A Handbook for Police and Crown Prosecutors on Criminal Harassment
PART 1: Introduction
Criminal harassment, which includes "stalking," is a crime. While many crimes are defined by conduct that results in a very clear physical outcome (for example, murder), the offence of criminal harassment prohibits deliberate conduct that is psychologically harmful to others. Criminal harassment often consists of repeated conduct that is carried out over a period of time and that causes its targets to reasonably fear for their safety but does not necessarily result in physical injury. It may be a precursor to subsequent violent and/or lethal acts.
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 that 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
- repeatedly following from place to place the other person or anyone known to them;
- repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
- besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
- engaging in threatening conduct directed at the other person or any member of their family.
(3) Every person who contravenes this section is guilty of
- an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
- an offence punishable on summary conviction.
Factors to be considered
(4) Where a person is convicted of an offence under this section, the court imposing the sentence on the person shall consider as an aggravating factor that, at the time the offence was committed, the person contravened
- the terms or conditions of an order made pursuant to section 161 or a recognizance entered into pursuant to section 810, 810.1 or 810.2; or
- the terms or conditions of any other order or recognizance made or entered into under the common law or a provision of this or any other Act of Parliament or of a province that is similar in effect to an order or recognizance referred to in paragraph (a).
(5) Where the court is satisfied of the existence of an aggravating factor referred to in subsection (4), but decides not to give effect to it for sentencing purposes, the court shall give reasons for its decision.
1.1 Purpose of This Handbook
The purpose of this handbook is to provide police and Crown prosecutors with guidelines for the investigation and prosecution of criminal harassment cases and to promote an integrated criminal justice response to stalking. It is intended to be a starting point for police and Crowns. Police and Crowns are encouraged to adapt these guidelines to reflect the particular needs and circumstances of each jurisdiction and each case.
The Handbook was developed by a working group of federal/provincial/territorial criminal justice officials in consultation with criminal justice professionals. It was first published in 1999 and updated in 2004. The development of these guidelines was prompted by the findings and recommendations of the 1996 Department of Justice Canada review of the criminal harassment provisions in the Criminal Code. The updates have been published in response to positive feedback regarding the usefulness of the Handbook and requests for more current information.
1.2 Legislative History of Criminal Harassment
Criminal harassment is not new, but recognition of it as a distinct criminal behaviour is relatively recent. Before 1993, persons who engaged in stalking conduct might have been charged with one or more of the following offences: intimidation (section 423 of the Criminal Code); uttering threats (section 264.1); mischief (section 430); indecent or harassing phone calls (section 372); trespassing at night (section 177); and breach of recognizance (section 811).
On August 1, 1993, the Criminal Code was amended to create the new offence of criminal harassment in section 264. It was introduced as a specific response to violence against women, particularly to domestic violence against women. However, the offence is not restricted to domestic violence and applies equally to all victims of criminal harassment. Section 264 was amended, effective May 1997, to make the commission of an offence of criminal harassment in violation of a protective court order an aggravating factor for sentencing purposes, and effective July 23, 2002, to double the maximum sentence for the offence of criminal harassment to 10 years’ imprisonment for an indictable offence. Also effective in May 1997, murder committed in the course of criminally harassing the victim, was added to the list of conduct in section 231 classified as first degree murder, irrespective of whether it was planned and deliberate.
A number of other sections of the Criminal Code have been amended over the years to refer to criminal harassment as one of the offences for which certain procedural protections or dispositions are triggered:
- Under subsection 109(1), where an offender is convicted, or discharged under section 730, of criminal harassment, they are subject to a mandatory weapons prohibition order.
- Under subsection 515(4.1), where an accused is charged with criminal harassment, when releasing an accused on interim release, the justice shall add a condition prohibiting the accused from possession any weapons, unless the justice determines that this condition is not required for anyone’s safety.
- Under section 486.3, trial judges are required to appoint a lawyer to conduct the cross-examination upon the application of the prosecutor or the victim where a self-represented accused is on trial for criminal harassment (prior to this last amendment, the accused could further intimidate the complainant by personally cross-examining her/him when s/he appeared as a witness in the criminal trial).
- Lastly, effective November 2012, paragraph 742.1(f) states that conditional sentences are not available when the offender is convicted of criminal harassment, prosecuted by way of indictment.
1.3 We Know About Criminal Harassment in Canada?
1.3.1 Police and Court Reported Data
The most current Statistics Canada police and court data relating to criminal harassment reveal the following facts:
- In total, just over 20,000 criminal harassment incidents were reported to the police in 2009, representing almost 5% of all violent crimes reported to police. Data from a subset of police services indicate that the rate of reported criminal harassment has been gradually increasing over the past decade, including a 57% increase from 2008 to 2009.
- Of the cases reported to police in 2009, females accounted for three-quarters of all victims (76%) of criminal harassment, compared with about half (51%) of victims of violent crime overall.
- In 2009, men accounted for 78% of those accused of criminal harassment, with a large proportion of both females and males being harassed by male perpetrators (85% of females and 64% of males).
- In 2009, female victims were almost twice as likely as male victims to be stalked by a former or current intimate partner (51% of females and 23% of males). Male victims were most commonly stalked by a casual acquaintance (37%).
- In 2007, current spouses were nearly twice as likely as ex-spouses to be the victims of common or major assault, while criminal harassment or threats were much more likely to be committed against ex-spouses.,
- In 2009, threats (38%) or physical force (12%) were more often used against targets of criminal harassment than were weapons (3%).
- Most targets of criminal harassment (69%) were harassed in their own home or at another residence, such as a friend’s home; 16% of victims were harassed in commercial or corporate areas; 11% at outdoor public locations, such as on the street or in a parking lot; and 4% at schools or universities.
