But guess what I think if I look at your record and see that you received a discharge for assault?  I think that you were charged with assault, were found guilty, and then granted a discharge.  So although technically it is not a criminal record, it is clear that you committed a crime.

Accordingly, my advice to anyone charged with domestic assault or other domestic violence offenses is to fight the charges and try to obtain an acquittal.  It does happen more often than you think as long as you have an experienced domestic assault lawyer by your side.

Can My Charges Be Resolved Without Trial?

One definite advantage I have over many other domestic assault lawyers is that my practice is not restricted to criminal law.  I handle family law matters as well and understand the dynamics of the matrimonial process.  I also know how to use the materials from the matrimonial proceeding in a criminal case to discredit the allegations brought by the complainant.  In many cases, I managed to persuade the Crown Attorney to withdraw the criminal charges based on inconsistent information contained in the family court proceeding.  At the same time, I used the discredited criminal complaints to undermine the other side’s position in a matrimonial case.

Obviously, some more serious charges have to go to trial, but a trial does not necessarily mean a conviction.

In a recent case, my client was charged with numerous sexual offenses in relation to two of his children.  He was literally staring at potential 20 years in prison.  However, after a lengthy trial, it turned out that all of the allegations were simply fabricated by his wife.  It took a lot of work, including uncovering numerous social media posts from the wife to show that the charges were false, but in the end, my client was acquitted.

Remember, if you fight, you may win or lose but if you give up, you have already lost.  With help of the experienced domestic assault lawyer, you can fight the charges and win but by pleading guilty you foreclose this opportunity.

Who Can Grant the Divorce?

Divorce in Ontario can only be obtained from the Superior Court of Justice.

Preliminary Issues

There are three preliminary issues with respect to any divorce:

1. Does the court have jurisdiction over your divorce;
2. What are the grounds for your divorce; and
3. Is your divorce contested or uncontested.

Jurisdiction

In order for the court to have jurisdiction over your divorce, at least one of the spouses must have resided in the territorial jurisdiction of the court for at least one year immediately preceding the divorce application.

Grounds for Divorce

There are three grounds for divorce:

1. Separation of spouses without the reasonable possibility of reconciliation for at least one year;
2. Adultery; and
3. Cruelty.

In case of separation, all that is required that the spouses no longer cohabit as spouses for 12 months.  They may reside under the same roof, yet live separate and apart.  While the application for divorce can be commenced before the expiration of the 12-month separation period, the divorce itself will not be granted until the said period is up.

In case of adultery, the spouse applying for divorce can do so based on the other spouse’s infidelity.  In this case, you do not have to wait for one year prior to obtaining the divorce, however, you have to prove that the other spouse was unfaithful to you.

Similarly, in the case of cruelty, you do not have to wait for one year before the divorce is granted, but you have to show that your spouse treated you with physical or emotional cruelty.

In my practice, separation is the most frequent ground for divorce.

Contested vs Uncontested

Whether the divorce is contested or uncontested is a very important matter which dictates the anticipated length of the court proceeding and the amount of money to be spent on legal costs.  Many people think that the other spouse must consent to the divorce, otherwise, it will necessarily be contested.  The truth is that once one of the parties applies for divorce based on one of the valid grounds, it will be granted whether the other party wants it or not.  What makes divorce proceedings contested or uncontested are other issues involved apart from the divorce itself including custody of and access to the children, child, and spousal support, equalization of property, etc.

If the parties are able to resolve all such issues arising out of their marriage amicably, by way of a separation agreement, then the divorce can proceed on an uncontested basis and even though it is granted by the Court, in most cases it can be obtained by your lawyer without the need of any court appearances.  However, if the matrimonial matters accompanying divorce are disputed, then the divorce proceeding will be contested and can become very lengthy, stressful, and expensive.

If you intend to apply for divorce, it is highly recommended to consult an experienced family lawyer to determine what is the best way to proceed in your particular case, what you can expect from the court, and whether there is a way to amicably resolve your matrimonial issues without resorting to litigation and then obtain the divorce on an uncontested basis.

If an amicable resolution is not possible, it is even more desirable to have an experienced family lawyer representing you as the court process is quite convoluted and it is not a good idea to go through this often an emotionally challenging process by yourself, especially if the other side is represented by a lawyer.

Operation of What?

This offense is called “dangerous operation” because section 320.13 of the Criminal Code which contains it refers not only to driving a motor vehicle but also to the operation of a vessel, an aircraft, or railway equipment (now collectively referred to as “conveyance”).  Of course, in reality, the most frequent application of this section is in the cases of dangerous operation of a motor vehicle or, in other words, dangerous driving.

