Our firm recently represented a young man charged with criminally harassing the mother of his child. In the case of R v TC, the mother claimed that he sent several text messages to her in an unwanted fashion. She told him to stop or else she would contact the police. Our client continued to contact her because he has a child with this complainant. He was attempting to communicate with her about their child. The complainant contacted the police. Our client was charged with criminal harassment contrary to section 264(2) of the Criminal Code. He was also charged with several other criminal offences. Fortunately, he had the good sense to retain an experienced criminal defence lawyer. We took his case. We analyzed the essential elements that the prosecutor must prove beyond a reasonable doubt.
One difficult area is that the mens rea, the mental intent, can be proved through an area of law known as “recklessness.” This means that if the prosecutor could prove that our client engaged in conduct that he either knowingly harassed the complainant or was reckless in his actions then his mental intent would have been made out. However, another key component that the prosecutor must prove is that the complainant feared for her safety or the safety of those around her due to his conduct. That was the critical area for this trial. It was clear the communications that the complainant sent back to our client that she was more annoyed by him than fearful. We prepared a strategic cross-examination to draw this critical fact out.
However, we also had to be sure that we were prepared to fight another issue in the case that wasn’t readily known from the charging document, called the Information. It is possible to be found not guilty on the main charge against you but still possible to be found guilty on a lessor included offence. Section 372(3) is a lessor included offence that is known as harassment via repeated tele-communication. Because our lawyers always ascribe to our belief in Diligence, Doing Right & Ingenuity we prepared a thorough and solid defence against this potential pitfall for our client as well.
In order to be found guilty of this offence the mens rea (mental intent) cannot be made out via recklessness. This is because this offence is a specific intent offence. Criminal harassment is a general intent offence. The specific intent in section 372(3) would require that our client had the intent to harass the complainant via his repeated text messaging for the purpose of harassing her. Another one of our lawyers had a recent success arguing the issue of mens rea that is needed within this offence. Read more about that case here.
In the case of R v TC, he was rightly concerned about his daughter. It would have been difficult to convince a judge that his intent was to harass the complainant after a careful examination of the text messages.
This case demonstrates the value a person gets when they retain an experienced criminal defence lawyer to represent them. A conviction for a criminal harassment charge typically results in a period of jail time. The charge and a potential conviction is a serious matter. You need a serious lawyer to craft your defence.
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