(s. 264)
(Read relevant parts of indictment or count.)
1. that (NOA) (specify conduct) [248] (NOC), (NO3P)[249] ;
1a. that (NOA) had no lawful authority to do what s/he did[250]
2. that (NOA)’s conduct harassed (NOC);
3. that (NOA) was aware that his/her conduct harassed (NOC)
4. that (NOA)’s conduct caused (NOC) to fear for his/her (or (NO3P)’s)[251] safety; and
5. that (NOC)’s fear was reasonable in the circumstances.
Unless you are satisfied beyond a reasonable doubt that the Crown has proved all these essential elements, you must find (NOA) not guilty of criminal harassment.
If you are satisfied beyond a reasonable doubt of all these essential elements [and you have no reasonable doubt[252] after considering the defence(s) (specify defences) about which I will instruct you], you must find (NOA) guilty of criminal harassment.
Where allegation is “repeated following”:
To follow someone repeatedly from place to place means to follow him or her more than once[253] from one place to another. It might, but does not have to be, to or from the same place each time.
Where allegation is “repeated communication”:
To communicate repeatedly with another person means to communicate with him or her more than once.[254] The communication may be direct, or it may be indirect. It might, but does not have to be, in the same words or by the same means each time.
Where allegation is “watching or besetting”:
To watch a place means to observe it with continuous attention. To beset a place means to be present at or near it in a troubling way. The place may be where another person lives or works or where that person carries on business or just happens to be.
Where allegation is “threatening”:
To engage in threatening conduct means to do or say something that, in all the circumstances, including the relationship between (NOA) and (NOC), would cause a reasonable person to be intimidated.
In all cases:
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) (specify relevant conduct) (NOC), you must find (NOA) not guilty of criminal harassment. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) (specify relevant conduct) (NOC), you must go on to the next question.
To have lawful authority to do something means that the law specifically allows a person to do what (NOA) did in the circumstances in which he or she did it. In this case (describe alleged lawful authority).
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) had no lawful authority to do as he or she did in the circumstances, you must find (NOA) not guilty of criminal harassment. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) had no lawful authority to do as he or she did in the circumstances, then you must go on to the next question.
To prove that (NOA) harassed (NOC), the Crown must prove beyond a reasonable doubt that (NOA)’s conduct distressed, tormented or troubled (NOC).
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA)’s conduct harassed (NOC), you must find (NOA) not guilty of criminal harassment. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA)’s conduct harassed (NOC), you must go on to the next question.
The Crown must prove beyond a reasonable doubt that (NOA) was aware that his/her conduct harassed (NOC).
To prove that (NOA) was aware that his/her conduct harassed (NOC), the Crown must prove one of the following:
1. that (NOA) actually knew that his/her conduct harassed (NOC);
2. that (NOA) knew there was a risk that his/her conduct harassed (NOC) and that (NOA) proceeded in the face of that risk;
3. that (NOA) was aware of indications that his or her conduct harassed (NOC), but deliberately chose to ignore them because (NOA) did not want to know the truth.
Any one of these is sufficient to establish that (NOA) was aware that his or her conduct harassed (NOC). You do not all have to agree on the same one. If each of you is satisfied about any one of them beyond a reasonable doubt, the Crown will have proved the element of awareness and you would have to go on to the next question.
To determine whether (NOA) was aware that his/her conduct harassed (NOC), you must consider all the evidence including anything said or done in the circumstances.
You may infer, as a matter of common sense, that a person usually knows the predictable consequences of his or her actions, and means to bring them about.[256] However, you are not required to draw that inference about (NOA). Indeed, you must not do so if, on the whole of the evidence, including (specify evidence of intoxication, mental disorder or other), you have a reasonable doubt whether (NOA) was aware that his or her conduct harassed (NOC). It is for you to decide.
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) was aware that his/her conduct harassed (NOC), you must find (NOA) not guilty of criminal harassment. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) was aware that his or her conduct harassed (NOC), you must go on to the next question.
The Crown must prove beyond a reasonable doubt that what (NOA) did or said caused (NOC) to fear for his/her own (or (NO3P)’s)[257] safety. In deciding whether this essential element has been proved, consider all the evidence.
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA)’s conduct caused (NOC) to fear for his/her own safety, you must find (NOA) not guilty of criminal harassment. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA)’s conduct caused (NOC) to fear for his/her own safety, you must go on to the next question.
You must consider whether (NOC)’s fear for his/her own (or (NO3P)’s) safety because of (NOA)’s conduct was reasonable in all the circumstances. Ask yourselves whether a reasonable person in the same circumstances as (NOC) would fear for his or her own (or (NO3P)’s) safety as a result of what (NOA) did.[258]
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOC)’s fear for his/her own safety was reasonable in all the circumstances, you must find (NOA) not guilty of criminal harassment.
If you are satisfied beyond a reasonable doubt that (NOC)’s fear for his/her own safety was reasonable in all the circumstances, you must find (NOA) guilty of criminal harassment.
[247] Where identity is an issue, remember to include any further instructions that may be relevant (e.g. eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment.
Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G.), [1990] 2 S.C.R. 3.
[248] This description should be in statutory terms, according to the wording in the indictment, such as “…repeatedly followed (NOC) or (NO3P) from place to place.”
[249] According to s. 264(2)(a), (b) and (c), the alleged conduct must have been carried out in relation to another person or “anyone known to them”. According to s. 264(2)(d) (threatening), the threat must be directed to another person or “any member of their family”.
[250] It will be necessary to include this element only where there is some evidence of lawful authority. See paragraph [5] below.
[251] According to s. 264(1), the accused’s conduct must cause another person “to fear for their safety or the safety of anyone known to them”.
[252] Insert the bracketed words if appropriate. This instruction will have to be modified where the accused has a legal burden of proof, such as for mental disorder or non-insane automatism.
[253] In R. v. Ryback (1996), 105 C.C.C. (3d) 240 (B.C.C.A.), the Court found that three episodes of communication amounted to “repeatedly communicating”.
Whether “more than once” will suffice for conduct to be “repeated” will depend on the circumstances and evidence in each case. In R. v. Ohenhen, [2005] O.J. No. 4072 (C.A.) the Ontario Court of Appeal warned that trial judges should be cautious in using the phrase “more than once” in all cases. The Court noted at paragraph 33: “In some cases, the jury will have to consider the context in which the communications were made, the intent of the accused and possibly other factors to determine whether the communications were repeatedly made or were innocuous or accidental. Perhaps a more appropriate instruction would be to advise the jury that communication that occurs more than once can constitute repeated communications depending on the context and circumstances in which they were made.”
[254] See footnote 23.
[255] It will be necessary to include this element only where there is some evidence of lawful authority.
[256] This instruction is a plain-language expression of what in case law is referred to as the “common sense inference” that a person intends the natural and probable consequences of his or her actions.
[257] The French version of section 264(1) indicates clearly that (NO3P) must be someone personally known to (NOC).
[258] In R. v. Sillipp (1997), 120 C.C.C. (3d) 384 (Alta. C.A.), the Court said that a jury could also be instructed on the particular vulnerabilities of the complainant.