7.4 Intimidation, Criminal Harassment & Laying a Private Information

Surveillance means watching and following people, and two Criminal Code offences describe conduct that can look very similar: intimidation (s. 423) and criminal harassment (s. 264). Syllabus section 4 requires investigators to recognize when intimidation is being used against them, to understand how they could commit intimidation or stalking while conducting surveillance, and to know how such conduct affects admissibility. The same syllabus section covers "the concept of private information in relation to a private investigator charging an individual with an offence," which is the citizen's right to lay an information under s. 504.

Intimidation — Criminal Code s. 423

s. 423(1): Every one is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing, …

The prohibited methods, in paraphrase, are:

The information-gathering exception — s. 423(2)

A person who attends at or near or approaches a dwelling-house or place, for the purpose only of obtaining or communicating information, does not watch or beset within the meaning of this section.

This exception is why lawful surveillance and doorstep inquiries are not intimidation in themselves. The protection is lost when the purpose changes from gathering information to compelling the subject, for example by pressuring them to drop a claim, leave a job, stop a lawful activity or give up a legal right.

Investigator examples

Recognizing intimidation used against you

Subjects or their associates sometimes try to intimidate investigators. Warning signs include following the investigator's vehicle home, photographing the investigator and threatening to post the images, standing over the vehicle, and threatening harm unless the surveillance stops. The professional response is to:

• disengage safely;
• record the details (times, descriptions, plates, exact words);
• report the incident to your supervisor; and
• report threats to police.

Intimidation (s. 423) is itself on the O. Reg. 37/08 list of disqualifying offences, along with intimidation of a justice system participant (s. 423.1).

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Criminal Harassment ("Stalking") — Criminal Code s. 264

s. 264(1): 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.

The prohibited conduct in s. 264(2), done in person, by telecommunication or by any other means, is:

• (a) repeatedly following the person or anyone known to them from place to place;
• (a.1) monitoring the location, movements, actions or social interactions of the person or anyone known to them (added in 2026);
• (b) repeatedly communicating with them, directly or indirectly;
• (c) besetting or watching the dwelling-house or the place where they or anyone known to them resides, works, carries on business or happens to be; or
• (d) engaging in threatening conduct directed at them, at anyone known to them, or at any animal known to them.

Since 2026, s. 264(6) also states that safety includes psychological safety. The offence is hybrid, with up to 10 years on indictment, and criminal harassment is on the O. Reg. 37/08 disqualification list.

Where surveillance can cross the line

Professional surveillance is meant to be covert and to gather information for a lawful mandate. It becomes high-risk when:

• the subject knows they are being watched and is frightened, but the investigator keeps following;
• the investigator works for a client who wants to track a former partner, especially one protected by a court order;
• the "investigation" has no legitimate purpose and is really ongoing monitoring of someone's life; or
• covert devices such as GPS trackers or spyware are used to monitor movements or communications without lawful authority.

Two rules follow from this:

1. When burned, break off. Section 12.2 explains disengagement protocols. Continuing to watch or follow a frightened subject can supply the "reasonably be expected to cause fear" element.
2. Screen the mandate. Sections 9.1 and 10.1 explain how to refuse locate requests that look like stalking. An investigator who helps an abuser find a victim can be a party to the offence (s. 21).

Effect on admissibility and the case

Evidence gathered through intimidation or harassment harms the client's case even when no charge is laid:

• Courts and tribunals may exclude it or give it little weight, and the investigator's credibility is damaged.
• The subject may sue for intrusion upon seclusion or intentional infliction of mental suffering.
• The Registrar can act against the licence for breach of the Code of Conduct (honesty and integrity, compliance with law, civility).

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Laying a Private Information — Criminal Code s. 504

What an information is

An information is the sworn written document that begins a criminal prosecution. Police usually lay informations, but s. 504 gives the same right to any person:

s. 504: Any one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice, and the justice shall receive the information, …

The section then sets territorial conditions, such as the offence being committed, or the accused being found, within the justice's jurisdiction.

How a private information proceeds — s. 507.1

When the informant is a private person rather than a police officer:

1. The justice who receives it refers it to a provincial court judge or designated justice (s. 507.1(1)).
2. That judge or justice holds a hearing ex parte and in camera (privately, without the accused), hears the informant's allegations and witnesses, and must be satisfied that the Attorney General received a copy and reasonable notice, and had a chance to attend, cross-examine and call evidence (s. 507.1(3)).
3. If a case is made out, the judge issues a summons or arrest warrant (s. 507.1(2)). If not, the information is endorsed and is deemed never to have been laid, unless the informant challenges that decision within six months (s. 507.1(5)).
4. A new hearing for the same offence requires new evidence (s. 507.1(7)).

The Attorney General (in Ontario, through Crown counsel) can also intervene and take over, withdraw or stay a private prosecution.

When this matters to an investigator

• Client decides first. The ministry's study guide notes that it is typically the client's decision whether police are informed, and police lay whatever charges they see fit on the evidence supplied. A private information is an alternative if police decline, but it is the client's or the investigator's own decision as a private citizen, not part of any PSISA authority.
• Reasonable grounds are required. An informant swears under oath, so a false or reckless information exposes them to perjury (s. 131), public mischief (s. 140) and the tort of malicious prosecution.
• Provincial offences work similarly. Under the Provincial Offences Act, any person who believes on reasonable grounds that a provincial offence (for example under the Trespass to Property Act) was committed may lay an information before a justice of the peace, who decides whether to issue process.

Evidence package for an information or police referral

Whether the matter goes to police or proceeds as a private information, the investigator's file should contain:

• contemporaneous notes and a typed chronology;
• original video and photographs with continuity records;
• witness statements, signed and dated;
• documents such as invoices, inventory counts and registry searches, with sources;
• a clear identification of the accused (name, date of birth, address, description); and
• the specific Criminal Code section and the facts proving each element.