A Review of Section 264 (Criminal Harassment) of the Criminal Code of Canada
We examined 474 cases in which a charge of criminal harassment was laid. Charges were laid by the police in 94 percent of the cases, and private informations were sworn in 6 percent of the cases. All but three of the private informations were sworn in Toronto. Two were in Edmonton and one was in Montreal. Police in Toronto indicated (and this was born out in the files we reviewed) that these were generally cases involving neighbour disputes or disputes between partners for which the police had already determined that charges were not appropriate. The complainants subsequently laid a private information before a justice of the peace, and police were required to investigate again. Indeed, some police indicated considerable frustration with the justices of the peace, because they considered that their time was being wasted. Of the 27 cases in our sample, 10 resulted in all charges being dropped, and 10 resulted in charges being dropped in exchange for a peace bond. Six of the others resulted in convictions for criminal harassment, and one resulted in an assault conviction. Where a conviction or a peace bond resulted, both parties to the dispute often received the same outcome. Fifteen of the cases involved former partners.
Crown counsel's decision to proceed by way of summary conviction or indictment was recorded in 463 cases. Most of the remaining cases resulted in no charge. The Crown proceeded by way of summary conviction in 71 percent of the cases, and by way of indictment in 28 percent of the cases. Three cases went to Youth Court. There was wide regional variation. The Crown proceeded by way of indictment for 68 percent of the cases in Edmonton, 57 percent in Winnipeg, 51 percent in Montreal, 50 percent in Halifax, 12 percent in Vancouver, and five percent in Toronto.
Some of this variation could be the result of inadvertent sampling bias, but interviews with Crown counsel confirm a preference for one or the other. In Vancouver, for example, the view was expressed that these cases require a quick response and a quick solution. If the Crown proceeds by way of indictment, the accused could elect trial by judge of the Superior Court or judge and jury, which would involve a preliminary hearing and a much slower process. Another prosecutor explained that the penalties imposed for most of the cases would never approach the maximum six months for a summary conviction offence, so nothing would be achieved by going by way of indictment. This Crown counsel also commented that the penalties imposed in Provincial Court in Vancouver were nowhere nearly as harsh as the penalties imposed for offences in, for example, Alberta.
Crown in Edmonton indicated a preference for proceeding by indictment in order to send out the message that the charge was considered to be a very serious one. Crown in several locations suggested that there were plea bargain implications in opting for summary or indictment proceedings. For example, defence counsel might recommend a guilty plea to their client on a summary conviction, but recommend going to trial on indictment because the length of the proceedings could work to their benefit, and because the penalty imposed on a guilty plea could be harsher, making it more worthwhile to fight the charges.
Our data indicate some differences in cases related to whether cases were proceeded with summarily or by indictment. On case outcome, the only significant difference is that 27 percent of summary cases resulted in charges being dropped in exchange for a peace bond, whereas this was the result for 18 percent of cases proceeded with by indictment. In sentencing (as one might expect), 81 percent of those convicted summarily received no jail term, whereas 61 percent of those indicted and convicted received jail terms. Jail terms tended to be more severe by indictment as well, with 13 percent of convictions resulting in terms longer than four months, as compared to two percent for summary convictions.
There were charges in addition to criminal harassment laid against 327 of the accused (69 percent of the cases in which charges were laid). There were two charges laid in 202 cases, three charges laid in 82 cases, four charges laid in 28 cases, and five or more charges laid in 15 cases. Additional charges were most often for uttering threats, assault, breach of recognizance or additional charges of criminal harassment. Particularly in the period soon after section 264 was available as a charge, there tended to be multiple charges of criminal harassment and charges laid for uttering threats, mischief and other conduct that were subsequently dropped or dismissed because they formed part of the primary criminal harassment case. As police and Crown gained experience in using the new section, the frequency of these types of multiple charges was reduced.
