A Review of Section 264 (Criminal Harassment) of the Criminal Code of Canada
The criminal harassment provisions of the Criminal Code of Canada came into force on August 1, 1993. The main intention of the new section 264 was to help protect women in Canada from physical attacks and harassment. The hope was that perpetrators would either be deterred by the threat of criminal prosecution, or be incarcerated or otherwise prevented from harassing or attacking their victims. The legislation is also available as a potential tool against harassment such as the stalking of children, harassment practiced by some members of politically motivated groups, or harassment related to business or personal matters not linked to violence against women.
This report presents the results of a review of the implementation of section 264 of the Criminal Code. The study is a first step in the Department of Justice's efforts to assess whether the new section is functioning as it was intended. It is based primarily on an analysis of a sample of 601 criminal harassment cases handled by the police, Crown and courts in the 1993 to early 1996 period, in Vancouver, Edmonton, Winnipeg, Toronto, Montreal and Halifax. The study also included a small number of interviews with police, Crown and others with experience handling the new charge, and a more detailed review of several cases that included interviews with the victims.
The study indicates that while section 264 is being used frequently by police and Crown to prosecute harassment, a majority of criminal harassment charges (58 percent) were stayed or withdrawn before they reached trial. Where the charge was stayed or withdrawn, about 40 percent of accused agreed to a peace bond as part of the resolution of the case. About 35 percent of accused were convicted. Of those, 25 percent received a jail term (usually four months or less) and 94 percent received a probation term. Toronto, Montreal and Vancouver were significantly more likely to use a peace bond resolution than were the smaller centres in the study. Charges were withdrawn or stayed at a fairly consistent rate, with the exceptions that Vancouver and Edmonton withdrew charges somewhat more frequently (28 percent and 26 percent of cases, as against the average of 20 percent), and Halifax withdrew only one case in the sample.
The great majority of accused in the cases reviewed were released prior to trial. Many of them had previous criminal records and a significant number had records of breaches of court orders, and were reported to have been violent with their partners in the past.
In the study sample, 91 percent of accused were men, and 88 percent of victims were women. About 57 percent of cases involved partners or former partners, and another 28 percent involved friends, acquaintances or co-workers who had not been involved in a relationship. Twelve percent of cases involved total strangers, and only four cases (.7 percent) involved the stalking of a public figure. Case outcomes did not vary significantly according to the nature of the relationship between victim and accused.
Section 264 is viewed by most people working in the criminal justice system as being a significant improvement over previous mechanisms for prosecuting harassers. It is generally seen as having the potential to be effective because it encompasses the range of behaviours of concern to victims of harassment, and because it enables prosecutors to invoke the broader context of the relationship between accused and victim in building the case. However, the data on case outcomes support the views of most people interviewed that the justice system is not at present delivering the strong message that was intended with the introduction of section 264that harassment is a serious offence that will not be tolerated.
A number of barriers to effective implementation of section 264 were raised consistently by people interviewed. The case file data were consistent with these views, but further research will be required to substantiate them, and to analyze them in sufficient detail to provide a basis for remedial action. The barriers noted were:
- 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.
The report recommends that the following measures be taken in response to the findings of this initial review of the implementation of section 264:
- 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;
- 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.
- 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.
- 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.
- 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;
- 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;
- 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;
- 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;
- 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.
The adoption of these amendments falls into the government's priority to protect society, in particular the more vulnerable groups, such as women and children …Violence against women, in whatever form, … has no place in a society like ours; this message must be clearly transmitted and understood.
Whether the new law will be effective against either the specific violent behaviour to which it is directed or, more generally, against male violence is difficult to predict … Media attention to the issue of stalking has virtually ceased [as of September, 1993] … Stalking has been defined, discussed and dealt with--now it is time … for it to disappear.
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