A Review of Section 264 (Criminal Harassment) of the Criminal Code of Canada

7. Conclusions and Recommendations

7. Conclusions and Recommendations

This final section of the report draws together the findings from the case file data analysis, case studies and interviews, and presents conclusions that these findings suggest about the effectiveness of section 264 in prosecuting harassment behaviour, and in protecting victims and potential victims of harassment, primarily women. Some recommendations are also provided for the Department of Justice and for other departments and agencies responsible to implement an effective criminal justice response to harassment.

7.1 Conclusions

  1. There have been significant numbers of charges of criminal harassment laid in the major centres covered by this study; sufficient to begin assessing how the criminal justice system is handling the new section 264. This study did not attempt to assess how the number of charges might compare to the number of incidents of harassment that have taken place. An accurate count of incidents of criminal harassment would be impossible to obtain, but surveys of the general population, such as Statistics Canada's General Social Survey or Victims of Wife Assault Survey could provide some indication as to its prevalence if criminal harassment were tracked separately from other variables.
  2. The numbers of criminal harassment charges withdrawn or stayed by Crown, and the numbers of charges withdrawn in exchange for a peace bond, are very high in comparison to outcomes for Criminal Code charges as a whole and for most specific categories of crime. The fact that almost 60 percent of criminal harassment charges are withdrawn or stayed cannot be seen as conveying the kind of strong message that was intended by the so-called anti-stalking legislation: that criminal harassment is a serious offence and will not be tolerated. The fact that 75 percent of those convicted of criminal harassment received either probation only, or a suspended sentence, also compares negatively with figures for most other crime categories in terms of strength of sentence. The experience to date conveys the message that offenders will, in the large majority of cases, be let off with no penalty, and that even if they are convicted, the justice system will impose only a mild rebuke. A previous criminal record, a record of violence against the same or other women, or a record of breaching court protective orders by no means assure a stronger sanction from the justice system.
  3. Sentences imposed by the courts in criminal harassment cases have been weak relative to what was hoped for by everyone consulted for this study, including people involved in developing the legislation.
  4. The great majority of accused are released prior to trial; many of them have previous criminal records and a significant number have records of breaches of court orders, and are reported to have been violent with their partners in the past. Courts understandably view the removal of a person's liberty as a serious matter, and set a high standard for pre-trial detention. On the other hand, in the case of criminal harassment it can be argued (and shown clearly in many cases) that the personal liberty of the victim can be effectively removed if the accused is at large. It may be that the courts (and perhaps the Crown as well) do not have sufficient information in specific cases, or understanding of the phenomenon of harassment in general and its inherently repetitive and invasive (and usually insidious) nature, to properly assess what constitutes a risk that harassing behaviour will take place once the accused is released.
  5. While the data are not conclusive, they suggest that breaches of no-contact orders often do not result in convictions, in part because the charges are bargained away in favour of guilty pleas on other charges. The result is that offenders do not carry a record of the breach of a court order, and that the courts in subsequent hearings do not have the information they should have to make decisions about pre-trial release or detention, or about appropriate sentencing.
  6. Section 264 itself is generally viewed as being a major improvement over previously existing mechanisms for prosecuting harassers--it has the potential to be effective because it encompasses largely the range of behaviours of concern to victims, and enables prosecutors to invoke the broader context of the relationship between accused and victim in building the case.
  7. Some serious barriers are widely viewed as preventing the effective realization of the objectives of the legislation, including:
    • insufficient police resources devoted to investigating criminal harassment cases;
    • insufficient Crown attention to preparing criminal harassment cases and interacting with victims, and pressure on Crown to meet requirements to avoid trial whenever possible;
    • A lack of adequate victim service and victim/witness programs to serve the needs of victims and enable them to participate in a meaningful and constructive way in the prosecution of their cases;
    • gender bias throughout the system that contributes to the above systemic barriers and results in extremely weak dispositions by the courts; and,
    • insufficient training of some police and Crown as to the nature and complexities of criminal harassment, the result being that criminal harassment cases may not be handled as effectively and as sensitively as they could be;
  8. Victims of criminal harassment, according to the limited information collected for this study, are marginalized during the prosecution process, are rarely interviewed by Crown counsel and even if they are interviewed are rarely consulted about how they think the case should proceed. This certainly has a negative impact on their experience of the criminal justice intervention, and may also reduce the ability of the prosecution to obtain a good result. Where specially trained police or victim service workers were available, victims said they found a positive difference.
  9. Presentence reports and victim impact statements were almost never used in the cases reviewed for this study. It may be that courts and even Crown may be making decisions about sentencing and prosecuting cases without sufficient information.
  10. Follow-up by the criminal justice system to investigate the longer term outcome of cases is almost non-existent; the one exception is that victim advocates and some police keep in touch with some victims for a while, in an informal way. Some high profile cases have shown that repeated harassment can escalate to violence and even to murder, and that the intervention of the Justice system does not necessarily provide protection or deterrence as it currently operates. The case outcomes documented in this study, and the views expressed by victims in our case studies, are consistent with this conclusion. Some form of systematic follow-up on criminal harassment cases, and improvement in the communicating of information across police jurisdictions, will be critical to assessing and enhancing the effectiveness of the new criminal harassment provisions.
  11. This study did not include follow-up with victims (with the exception of a small number of case studies) to assess the overall effectiveness of section 264 in deterring offenders and protecting victims. Consultation with victims is needed to determine what would constitute an effective handling of criminal harassment cases from their point of view, and how it could be achieved.
  12. Only a small percentage of criminal harassment cases in this study involved offenders with an apparent serious psychological illness. Other causes, having to do with men seeking power and control over women, appear on the face of it to be more plausible.
  13. Little information is available in the case files on the prosecution of criminal harassment cases. The Crown's approach to bail hearings, plea bargaining and sentencing recommendations, the reasons for the decisions that are made, and the kinds of inputs that influenced the decisions (such as interaction with victims) are largely unknown because this information is typically not recorded, and Crown handle so many cases that they often cannot remember details about specific cases.