Pre-trial release information was recorded in 441 cases (Table 8). In the other cases either no charges were laid, or (in 25 cases) no arrest was made and the accused was served with a summons or issued an appearance notice to appear in court. The majority of accused (62 percent) were released on conditions by a judge or justice of the peace, 19 percent were not released, and 11 percent were released by the police with conditions. About two percent of accused were released without conditions by the police or by a judge or justice of the peace. The files did not usually indicate the position taken by the Crown at bail hearing, the police often recommend detention in the briefs they prepare for the bail hearing, but these recommendations are not necessarily followed by the Crown. Indeed, there is a view held by at least some Crown that police tend to recommend detention routinely, and that their assessment is often not realistic in terms of what the courts will do.
|Released by Judge, JP with Conditions||275||62,4|
|Release by Police with Conditions||48||10,9|
|Released with No Conditions||9||2,1|
|Summons, Appearance Notice||25||5,7|
In the files we reviewed it was common for the courts to release an accused on bail despite a criminal record or current evidence of breaches of no-contact orders. In our sample 55 percent of accused with more than one breach reported in the police file were released on bail, and 63 percent with one reported breach were released. Eighty-six percent of accused with no reported breaches were released. A similar pattern is true where the accused has a criminal record of breaching a no-contact order (not necessarily relating to the same victim). Those with more than one breach conviction were released in 31 percent of cases, those with one conviction were released in 52 percent of cases, and those with no breach convictions were released in 85 percent of cases. This review did not track individual accused to monitor re-offending after the offences in question. Section 264 had not been in operation long enough at the time of the study for such an approach to be cost-effective, but this is an area that would be critical to explore in any future research.
It took an average of 142 days (four months and three weeks) for cases to be processed, from the date of arrest to disposition . Duration varied only slightly according to whether cases proceeded summarily (an average of 146 days) or by indictment (an average of 138 days). There was some regional variation in the duration of the proceedings, with cases proceeding somewhat faster in Edmonton (an average of 103 days), Montreal (128 days) and Winnipeg and Vancouver (139 days), and cases slightly slower in Toronto (an average of 159 days).
Without supporting information such as input from complainants, victim advocates and Crown, it is difficult to assess the impact that the duration of proceedings might have had on outcomes. Certainly, it is frequently argued that a longer proceeding decreases the likelihood of conviction by diminishing the resolve or the ability of the victim to be an effective witness, and that longer proceedings certainly work against the interests of the victim, in that they must endure a longer period of fearing further harassment or reprisal, and wondering what the outcome might be. As well, we have already noted that the time frame within which cases are processed can influence the plea bargaining process, potentially resulting in weaker penalties than would be the case if procedures could move more quickly.
About 17 percent of the cases we reviewed went to trial. Whether or not the Crown proceeded by indictment appears to have had no influence on whether the case went to trial. Nor did the criminal record of the accused appear to influence this. The proportion of accused with criminal harassment or harassment related records was elevated slightly among those who went to trial (up to 23 percent from 18 percent) and those with assault records unrelated to harassment or spousal abuse were represented less among those going to trial (eight percent down from 14 percent) than the average.
Presentence reports (PSR's) and victim impact statements (VIS's) were rarely used in the cases we reviewed. PSR's were considered in only five percent of cases in which a conviction was obtained. VIS's were used in seven percent of cases that went to trial and five percent of cases in which a conviction was obtained. We cannot comment on whether or not these documents would have been appropriate in the individual cases that we reviewed, but their infrequent use means that, particularly in the case of the VIS's, the courts may not have at their disposal some information that could influence case outcomes and sentencing.
Crown counsel withdrew or stayed 58 percent of the 474 criminal harassment charges in our sample. Twenty-five percent of the accused pleaded guilty, 10 percent were found guilty, and seven percent were found not guilty. Looking at the outcomes of cases including all charges (more meaningful, since this is the way that the Crown, defence and the courts generally plan strategies and make decisions), we see that in 29 percent of cases all charges were dropped in exchange for a peace bond, and in an additional 20 percent of cases all charges were dropped or stayed unconditionally (Table 9). A conviction on at least one charge was obtained in 46 percent of the cases. Fifteen percent of accused pleaded guilty to all charges, and eight percent were found guilty of all charges. In nine percent of cases the accused was convicted of criminal harassment, and all other charges were withdrawn or stayed.
The rate at which criminal harassment charges in our sample were stayed or withdrawn (58 percent) is considerably higher than comparable rates for criminal charges in general, and for other specific categories of charges. Statistics Canada data on case outcomes in six provinces and the two territories in 1994 shows a rate of about 26 percent for all federal, provincial and municipal by-law offences, and this figure includes a component of charges that were dismissed at preliminary hearing (this would likely be relatively insignificant proportion of the total). For Criminal Code offences as a whole, the Statistics Canada figure for stays/withdrawals is 27 percent. The figures for violent offences, assault level 1, and property offences were 29 percent, 24 percent and 24 percent respectively . The rate from the same data for guilty outcomes (guilty pleas and found guilty) was 55 percent for all offences, Criminal Code offences as a whole, 41 percent for violent offences, 59 percent for assault level 1, and 56 percent for property offences. These are compared to 35 percent guilty outcomes in this study's criminal harassment cases. Acquittal rates were close to the same for criminal harassment and for the charges reported by Statistics Canada.
