A Review of Section 264 (Criminal Harassment) of the Criminal Code of Canada
Research for this review included four elements: 1) a review of the socio-legal literature on the criminalization of stalking and other forms of harassment; 2) an analysis of police, Crown and court information in files involving cases of criminal harassment; 3) interviews with selected people involved in the implementation of section 264; and 4) a small number of case studies of specific criminal harassment cases. The methods employed for each of these elements is described below.
A literature review was included in the study to assist in understanding the social and legal issues that arise in efforts to address the problem of harassment through the criminal justice system. Our review of the literature considers socio-legal literature in the broad sense, covering the subject from the sociological, psychological, criminological and legal perspectives. It includes available Canadian literature, and a selection of American and other literature that appeared to be relevant to the Canadian situation. Literature focusing on the phenomenon of stalking from a strictly psychological perspective is not included, but some articles are included that examine the psychological and social antecedents of stalking behaviour.
The major focus of this review has been the collection of data from police and Crown case files, the purpose being to examine how the justice system has handled cases of criminal harassment since August, 1993. The sample of 601 cases was drawn from cases in Halifax, Montreal, three divisions in Metropolitan Toronto, Winnipeg, Edmonton and Vancouver. Whether Crown or police files were used depended on where the case files were kept at each site after the cases were completed. In Vancouver, Winnipeg, Edmonton and Halifax, Crown offices retain possession of the files, including police briefs and any other information used in presenting the case. In Toronto and Montreal, the files wre returned by Crown to the police for archiving once the case was completed. They too contained both police and Crown information.
In Halifax, the Toronto divisions, Winnipeg and Edmonton the sample included all criminal harassment cases that were completed as of December, 1995 or January, 1996 (the dates varied slightly by research site) . In Vancouver, a sample of 80 cases was drawn randomly from 222 total cases at the Vancouver Provincial Court for the 19931995 period. The sample included only cases which were closed at the time the sample was drawn. Substitutes were selected for eight files that were rejected for a variety of reasons (no criminal harassment charges, lost or gutted files, and waivers from other jurisdictions).
In Montreal, the sample was drawn randomly from a list of 1,019 cases for 1994 and the first ten months of 1995. The list included cases that were not completed, and cases for which no charges were laid (no method was available to list only completed cases). While we do not know with certainty the number of completed cases from which the sample was drawn, the order of magnitude can be inferred from the fact that we drew an initial sample of 225 files, and obtained 117 files (52 percent) that were completed and were therefore appropriate for inclusion in the study. We also know that in the period covered by the case list provided in Montreal, there were 310 cases in which a criminal harassment charge was laid.
In Toronto, Montreal, Vancouver and Edmonton additional samples of files were selected for which no charges had been laid, but for which an investigation had taken place on a complaint of criminal harassment. Overall, cases in which no charge was laid accounted for 21 percent of the total sample of 601 cases. The purpose was to obtain some insight into the reasons that charges are not laid despite complaints of harassment. The cases we examined that did not result in charges all involved behaviour that appeared to be criminal harassment as section 264 defines it. In most cases, charges were not laid because the harassment had stopped and the victim did not wish to pursue the matter any further, the matter was still under investigation, or one of the parties no longer resided in the jurisdiction and the harassment had reportedly stopped. The sample does not include complaints for which no investigation was conducted, such as complaints for which patrol officers decided no report was warranted, or where police concluded in the report that no investigation was required. Thus, this review's ability to comment on police investigation and charging practices (or decisions to recommend to Crown that charges be laid, in British Columbia and Quebec) is limited.
In Vancouver, a list of 120 incidents of criminal harassment filed with the Vancouver City Police for 1995 was generated. Of these, 54 (45 percent) had not resulted in charges being laid at the time of the study. From those 54, a random sample of 25 cases was selected. In Toronto, a total of 152 occurrences of criminal harassment were reported to 52 Division in downtown Toronto for 1995 and early 1996. Of these, 84 cases (55 percent) had not resulted in charges being laid at the time of the study. Twenty-nine of these files were selected randomly for inclusion in our sample. In Edmonton, all sixteen cases that were identified as criminal harassment cases but that did not result in a charge were included in the sample.
