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Criminal Harassment and Mischief – Charges Stayed

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Jillian recently represented a young person charged with criminal harassment and mischief. In this case, the prosecution alleged her young person client repeatedly communicated and followed the complainant causing the complainant to fear for her safety. The prosecution also alleged that her client committed the offence of mischief by interfering, interrupting or obstructing the complainant’s lawful use of property.

The young person explained he did not do any of these things and was simply in the process of collecting his personal items and readying himself to go home for the day. He was with a group of friends. One of the people in the group was angry about an issue that had arisen where she wanted to speak with the complainant. The complainant did not want to speak with her. However, she persisted. She followed the complainant stating she wanted to speak with her. This incident involved a few locations as the complainant was also preparing herself to leave for the day. Eventually this girl decided that the complainant was not going to speak with her so she decided she would speak with the complainant’s mother. She left and most of the group followed. Ms. Williamson’s client went home. Therefore, he was physically present at times when the group was together.

However, no criminal offence occurred in this case. In order to be found guilty of criminal harassment five elements must be proven. They are:

  1. a) Repeatedly following from place to place the other person or anyone known to them;
  2. b) Repeatedly communicating with, either directly or indirectly, the other person or anyone to them;
  3. 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
  4. d) Engaging in threating conduct directed at the other person or any member of their family.

Following someone may be one of the elements in this case but in Ms. Williamson’s case her client was not following the complainant. He was simply with the group where one group member was following the complainant in order to try and speak with her. It is also important to note that Ms. Williamson’s client did not speak to the complainant during the alleged incident. In order for the offence of criminal harassment to be proven beyond a reasonable doubt, the complainant must have been fearful for her safety and that fear must have been objectively reasonable. Through all the video that was collected in this case, it was not objectively reasonable for the complainant to have been in fear. While it is true the complainant may have been annoyed or frustrated that does not give rise to a conviction of criminal harassment.

Ms. Williamson’s client was also charged with criminal mischief. In order for this offence to be proven beyond a reasonable doubt, the prosecution must prove the following:

  1. (a) destroys or damages property;
  2. (b) renders property dangerous, useless, inoperative or ineffective;
  3. (c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
  4. (d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

In Ms. Williamson’s case the evidence was not capable of proving any part of criminal mischief. Mischief is a property offence. This offence has intersected with offences against a person (criminal harassment), but it is not a lessor included offence. Jurisprudence where judges have considered criminal mischief have interpreted the provision as not a “purely subjective state” meaning the complainant cannot be just annoyed or displeasured. There has to proof beyond a reasonable doubt that an accused person interfered with, interrupted or obstructed someone’s lawful use of property.

This case demonstrates how hard your lawyer has to work for you. Ms. Williamson’s client instructed her to enter a not guilty plea and proceed to trial because the prosecutor was unwilling to withdraw the case. Ms. Williamson’s client wanted his voice heard and was unwilling to plead guilty to something he did not do. It is difficult when a criminal defence lawyer represents a young person. It is often preferred that the lawyer and parents work as a support team for the young person but ultimately a lawyer’s duty is to her client and client alone. This means that only the young person can provide the two inalienable rights an accused person has in a criminal matter. It is best practice to provide as much support, legal advice and legal information as possible to help the young person make that decision. No one wants to face a trial. But when you put the hard work in and you are strategic and diligent in your efforts it can very much pay off as it did in this case.

If your child has been charged with a serious offence you need a serious lawyer who represents young people (and helps families) all over Alberta at your side. Call us today.

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