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

2. A Review of the Socio-Legal Literature


2. A Review of the Socio-Legal Literature

This review examines 1) forms of criminal harassment[4] identified in the literature; 2) the most common form of criminal harassment: harassment of former intimates; 3) the effect of criminal harassment on victims; 4) the treatment of criminal harassers; 5) the introduction of criminal harassment legislation in the United States and Canada; and 6) the interpretation of section 264 of the Criminal Code of Canada.

2.1 Forms of Criminal Harassment

Criminal harassment is often categorized by a combination of the relationship between the perpetrator and the victim, and the diagnostic type of the perpetrator. Common labels include:

  • simple obsessional (prior relationship between perpetrator and victim);
  • erotomaniac (delusional perpetrator believes there is mutual love);
  • love obsessional (perpetrator does not believe victim returns love, but might if the victim would get to know perpetrator);
  • borderline obsessional (similar to love obsessional, but includes casual acquaintances); and
  • sociopaths (serial murderers, sex offenders)[5] .

There are, however, other forms of criminal harassment. Criminal harassment can take place at work, for reasons unrelated to the above categories. Such harassment may be perpetrated by co-workers (motivated perhaps by jealousy, or racist or sexist attitudes), by clients (unhappy with services or expected benefits), or by those who are protesting the type of work carried out by the worker (anti-abortionists, etc.). Criminal harassment may also occur between bickering neighbours[6] . Where technology goes, stalkers will follow. More recently, the question of criminal harassment by e-mail has been raised.[7]

Criminal harassment is not always limited to the specific target of the stalking. At times, others associated with the target of the harasser (new partners, children, parents and other relatives) may become victims of harassment. In the case of erotomania, totally unrelated people may be affected, as in the case of John Hinckley, who shot President Reagan in order to get Jodie Foster's attention.

2.2 Criminal Harassment of Former Intimates

By far the most common type of criminal harassment, and that which has until recently received the least amount of attention in the literature and by justice officials, is the stalking of former intimates, typically (although not exclusively) the stalking or harassment of women by their former partners.[8] This is also the type of harassment that is most likely to lead to physical assaults and murders.[9] In such instances, stalking is merely an old problem with a new name.[10] Despite the wide range of behaviour covered by criminal harassment, it is predominately viewed by legislators and policy makers as an issue of domestic violence. In fact, New South Wales specifically limited its stalking legislation to stalking in the context of "domestic relationships", although it was criticized for taking this narrow approach[11] .

Perhaps the most useful development in the mainstream literature is the suggestion that stalkers who criminally harass former intimates have personality characteristics similar to wife batterers, and that stalking ought to be seen as the fourth step in Lenore Walker's theory of the cycle of violence[12] . The fact that leaving a batterer may expose a woman to more risk than remaining with the batterer is something that women have known for years, and that "experts" are only beginning to understand[13] . Bernstein writes,

Many domestic violence victims who do leave their abusive partners, spend the rest of their lives "trying to avoid men fanatically dedicated to pursuing them, harassing them, or even killing them". It is estimated that at least half of the women who leave their abusive partners are followed or harassed as a result. In fact, domestic violence is more common among persons who have separated. Government data indicates that three-fourths of all domestic violence victims are separated at the time of the incident. Studies have shown that the most dangerous time period for an abused woman is when she attempts to separate from her spouse[14] .

Bernstein explains why it is important to view stalking as the fourth phase in the cycle of violence:

First, by labelling the stalking problem as a continuation of the domestic violence cycle, lawmakers, policy makers, and the courts will likely be more prepared to confront the issues seriously. Second, the problem is given social definition by identifying the violence that follows marital or intimate separation as phase-four of the domestic violence cycle. Third, by naming the problem within the framework of the cycle theory of violence, sanctions can be developed to specifically address the idiosyncrasies involved in this fourth phase of violence[15] .

Practitioners and academics are finally making this connection[16] .