|All Charges Dropped, Peace Bond||135||28,5|
|All Charges Dropped, Stayed||93||19,6|
|Pleaded Guilty, All Charges||71||15,0|
|Plead Guilty Crim Harass, Others Dropped||38||8,1|
|Found Guilty, All Charges||37||7,8|
|Found Not Guilty, All Charges||22||4,4|
|Drop Crim Harass, Plead Guilty Un-Related Offence||19||4,0|
|Drop Crim Harass, Plead Guilty Related Offence||19||4,0|
|Plead Guilty Crim Harass & Some Other Offences||7||1,5|
|Drop Crim Harass, Found Guilty Related Offence||6||1,3|
|Not Guilty Crim Harass, Found Guilty Some Other Offences||6||1,3|
|Guilty Crim Harass, Other Charges Dropped||5||1,1|
|Found Guilty Crim Harass, Not Guilty Other Offences||5||1,1|
|Not Guilty Crim Harass, Others Dropped||3||0,6|
|Charges Still Pending||3||0,6|
|Found Guilty Crim Harass & Some Other Offences||2||0,4|
|Not Guilty Crim Harass, Plead Guilty Other Charges||2||0,4|
|Drop Crim Harass, Found Guilty Un-related Offence||1||0,2|
Figures for Ontario, which were not included in the above statistics but were available from Statistics Canada through a different data collection process, indicate a much higher stay/withdrawal rate in that province, about 46 percent for all Criminal Code offences between April, 1994 and March, 1995. The rate in Ontario for all federal, provincial and municipal by-law offences ranged from 43 percent in 1992-93 to 40 percent in 1994-95 . Incorporating Ontario statistics into the national figures would clearly raise the average significantly higher than the 24-29 percent range reported above, but it would still be considerably lower than the rates found in this study for criminal harassment charges. It is unclear how statistics from British Columbia, Alberta, Manitoba and New Brunswick would influence the national average. The Ontario rate for guilty outcomes of Criminal Code charges in 1994-95 was 34 percent, and for all offences was 43 percent, 39 percent and 40 percent in the 1992-93, 1993-94 and 1994-95 periods respectively.
Looking again at the criminal harassment outcomes in this study, there were no significant variations in outcomes according to the relationship of victim and accused, with the exception that partners or former partners were somewhat more likely to plead guilty to an assault charge (14 percent as against 8 percent) in exchange for the dropping of the criminal harassment charge. Where there was reported to be previous violence in the relationship, peace bond resolutions and guilty pleas were somewhat less likely than when no previous violence was reported (22 percent of cases as against 27 percent, and 7 percent as against 18 percent, respectively). Also, where there had been previous complaints to police by the same victim, it was less likely that the charges would be dropped (20 percent as against 16 percent for one previous complaint, and 7 percent for two previous complaints).
Where the harassment was restricted to phone calls and letters or personal contact without repeated following, charges were dropped in about 20 percent of cases, but where repeated following or physical violence was involved, charges were dropped in 12 percent of cases. Similarly, the frequency of peace bond resolutions dropped between the two groupings of cases, from about 30 percent to about 18 percent.
Of the twelve women charged with criminal harassment against a partner, three had peace bond resolutions, two had all charges dropped, two pleaded guilty to criminal harassment and two were found guilty at trial. The three remaining women were convicted of other charges.
There is some significant variation in case outcomes among the research sites. Vancouver and Edmonton dropped all charges more frequently than the other sites (28 percent and 26 percent of cases respectively). The others measured somewhat fewer than the overall figure of 20 percent, with Montreal at 19 percent, Winnipeg at 18 percent, Toronto at 16 percent and Halifax at 10 percent (one case). The larger centres used peace bond resolutions most frequently (Montreal 35 percent, Toronto 33 percent, Vancouver 30 percent), whereas Edmonton (13 percent), Winnipeg 12 percent, and Halifax 0 percent) were less frequent users of peace bonds. Toronto was notable in having a greater frequency of "found guilty" outcomes (10 percent) and fewer "not guilty" outcomes (only one case) than the other sites (Vancouver had 9 percent found guilty, and Halifax had 30 percentthree cases). We do not know to what extent this relates to bargaining strategies (and thus the nature of the cases going to trial), or other factors such as the predilections of individual judges or the resources and skill applied to the cases that go to trial.