- In 2008/2009, Canada’s adult criminal courts completed about 3,200 cases in which criminal harassment was the most serious charge. Of these cases, over half (52%) resulted in a finding of guilt, similar to the proportion of violent cases in general (54%). The remaining criminal harassment cases were stayed or withdrawn (37%); resulted in an acquittal (7%); or resulted in another type of decision, such as not criminally responsible (4%).
- In 2009, over a quarter of criminal harassment incidents (27%) reported to police involved other offences. Among these, uttering threats was the most common associated offence.
- Between 1997 and 2009, criminal harassment was the precipitating crime in a total of 68 homicides—for example, a female was stalked (and subsequently killed) by a recently separated intimate partner. This translates to an average of five such homicides per year over the 13-year period.
From 1999 to 2009, the number of victims of criminal harassment reported to a subset of police services increased by 65%, from 6,411 victims in 1999 to 10,589 victims in 2009. Such an increase is not uncommon following the introduction of a new law. It is difficult to assess, however, whether the rise is due to an increase in the number of criminal harassment incidents, increased reporting by victims, or a change in the way police respond to and record such incidents.
1.3.2 Victim/Survivor Survey Reports
Given that over half of the people who are criminally harassed do not report this crime to police, it is helpful to look at sources other than police-reported data to get a more complete picture of criminal harassment in Canada. Statistics Canada’s General Social Survey (GSS) on Victimization provides self-reported data on criminal victimization. It is an important complement to crime rates, as it measures both crime incidents that come to the attention of the police and those that are unreported. The 2004 GSS reveals the following facts about criminal harassment:
- In the survey, 11% of women and 7% of men (for a total of 9% of Canadians 15 years of age and over) indicated that they had been stalked in the five years prior to the survey. This amounts to 2.3 million Canadians.
- For the majority of victims, the stalker was male (80%), regardless of the sex of the victim. The stalker was female in very few situations, for both female (9%), and male (5%) victims.
- Results from the 2004 GSS survey show that most victims knew their stalkers, 23% of whom were friends, 17% current or former intimate partners, 14% individuals known by sight only, and 18% co-workers, neighbours or relatives. Less than one in four victims was harassed by a total stranger. Female victims were most often harassed by a friend (22%), or a current or former intimate partner (20%). On the other hand, male victims reported being harassed by a friend in 25% of cases, a person known by sight only in 16% of cases, and a current or former intimate partner in only 11% of cases.
- Just over 1 in 10 (11%) stalking targets sought a protective or restraining order against the stalkers. Just under half of the orders were violated (49%).
- The majority of stalking victims are young women between the ages of 15 and 24 (19% of total population). Among male victims, the highest rates were among young men aged 15 to 17 (6%) and 18 to 24 (4%). The risk of being a victim of stalking was found to decrease with age.
- Aboriginal people were twice as likely (7%) as non-Aboriginal people (3%) to have experienced some form of stalking that made them fear for their lives in the previous 12 months. Aboriginal victims of stalking were also more likely than non-Aboriginal victims to be physically attacked or grabbed by the person stalking them (26% versus 16%) and to contact the police to report the stalking (41% versus 37%).
- Divorced or single women tended to experience a higher rate of stalking (7% and 6%, respectively) than other individuals did, based on those who reported stalking in the previous 12 months).
Characteristics of the Stalking
- Over half (52%) of female victims reported receiving repeated or obscene phone calls from their stalkers. One-third reported being spied on (34%), or being intimidated or threatened (34%). In contrast, over half (56%) of male victims reported being intimidated or threatened, and over one-third (39%) reported receiving repeated phone calls. One-quarter (24%) of male victims reported threats to hurt their pets or damage their property.
- The more familiar the stalker is with the victim, the more likely s/he is to employ multiple forms of stalking. Female (67%) and male victims (54%) stalked by intimate partners were more likely to experience multiple forms of stalking. Both males and females who were stalked by a stranger were more likely to be subjected to only one form of stalking (38% of female victims and 27% of males).
- In 2004, 21% of victims reported stalking behaviour that persisted for over one year. Most female victims (29%) reported the stalking lasted between one and six months (as opposed to 21% of male victims), whereas most male victims (31%) reported the stalking lasted one week or less.
- The length of time that the stalking lasted appears to be related to the nature of the relationship between the victim and the stalker. The stalking lasted over a year for 61% of survey respondents who were stalked by an ex-spouse, and for 26% of those stalked by an ex-boyfriend or girlfriend. Where the victim and stalker had not had an intimate relationship, the stalking most often lasted one to six months (for 34% of victims stalked by a co-worker, 30% of victims stalked by a friend and 31% of victims who only knew their stalkers by sight). When victims were stalked by a stranger, it was most often for under a week (41%). Neighbours and non-intimate relatives, however, most often stalked for over a year (43% and 39%, respectively), falling between ex-spouses and ex-daters.
- Just over one-quarter of stalking victims reported that they had been stalked by more than one person (28%). Males were slightly more likely than females to report this (33% versus 25%).
- The likelihood of stalking victims being attacked or grabbed (16% of all stalking victims) increased when they had had an intimate relationship with their stalker (36% of those stalked by a current partner and 34% of those stalked by a former partner, versus 13% of those whose stalker was not an intimate partner).
Impact on Victims
- Almost one in three victims (31% of female victims and 27% of male ones) feared for their lives as a result of stalking. Both male and female victims were most likely to fear for their lives when being harassed by an ex-spouse (60% of female victims stalked by an ex-spouse and 44% of male victims). Female victims stalked by an ex-boyfriend (41%) or an "other relative" (40%) were also likely to fear for their lives, as were male victims stalked by co-workers (39%).