At the more critical level, stalking is seen as one more illustration of systemic male violence. Way writes,

Stalking is one vicious manifestation of a broader spectrum of violence against women, one part of a multi-faceted whole, integrally linked to the systemic social, economic and political inequalities experienced daily by Canadian women. The statistics detailing the extent of violence against women in Canada provide horrifying evidence of the "brutal face of inequality"[17] .

Examining violence against women or criminal harassment in this broader context points to the problems of trying to deal with the issue of violence against women, in the limited context of the criminal justice system. Real change will occur only once equity for women is achieved fully in the social, economic, political and legal spheres. However, women who are presently harassed do not have the luxury of waiting for this societal-wide change to occur.

2.3 The Effect of Criminal Harassment on Victims

While there has been little systematic research on the effects of stalking on victims[18] , common sense and anecdotal evidence suggests that to live in fear for one's life from an obsessed individual must have devastating effects on one's emotional and physical well-being[19] . The terror must be that much greater for victims of previous violence by former intimates, who thereby already know the brutality of their predators. There is some evidence that victims who live in fear for their lives and for the lives of those around them can suffer long term emotional trauma[20] . There is also evidence that some victims suffer post-traumatic stress disorder (PTSD), or at least some of its symptoms. In severe cases, victims may "experience reactions other than PTSD such as depression, substance abuse, phobic anxiety, generalized anxiety, obsessive-compulsive behaviours, and dissociative disorders."[21]

2.4 The Treatment of Harassers

Given the vast difference in, for example, criminal harassers who are erotomaniacs (who seldom act on their delusions)[22] and those who are former spouses (who treat their victims as personal possessions and often act violently on their obsessions and inabilities to accept separation)[23] , it is perhaps unfortunate that the media[24] and the politicians view them both through a single lens. There are few systematic studies on how to change the behaviour of criminal harassers. The conclusions of those who work with them is that generally the prognosis for erotomaniacs, love obsessionals, and sociopaths is quite grim[25].

Perpetrators who criminally harass former intimates are, in many respects, similar to those who engage in violence when they are still living with their partners; criminal harassment often continues the "relationship" beyond its natural life. Treatment techniques for both is the same, since the personalities and defence mechanisms of the two groups are similar[26] .

2.5 The Introduction of Criminal Harassment Legislation

The first criminal harassment legislation in North America (or "stalking" as it is more commonly referred to in the literature in the United States) was introduced in California in 1990[27] . While many authors attribute the origins of the legislation to celebrity- or star-stalking, it was the deaths of four women at the hands of their ex-husbands or ex-boyfriends in Orange County that motivated frustrated Municipal Court Judge John Watson on January 10, 1990, to propose stalking legislation to State Senator Edward R. Royce.[28] By 1993, 48 states had passed similar legislation, perhaps motivated by the United States Government's bill that required states to enact anti-stalking legislation by September 30, 1994 if they did not want to lose 25 percent of their federal Crime Act Funding[29] . States were also assisted by the federal initiative of September, 1992, in which the National Institute of Justice was asked by Congress to evaluate anti-stalking legislation and draft model legislation[30] . This it did, by October, 1993[31] . In addition, a federal bill was introduced in March, 1993, to make stalking a federal offence [32] .

The numerous authors[33] who have published articles on stalking in United States legal journals all follow a similar pattern. They review some of the high profile stalking cases or case summaries of the various categories of stalkers, then they turn to the introduction of legislation in California and in one or more of the other states. The authors then compare and evaluate the stalking legislation in light of traditional remedies (tort, invasion of privacy, civil injunctions, Terrorist Threats Statute, Telephone Threat Statute, felony trespass, civil assault law) and discuss a number of enforcement and constitutional issues (vagueness and overbreadth, protected conduct, the right to bail or the prohibition against excessive bail, arrest without warrant). Some conclude with a model statute to overcome the problems they identify.

