A Review of Section 264 (Criminal Harassment) of the Criminal Code of Canada
This section presents the results of the collection of data from criminal harassment case files at the six research sites. It is organized into six sub-sections: 1) demographics; 2) the offences and accompanying circumstances; 3) the charges laid; 4) pre-trial release; 5) duration of proceedings; and, 6) disposition of charges. In each sub-section, the data is presented in text and tables, and observations are made as to what the data tells us concerning the implementation of section 264. In later sections, the issues are addressed in more depth as we interpret the data in conjunction with the interview and case study findings .
As discussed in Section 2.0, 601 Crown and police files were examined in six cities across Canada. The coding sheet used for recording information from these files is appended to the report. Table 3 sets out the number of files examined in each location.
|Toronto, Division 52||133||22,1|
|Toronto, Division 42||35||5,8|
|Toronto, Division 31||40||6,7|
Police and Crown files contain only a minimum of demographic information on the people charged with criminal harassment, and even less on the victims. Aside from name, date of birth and current address, which are recorded routinely in police reports, demographic information is available in the files at the discretion of the investigating officers, usually in the form of written narrative intended to provide the Crown with a basis for proceeding at a bail hearing. Police report forms often allow for the recording of employment information and an indication of apparent race (for identification purposes), but these parts of the forms are not systematically filled out, and we cannot assume that the information has been confirmed. In the case of the race of the accused, the most that is typically recorded is "white" or "non-white", and in many files the "x" that has been typed in is between the two boxes, making it difficult to interpret.
As a result of these limitations, there has been no attempt in this study to draw inferences about relationships between demographic factors (race, socio-economic status) and variables such as numbers of charges and case outcomes. The data is presented below to provide readers with an overall sense of the population involved in the 601 cases examined.
As expected from the review of the literature and media publicity, the vast majority of the accused in the cases examined (91 percent) were men, and the majority of the victims (88 percent) were women. The employment status of the accused was recorded in 66 percent of the cases, and of those recorded, 60 percent of the accused were unemployed. Forty-two percent of the accused had their occupation recorded, and of these 30 percent worked in unskilled labour jobs, 22 percent in sales and services, 16 percent in skilled labour, 15 percent were students, 8 percent were professionals, 6 percent worked in management or administration, and 4 percent held clerical or secretarial jobs.
The age of the accused ranged from 15 to 76, and their average age was 37. Mental or psychological problems were noted in the files for 14 percent of the accused, and alcohol or drug abuse was noted for an additional 10 percent. Similar observations of the complainants were noted in only .5 percent and .3 percent of the files, respectively, although these figures are much less likely to be reliable than the figures for the accused because the information about the accused was usually recorded in relation to their behaviour after the arrest, bail recommendations or consideration of their ability to stand trial, and no such purpose existed for recording information on the complainant.
In this sub-section we present data that describes the nature of the offences that led to complaints and charges of criminal harassment, and some factors that may have influenced the police and Crown response to the complaints.
Table 4 shows the relationship between the complainant and the accused. A small majority (57 percent) of the criminal harassment cases were between partners or former partners . This means that section 264 is being used by police for a broader range of circumstances than may have been anticipated by some observers. These other circumstances include the significant number that involved acquaintances such as clients harassing doctors or lawyers, neighbours harassing each other over property or other disputes, or people harassing neighbourhood acquaintances or school mates.
Data reported by Statistics Canada based on police crime reporting indicate that 31 percent of criminal harassment incidents reported to police involve spouses or ex-spouses, 15 percent involve friends (including intimates), and 28 percent involve acquaintances.
Of the 340 cases involving partners or ex-partners, the great majority (95 percent) had a male accused and a female victim. Sixteen women were accused of criminal harassment against a partner or former partner, and twelve of them were charged. While a number of women's advocacy groups have raised the issue of s. 264 being used by men to lay counter complaints it might be noted here that we found no evidence of this practice is the case files reviewed in this study. Finally, the sample also included five same-sex partner cases, two involving men and three involving women.
There were some regional differences in the relationship between the complainant and the accused. The greatest percentage of cases involving former partners was found in Edmonton (78 percent), followed by Montreal (60 percent), Winnipeg (59 percent), Vancouver (52 percent), Halifax (50 percent) and Toronto (46 percent). It is difficult to say to what extent this variation is due to variation in the incidence of different types of harassment, and to what extent police practices come into play.
The third most frequent category overall for the relationship between the complainant and the accused was "stranger" (12 percent). Typically these involved men following women persistently during commutes to and from work, men harassing waitresses or store clerks, or anonymous strangers leaving a series of notes on victims' cars or in their mailboxes, or otherwise stalking them close to their residences. "Public figures," as complainants, were involved in only .7 percent of the cases. This is of note because the popular portrayal of stalking often involves public figures, and what appears to be a greatly disproportionate share of literature on stalking (particularly in the United States) refers to the phenomenon of men and women stalking public figures. It also suggests that the focus of law enforcement research on the psychology of stalkers and the categorization of stalkers according to a range of psycho-pathologies may be based on incorrect assumptions about the relative frequency of "psychopathic" stalking behaviour as against harassment having more to do with power relations between the accused and victims, or other factors.
