In Canada, there is no offence called “stalking.” Instead, it is known as criminal harassment. Charges most frequently arise in cases where there has been a bad break up and one spouse continues to attempt to communicate with the other. Section Subsections 264 (1) and (2) of the Criminal Code state:
264. (1) 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 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.
(2) The conduct mentioned in subsection (1) consists of
(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 known to them;
(c) 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
(d) engaging in threatening conduct directed at the other person or any member of their family.
If it is alleged, for example, that you committed the offence by engaging in threatening conduct, the following constituent elements would have to be proven beyond a reasonable doubt: (1) You. engaged in threatening conduct; (2) you knew, were reckless, or wilfully blind to the fact that the complainant would be harassed by his threatening conduct; (3) the complainant was harassed by the threatening conduct; (4) your threatening conduct caused the complainant to fear for her safety; and (5) the complainant’s fear was reasonable in the circumstances.
It is however, not necessary for the Crown to prove that you intended to frighten the complainant. What is necessary for the Crown to prove is that you threatened her and knew, was reckless, or wilfully blind that the complainant would be harassed by this threatening conduct.
Your conduct that is subject of the charge is looked at objectively and in the context of all that proceeded it. The pre-charge conduct is relevant to the offensive conduct and to the state of mind of both the you and the complainant.
Examples of potential defences include: that your conduct was not actually threatening, that you were not aware your conduct was threatening, or that the complainant’s fear wasn’t reasonable in the circumstances.