A Review of Section 264 (Criminal Harassment) of the Criminal Code of Canada
- 6.1 The Legislation
- 6.2 Administration of Section 264
- 6.3 Barriers to Effective Implementation of Section 264
- 6.4 Conclusion
In addition to the interviews conducted for the case studies, we interviewed a total of thirty-six front-line victim advocates, Crown attorneys, police, justice policy officials and defence counsel across the country. The intention of the interviews was to make a preliminary assessment of the effectiveness of section 264, and to identify issues requiring further investigation. The findings reported here are not necessarily representative of the full range of opinion about the new criminal harassment provisions, but they offer a variety of perspectives from key groups involved in their implementation. The findings are organized into three subsections: the legislation itself; the administration of the new provisions; and, barriers to effectiveness.
We asked the people interviewed to comment on whether the new section is proving useful in dealing with the kinds of harassment it was intended to address, and whether it appeared to be an improvement over Criminal Code sections available to police and the Crown.
- Police unanimously supported the new provisions, saying that they represent a substantial improvement in the charges available to address harassment. In many cases prior to August 1993, police could see that harassment was taking place and that it was having a serious impact on the victim, but unless there was a clear and substantiated threat of harm they could do little except to advise the victim to seek a restraining order. Now, they say, there is an effective vehicle to deal with such cases, particularly since the charge encompasses both threatening and harassment, and allows for consideration of background information in establishing whether the complainant has reason to fear for her safety. They said that the admissibility of pre-charge behaviour and pre-August 1993 behaviour is positive, and that the courts also appear to be taking into account gender as a factor, even though the "reasonable person" standard still applies, and that "safety" was being viewed as including psychological as well as physical well-being.
- Police also said that having criminal harassment be a hybrid offence as opposed to a summary conviction offence is of assistance in that it gives police broader powers. Some police said the maximum penalties available (even for summary conviction offences) are never imposed, so the existing maximums are more or less adequate. Others said raising the maximums would be beneficial because the courts would be more inclined to raise the sentences being imposed, even though the maximums would still never be reached. Several officers noted that raising the maximum penalty for a summary conviction to 18 months (as it is under section 364.1) would allow most cases to be heard in provincial court with no preliminary hearing, and would result in speedier outcomes.
- With two exceptions, Crown attorneys found section 264 to be an effective means to prosecute harassment. One noted, "I don't know what we did without it….We use it all the time." Crown generally pointed to the same advantages as those attributed to the police above, but some additional points were raised:
- the section provides for another means to deal with violence against women, and stalking is often seen as more serious than wife assault (as one Crown noted, because it also happens to men). There has been a long history in our society of accepting wife beating. Men could rape their wives legally until 1982. But there is not the same history of saying its alright to follow someone, so criminal harassment can be seen by some judges as more serious. "Some judges still don't see wife assault as assault."
- victims are often blamed, particularly in spousal abuse cases, but less so with stalking, because they have said no. It gets rid of some of the victim-blaming.
- more evidence is admissible on the stalking charge than on, for example, assault, and it is easier to show how serious the behaviour is, even when the individual contacts may not seem that serious. Stalking deals with the whole relationship and puts it in context.
- Two Crown attorneys agreed with Manitoba's proposal to stiffen penalties, especially for a second offence or an offence where a restraining order is in place at the time. They said this would send a message to judges that Parliament sees this as more serious . (Crown generally thought the existing maximum penalties were adequate, mainly because they were never approached in any case.)
- One prosecutor said there should be a preamble to the legislation, as in the case of the rape shield law, to illustrate to criminal justice personnel what Parliament was concerned about in enacting the legislation.
- Two Crown we interviewed suggested that while the new section is generally a big improvement over what was available before, there are several problems with the wording of the section that make it unduly difficult to obtain a finding of guilt. First, they said that the reference to "repeatedly" in subsections (2)(a) and (2)(b) is being defined in different ways, and that some judges have interpreted it as meaning "repeated many times", whereas the intent was probably less stringent than that. Second, they said that the whole of subsection (1) was chaotic and unnecessary, in that it creates a complex configuration of what has to be proven. For example, they said that "knowing…or recklessly" sets an unduly high standardjust the intention to commit the acts delineated in subsection (2) should be sufficient. There is no need for including the subjective element of fault, and it lays the section bare to a drunkenness defence. As well, they said that the reasonable standard of fear required in subsection (1) is counter to the overall sense of the section, which is that the behaviour in question is inherently fear provoking. In summary, they said that their problems with the legislation would be taken care of largely by eliminating the whole of subsection (1) .