- Among victims, 80% of females and 62% of males changed their lifestyle in an attempt to avoid being victimized by their stalker, by doing things such as avoiding certain places or people; getting an unlisted phone number, call display, call screening or call blocking; not going out alone; and changing their residence.
1.4 Impact of Criminal Harassment on the Victim
The cumulative effect of harassment causes victims to experience intimidation, as well as psychological and emotional distress. Psychologically, stalking can produce an intense and prolonged fear among victims. This fear usually includes an increasing fear that the frequency and nature of the conduct will escalate (for example, from non-violent to life threatening) and is accompanied by a feeling of loss of control over the victim’s life. The constant fear and stress can result in mental and physical exhaustion, which can in turn lead to various health problems. In addition, stalking targets may face considerable financial consequences as a result of the need for psychological treatment or therapy, and time taken off work.
Some common responses by victims to the trauma of being stalked include the following:
- feelings of shame and lowered self-esteem
- a tendency to downplay the impact of the stalking
- interpretation of the stalking as a "private matter"
- a sense of betrayal and stigma
- anxiety, fear and long-term distress due to the unpredictability of the stalker’s conduct
- feelings of anger, helplessness and loss of control over their lives
- a lack of confidence in police, resulting in a failure to report
- changing their lifestyle or location, rather than expecting that the police will put an end to the harassing conduct
- loss of trust in other people in the victim’s life, as well as the world at large
- a sense of isolation stemming from difficulty in convincing others that they are in danger
- attempts to reason with the stalker (which are likely to backfire and encourage the harassing conduct)
- inaction or delay in involving the criminal justice system, due to a lack of awareness that the conduct is criminal
- denial or embarrassment
1.5 What Do We Know About Stalkers?
More so than almost any other form of violence, stalking is highly personal, bound up in the relationship between the perpetrator and victim. Indeed, in a very real sense, the relationship is the violence; perpetrators attempt to establish or maintain a relationship—whether amorous or angry—against the victims’ wishes.
No single psychological profile exists for stalkers. Stalking and harassing behaviour can take many forms. A popular portrayal of criminal harassment is the stalking of a celebrity or public figure. However, most targets of harassment are ordinary people. In Canada, it appears that the primary motivation for stalking another person is more often a desire to control a former partner. The potential severity of stalking should not be underestimated. The psychological impact on the victim alone can be debilitating and life-altering. And, unfortunately, in far too many cases, the victim’s fear of being seriously injured or killed has been realized.
On its own, the individual conduct that makes up criminal harassment often appears innocent and harmless. The simple act of sending a dozen roses to a woman on Valentine’s Day seems romantic to many people. However, to a woman who has been abused by the sender and has attempted to keep her location secret from him, it can be a terrifying message that he knows where she is and that she cannot escape him.
Individuals who harass and stalk may possess one or more of a variety of psychological difficulties, ranging from personality disorders to major mental illnesses. Since the introduction of the first anti-stalking law in the United States, there have been a number of attempts to create stalking typologies from both the psychiatric and the law enforcement perspectives. Regardless of the typology, however, most individuals who stalk are engaging in obsessional behaviour. They are obsessional in the sense that they have persistent thoughts and ideas regarding the victim. They do not necessarily fulfill the diagnostic criteria for any serious psychiatric disorder. However, many have prior criminal, psychiatric and drug abuse histories that fall under Axis 1 diagnosis. The most common include alcohol dependency, mood disorders and schizophrenia.
1.5.1 Typologies of Criminal Harassment
Although no typology is all-inclusive, the one developed by the Los Angeles Police Department (LAPD) Threat Management Unit has been used as a theoretical framework in threat assessments by the Behavioural Sciences Branch of the Royal Canadian Mounted Police (RCMP). The relationship and context-based stalking typology (RECON) proposed by Mohandie is also used by the Behavioural Sciences Branch of the RCMP and the Threat Assessment Unit of the Behavioural Sciences and Analysis Section of the Ontario Provincial Police (OPP) and is also increasingly used elsewhere in Canada and the United States. These two typologies are used in assessing risk and determining risk management strategies.
(a) LAPD Framework (Zona 1993)
The LAPD Framework sorts stalking behaviour into three categories: erotomanic, love obsessional and simple obsessional stalker.
As established in the Diagnostic Statistical Manual, 4th ed., erotomania is a delusional disorder in which the central theme is that another individual is in love with the stalker. Erotomanic stalkers are convinced that the object of their attention, usually someone of the opposite sex, fervently loves them and would return the affection if it were not for some external influence. The person about whom this conviction is held is usually of a higher status than the stalker but is often not a celebrity. The victim could be their supervisor at work, their child’s paediatrician, their church minister or the police officer who stopped them for a traffic violation but did not charge them. Sometimes it can be a complete stranger.
Love obsessional stalkers, on the other hand, can be obsessed in their love without believing that their target loves them. Very often, the love obsessional stalker suffers from a major psychiatric illness, such as schizophrenia or mania, and wants to "win" the love of their victim.
The simple obsessional stalker is similar to what has been described, in other typologies, as the intimate partner stalker. Most of these stalkers have been in some form of relationship with their target. The contact may have been minimal, such as a blind date, but more commonly it is a prolonged dating relationship, common-law union or marriage. The perpetrator refuses to recognize that the relationship with the other person is over and the prevailing attitude is
"If I can’t have her (or him), then no one else will." The stalker mounts a campaign of harassment, intimidation and psychological terror. The motivation for the harassment and stalking varies from revenge to the false belief that the stalker can convince or coerce the victim back into the relationship. Most simple obsessional stalkers are not mentally ill. Many have longstanding personality disorders.