Looking at criminal harassment charges only, Vancouver, Toronto and Montreal withdrew or stayed charges with considerable frequency (68 percent, 61 percent and 56 percent respectively). Winnipeg withdrew or stayed 49 percent, Edmonton 47 percent and Halifax 20 percent (2 cases). Peace bond resolutions where criminal harassment was the only charge were most frequent in Montreal (35 percent), less frequent in Vancouver and Toronto (26 percent and 20 percent), and least frequent in Edmonton (13 percent), Winnipeg (10 percent) and Halifax (no cases).
The criminal harassment conviction rate in Halifax was 80 percent (8 cases). In Winnipeg it was 45 percent, in Edmonton 42 percent, in Toronto 36 percent, in Montreal 31 percent and in Vancouver 22 percent.
The case files we reviewed rarely contained reliable information on the reasons for the case outcomes. In cases where charges were dropped outright or in exchange for a peace bond, where the criminal harassment charge was dropped and other charges proceeded with, or cases where no charges were laid, we recorded information on the reasons, where it was available (Table 10). In 40 percent of these cases, the criminal harassment charge was dropped in exchange for a peace bond or a guilty plea to another charge. We can make no determination in these cases as to why the Crown chose this route in these particular cases, but the Crown we spoke to indicated that a number of factors come into play in determining the Crown's strategy in dealing with defence counsel:
- the stated desire of the victim whether or not to proceed with the case;
- the strength of evidence, particularly where the victim is not likely to be an effective or willing witness;
- heavy Crown caseloads, and the accompanying pressure to avoid taking cases to trial where other outcomes are available (especially if they are acceptable to the victim);
- the likelihood that a finding of guilt will result in probation rather than incarceration except in very serious cases or cases where the accused has an extensive record;
- the likely benefit to the accused of having the proceedings extend in time; and,
- defence counsel's awareness of the above factors.
As Table 10 indicates, in about 20 percent of the cases in which charges were dropped or stayed, the file indicated that the victim wanted the charges to be dropped, or that the victim did not cooperate with the prosecution of the case in some way. The files in no cases indicated that these were determining factors in the Crown's decision, but it is clear from our interviews that most Crown see no point in taking a case to trial without the victim being willing to testify in keeping with the original statements taken by the police.
|Plea to Other Charge||154||40,3|
|Accused Medical Problem||6||1,6|
|No Reason Recorded||61||16,0|
|Lay Other Charges||5||1,3|
Of the 165 accused who pleaded guilty or were found guilty of criminal harassment, 42 (25 percent) received some jail time, ranging from three accused who received one day in jail to one accused who received 35 months. When we include all charges laid against the accused, 16 percent of those convicted received jail sentences. Where an accused is convicted of more than one charge, it is usually not possible to separate out the sentences for each charge.
Statistics Canada data show an average 1994-95 rate for jail sentences of 44 percent of charges resulting in conviction across all Criminal Code offences. For violent offences, 41 percent of convictions resulted in jail sentences. The rates for assault level 1, property offences, theft over $1,000, theft under $1,000 and traffic offences were 26 percent, 45 percent, 56 percent, 35 percent and 26 percent respectively .
Table 11 provides a breakdown of jail sentences imposed. With only 165 cases resulting in criminal harassment convictions, breakdowns of jail sentences by research site provide figures too low to be reliable indicators of sentencing patterns, but it is worth noting that in our sample no jail sentences were imposed for criminal harassment convictions in Vancouver, and in Toronto 20 percent of convictions resulted in jail sentences. In Montreal, Winnipeg, Edmonton and Halifax the figures were 33 percent, 36 percent, 37 percent and 50 percent respectively. Including all charges, six percent of those convicted in Vancouver received jail sentences (three people) 15 percent in Toronto and Montreal, 24 percent in Winnipeg, 28 percent in Edmonton and 43 percent in Halifax (four people).
|All Charges||Criminal Harassment|
|No Jail Term||123||74,5||293||83,7|
|Up to 30 Days||13||7,9||21||6,0|
|More than 4 Months||8||4,8||8||2,3|
Nineteen of those convicted of criminal harassment (12 percent) were given fines, ranging from $100 to $1000. Probationary terms were imposed in 144 cases (87 percent of those convicted of criminal harassment), and in 72 percent of those cases probation was the only sentence. The length of probation ranged from six to 36 months, with a median of 24 months.
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