- One Crown noted that whereas the charge of watching and besetting that was previously used in some harassment cases required a very high standard of repetitiveness, section 264 reduces the standard for repetitiveness because of the fear element. The same Crown pointed out that because section 264 covers multiple conduct under one charge, there tends to be a less strict standard for each element.
- Defence counsel generally saw section 264 as a reasonable and useful section, but they expressed a few concerns:
- some Crown don't just view section 264 as another offence, they view it as something of a political tool, and they can be a bit too eager to lay charges where they are not warranted.
- the charge can be difficult to prosecute because conduct doesn't always fit into the three areas neatly. There is a bit of a grey area as to the accused having doubt about the finality of the break-up and about where on a continuum of ignorance and criminal behaviour a particular conduct lies. Attitudes and levels of tolerance can vary considerably among police, Crown and judges.
- one defence counsel characterized criminal harassment as an offence in which there is not a lot of evidence, "just one person's view".
- The views of victim advocates varied considerably, from strong support for the legislation to strong opposition to it .
- The fact that the new section takes into account the social context of a relationship between victim and offender was viewed by most advocates as an important improvement over previous offences used.
- Women who report harassment to advocates are generally encouraged to call 911, in order to help build a file of evidence against the accused.
- One advocacy group was of the view that sufficient legislation was in place prior to the enactment of section 264 (such as public nuisance, trespassing, threatening, watching and besetting, interference), and that the new section is of no assistance in protecting women. In fact, they said, the legislation was making the protection of women more difficult, in that some men were using section 264 to harass battered women by laying complaints themselves. Such counter-complaints, they said, were less common before. The organization has dealt with a number of cases in which they had to lobby strongly to get charges of harassment against battered women dropped. This advocacy group indicated that the section has done more harm than good because it has created a false sense of security and a public belief that women are better protected, when in fact it has done nothing to protect women.
We asked respondents whether they thought the new section was being effectively implemented by the police, Crown and courts.
- police we interviewed thought that some of their fellow officers understood the new section well and conducted good investigations, while others did not . As well, some officers treat criminal harassment as part of the criminal justice response to violence against women, while others tend to view it as just another charge they can use. This difference, they say, can have major implications for the way criminal harassment cases are investigated. On the positive side, an officer who understands the context of spousal abuse will tend to collect better, more relevant evidence and will be more likely to probe beyond the obvious circumstances of the cases. On the negative side, some officers are reported to have a sceptical view of cases involving spousal violence or harassment (in part because they have handled so many cases in which the victim ends up not cooperating with the prosecution, and in part because they have seen so many offenders get barely a slap on the wrist from the courts). As a consequence, they may be reluctant to enter into a lengthy investigation on a harassment charge unless it appears quite serious to them.
- Crown generally said police have learned since 1993 to use the new section effectively, that the evidence they collect is usually sufficient to make the case. One Crown noted that police have consulted with them on numerous occasions about criminal harassment charges, which indicates to the Crown that the police are taking the charge seriously. Crown said that they have to go back to police only occasionally to get additional information.
- One Crown suggested that it would be a good idea for police to have a checklist to use for investigating criminal harassment cases, as they do in some jurisdictions for other domestic violence charges.
- Victim advocates were again divided on how effectively the police were enforcing section 264. Some said that the police were becoming more responsive to women's 911 calls, especially in periods following serious murder cases involving former spouses. They noted that where there was a special unit to deal with spousal violence, there was more likely to be an effective police response.
- other advocates were entirely unsatisfied with the police response. They said the same situation exists today as it did prior to the legislation: the response is slow, inadequate and ineffective. The police are viewed as having no problem responding quickly to male complaints, but do not take complaints from women seriously. They suggest that the requirement to respond quickly and effectively to calls from women who are battered should be written into police job descriptions, and that there should be specific sanctions for not doing so, such as the withholding of funds from police units or individual officers.
- the latter group of advocates said they have had to lobby police on a number of occasions to ensure that police laid charges against an harasser. They believe that citizens should be able to engage the law without the assistance of an advocate. If there is insufficient evidence the police should be required to conduct further investigation. They said that police advice to women to keep a journal documenting incidents of harassment is "outrageous and unacceptable" That is "the job of the police…it's called an investigation."