(b) RECON (Relationship and context-based stalking typology), 2004
The RECON proposes four types of stalking categories, based on whether there is a prior relationship between the perpetrator and target: intimate, acquaintance, public figure and private stranger.
The RECON typology responds to the desire for a simple-to-use typology whose categorization labels are linked to the degree of risk. After reviewing existing typologies, Mohandie and Meloy found that
"[i]t is clear from research on obsessional following that there is a difference between those who stalk public and private figures, and that the degree of prior relationship intimacy is an important variable, especially as it relates to risk for violence." They also found that other typologies based on mental health diagnoses and motivation mostly served to complicate typologies and resulted in overlapping categories. Furthermore, some stalking relationships may vacillate between categories over time, as motivation and emotions change. The RECON typology was found to be easy to apply, does not require an ability to evaluate the state of the stalker’s mental health or motivation, and has predictive value. Here are the four categories:
- Previous relationship/private figure context
- Intimate marriage, cohabiting or dating/sexual relationship (Intimate)
- Non-intimate employment-related, affiliative/friendship or customer/client (Acquaintance)
- No prior relationship or limited/incidental contact
- Public figure context, pursuit of a public figure victim (Public Figure)
- Private figure context-pursuit of a private figure victim (Private Stranger)
In a large study, Mohandie and Meloy gathered the following information about stalking cases falling into the four RECON categories.
Intimate stalkers are the most dangerous. They often have criminal records for violence and abuse of stimulants and/or alcohol. The frequency and intensity of their stalking often increases, and they frequently approach their targets. Over half of the group in this study physically assaulted their target, and most of them reoffended. This study confirmed the findings of other studies that sexual intimacy substantially increases the risk that stalkers will be violent toward their targets. The authors advise that
"[r]isk management should emphasize the use of intensive probation or parole supervision; heightened danger in the days and weeks immediately following separation from the intimate; the likelihood of domestic violence and emotional domination before separation; and the minimal effectiveness of psychotherapy and pharmacotherapy."
Acquaintance stalkers are violent half as often as intimate stalkers, though approximately one-third will assault their target or damage their property. When acquaintance stalkers in the study threatened their target, they did so repeatedly. On the one hand, a less intense bond with their target may make violence less likely, but on the other hand, these stalkers have a "ravenous" desire to initiate a relationship with the target. Risk management of this group should combine both law enforcement intervention and mental health treatment (based on careful psychiatric diagnosis).
Public figure stalkers generally include a greater proportion of female stalkers and male targets than other categories, but this group is still made up of more male stalkers than female, and more female targets than male. Compared to Mohandie’s other categories, these stalkers tend to be older, have a less violent criminal record, are more likely to be psychotic and are less likely to threaten the target. However, when public figure stalkers use violence, it tends to follow a perceived rejection or humiliation, and the violence is usually
"planned, purposeful, and emotionless (predatory), and involves a weapon, usually a firearm." Mohandie and Meloy recommend that risk management of this group involve professional protection of the target (since injury is likely to be more serious if violence does occur) and mental health professionals, who can tailor psychiatric and psychological interventions to mitigate risk. Prosecution with forensic hospitalization frequently results in the most helpful outcome.
Only a very small proportion (10%) of the group of stalkers Mohandie and Meloy studied were private stranger stalkers. Many of these stalkers were mentally ill men, with more than 1 in 10 showing suicidal thinking or behaviour, but they were less likely than intimate stalkers to have violent criminal records or to be abusing drugs. Half of the private stranger stalkers in the study did threaten their targets, and almost one-third were violent toward their target or their target’s property. There is a moderate risk of recidivism. The authors recommend risk management focusing on psychiatric treatment and aggressive prosecution. Given the intensity of the pursuit in this category, despite the lack of any type of relationship, mental illness is likely to be an aggravating factor for violence risk in this category.
Other Factors and Typologies
As mentioned earlier, many typologies have been proposed, focusing on factors that identify characteristics of the perpetrator, the motivation behind the stalking and the manner in which the stalking is being carried out. Although it may be easy enough for properly qualified professionals to classify stalkers into the categories below, these particular labels are not as accessible to the average criminal justice system professional, nor are they as helpful as the RECON categories in identifying the type of intervention needed to stop the stalking and prevent further harm. Some areas that leading experts in the mental health and risk assessment fields have focused on are perpetrator characteristics associated with violent recidivism in other, better studied areas of violence, such as sexual violence and intimate partner violence. One such example is psychopathy.
Psychopathic stalkers belong to a category of offenders that has been linked to a significant risk factor for violent crimes. Psychopathy is characterized by an arrogant demeanour, impulsiveness, shallow emotions, a refusal to take responsibility, a lack of remorse for one’s actions and a tendency to engage in antisocial behaviour. The motivations behind the conduct of psychopathic stalkers are markedly different from those of the majority of non-psychopathic stalkers, who seek some form of intimacy with the victim. This type of stalker often targets strangers and can resort to threats and the use of weapons. Although much research remains to be done on the specific link between psychopathy and stalking behaviour, recent findings point to several important considerations.