California has now moved into the second phase of stalking legislation, to strengthen the law against stalkers. The original legislation introduced in 1990 had a number of problems. The requirement that the stalker make a "credible threat" meant that otherwise non-threatening behaviour (sending gifts or love letters, and even following) was not seen as a threat. In addition, stalking was a misdemeanour, and penalties did not reflect the perceived seriousness of the crime[34] . On January 1, 1994, the California Legislature passed three bills to improve the anti-stalking laws. The definition of stalking was changed from "fear of death or great bodily injury" to "fear for his or her safety"[35] . However, the continuing requirement that the threat be "credible" may not improve the position of the victim, as seemingly innocent behaviour is not covered.

Penalties were increased by giving the District Attorney the option of proceeding with the charge as either a misdemeanour (with county jail time) or a felony (with state time). Diacovo criticizes the discretion given to the District Attorney, and suggests that all stalking be treated as a felony. Simultaneous violation of the anti-stalking law and a restraining order (that was originally chargeable as a misdemeanour or felony, carrying a maximum penalty of one year) was changed to a felony with a maximum penalty of four years[36] . Penalties for second offences, if the first conviction was a felony, were also increased (whether the offences were against the same person or not).

The California Penal Code was amended so that judges (not the Director of Corrections) decide whether convicted stalkers should receive mental health treatment[37] . The California Civil Code was amended so that those who want to obtain protective orders, restraining orders or permanent injunctions do not have to pay the $182 filing fee. Finally, the California Legislature created the tort of stalking, with general, special or punitive damages, and injunctions as possible relief[38] .

Prior to the introduction of Bill C-126 in Canada in 1993, there were a number of sections of the Criminal Code that could be used against criminal harassers: trespassing by night under section 177, uttering threats under section 264.1, assault by threatening under section 265(1)(b), indecent or harassing phone calls under section 372, and threatening, intimidating, following, besetting or watching for the purpose of compelling another to do something or to abstain from doing something under section 423, (1)(a) and (b). Those who feared for their personal safety, or that of their spouse or child, could also apply to the court under section 810 of the Criminal Code for a recognizance (commonly known as a peace bond), with or without sureties, in order to require the malefactor to "keep the peace and be of good behaviour". Civil restraining orders could also be obtained[39] . However, it was thought that the existing legislation required an overt threat, and that the Crown must prove an intent to harass. In addition, many of the offences are summary conviction offences (which have limitations regarding arrest and sentencing)[40] .

The criminal harassment provisions of the Criminal Code came into force on August 1, 1993, on the heels of a number of highly publicized fatal attacks against women by their former partners, following periods of systematic stalking and other forms of harassment. While there was considerable public pressure on the federal government to protect women against such harassment and violence, the legislation was not passed without controversy. Many women's organizations, and some provincial government justice officials, objected to what they viewed as insufficient consultation in the drafting of the legislation, and to specific aspects of Bill C-126[41] .

Rosemary Cairns Way, a law professor at the University of Ottawa, reviewed three concerns that were raised by women's groups and witnesses before the Parliamentary Committee Hearings on the Bill. First, the Bill did not have a preamble similar to the one in Bill C-49 (the sexual assault legislation, 1992) which would "contextualize the reality of women's experience of criminal harassment." Second, the Bill required that victims' fear for their safety be "reasonable", and there was concern that this requirement would expose victims to cross-examination on their mental health or character. The addition of the words "in all of the circumstances" to the reasonableness requirement added "little of substance" to the legislation since circumstances are already considered in the concept of reasonableness. Third, the initial Bill required intent on the part of the harasser which would be difficult to prove given the nature of some harassing behaviour. The addition of the phrase "recklessly as to whether the other person is harassed" was "insubstantive" and indicated that "the legislators did not accept the submissions that harassing conduct is sufficiently serious in and of itself to warrant criminalization."[42]

Section 264 creates a hybrid offence, and the maximum penalty if the Crown proceeds by way of indictment is a term of imprisonment not exceeding five years. The maximum term of imprisonment for a summary conviction offence remains at six months, although the maximum term of imprisonment for uttering threats under section 264.1 has recently been increased to 18 months. Section 264 sets out and defines the offence of criminal harassment:

264(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes the other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of

  1. repeatedly following from place to place the other person or anyone known to them;
  2. repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
  3. besetting or watching the dwelling, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
  4. engaging in threatening conduct directed at the other person or any member of their family.