- advocates said that police are wasting their time creating profiles of stalkers so they can determine who are the most dangerous stalkers, and when they should respond. The police are seen by some advocates as preferring to deploy staff to fight property crimes, and what they see as more high profile or macho kinds of crimes. They said the police are quite aware of what is going on, but simply refuse to respond to women's calls and know they can get away with it.
- other advocates indicated that they have dealt with many officers who are very dedicated and understand domestic violence and its relationship to criminal harassment, but that they have dealt with others who simply don't know how to conduct a sufficient investigation in such cases, and fall back too easily on blaming the victim for not wanting to go to court and testify.
- police generally felt that they were holding up their side, but that the crown and the courts were letting offenders back out on the streets with only very minor sanctions, and that this was delivering a clear message to offenders that they can get away with the behaviour.
- police, advocates, some provincial policy officers and even some Crown agreed that the Crown was far too often dropping charges or bargaining charges down to peace bonds or guilty pleas with suspended sentences. (To greater or lesser degrees they thought that time and resource pressures were largely responsible for the approach taken by the Crown.) They also agreed that the sentences imposed by the courts are usually far too lenient to be effective.
- Crown were criticized by advocates for not spending enough time on individual cases, including spending sufficient time with complainants to understand adequately the nature and seriousness of the harassment and the impact it was having on them. It was felt that victims generally do not receive sufficient support within the system, and are thus often not willing to undergo what is demanded of them by the Crown. They said that the Crown should be required to proceed with a charge if the victim wants them to, and should send the police back for further investigation if it is needed to strengthen the case.
- most Crown agree that being able to conduct interviews with victims and spend some time on individual cases is crucial to effective prosecution, but say that pressure is actually moving things in the opposite directionthat the trend is toward keeping as many cases as possible out of court.
- some advocates said that far too many cases are being prosecuted as summary offences rather than by indictment, and that this contributes to the charge not being taken as seriously. On the other hand, some Crown point out that they are instructed to send only cases where significant violence is involved or where the harassment is tied to another indictable offence, to superior court.
"We get a lot of flack if we take 'garbage' up to superior court".
- some Crown said that pressure on the courts to limit incarceration is resulting in far too many suspended sentences with probation, and too many references to treatment and anger management programs that are not available within a reasonable time period.
- the extreme caseload demands of Crown are widely viewed as undermining prosecution efforts.
We asked respondents to identify the barriers that exist to using section 264 effectively to deter harassment and to protect victims and potential victims, and in particular women.
- many respondents viewed resources for police and the Crown (and the lack of political will indicated by the lack of resources allocated) as a major barrier to an effective criminal justice response to harassment. Limited resources and heavy caseloads are viewed as resulting in investigations that are not as thorough as they could be, Crown who are not familiar with cases they are responsible for prosecuting and who are instructed to avoid trial at all costs, and victims who have barely been talked to prior to trial.
- gender bias is also viewed widely as being a major barrier to the effective handling of criminal harassment. As one Crown put it,
"…the majority of criminals are men, the police are men, and defence counsel are men (women don't last as defence counsel, at least with the more serious crimes). There are women Crown counsel, but the managers and decision makers are men. Most judges are men. The decisions by women judges are more sensitive to the lives of women. Women judges are starting to make a difference, but there are still areas where there are very few women judges."
- judges were singled out by many respondents as being particularly insensitive to the impact that criminal harassment has on women's lives, and for reflecting this insensitivity and lack of understanding in the meagre sentences they impose on offenders. Some variation is acknowledgedin fact, it was pointed out frequently by police, Crown and advocates that it is often easy to predict the outcome and disposition of cases just by knowing in whose court a given case is to be tried.
- some respondents pointed out that in most jurisdictions criminal harassment is not treated, either by police or the Crown, as a kind of women abuse, and is therefore not usually under the responsibility of special units trained to handle such cases. Where special units (particularly police units, but also dedicated Crown units and even courts, in the case of the Winnipeg Family Violence Court) are assigned to criminal harassment cases that involve partners or former partners, the cases are viewed as being better handled and resulting in a more satisfactory result for women victims.
This section reported the findings of a small sample of interviews with people involved in the implementation of section 264. In the next section of the report, the authors' conclusions and recommendations are presented.
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