While it appears that only a small percentage of stalkers exhibit psychopathic traits, it is important to keep in mind that this category may present the highest risk of serious physical or psychological harm to the victim. Since psychopathy implies a lack of empathy, as well as an inability or lack of desire to form or maintain close relationships, the behaviour of psychopathic stalkers is more consistent with the typology of the "sadistic stalker," the "resentful stalker," the "predatory stalker" or the "grudge stalker." Possible motivations include establishing dominance and control over the victim, retaliating for a perceived insult, bullying or humiliating the victim, or satisfying sadistic desires. Psychopathic stalkers are also more likely to target strangers or superficial acquaintances, while non-psychopathic stalkers usually pursue those they know well, such as family members, friends and former intimate partners. In addition, psychopathic stalkers often select emotionally or financially vulnerable victims, and the frequency and intensity of harassing conduct tend to escalate with time. In view of these particular traits, law enforcement professionals should be aware not only of the potential for serious violence, but also of the need to develop management strategies tailored to avoid provoking violent behaviour in this category of stalkers.
Paraphillic (sexually deviant) stalkers are another recognized but not well-studied group of stalkers. These offenders stalk as a component of their paraphilic (sexually deviant) focus. Some rapists and paedophiles stalk because stalking is incorporated into their sexually deviant fantasies and offending. Some sexual sadists will go through "behavioural try-outs" that include stalking.
Physically violent stalkers, according to the results of a 2008 study comparing violent and non-violent stalkers in Canada, are more likely to:
- have a strong previous emotional attachment to the victim
- exhibit an intense obsession with, or fixation on, the victim, resulting in more frequent contact and more persistent harassment
- harbour a higher degree of negative emotion toward the victim, manifested by outbursts of anger, jealousy and hatred
- verbally threaten the victim
- have a history of domestic abuse toward the victim
The underlying motivations appear to be insecurity, anger, vengeance, emotional arousal and projection of blame. It would seem that the extent of emotional attachment between the victim and the perpetrator may be crucial to understanding stalker conduct. The study concluded that the above factors are much more accurate predictors of violence than the presence of mental illness or a personality disorder, a prior criminal record, or a history of substance abuse.,
Knowledge and expertise in Canada surrounding risk assessment and management have been steadily increasing and are becoming more widely accessible. Risk assessment tools are carefully tailored to specific situations, so the best tool to use in determining how to best assess and manage risk when criminal harassment is involved is one designed for this purpose, as opposed to one created to predict the risk of re-assault of an intimate partner, for example.
For more information, see 2.10 Threat and Risk Assessments or consider contacting one of the specialized police units listed in Appendix A: Experts: Police Specialists for assistance in determining the type of stalker with which you are dealing and framing the appropriate response.
1.6 Using Technology to Criminally Harass (a.k.a. Cyberstalking, Online Criminal Harassment, and Cyberbullying)
Criminal harassment can be conducted through a computer system, including the Internet. The elements of the offence remain the same, it is just that technological tools are used to commit the offence. There is considerable debate in the legal and academic literature about how to best define cyberstalking, online harassment and cyberbullying, and the extent to which existing legislation provides adequate protection against these types of offences.
1.6.1 Online Criminal Harassment, Cyberstalking and a Related Typology
The terms "cyberstalking" and "online harassment" are often used to refer to three types of activities: direct communication through e-mail or text messaging; Internet harassment, where the offender publishes offensive or threatening information about the victim on the Internet; and unauthorized use, control or sabotage of the victim’s computer. In some cyber-stalking situations, criminal harassment charges may be appropriate; however, depending on the activity involved, charges under the following sections of the Criminal Code should also be considered:
- 162 (voyeurism)
- 163.1 (distribution of child pornography)
- 172.1 (Internet luring)
- 241 (counselling suicide)
- 298-302 (defamation)
- 319(2) (wilful promotion of hatred)
- 346 (extortion)
- 342.1 (unauthorized use of a computer)
- 372(1) (conveying false messages)
- 423 (intimidation)
- 430(1.1) (mischief in relation to data)
- 402.2(1) (identify theft)
- 403(1) (identity fraud)
As new technologies have been increasing, the ways in which technology can be used to criminally harass, or facilitate the harassment, has been greatly expanding, and include the following:
Sending harassing messages (sometimes forged in the victim’s name) through e-mail or text message to the victim or to the victim’s employers, co-workers, students, teachers, customers, friends or family.
Gathering or attempting to gather information about the victim, including private information relating to his or her home address, employment, financial situation and everyday activities, or using spyware to track website visits or record keystrokes the victim makes.
Attempting to destroy the victim’s reputation by engaging in "cyber-smearing", i.e., sending or posting false or embarrassing intimate information about or, supposedly, on behalf of the victim.
Tracking a victim’s location using GPS technology (on telephones, cameras and other devices).
Watching or listening to a victim through hidden cameras or listening or monitoring devices.
Sending viruses to the victim’s computer, such as software that automatically transmits messages over a period of time.
Creating websites about the victim that contain threatening or harassing messages, or provocative or pornographic photographs.
Encouraging others to harass the victim.
Constructing a new identity to entice the target to befriend the perpetrator.
Online and offline criminal harassment are closely linked yet distinct types of behaviour, and online harassment often turns into offline harassment. The most alarming difference between the two is the ease with which the perpetrator is able to collect information about the target on the Internet, as well as access his or her private online accounts. Technology also enables stalkers to cause a great deal of distress without leaving their home, which emboldens those who would not engage in offline harassment to stalk online. Moreover, the ability of the perpetrator to hide behind the mask of anonymity or to take on a false identity can make it very difficult, if not impossible, to tell the perpetrator to stop the harassment.
The 2010 Annual Report of Ontario’s Domestic Violence Death Review Committee (DVDRC) states that it has been finding increasing evidence that information and communication technologies are being used to harass, stalk and abuse domestic homicide victims, prior to their deaths.