Section 515(4.1) states that the justice at a show cause hearing for a person charged under section 264 (and other offences) "shall consider whether it is desirable, in the interests of the safety of the accused or any other person, to include as a condition of the order that the accused be prohibited from possessing any firearm or any ammunition or explosive substance for any period of time specifically in the order and that the accused surrender any firearms acquisition certificate that the accused possesses." In addition, section 515(4.2) requires that the justice also "consider whether it is desirable, in the interests of the safety of any person, to include as a condition of the order that the accused abstain from communication with any witness or other person expressly named in the order, or be prohibited from going to any place expressly named in the order." Moreover, these provisions are being strengthened further with the passage of Bill C-68. Section 515(4.1) of the Criminal Code will require the justice to prohibit the accused charged under s.264 from possessing any firearm, prohibited weapons, etc., until the accused is dealt with according to law, unless the justice considers such a prohibition unnecessary. In addition, if no such prohibition is made, reasons must be given. However, these provisions have not yet been proclaimed in force.

2.6 The Interpretation of Section 264 of the Criminal Code

While there have been a number of trial court decisions under section 264[43] , only two cases are reported in the Criminal Reports or Canadian Criminal Cases. In R. v. Sillipp (1995), 99 C.C.C. (3d) 394 (Alta. Q.B.) the accused argued that section 264 was of no force and effect, in that it was unconstitutional for vagueness, contrary to section 7 of the Charter, and that it infringed the right to freedom of expression under section 2(b) of the Charter[44] . In dealing with the section 7 argument, Mr. Justice Murray outlined what the Crown must prove:

It must prove that the accused person intended to do a s-s (2) act, that he did it, that he did so without lawful authority, that another person was harassed by those acts, that he knew that the person was harassed by such conduct on his part or he was reckless as to whether that person was so harassed, that such behaviour caused that other person to fear for his or her safety, and that in all of the circumstances that person's fear was reasonable. I agree with the decisions of the Ontario Provincial Court in R. v. Lafreniere (1994) 22 W.C.B. (2d) 519 . . . and R. v. Baszczynski (1994), 24 W.C.B. (2d) 153 . . . It is not necessary that the Crown prove that he knew that the "other person" feared for his or her safety which would be difficult to do (at 403).

Following a review of the law on vagueness, as discussed by the Supreme Court of Canada in R. v. Morales (1992), 77 C.C.C. (3d) 91 and Young v. Young (1993), 108 D.L.R. (4th) 193, Murray, J. concluded that the section did not violate section 7, or the principle of fundamental justice that laws must not be too vague:

I would think that anyone reading the section would receive [the] message loud and clear. I do not believe that it has the effect of permitting a "standardless sweep" so as to allow the police, or for that matter, the judiciary, to simply use its discretion in how they interpret or apply its provisions . . . I am satisfied that the legislation permits the framing of a meaningful legal debate with respect to the objectives contained in the legislation. . . [I]t provides "an adequate basis for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria". There are a number of terms which will not doubt be the subject-matter of judicial interpretation. Amongst these are "lawful authority", "harassed", "fear for their safety", "repeatedly follow", "besetting or watching". Certain of these terms have not been the subject-matter of judicial interpretation and for the moment one may be obliged to depend on the Oxford Dictionary for a meaning within the context of s. 264 (at 406).