7.2 Recommendations

Based on the findings of this review, it is recommended that:

  1. steps be taken to identify clearly what is considered to be a desirable result of the prosecution of criminal harassment in broad terms, and how to go about determining what is a desirable result in individual cases;
  2. as an interim measure until full consideration is given to the identification of desirable results, policy officers at the federal, provincial and teritorial levels should develop guidelines or best practices to reduce the rate of charge stays, withdrawals and peace bond resolutions, and set higher standards for sentencing recommendations, particularly in negotiating guilty pleas;
  3. guidelines be developed for police and Crown that set higher standards for the investigation and prosecution of criminal harassment cases. The standards for police should include the requirement for a thorough investigation of the relationship between accused and victim, and the documentation of any reported history of abuse or harassment. Prior history of breaches of court protective orders, whether or not they resulted in charges or convictions, should also be investigated and documented.

    Standards for Crown should include the requirement to interview the victim (subject to the consent of the victim) prior to the date of first appearance. There should also be a clear requirement to ensure that case preparation (including police investigation) is sufficient to enable Crown to present fully the complexity of circumstances involved in the case including the history of the relationship, and the impact that the harassment is having on the life of the victim. Consideration should be given to making the use of victim impact statements a routine feature of sentencing hearings in criminal harassment cases. Consideration should also be given to ensure that breaches of no contact orders are addressed by the criminal justice system and standards are set for when charges for such breaches can be stayed or withdrawn;
  4. the actions of Crown in criminal harassment cases, and the reasons for Crown decisions, be made more transparent, perhaps through the use of simple case record sheets, so future decisions about Crown policy and practices will be based on better empirical information than is currently possible;
  5. police and Crown be provided with training in the investigation and prosecution of criminal harassment in keeping with the guidelines that are developed. Judges should also be provided with workshops to ensure that they understand the relationship between (most) criminal harassment and women abuse, and the serious impact it can have on the lives of victims;
  6. victim service/victim witness services be made available as widely as possible. Early information indicates that such services can make a significant contribution both to enhancing the experience of victims during the criminal justice process, and to the preparation of stronger cases;
  7. consideration be given to instituting some form of systematic follow-up/monitoring of criminal harassment cases to ensure that harassment is not recurring or escalating, and to enhance the communication of information about offenders across police jurisdictions;
  8. police work with women's shelter organizations to develop approaches for the identification of higher risk offenders that is less focused on psychological profiling and more on indicators of abusive attitudes and behaviour in relationships;
  9. the Department of Justice Canada undertakes further work on this issue to assess the impact of the justice response on the accused's behaviour; to consult with victims of criminal harassment on what they see as a desired outcome in criminal harassment cases and how to achieve those outcomes; and to conduct interviews with key actors in the criminal justice system to document the reasons for the outcomes observed in this study.
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