What Evidence Is Needed to Prove Criminal Harassment in Ontario?
To prove criminal harassment, the Crown must show beyond a reasonable doubt that you engaged in conduct listed in section 264 of the Criminal Code. That conduct includes repeated following, repeated communication, monitoring, watching or threatening. The Crown must also prove you meant to harass, or knew or were reckless that you would be harassing.
The law changed on July 18, 2026. For conduct on or after that date, the Crown no longer has to prove the complainant actually felt afraid. It is enough that the conduct could reasonably be expected to make the person believe their safety was threatened.
For conduct before that date, the older test applies. The Crown must still prove real fear, and that the fear was reasonable.
What the Crown must prove under section 264
The Crown must prove every element of the offence, and a reasonable doubt on any one of them leads to an acquittal. Which elements apply depends on when the conduct took place.
| Element | Conduct before July 18, 2026 | Conduct on or after July 18, 2026 |
|---|---|---|
| Prohibited conduct | One of four listed types | One of five listed types, in person, by telecommunication or by any other means |
| Lawful authority | The accused had none | The accused had none |
| Mental state | Knew the complainant was harassed, or was reckless or wilfully blind about it | Intended to harass, or knew or was reckless that they would be harassing |
| Harassment | The complainant was in fact harassed | Not a separate element |
| Fear | The complainant actually feared for their safety, or for someone they know | Not required |
| Reasonableness | The fear was reasonable in all the circumstances | The conduct could reasonably be expected to cause a belief that safety is threatened |
The prohibited conduct in section 264(2) is now:
- Repeatedly following the person or anyone known to them
- Monitoring the location, movements, actions or social interactions of the person or anyone known to them (added in 2026)
- Repeatedly communicating with the person or anyone known to them, directly or indirectly
- Besetting or watching the place where the person lives, works or happens to be
- Threatening conduct directed at the person, or at anyone or any animal known to them
Three details matter in practice. Ontario courts have read repeatedly as more than once. Threatening conduct can be a single incident. Safety includes psychological safety, which section 264(6) now states expressly.
What evidence does the Crown rely on?
Most criminal harassment cases are built from the complainant’s account plus digital records that show a pattern. No single type of evidence is required, and a conviction can rest on testimony alone if the judge believes it.
| Evidence | What it is used to prove | How the defence tests it |
|---|---|---|
| Complainant’s testimony and police statement | The conduct, its frequency and its effect | Inconsistencies, motive, missing context, mutual contact |
| Texts, emails, call logs and voicemail | Repeated communication and its tone | Who sent them, whether the thread is complete, replies from the complainant |
| Social media posts, comments and direct messages | Communication, monitoring or threats | Account ownership, fake or shared accounts, edited screenshots |
| Phone, GPS, AirTag and app location data | Following or monitoring | Accuracy of the data and who controlled the device |
| Security, doorbell and dashcam video | Watching or besetting a home or workplace | Identity, date and time, innocent reasons for being there |
| Witnesses such as friends, co-workers and neighbours | Sightings and the complainant’s reaction | What they saw first-hand versus what they were told |
| Prior warnings, peace bonds and court orders | Knowledge that contact was unwanted | Whether the warning was clear and actually received |
| The accused’s own statement to police | Admissions about contact and intent | Whether the statement was voluntary and Charter rights were respected |
The last row decides many cases. People often try to explain themselves to police and end up admitting the contact. That leaves only intent and reasonableness in dispute.
How digital evidence gets into court, and how it is challenged
A screenshot is not automatically proof. Before a judge relies on an electronic record, the Crown must authenticate it under sections 31.1 to 31.8 of the Canada Evidence Act.
The threshold for authentication is low. The Court of Appeal for Ontario confirmed in R. v. C.B., 2019 ONCA 380, that some evidence the record is what it claims to be is enough. Testimony from the person who received the messages usually meets it.
Admission is only the first step. The judge must still decide how much weight the record deserves, and that is where the defence does its work:
- Authorship. A message from an account is not proof of who typed it. Shared phones, spoofed numbers and impersonation accounts are real issues.
- Completeness. Selected screenshots can hide the complainant’s replies or invitations to keep talking.
- Integrity. Screenshots can be cropped or edited. Original devices and platform records are more reliable.
- Lawful collection. Police generally need a production order or warrant to obtain records from phone companies and platforms. The Supreme Court of Canada has recognised privacy interests in text conversations (R. v. Marakah, 2017 SCC 59) and in IP addresses (R. v. Bykovets, 2024 SCC 6).
