Can you go to jail for sexual harassment in Canada?

Punishment for sexual harassment depends on what happened because “sexual harassment” is not a standalone offence under the Criminal Code of Canada. However, conduct described as sexual harassment can lead to a criminal charge and, if there is a conviction, a fine, probation or jail may be possible.

Summary: min: none; max: 2 years less a day and/or $5000 fine. Indictable: min: none, maximum: 10 years incarceration

— Jeffrey I. Reisman, criminal defence lawyer

That range is the range for criminal harassment under section 264 of the Criminal Code. It is not a universal penalty for every allegation someone calls sexual harassment. The allegation, the evidence, the relationship between the people involved and the charge actually laid all matter.

A sexual comment, an unwanted message or an uncomfortable workplace interaction does not automatically mean a person will be charged or go to jail. Police and prosecutors look at the particular facts, including whether there was repeated conduct, fear for safety, threats, unwanted physical contact, or a breach of conditions or trust.

When sexual harassment can become a criminal charge

The facts, not the label “sexual harassment,” determine whether police may investigate a criminal offence. Depending on the allegation, possible sexual harassment charges can include criminal harassment, sexual assault, simple assault, uttering threats or an offence involving a breach of a court order.

Criminal harassment can involve repeatedly communicating with someone, following them, watching where they live or work, or engaging in threatening conduct where it causes the person reasonably to fear for their safety or the safety of someone they know. It is important not to assume that repeated unwanted communication alone proves the offence; the statutory elements and the surrounding context must be assessed.

For example, consider a person who sends dozens of unwanted sexual messages after being told to stop, waits outside the recipient’s workplace twice, and then sends a message saying, “You will regret ignoring me.” Police may investigate the messages, the timing, any witnesses and whether the recipient reasonably feared for their safety. The person should not delete messages, contact the recipient to explain, or give a police interview without first getting legal advice.

Unwanted sexual touching may instead lead to an investigation for sexual assault. Sexual assault concerns intentional touching of a sexual nature without consent; the legal analysis is fact-specific and does not depend on whether the people knew each other or whether the incident happened at work. A non-sexual unwanted application of force can also be alleged as simple assault under section 266 of the Criminal Code.

Where an allegation includes threats by text, phone, email or in person, a person may also need advice from an uttering threats defence lawyer in Toronto. The wording used, the context and how a reasonable person would understand it can be important.

Criminal harassment penalties: jail time and fines

If conduct is charged as criminal harassment, there is no mandatory minimum sentence, but jail and a fine are possible. The Crown may proceed summarily, with a maximum of two years less a day in jail and/or a $5,000 fine, or by indictment, with a maximum of 10 years’ imprisonment.

This answers the common questions “how many years for sexual harassment?” and “can a sexual harassment charge result in a fine?” only when the actual charge is criminal harassment. The sexual harassment charge punishment can be very different if the allegation instead involves sexual assault, assault, threats, or an alleged breach of release conditions.

The Crown’s election between summary and indictable procedure, and the sentence if there is a conviction, depend on the circumstances. A maximum sentence is not a prediction of what will happen in an individual case. Ontario courts apply the Criminal Code, decisions of the Ontario Court of Appeal and other binding appellate authority when determining a fit sentence.

What affects the sentence after a conviction?

A judge must impose an individualized sentence that is proportionate to both the gravity of the offence and the person’s degree of responsibility. There are no general binding sentencing guidelines in Ontario comparable to the guideline systems used in some other jurisdictions.

In a criminal harassment case, sentencing submissions may address factors such as:

• the seriousness, persistence and duration of the conduct;
• the impact on the complainant, including safety concerns and documented harm;
• whether there was a breach of trust, authority or an existing court order;
• the person’s prior criminal record, if any;
• genuine remorse and steps taken toward rehabilitation, such as counselling where appropriate; and
• relevant personal circumstances, including age, health, employment and family responsibilities.

For example, a person with no record who sends repeated unwanted messages over several weeks may face a very different sentencing analysis from a person who continues after police warnings, threatens the complainant, or breaches a no-contact condition. That does not decide either case in advance. The evidence, the plea or trial result, and the full circumstances guide the court.