Since the accused was charged under subsections 264(1) and (2)(a) and (c), the judge limited his discussion of section 2(b) of the Charter to those subsections. He applied the framework developed by the Supreme Court of Canada in Ford v. Quebec (Attorney-General) (1988), 54 D.L.R. (4th) 577, Irwin Toy Ltd. v. Quebec (Attorney-General) (1989), 58 D.L.R. (4th) 577, and R. v. Keegstra (1990), 61 C.C.C. (3d) 1. First, Murray, J. examined whether the accused's activity was the kind that is protected under section 2(b) of the Charter. He found that the accused's behaviour was a form of expression, an attempt to convey meaning. In deciding that the behaviour was excluded as a protected form of expression on the basis that it was an act of violence, he relied on Judge Craig of the British Columbia Provincial Court in R. v. Hau, [1994] B.C.J. No. 677:

[Section 2] freedoms are not absolute and were not intended to justify latently violent conduct. Moreover, in our democratic society, the freedom in s. 2 must never serve to diminish a person's right to be free from and protected against violence, or the threat of violence brought about by harassing conduct (at 411).

Alternatively, assuming an error in his decision on section 2(b) of the Charter, Murray, J. considered the remaining analysis in Irwin Toy, whether the legislation was enacted to restrict attempts to convey meaning through the activities enumerated in section 264. Murray, J. concluded that "the purpose of s. 264 is to control attempts by persons to convey meanings of latent physical violence and direct psychological violence to other persons by restricting the form of such an expression which is tied to its content" (at 413). If this behaviour is not exempt from protection, as he earlier decided, then the section infringes section 2(b) of the Charter.

Murray, J. then considered section 1, and the test as set out in R. v. Oakes (1986), 24 C.C.C. (3d) 321 (S.C.C.). Although it appears as though he had a considerable amount of material to consider, he noted that "many of the comments and speeches made were rhetorical and in some cases the statistics quoted were inaccurate" (at 414). Nevertheless, he decided that criminal harassment was a pressing and substantial issue[45] . He examined whether the means in section 264 were proportional to the ends that Parliament was trying to achieve. Murray, J. found that section 264 was "carefully designed to achieve the objective desired", and continued, "I do not accept that it is either arbitrary, unfair or based on irrational considerations but rather I find it to be rationally connected to the objective" (at 417). He also found that section 264 did not suffer from vagueness, that it represented a minimal impairment of freedom of expression, and that there was a "proportionality between the effects of s. 264 in limiting freedom of expression of the nature prescribed and the objective . . .[was] found to be of 'sufficient importance'" (at 419). Accordingly, section 264 was demonstrably justified under section 1.

R. v. Ryback (1996), 105 C.C.C. (3d) 240 was an accused's appeal from a summary conviction appeal court which dismissed his appeal from his conviction of criminal harassment. The British Columbia Court of Appeal considered three issues: 1) was the trial judge entitled to admit and rely on evidence of behaviour that took place prior to the enactment of section 264 on August 1, 1993, 2) did the trial judge err in finding that the accused "harassed" the complainant, and 3) did the trial judge err by finding that the accused's behaviour could be described as "repeatedly communicating"?

The Court of Appeal held that the pre-charge (and pre-enactment) behaviour was relevant to the charge, to establish whether the complainant's fear for her safety was justified in all the circumstances. It also found that the accused's behaviour in this period was admissible to prove his intent; that is, to show "whether he knew or was reckless as to whether his conduct harassed the complainant" (at 246):

The [accused's] state of mind would, of necessity, depend in large part on his past association with, and conduct towards, the complainant. His knowledge that the complainant was harassed, or his recklessness as to whether she was harassed, could be realistically decided only by looking back to what had gone before. Similarly, pre-charge conduct which tended to show an innocent state of mind on the appellant's part would also be admissible (at 246-247).

The Court also found that three instances of communication (the delivery of presents and a note a week before Christmas, the delivery of a dinner invitation a week before Valentine's Day, and a personal appearance on Valentine's Day), in the context of the interactions between the accused and the complainant, were clearly harassment as defined by the Alberta Court of the Queen's Bench in Sillipp. In addition, the three contacts, in the circumstances, were sufficient to constitute communicating "repeatedly."


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