The punishment for this offense can include imprisonment of up to 10 years if no death or bodily harm is caused.  If the offense causes bodily harm, the maximum term of imprisonment increases to 14 years and if death is caused, the maximum term of imprisonment is life.

How Is It Different From Civil Negligence or Traffic Infraction?

Dangerous operation offenses are widely hated by lawyers because they represent the type of crimes that introduce civil law concepts into the criminal law arena.  In particular, while criminal offenses normally require subjective analysis of actions and intentions of the accused persons, crimes such as dangerous driving introduce the so-called “modified objective” test in assessing the elements of the offense required for conviction.  Sometimes, it seems that a particular incident results in a dangerous driving charge rather than speeding, running a red light, or careless driving simply because the officer was too mean or trigger happy.

The thin line between civil negligence or highway traffic offense on the one hand and criminal charge of dangerous driving on the other is not always easy to see yet a successful defense often depends exactly on that.  Therefore, only an experienced criminal lawyer who also has a solid understanding of civil law concepts should be entrusted with defense against this truly dangerous offense.

Section 320.13(1) of the Criminal Code simply states in essence that everyone commits an offense of dangerous operation who operates a conveyance in a manner that is dangerous to the public, having regard to all the circumstances.  Not surprisingly this may seem to you like pretty much any driving infraction but to an experienced criminal lawyer, this means many potential defenses and important circumstances which can separate your case from those encompassed by this section of the Code.

Dangerous driving cases generated so much confusing litigation that the principles and elements of this offense had to be restated twice recently by the Supreme Court of Canada.

The result of those two cases was that while the Supreme Court confirmed that the offense of dangerous operation does not require subjective intent to commit the offense, the application of the “modified objective test” requires that punishment be imposed only upon those with “a blameworthy state of mind”.   The accused’s conduct must constitute a “marked departure” from the norm to result in a conviction.  Accordingly, the prosecution must present a case of objectively dangerous driving and further determination must be made whether the prosecution has also proven that the conduct involved a marked departure from the standard of care of a reasonable person in the circumstances that is deserving of punishment.  In addition, the defense may still raise a reasonable doubt that a reasonable person in the position of the accused would not have been aware of the risk posed by the manner of driving or, alternatively, would not have been able to avoid creating the danger.

The Supreme Court also required that a meaningful inquiry be conducted into the manner of driving with the focus on the risk of damage or injury created by it.  This inquiry has to take into account the fact that driving is an inherently dangerous, but socially valuable activity, and that accidents caused by inherent risks associated with driving generally should not result in criminal convictions.  The judge should determine whether (a) a reasonable person would have foreseen the risk and taken steps to avoid it if possible; and (b) if so, whether the accused’s failure to forsee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances.  The court is required to identify how the departure from the standard goes markedly beyond mere carelessness.  The guilty state of mind required for conviction cannot be inferred simply because the manner of driving was a marked departure from the norm, but only if it can be inferred that the driving, viewed in all the circumstances, was the result of a marked departure from the requisite standard of care.

If all of this makes your head spin, don’t be alarmed, it should.  This is the reason why you need an experienced criminal lawyer on your side to fight against the charges of dangerous driving.  Successful defense depends not only on a thorough understanding of legal principles governing this offense but also the correct application of those principles to the facts of your particular case to show that your driving was not dangerous at all or, even if it was, it did not rise above (or rather fell below) the standard associated with mere carelessness or civil negligence or conduct punishable by provincial highway traffic legislation so as to protect you from criminal consequences of the conviction for dangerous driving.

But What if Someone is Injured or Killed – Am I 100% Guilty Then?

Many people charged with dangerous operations fall into despair especially when an accident claims a life or results in serious injuries.  While it may be natural to think that if life is lost or serious injuries are caused, someone must be at fault, this is not true in the legal world.  In fact, the Supreme Court specifically emphasized that the consequences of driving are not to be equated with the manner of driving and it is the manner of driving that is the gravamen of the offense.  In other words, if the manner of driving is not proven to have been dangerous in the circumstances of the case, the accused should not be found guilty just because the driving resulted in death or bodily harm.

But the Crown Has an Expert – What Do I Do Now?

Another factor which intimidates many accused is that in many cases, especially those involving death or serious injuries, the police prepare accident reconstruction reports in which police accident reconstruction experts conduct various tests and scientifically explain the reason for the collision and the manner of driving leading to it.  While the police experts may sound very smart and convincing, you would be surprised how often their “expert” opinions can be reduced to rubble by an experienced criminal lawyer.  Of course, the lawyers in these situations cannot and should not act alone.  An experienced criminal lawyer has access to highly qualified defense experts in the field of accident reconstruction who review the police accident reconstruction reports with a view of undermining the conclusions contained in them.