If police breached the Charter in gathering evidence, a court can exclude it under section 24(2).
Proving intent and the effect of the conduct
The mental element is usually the hardest part of the Crown’s case. The Crown must prove what you intended or knew, and it normally does so by inference from the circumstances.
Judges look for signs that you knew the contact was unwanted:
- The complainant told you to stop, blocked you or changed their number
- A friend, employer or police officer warned you
- You created new accounts or used other people’s phones to get around a block
- A peace bond, bail condition or family court order prohibited contact
- The volume or timing of contact was extreme, such as dozens of messages overnight
The effect of the conduct is judged in context. Courts consider the history between the parties, any past violence, the content and frequency of contact, and each person’s circumstances.
For conduct before July 18, 2026, the complainant’s actual fear remains an element. Evidence of changed routines, new locks, time off work or calls to police supports it. Evidence that the complainant kept initiating friendly contact can undermine it.
For conduct after that date, the question is objective. The complainant’s reaction is still relevant context, but the Crown does not have to prove it.
Common defences and penalties
A defence succeeds by raising a reasonable doubt on one element, and the accused never has to prove innocence. The defences seen most often in Toronto courts are:
- The conduct is not covered. One unwanted message is not repeated communication, and rude or annoying contact is not always criminal.
- No guilty mind. You did not intend to harass and had no reason to know the contact was unwelcome.
- Lawful authority or legitimate purpose. Examples include serving court documents, collecting a lawful debt, or arranging parenting exchanges as a court order permits.
- Identity. The Crown cannot prove you sent the messages or were the person seen.
- The reasonableness test is not met. In context, the conduct would not reasonably make someone believe their safety was threatened.
- Charter breaches. Evidence from an unlawful search, or a statement taken without access to a lawyer, may be excluded.
Criminal harassment is a hybrid offence, and the penalties depend on how the Crown proceeds.
| How the Crown proceeds | Maximum penalty |
|---|---|
| By indictment | 10 years in prison |
| Summarily | Two years less a day in jail, a $5,000 fine, or both |
A conviction also means a criminal record and usually a weapons prohibition and a no-contact order. It can affect immigration status, employment and travel to the United States.
First-time accused in less serious cases sometimes resolve the charge with a section 810 peace bond. A peace bond is not a conviction, and the charge is withdrawn. Whether that is available depends on the facts and the Crown’s assessment.
Speak to a Toronto criminal harassment lawyer
If police have contacted you or you have been charged, get advice before you give a statement. Costa Law Firm has defended criminal charges in Toronto since 1993. Our criminal harassment lawyers review the Crown’s disclosure, test the digital evidence and negotiate or go to trial as the case requires.
We answer calls 24 hours a day at (416) 535-6329. Our main office is at 1015 Bloor Street West, Toronto.
Frequently asked questions
Can I be convicted on the complainant’s word alone?
Yes. No law requires corroboration. The judge must be sure beyond a reasonable doubt, so credibility and reliability become the central issues.
How many messages count as repeated communication?
There is no fixed number. Ontario courts have held that repeatedly means more than once, and the context decides whether the conduct is criminal.
Does the complainant have to prove they were afraid?
Not for conduct on or after July 18, 2026. The test is whether the conduct could reasonably be expected to make them believe their safety was threatened. For earlier conduct, actual and reasonable fear must be proven.
Can the complainant drop the charges?
No. Once a charge is laid, only the Crown can withdraw it. The complainant’s wishes are considered but do not decide the matter.
Is tracking someone’s location criminal harassment?
It can be. Monitoring a person’s location, movements, actions or social interactions was added to section 264 in 2026.
What is the difference between criminal harassment and harassing communications?
Criminal harassment under section 264 focuses on a threat to safety and carries up to 10 years. Section 372 covers repeated communications made with intent to harass and carries a lower maximum.
Sources and legal references
- Criminal Code, R.S.C. 1985, c. C-46, section 264
- Protecting Victims Act, S.C. 2026, c. 19 (Bill C-16), section 27
- Canada Evidence Act, sections 31.1 to 31.8
- R. v. Kosikar (1999), Court of Appeal for Ontario
- R. v. Ohenhen (2005), Court of Appeal for Ontario
- R. v. C.B., 2019 ONCA 380
- R. v. Marakah, 2017 SCC 59, and R. v. Bykovets, 2024 SCC 6