The use of information and communication technologies continues to be a major theme of cases reviewed by the DVDRC. Some cases involved victims that met through online dating forums. The perpetrator in one case used the dating site to threaten and harass his victim(s). In other cases reviewed, perpetrators were known to tamper with the victim’s email, including the dissemination of slanderous messages to individuals on the victim’s address list and the distribution of threatening, abusive and/or excessive messages to the victim and others using email and text services. Other cases reviewed by the DVDRC identified perpetrators that downloaded tracking devices and/or "spyware" to monitor their victim’s activities. Additional cases reviewed by the DVDRC identified perpetrators who monitored their victim’s online journal and other social networking activities.
In 2003, McFarlane and Bocij collected information from cyberstalking victims to determine whether cyberstalkers fit into the existing offline stalker typologies, or whether a specific typology for cyberstalking was warranted. They determined that it was useful to modify an existing typology, developed by Wright et al. in 1996, to better capture the true nature of cyberstalking. This typology divides cyberstalkers into 4 categories based on the nature of their relationship and their motivation for the online harassment: vindictive, composed, collective, and intimate. Vindictive cyberstalkers were the most ferocious in their pursuit of their targets. This harassment can be triggered by anything from a trivial debate to an active argument between the parties. These cyberstalkers use the widest range of technological methods to harass their victims, and tend to have a medium to high level of computer literacy. In Wright and Bocij’s research, one third of vindictive cyberstalkers had a prior criminal record, and two-thirds of them were known to have victimized others before. Composed cyberstalkers generally issue threats in an attempt to annoy and irritate the targets. These cyberstalkers do not tend to have criminal records and have a medium to high level of computer literacy. Intimate cyberstalkers use e-mail, discussion groups, and electronic dating sites to try to woo, or at least gain the attention of, their targets. They might be ex-partners or ex-acquaintances of the victims, or infatuates looking for intimate relationships. Intimate cyberstalkers tend to have the widest range of computer literacy, from fairly low to high. Lastly, collective cyberstalkers were two or more individuals pursuing corporate or non-corporate victims. Collective corporate cyberstalkers typically have taken offence for the business dealings of the corporation and are trying to discredit or silence the victim. Collective cyberstalkers of non-corporate targets typically attempt to punish a victim they believe has wronged them. Such groups may attempt to recruit others to join them in the harassment, by doing things such as giving the address of the victim to the recruits.
For information about how Canadian courts have ruled on use of technology to perpetrate criminal harassment, see Part 3 The Law.
1.6.2 Online Bullying and Cyberbullying
"involves the use of information and communications technologies to support deliberate, repeated, and hostile behaviour by an individual or group, that is intended to harm others." Cyberbullying is becoming a growing concern in many parts of the world. The definitions of cyberbullying (online bullying) and online harassment overlap one another and some situations that are labelled cyberbullying may also be criminal harassment under section 264 of the Criminal Code. To date, the term cyberbullying is most frequently used to describe hostile use of technology amongst students. Students may perceive cyberbullying to be much more harmful than offline bullying. This is due to the fact that the Internet empowers the bully by broadcasting recorded abuse to a wide audience. Furthermore, once a harmful message exists in cyberspace, it exists in perpetuity. Bullying often begins on the Internet, as classmates who will not engage in bullying in the open are more likely to do so when invisibility and anonymity protect them from retaliation by their peers or disciplinary measures by teachers.
Statistics Canada released in 2011 statistics on the prevalence of self-reported cyberbullying from the 2009 General Social Survey (GSS). The GSS definition of cyberbullying encompasses a wide range of online behaviour, so not all aspects of these activities would meet the definition of criminal harassment or other Criminal Code offences. Nonetheless, this survey provides a useful picture of the prevalence of these types of incidents in Canada as victimization on the Internet is becoming more common. The survey found that 7% of Internet users aged 18 or older had been the victim of cyberbullying in their lifetime. The most common form of bullying involved threatening or aggressive e-mails or instant messages, reported by almost three-quarters (73%) of cyberbullying victims. The second most common form of bullying involved hateful comments, experienced by over half (55%) of victims. In addition, victims of a previous violent crime were more likely to report being the victim of cyberbullying than those who had not been violently victimized (20% versus 6%). In particular, victims of sexual assault or robbery and those who reported having been the victim of two or more violent incidents within the past 12 months were most likely to have been cyberbullied; about one-third of them self-reported having been cyberbullied.
This survey also looked at child victims of cyberbullying by asking adult respondents whether any of the children (aged 8 to 17) living in their household had been the victim of cyberbullying or child luring. The results showed that slightly less than 1 in 10 (9%) adults living in a household that includes a child knew of a case of cyberbullying against at least one of the children in their household. The most common form of cyberbullying against children was threatening or aggressive e-mails or instant messages, reported by 74% of adults who knew of a case of cyberbullying against a child in their household. This was followed by hate comments sent by e-mail or instant messaging or posted on a website (72%), and use of the identity of the child to send threatening messages (16%).
Disturbingly, there have been news accounts of cyberbullied teens in Canada ending their lives in suicide. One of the biggest distinguishing factors in determining whether malicious use of technology consists of criminal harassment in bullying-type cases will be whether the online conduct is merely annoying, or whether it causes the target to fear for his or her physical or psychological safety. In fact, recent research has shown that online harassment and bullying result in higher levels of trauma and stress for the victim than more traditional forms of stalking. The psychological symptoms these victims experience may be more intense
"due to the 24/7 nature of online communication, inability to escape to a safe place, and global access of the information." The sense of humiliation they experience is often increased due to the public nature of the bullying or harassment. This type of harm was recently recognized by the Supreme Court of Canada in the civil case of AB v Bragg Communications, 2012 SCC 46.