Table 5 sets out the nature of the harassment that was reported to have taken place. The types of behaviour are listed in an increasing order of apparent seriousness, based on the authors' reading of the case files. Each case is assigned to the "most serious" category that it belongs. Each type of harassing behaviour may have (and very often did) include the types of behaviour above them in the list. For example, harassment involving threats of violence almost invariably also involved repeated following, personal contact at home or at work, and harassing phone calls or letters. Harassment would often begin with relatively friendly (albeit unwanted) letters or phone calls, and escalate to personal contact, repeated following and sometimes violence or threats of violence.
The most frequent type of harassment involved unwanted personal contact at home or at work but no repeated following (35 percent). "Repeated following" cases included those involving persistent following either on foot or in a vehicle, or driving by or parking near the victims' work or residence to let them know they were being watched. About 20 percent of cases involved repeated following, but no persistent threats of violence and no actual physical violence. Persistent threats of violence were reported in 17 percent of cases, and physical violence took place in 14 percent of cases.
|Phone Calls, Letters||69||11,5|
|Personal Contact at Home, Work||207||34,4|
|Repeatedly following; Watching and/or||122||20,3|
|Threats of Violence||99||16,5|
|Threats with Weapon in Person||13||2,2|
|Threats with Firearm in Person||1||0,2|
|Physical Violence with Weapon||7||1,2|
The duration of the harassment is likely to have a significant influence on how serious the impact is on the victims' lives. Other factors being equal, we would expect that duration could also influence the way the Crown and the courts handle the cases. The duration of the harassing behaviour was ascertained in 585 cases. The harassment lasted for less than one month for 30 percent of the complainants, from one to three months for 28 percent, between three months and a year for 23 percent, and for more than a year for 18 percent.
The repetitiveness of the harassing behaviour is one of the determining factors in deciding whether criminal harassment has taken place. Its repetitiveness will also, it is reasonable to presume, influence how threatening or invasive the harassment is found to be by the victim. The number of harassing contacts was determined in 553 cases. These may be individual letters or phone calls, personal contacts or following incidents. There were fewer than 10 harassing contacts in 28 percent of the cases, 10 to 20 in 18 percent of the cases, and more than twenty harassing contacts in 54 percent of the cases. Case outcomes did not vary significantly among these three groups of cases.
In a large majority of the files (85 percent) there was no physical injury to the victim recorded. Since physical violence was reported in about 14 percent of cases, there is no reason to believe that this figure underestimates the frequency of injury to victims in the sample. However, it is possible that cases involving more serious injury would not be treated as criminal harassment because the police and Crown would be focusing on the harassment component, but rather on the assault or another serious crime.
There were previous complaints made to police, against the perpetrator by the same complainant, in 32 percent of the cases. In some of those cases more than one complaint was reported (Table 6). Where the accused and complainant were partners or former partners, there were previous complaints in 39 percent of cases. These figures may underestimate the reality. Complaints made to the same police detachment would likely be recorded in the files, but reports made to police in other detachments and other jurisdictions, particularly if they did not result in a charge being laid, would very likely not be recorded in the current file. Where previous complaints were reported in the files reviewed for this study, they often resulted in the police warning the perpetrator to cease the harassing conduct, often reportedly at the request of the victim. In some cases the result of the previous complaint was that the complainant was advised to record incidents of harassment, tape telephone calls, or otherwise document the harassment.
Previous violence in the relationship was reported in 50 percent of "partner" cases. This figure may also underestimate the reality, because it relies on the investigating officers having sought out and recorded the information in the file as part of the case summary or the brief prepared for bail hearing. This would not necessarily be done, particularly where no physical violence relating to the current complaint was apparent. The figure also relies on the complainant having reported the previous violence. Particularly in the case of partner or ex-partner harassment, this would not necessarily be the case.
|More than three||21||3,5|
In describing the cases, police briefs sometimes referred to prior breaches of restraining orders on the part of the accused, at times but not always relating to the same victim. This occurred in 18 percent of the files reviewed. In a third of those cases, there was more than one breach reported. Convictions for a prior breach of a restraining order involving any victim were recorded in four percent of the cases, and more than one such conviction was recorded in three percent of the cases. It was not possible from the files to determine whether the reported breaches were acted upon by police, and if so what action was taken and to what effect. It is common for breach charges to be dropped or stayed as part of a guilty plea arrangement, and breach charges may also not result in convictions for other reasons.
As Table 7 indicates, the accused had criminal records in 53 percent of the cases. Of those who had records, 6 percent were for criminal harassment, 28 percent were related to harassment, 25 percent were for assaults (unrelated to harassment), and 41 percent were for other offences .
|Assault Unrelated to Harassment||64||13,5|
|Harassment Telated to Charges||71||14,9|
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