Harassing communications is a criminal offence under section 372(3) of the Criminal Code. It applies when a person, without a lawful excuse and with the intention of harassing someone, repeatedly communicates with them or causes repeated communications to be made by any means of telecommunication.
Telecommunications include, among others, telephone calls, text messages, emails, voicemail messages, social media messages, and other electronic communications. The offence is aimed at preventing the misuse of these tools when they are used to disturb or bother others.
This offence focuses on repeated communications, not on a single isolated message. It can include situations where a person:
Calls someone repeatedly.
Sends multiple text messages, emails, or online messages.
Causes repeated messages to be sent indirectly through technology or third parties.
The communications do not need to take place over a long period. In some cases, a large number of calls or messages within a short time frame may be enough to meet this requirement.
To secure a conviction for criminal harassment, the prosecution must prove each of the following elements beyond a reasonable doubt.
There must be repeated communications. The accused must have either communicated more than once with a person or caused repeated communications to be sent to that person.
The communications must have been made by a means of telecommunication. This includes phone calls (even if nothing is said), text messages, voicemails, emails, and messages sent through social media or messaging applications. Importantly, the message does not need to be received, read, or answered for the offence to be complete.
The Crown must prove an intention to harass. This offence is concerned with the sender’s state of mind, not the reaction of the recipient. To “harass” in this context means to disturb, bother, or annoy. It is not necessary to show that the accused intended to threaten, intimidate, or frighten the recipient. Repeated communications sent for the purpose of bothering or disturbing are sufficient.
The communications must have been made without a lawful excuse. A lawful excuse might include a legitimate professional reason, a genuine emergency, or a legal obligation. Continuing to communicate after being clearly asked to stop may support the conclusion that no lawful excuse existed.
Unlike criminal harassment under section 264 of the Criminal Code, there is no requirement to prove fear or harm. The Crown does not need to show that the recipient felt harassed, feared for their safety, or suffered psychological harm. The focus remains on the intent of the person sending the communications.
Courts have consistently clarified that this offence is designed to address the abusive use of telecommunications, not the emotional response of the recipient.
The analysis centres on the intent of the sender, not the effect on the person receiving the messages. Sending or attempting to send repeated communications is enough, even if the messages are never answered.
Words are not required. Silent calls, hang-up calls, empty messages, or repeated missed calls may all fall within the scope of the offence if they are made with the intent to disturb.
The accused does not need to know exactly who will receive the communication, and the offence can apply even when communications are directed at a police service.
In short, section 372(3) exists to prevent people from using phones and electronic communication tools as a means of harassment.
A person repeatedly calls their former partner’s phone number dozens of times per day, often hanging up immediately when the call is answered. They also send blank text messages or messages containing a single character, despite being clearly told to stop all contact.
Even though no threats are made and many of the calls go unanswered, these repeated communications sent with the intent to disturb may constitute harassing communications under section 372(3) of the Criminal Code.
Harassing communications is a hybrid offence under section 372(4) of the Criminal Code.
If prosecuted as an indictable offence, it carries a maximum penalty of two years of imprisonment.
If prosecuted by summary conviction, available penalties may include a fine, probation, or imprisonment, depending on the circumstances.
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