 In 2005, the offence of voyeurism was also enacted to prohibit the secret viewing or recording of another person when there is a reasonable expectation of privacy in three specific situations and to prohibit the intentional distribution of voyeuristic material. This offence may also be applicable in some types of "stalking" cases.
 Shelly Milligan, "Criminal Harassment in Canada, 2009" (2011) Juristat, Canadian Centre for Justice Statistics, catalogue no. 85-005-x.
 UCR2 incident-based survey, Canadian Centre for Justice Statistics, May 2011 extraction.
 Milligan, supra note 3 at 3–4.
 Andrea Taylor-Butts, "Fact sheet—Police-reported spousal violence in Canada" in Family Violence in Canada: A Statistical Profile, 2009 (Ottawa: Statistics Canada, 2009, catalogue no. 85-224-X), online: http://www.statcan.gc.ca/pub/85-224-x/85-224-x2009000-eng.pdf (accessed 13 April 2011) at 26. Note that at p. 59, this publication defines
"common assault"as the type of assault falling under section 265 of the Criminal Code, as follows:
"This includes the Criminal Code category assault (level 1). This is the least serious form of assault and includes pushing, slapping, punching, and face-to-face verbal threats."This publication defines
"major assault levels 2 and 3"as assault falling under sections 267 and 268, as follows:
"This includes more serious forms of assault, i.e. assault with a weapon or causing bodily harm (level 2) and aggravated assault (level 3). Assault level 2 involves carrying, using or threatening to use a weapon against someone or causing bodily harm. Assault level 3 involves wounding, maiming, disfiguring or endangering the life of someone."
 This can likely be largely explained by the fact that current spouses are more likely to have the physical access to one another that is needed to commit assault, whereas ex-spouses wishing to harm the other may only be able to do so through criminal harassment.
 Milligan, supra note 3 at 4.
 Homicide Survey, Canadian Centre for Justice Statistics, May 2011 extraction.
 This represents police services that serve 57% of the population of Canada.
 UCR2 Trend Database, Canadian Centre for Justice Statistics, April 2011 extraction.
 In the 2004 General Social Survey (GSS), 63% of those who reported being stalked did not report the stalking to police.
 All of the facts in this section are gleaned from Kathy AuCoin’s representation of the 2004 GSS in "Stalking-criminal harassment" in Kathy AuCoin, ed., Family Violence in Canada: A Statistical Profile, 2005 (Ottawa: Statistics Canada, 2005, catalogue no. 85-224XIE), online: http://www.statcan.gc.ca/pub/85-224-x/85-224-x2005000-eng.pdf (accessed 13 April 2011). The 2009 GSS on victimization did not include the questions on criminal harassment.
 Ibid at 34.
 Ibid at 36.
 Ibid at 36.
 Ibid at 36.
 Ibid at 36.
 Use with caution; the coefficient of variation is high.
 AuCoin, supra note 17 at 39.
 Ibid at 35.
 Ibid at 35.
 Intimate partner stalking includes victims stalked by a current or former spouse, boyfriend or girlfriend.
 Aucoin, supra note 17 at 36.
 Ibid at 38.
 Ibid at 39.
 Ibid at 40.
 Ibid at 41.
 Jill Arnott, Deb George & Stacey Burkhart, Bridging the Gap: Criminal Harassment Victimization and the Criminal Justice Response (Phase II) (Regina: Family Service Regina, 2008) at 28.
 Bocij, Cyberstalking: Harassment in the Internet Age and How to Protect Your Family (Westport, Connecticut: Praeger Publishers, 2004) at 73–88.
 Emma Short & Isabella McMurray, "Mobile Phone Harassment: An Exploration of Students’ Perceptions of Intrusive Texting Behaviour" (2009) 5:2 An Interdisciplinary Journal on Humans in ICT Environments 163 at 172.
 P.R, Kropp, S.D. Hart & D.R. Lyon, Guidelines for Stalking Assessment and Management (SAM) (Vancouver: ProActive ReSolutions Inc., 2008).
 See J. McFarlane et al., "Stalking and Intimate Partner Femicide" (November 1999) 3:4 Homicide Studies, which reported at 308 that
"Seventy-six percent of femicide and 85% of attempted femicide respondents reported at least one episode of stalking within 12 months of the violent incident"whereas fewer femicide or attempted femicide victims had experienced physical assault in that time period (67% and 71%, respectively). See also Office of the Chief Coroner (2010) Annual Report of the Domestic Violence Death Review Committee, Toronto, ON., which describes harassing conduct on the part of the perpetrator, prior to the homicide, in many of the 18 cases reviewed.
 The American Psychiatry Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) categorizes each psychiatric diagnosis it contains along five dimensions (axes). Axis 1 contains clinical disorders, including major mental disorders, learning disorders, and substance abuse disorders.
 M.A. Zona, K.S. Sharma & J. Lane, "A Comparative Study of Erotomanic and Obsessional Subjects in a Forensic Sample" (July 1993) 38:4 Journal of Forensic Sciences 894–903.
 K. Mohandie et al., "The RECON Typology of Stalking: Reliability and Validity Based Upon a Large Sample of North American Stalkers" (Jan. 2006) 51:1 Journal of Forensic Sciences 147–155.
 Zona et al., supra note 41.
 K. Mohandie, "Stalking behavior and crisis negotiation" (2004) 4 Int J. Police Crisis Negotiations, 23–44.
 Mohandie et al., supra note 42 at 147–155.
 Ibid at 147.
 Ibid at 148.
 Ibid at 153.
 Ibid at 154.