Duress and necessity should not be treated as ordinary mitigating factors. Depending on the evidence and legal requirements, they may be raised as defences, which is a separate issue from sentencing.

What happens after a sexual-harassment-related charge?

After a sexual-harassment-related allegation, police may ask to speak with you, arrest you, serve a summons, or require you to attend court. If a charge is laid, the next steps commonly include release arrangements, a first court appearance, disclosure of the Crown’s evidence, discussions about resolution, and, if the case does not resolve, a trial.

If police want an interview, you generally have the right to remain silent and to speak with counsel. Getting legal advice before deciding whether to make a statement can help you understand the allegation, the process and the risks of responding.

Release conditions may prohibit contact with a named complainant or witnesses, restrict attendance at a home, workplace or school, or limit communication through social media. Follow every condition exactly, even if you believe the allegation is mistaken or the other person contacts you first. A new allegation of breaching a condition can complicate the original case.

Useful immediate steps include:

1. Save relevant texts, emails, call logs, social-media messages and calendar entries without altering them.
2. Write down your own timeline while events are fresh, including names of possible witnesses.
3. Do not contact the complainant, directly or through friends, family or social media.
4. Do not post about the allegation online or try to obtain evidence by pressuring others.
5. Keep every court date and bring your release paperwork to legal appointments.

A lawyer can review disclosure when it is available, identify the issues that must be proven, and explain the realistic procedural choices. For broader answers about arrests, court and criminal procedure, see the general criminal law faq.

Is sexual harassment at work a criminal matter?

Sexual harassment at work can lead to an HR investigation and serious employment consequences even when no criminal charge is laid. A workplace complaint and a Criminal Code prosecution are different processes with different rules, decision-makers and possible consequences.

An employer may investigate allegations involving sexual comments, messages, jokes, requests, displays or conduct that creates a poisoned work environment. Discipline may range from workplace directions to suspension or dismissal, depending on the workplace process and facts. This post is not employment-law advice.

Workplace context can still matter to a criminal investigation. For example, unwanted physical contact, repeated conduct after a clear request to stop, or a position of authority may be relevant facts, but they do not automatically establish a criminal offence.

Bail and release conditions after an allegation

Bail for sexual harassment is not automatic or uniform; release and conditions depend on the allegation, the person’s circumstances and the legal issues in the case. If you are released, every condition must be followed exactly until it is changed by a court.

Common conditions can include no contact, no attendance at particular places, and restrictions on communication. A request to vary a condition should be handled through the proper legal process, not by privately agreeing with the complainant to ignore it. For more on this question, read can you go to jail for sexually harassing someone.

Sexual harassment charges: common questions

What are the charges for sexual harassment?

There is no single sexual harassment criminal offence under the Criminal Code of Canada. Depending on the facts, police may investigate criminal harassment, sexual assault, simple assault, uttering threats, or an alleged breach of a release order.

What is a sexual harassment fine?

There is no standard sexual harassment fine because the label does not identify a single Criminal Code offence. If the charge is criminal harassment prosecuted summarily, the maximum fine is $5,000, but a court considers the actual offence and circumstances before imposing sentence.

What happens if police are contacted about harassment?

Police may take a statement, preserve messages or video, speak to witnesses, assess safety concerns and decide whether further investigation is required. Do not try to manage the complaint by contacting the complainant or deleting material; preserve relevant information and obtain legal advice before speaking to police.

How does sexual assault differ from sexual harassment?

Sexual assault is a criminal allegation involving intentional touching of a sexual nature without consent, while sexual harassment often describes unwanted sexualized conduct in a workplace, school or other setting. Some facts may raise both employment or human-rights issues and criminal issues, so case-specific advice is important; someone facing a sexual-assault allegation can speak with a sexual assault lawyer Toronto.

Speak with a Toronto criminal defence lawyer

Early legal advice can help you understand police contact, release conditions and the criminal process when an allegation involves sexualized conduct or harassment.

Call 647-351-HELP (4357) or book a free consultation to discuss your case with Jeffrey I. Reisman.