Criminal Harassment Charges in BC: Texts, Social Media, and Online Communications

In British Columbia, sending text messages, making phone calls, emailing, sending direct messages, or publishing social media posts can form the basis of criminal harassment charges in BC or charges of harassing communications under federal law. However, an unwelcome, hostile, or unpleasant communication does not automatically constitute a crime. Under the Criminal Code of Canada, prosecutors must prove specific statutory elements, including prohibited conduct, the requisite mental state (such as specific intent or recklessness, depending on the section), the absence of lawful authority or excuse, and, where applicable, circumstances that could reasonably cause a person to believe their safety is threatened.

Statutory Framework: Digital Communication and Federal Law

Allegations arising from electronic messaging fall under federal jurisdiction pursuant to the Criminal Code, RSC 1985, c C-46. While both address intrusive communications, two distinct offences frequently arise in digital contexts: Criminal Harassment under section 264, and Harassing Communications via telecommunications under section 372(3).

Section 264(1) provides:

“Everyone commits an offence who, with intent to harass another person or knowing that, or being reckless as to whether, they would be harassing another person, engages without lawful authority in conduct referred to in subsection (2) if, in all the circumstances, the conduct could reasonably be expected to cause that other person to believe that the other person’s safety, or the safety of anyone known to the other person, is threatened.”

Under subsection 264(2), the conduct may consist of:

• Section 264(2)(b): repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
• Section 264(2)(d): engaging in threatening conduct directed at the other person or at anyone or any animal known to them.

Comparison: Section 264 vs. Section 372(3)

Section 372(3): Repeated Texts and Lawful Excuses

Section 372(3) targets repetitive messaging over any means of telecommunication, which directly encompasses text messaging, cellular calls, and electronic transmissions:

“Everyone commits an offence who, without lawful excuse and with intent to harass a person, repeatedly communicates, or causes repeated communications to be made, with them by a means of telecommunication.” (Code, s. 372(3))

The statute does not prescribe an arbitrary threshold for the number of messages required. Instead, judicial evaluation focuses on volume, substance, and relational context.

In R v J.M.D., 2018 BCPC 211, the Provincial Court of British Columbia analyzed text messaging after an explicit request for cessation, where the complainant had enlisted police assistance to convey her refusal of contact:

“Repeated text messages must also be considered in light of the clear and unequivocal evidence that the accused had been advised that the complainant did not wish to have any contact or communication of any kind with him. To that end she elicited the assistance of the police to convey that message to the accused. While I accept that there is no force of law in the direction by a police officer to an accused person to not contact their partner, it does establish that the accused was well aware that any communication was unwelcome. With that as context, even 20 or 30 communications to the complainant in this case is sufficient to establish that those communications were made in a deliberate attempt to torment, trouble, worry continually and plague, bedevil and badger the complainant.” (J.M.D. at para 25)

While an instruction by police not to contact someone does not possess independent force of law in the absence of a court order, it establishes subjective awareness that future communication is unwelcome. Nevertheless, a “do not contact” request alone does not substitute for proving all statutory elements beyond a reasonable doubt.

Judicial Divergence: Specific Intent vs. Recklessness

A notable issue in BC trial jurisprudence concerns the mens rea requirement under section 372(3). Two decisions of the Provincial Court of British Columbia demonstrate contrasting interpretations:

• In R v O’Hare, 2017 BCPC 118, the court determined that recklessness could establish the requisite mental state:

  “I further accept, based on the case authorities to which I have referred to above and which I have read and considered that recklessness can also be utilized to establish the mens rea.” (O’Hare at para 68)

• Conversely, in R v Moncion, 2025 BCPC 129, the trial court rejected the reasoning in O’Hare as incorrect, finding that the Crown must prove a specific intent:

  “In this case, the Crown must prove that the person who sent the emails did so with the specific intent, or desire, to harass Cst. McLellan.” (Moncion)

While the recent decision in Moncion enforces the requirement of a specific intent to harass, no binding appellate judgment from the BC Court of Appeal directly resolving this trial-level conflict was identified in the reviewed materials.

Section 264: Contextual Repetition, Safety, and Threats

Under section 264, the evaluation extends beyond annoying transmissions to an objective apprehension of safety. Earlier BC decisions often addressed the complainant’s subjective “actual fear”; however, the current text focuses on conduct that “could reasonably be expected” to cause fear for safety. Safety is not restricted to physical harm: in R v Noddle, 2018 BCSC 1780 (para 50), the court affirmed that “safety includes physical or psychological wellbeing.”

BC appellate authority establishes that communication need not involve verbal dialogue or answered messages. In R v Sanchez, 2012 BCCA 469 (para 73), the Court of Appeal confirmed that unanswered calls and missed call logs, considered cumulatively within the context of the relationship, can constitute repeated indirect communication.

Regarding public social media platforms, R v Fulton, 2021 BCSC 1146 (para 171) held that online conduct must clearly be directed at the complainant and intended for them to receive. In contrast, R v Corby, 2012 BCPC 561 (para 90) resulted in an acquittal because the defendant’s posts were made on a public profile with neutral imagery, and viewing them was an act entirely within the complainant’s control.

Significantly, while section 264(2)(b) requires repeated contact, section 264(2)(d) addresses threatening conduct. In R v Hawkins, 2006 BCCA 498 (paras 19–20), the Court of Appeal confirmed that a single incident of threatening commentary is legally sufficient to sustain a conviction under subsection (d).

Penalties and Evidentiary Procedures in BC

Both offences are hybrid offences, allowing the Crown to proceed by summary conviction or by indictment:

• Section 264(3): Liable to imprisonment for a term of not more than 10 years if prosecuted by indictment, or punishable on summary conviction.
• Section 372(4): Liable to imprisonment for a term of not more than 2 years if prosecuted by indictment (s. 372(4)(a)), or punishable on summary conviction (s. 372(4)(b)).

Where electronic communications form the basis of a dispute or investigation:

• Export full digital conversation threads, including metadata, account handles, dates, and times, rather than cropped screenshots.
• Retain records of cease-and-desist requests, blocked calls, and any attempts by the sender to bypass communication filters.
• Where immediate danger exists, call 911; non-urgent matters may be brought to local municipal police or the RCMP.

Navigating the statutory distinctions between section 264 and section 372 requires precise evidentiary evaluation. Retaining a dedicated criminal lawyer in British Columbia at Pax Law Corporation ensures all constitutional rights, statutory defences, and evidentiary records are thoroughly addressed.

Frequently Asked Questions