In one of my recent cases, the police expert with many years of experience claimed that my client was traveling on the highway at almost twice the speed limit in total disregard of others and was involved in an accident that killed a young woman and seriously injured a child.  My experts, however, discovered that while he used the correct formula to calculate the speed of my client’s car, he inserted wrong numbers in that formula in order to arrive at the desired result.  My job was then to discredit him on the witness stand and to show to the judge that his “expert” opinion was worthless.  The Crown then called another police “expert” who arrived at similar findings using a different approach.  Again, with the assistance of defense experts, I was able to show that the new approach was just as wrong because it was not scientifically appropriate to the type of collision in question.

An accident can be the result of dangerous driving, but often an accident is just an accident and an experienced criminal lawyer can assist you and show that your case involved the latter.

What is Criminal Harassment?

In 1993, the Government introduced section 264 of the Criminal Code intended to penalize conduct commonly known as stalking which is now referred to as criminal harassment.  The maximum punishment available for this offense is 10 years imprisonment.  What may be even worse though is the stigma associated with this offense.  People usually view stalkers as creepy, sick individuals (potentially even serial killers or rapists).

The conduct which may give rise to this charge is very broad and includes: (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 is known to them; (c) besetting or watching the dwelling-house, or place where the other person or anyone is 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.  It is important to note that the types of behavior listed above would not constitute a crime if done with “lawful authority”.  So if the police officer follows you from place to place because he investigates another crime does not mean that this officer is guilty of criminal harassment.

Another important aspect is that the types of conduct described above will not constitute criminal harassment unless engaged in by one person knowing that another person is harassed or recklessly as to whether the other person is harassed and also the conduct must cause that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.  In other words, if you don’t know, or should know but don’t really care, that your repeated phone calls to your former girlfriend in hopes of getting back together are unwelcome and, in addition, reasonably cause her to fear for her safety, then you can be found guilty of criminal harassment.

What Does It Take to be Found Guilty?

Over the years, the Courts have interpreted the criminal harassment section to include the following seven defining factors for conviction:

1.  The accused must have engaged in one or more of the types of conduct set out in the section and, in so doing, the accused must have intended to harass the complainant, or was reckless as to whether the conduct did in fact harass the complainant, and the complainant, in all the circumstances, must have experienced “reasonable fear” as a result of the accused’s conduct; 
2.  The Crown need not establish that the complainant was actually threatened or that any actual physical or mental injury was caused to the complainant as a result of the accused’s conduct; 
3.  “Repeatedly” in reference to the prohibited conduct means “many times over”, specifically more than once or twice, and the circumstances of each case will determine whether an act has been “repeatedly” performed; 
4.  “Safety” means more than just freedom from physical harm, it includes freedom from fear of mental, emotional, or psychological trauma; 
5.  “Harassment” means the conduct must be unwelcome to the complainant and includes an element of tormenting the complainant; 
6.  The test for reasonableness of fear for safety on the part of the complainant is whether a reasonable person, in the particular circumstances of the complainant, would fear for his or her safety or the safety of anyone known to them;
7.  In considering whether the complainant’s fears are reasonably held, the court must take into consideration the complainant’s gender, and the history and circumstances surrounding the prior relationship between the parties.

And How to Defend Against This Charge?

Any competent lawyer defending criminal harassment charge must turn his or her efforts at creating reasonable doubt as to whether (a) the conduct described in the section took place; (b) the accused acted with lawful authority; (c) the accused intended to harass the complainant or was reckless as to whether the complainant was harassed; and/or (d) the complainant was in fear for her safety or that of anyone known to her, or, if she was, the said fear was reasonable.

In the era of electronic communications, it becomes more and more difficult to deny the existence of repeated contact since more and more people use emails and text messaging which create a proof of such contact.  On the other hand, the tone and content of the communications becomes also readily apparent and can often be used to discredit the claim of harassing nature of such communications.

Unfortunately, this charge is often used (or rather abused) by separated or former spouses, especially in custody and access battles.  For example, the wife would first provoke the husband by denying him access to the parties’ child and later, after the husband contacts her time and again demanding visitation, turns to police “for help”.

Similarly, oftentimes in civil disputes, the would be defendants resort to criminal harassment complaints to discourage the would be plaintiffs from trying to pursue their civil claims.  For example, I owe you money, you call and write to me demanding payment, I go to the police and tell them that I am scared and the rest is history.

That is why the context of the relationship between the parties prior to the charge is extremely important and it is just as important that your lawyer understands family and/or civil law principles and not just criminal law concepts when defending you against this charge.