In Montreal, it was difficult to obtain an accurate estimate of the number of real occurrences of criminal harassment, because the lists of occurrences included many cases that did not proceed to a charge because there appeared to be no substantial evidence of criminal harassment. We included 59 selected files from Montreal in our sample of "no charge" cases, screening out those cases that indicated insufficient evidence.
|Site||Cases with Charge||Cases with no Charge||Charge Sample as % of Total Charges||"No Charge" Sample as % of Total "No Charge" Sample|
|Toronto, Div. 52||104||29||100 %||35%|
|Toronto, Div. 42||35||0||100 %||n/a|
|Toronto, Div. 31||40||0||100 %||n/a|
* Sample of cases with a charge of criminal harassment, as a percentage of the total number of completed cases with charges in the 1993 to early 1996 period. Where the figures is 100 percent, it does not take into account a small number of files that could not be located when the research was being conducted.
The sample drawn for this study provides a strong representation of criminal harassment cases in Canada's major urban centres: about 59 percent of all criminal harassment charges in the locations selected for the research (Table 1). In Vancouver the sample is about 36 percent of cases where charges were laid, and about 46 percent of cases in 1995 where no charge was laid. In Toronto, where three of the city's 17 police divisions were included, the sample comprises all criminal harassment charges in these three divisions. This is approximately 23 percent of all cases in Metro Toronto in which criminal harassment charges were laid . In Toronto the sample of "no-charge" cases represents 35 percent of "no charge" files at 52 Division. This is small in comparison with the total number of such cases in Metro (about 3 percent), and is therefore not necessarily representative of Metro as a whole.
In Montreal the sample of cases with charges represented 38 percent of all charges laid in 1994 and the first 10 months of 1995. The representativeness of the "no charge" sample is less clear, for reasons discussed above. In Edmonton, Winnipeg and Halifax, all available case files were included in the sample.
We did not examine in this study how the justice system has handled criminal harassment cases in smaller urban centres and in rural areas. Some people interviewed suggested that there is a reduced likelihood that police and Crown in those locations would have had access to guidance and training in the application of the new section, and that they and the judges presiding in criminal harassment cases would have had less experience with the charge over the period of the study due to significantly less numbers of occurrences. It is also possible that community attitudes, including those of the police, Crown attorneys, judges, and victims of criminal harassment, may result in a different approach to the application of section 264 than is the case in major urban centres. Further study will be required to examine the implementation of section 264 outside the major urban centres.
Interviews were conducted at the six research sites with police, Crown attorneys, defence attorneys, federal and provincial justice policy officials and victim advocates, including representatives of womens' shelter organizations and court-based victim assistance programs. These are distinct from the interviews conducted with participants in the specific cases presented as case studies. They were conducted as structured, open-ended interviews using the interview guide that is appended to the report. The interviews focused on five areas of inquiry: the usefulness and effectiveness of section 264; the effectiveness of its administration by the police, Crown and courts; barriers to using the new section effectively to deter harassment and protect women; linkages between the criminal justice system and relevant community services; and, views on specific elements of the section itself.
The interviews are supplemental to the case file data, and are intended to assist in analyzing the data with a broader understanding of the needs and concerns of victims and their advocates, and the constraints under which section 264 is administered. They cannot be seen as necessarily representative of the views of victims, victim advocates, or members of the criminal justice system.
The numbers of people interviewed are listed below. In addition to the thirty-six formal interviews, the great majority of which were conducted in person, the authors also met and had informal discussions with many other people, particularly the police officers and Crown attorneys present during the case file data collection. Where appropriate, the report indicates views expressed during these discussions.
The study also included a detailed review of six specific cases, including interviews with the victims, the investigating officers, the Crown attorneys handling the cases, and in some cases victim advocates. We also met with three of the six defence attorneys, but solicitor-client privilege prevented them from discussing the specific cases in any meaningful way. The case studies were included in recognition of the fact that the case file data present a limited and somewhat clinical perspective, and that a closer examination of individual cases could reveal important details that would assist in understanding how the prosecution of a criminal harassment case is experienced, particularly by the victims but also by the other participants. Although the six cases examined in detail here provide only a glimpse of that experience, they can assist in designing future research.
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