A Review of Section 264 (Criminal Harassment) of the Criminal Code of Canada
In this section we have presented data drawn from 601 criminal harassment cases in six major Canadian cities. The data provide some preliminary insights into how section 264 of the Criminal Code is being used by the justice system to protect people from harassment, and to deter offenders and potential offenders from such conduct. The following observations can be made based on the data:
- There is a substantially lower proportion of criminal harassment cases in our sample involving partners or former partners (57 percent) than was anticipated by some observers, given the fact that section 264 was designed specifically to address the problem of men harassing their former partners. It is difficult to assess whether sufficient numbers of charges of a given crime are being laid because it presumes knowledge of the number of crimes being committed. In the case of criminal harassment, it is particularly difficult because there is no history against which to compare current charge rates. As we noted in Section 2.0, there are what appear to be significant numbers of charges being laid in at least some of Canada's major cities, but how the figures relate to the actual incidence of harassment is unknown.
- The proportion of cases in our sample that suggests a psycho-pathological motivation for the harassing behaviour is minimal. Four cases out of 601 involved the stalking of public figures (a popular portrayal of stalking), and 14 percent of accused were reported as having been treated for, or as requiring treatment for, a psychological disorder. Much of the literature on criminal harassment, and much of the current research in the law enforcement community, focuses on efforts to characterize stalking behaviour according to categories of psychological profiles. The intent is to try to develop predictors of repeat or escalating stalking behaviour, in other words, to use psychological profiling to assist law enforcement in assessing the risk that a given offender poses  . This work may well have useful applications in some cases, but our data suggest that there may be an overemphasis in the law enforcement community on psychological, as opposed to other motivations for harassing behaviour, such as those relating to power relations between men and women and the presumption of entitlement to control over the lives of partners or former partners.
- The great majority of cases in the sample involved behaviour that went beyond harassing phone calls and correspondence, to include repeated direct personal contact. On the other hand, very few cases in the sample involved harassment escalating to physical violence causing serious injury. In order to examine how harassment leads to serious violence and to death it would be necessary to do an in-depth analysis of cases which involved serious violence and death. For example, Rajwar Gakhal had complained of harassment by her former husband before he killed her and eight members of her family in Vernon, British Columbia on April 5, 1996. She and her family had not, however, wanted charges laid against him in these earlier complaints. He then committed suicide. Even had he survived, it is unlikely that a charge of criminal harassment would have been laid. Those who harass their victims and then cause them serious bodily harm are unlikely to be charged simply with harassment.
- Judging by the outcomes of the sample of cases in this study, the justice system appears to have mounted a weak response to the problem of criminal harassment. About 58 percent of criminal harassment charges were withdrawn or stayed (significantly higher than is indicated in data for most other charges), and of the 165 accused who pleaded guilty or were tried and found guilty of criminal harassment, 72 percent received only probation. Twenty-four percent of those convicted of criminal harassment received a jail sentence, most for less than three months. This is comparable to jail sentence rates for common assault and traffic offences, but considerably less frequent than the rates for Criminal Code offences as a whole (44 percent), and for all violent offences (41 percent), property offences as a whole (45 percent) and even theft under $1,000 (35 percent). This kind of result does not appear to achieve a key objective in instituting section 264, which was to treat criminal harassment as a serious crime that will not be tolerated in Canada.
- Nineteen percent of accused were detained until trial. Many of those released had records of breaching no-contact orders and previous criminal records.
- The findings on the numbers of breaches of no-contact orders and related convictions are not conclusive, but to the extent that they are reliable they are troubling because they indicate that a significant number of breaches do not result in convictions (and some do not result in charges). While it is common to bargain away "lesser" charges in exchange for guilty pleas, the negative consequence is that the offender's criminal record will not reflect the breach, and therefore the offender's propensity to breach court protective orders. Also, in the case of criminal harassment the act that constitutes a breach will usually be just another incident of harassment that gets rolled up into the original charge (at least in the course of plea bargaining, if not at the outset), rather than, for example, an assault that results in a new charge independent of the original charge. Thus, some offenders who breach no-contact orders may be receiving the message that this is not a serious matter.
Bill C-27, now before Parliament, will address this issue in part by directing courts to consider as an aggravating factor for sentencing the fact that the offender contravened a protective court order or recognizance at the time the offence was committed. However, it will require that the police report the breach in their Crown brief, and that the Crown bring the breach to the attention of the court.
- Presentence reports and Victim Impact Statements were almost never used to support sentencing recommendations in the cases reviewed. It may be that the courts (and even the Crown, in the case of the VIS's) do not have access to sufficient information to base their decisions on.
- The fact that in about 40 percent of "partner" harassment cases there were previous complaints to police reported, suggests a high risk that a mild initial response to harassment, such as a warning by police, will not have the desired effect. Where it proves effective, it is appealing because it requires few of the increasingly scarce police resources, and is often in keeping with the wishes of the victim not to initiate criminal proceedings. Where it is not effective, however, it carries a risk to the victim. In 29 cases in the sample, a woman incurred physical violence (three of them with a weapon) after they had reported being harassed, and a charge did not result.
- The fact that 50 percent of victims of "partner" harassment were reported to have experienced previous violence in the relationship indicates a strong link between spousal abuse and harassment, and that current approaches to spousal abuse such as mandatory charging, and approaches being promoted such as enhanced police investigations and access to victim assistance programs, may be worthy of consideration in cases of "partner" harassment.
- The recording of information in case files, particularly information relating to the Crown's role, is extremely weak. A review of the files offers little (and often no) indication of the Crown's approach at bail hearing or at trial, usually does not indicate when, or if, the victim has been interviewed at any point in the proceedings, and does not indicate the Crown's position in plea bargaining and the reasons for that position. This lack of information makes it difficult to assess the reasons for case outcomes, which is a critical element in assessing the effectiveness of the implementation of section 264.
 Police across the country who we spoke to, who have attended seminars, training sessions and conferences on criminal harassment, all referred to the guidance they were receiving and the leading edge research available from law enforcement officials in Los Angeles, California, who (one presumes) face a significant problem with "public figure" harassment.
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