 Jennifer E. Storey, Stephen D. Hart, J. Reid Meloy & James A. Reavis, "Psychopathy and Stalking" (2009) 33 Law and Human Behavior at 237–246.
 P.I. Collins, "The Psychiatric Aspects of Stalking" in J. Cornish, K. Murray, & P.I. Collins, eds., The Criminal Lawyers' Guide to the Law of Criminal Harassment and Stalking (Aurora, Ontario: Canada Law Book, 1999).
 M.J. McCullough et al., "Sadistic Fantasy, Sadistic Behaviour and Offending" (July 1983) 143 British Journal of Psychiatry at 20–29.
 Kimberley A. Morrison, "Differentiating Between Physically Violent and Nonviolent Stalkers: An Examination of Canadian Cases" (2008) 53 J Forensic Sci 742 at 747–748. The study was conducted using a sample of 103 perpetrators charged with criminal harassment from nine provinces (Ontario, British Columbia, Alberta, Saskatchewan, Newfoundland and Labrador, Manitoba, Prince Edward Island, Nova Scotia and Quebec). The nine predictor variables were degree of indications of likely obsession/fixation, degree of perceived negative affect/emotion in actions, explicit verbal threat/no threat status toward the victim, strength of emotional attachment, known substance abuse/dependency, presence of a personality disorder, presence of a major mental disorder, prior domestic violence and presence of a criminal record.
 See also Barry Rosenfeld, "Violence Risk Factors in Stalking and Obsessional Harassment: A Review and Preliminary Meta-Analysis" (2004) 31 Criminal Justice and Behavior 9. The strongest correlates of violence were found to be prior intimate relationship, threats, substance abuse and absence of psychosis. Weaker correlates were prior criminal and violence history, and personality disorder diagnosis.
 A useful definition of "cyber-crime" is used in a 2002 Statistics Canada publication:
"a criminal offence involving a computer as the object of the crime, or the tool used to commit a material component of the offence."See Melanie Kowalski, Cyber-Crime: Issues, Data Sources, and Feasibility of Collecting Police-Reported Statistics (Ottawa: Statistics Canada, 2002), online: http://www.statcan.gc.ca/pub/85-558-x/85-558-x2002001-eng.pdf.
 See Neal Geach & Nicola Haralambous, "Regulating Harassment: Is the law fit for the social networking age?"(2009) 73 Journal of Criminal Law 241–257; and Naomi Harlin Goodno, "Cyberstalking, a new crime: Evaluating the effectiveness of current state and federal laws" (2007) 72 Missouri Law Review 125–197.
 Louise Ellison & Yaman Akdeniz, "Cyber-Stalking: The Regulation of Harassment on the Internet" (December 1998) Criminal Law Review at 29.
 J.A. Hitchcock, "Cyberstalking and Law Enforcement" (2003) 70:12 Police Chief 16–27.
 Paul E. Mullen, Michele Pathé & Rosemary Purcell, Stalkers and their victims, 2nd ed. (Cambridge, U.K.: Cambridge University Press, 2009) at 153.
 Office of the Chief Coroner. (2010) Annual Report of the Domestic Violence Death Review Committee. Toronto, ON, at p. 35; and C. Southworth et al. (2005) A High-Tech Twist on Abuse: Technology, Intimate Partner Stalking, and Advocacy. Violence Against Women Online Resources, online: http://nnedv.org/docs/SafetyNet/NNEDV_HighTechTwist_PaperAndApxA_English08.pdf (accessed 7 February 2012).
 Mullen, Pathé & Purcell, supra note 62 at 154.
 Ibid at 20.
 Bocij, supra note 36 at 78.
 Mullen, Pathé & Purcell, supra note 62 at 5, 12, 15.
 Ibid at 11.
 Office of the Chief Coroner. (2010) Annual Report of the Domestic Violence Death Review Committee. Toronto, ON, at p. 35.
 Leroy McFarlane & Paul Bocij, "An Exploration of Predatory Behaviour in Cyberspace: Towards a Typology of Cyberstalkers" (2003) 1 First Monday 8 9., online: http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/1076/996 (accessed 5 May 2012).
 Jim Gibson, "The (Not-so) Brave New World of Bullies" Times Colonist (Victoria) (13 March 2010).
 Shaheen Shariff & Leanne Johnny, "Cyber-Libel and Cyber-Bullying: Can Schools Protect Student Reputations and Free-Expression in Virtual Environments?" (2007) 16 Educ. & L.J. 307 at 3–5.
 "Cyberbullying" was defined for the 2009 GSS as follows:
"Ever previously received threatening or aggressive messages; been the target of hate comments spread through e-mails, instant messages or postings on Internet sites; or threatening e-mails sent using the victim’s identity."Samuel Perreault, "Self-reported Internet victimization in Canada, 2009" (2011) Juristat, Canadian Centre for Justice Statistics, catalogue no. 85-005-x at 6, online: http://www.statcan.gc.ca/pub/85-002-x/2011001/article/11530-eng.htm
 Ibid at 8.
 Ibid at 10.
 Examples include: Amanda Todd, a 15-year old girl from Port Coquitlam B.C., whose suicide in October of 2012 was attributed to cyberbullying through the social networking site Facebook; Jamie Hubley, a 15-year old boy from Ottawa, ON, who killed himself in October of 2011 after complaining about bullying at school and on the Internet; Jenna Bowers, a 15-year old girl from Truro, N.S., commit suicide in January of 2011 after being harassed at school and bullied through a social networking site. See also: Michael Gorman, "Task force to hear from grieving mom: Murchison lost daughter to bullying" The Chronicle Herald (Halifax) (14 July 2011); and Pamela Cowan, "Family attributes suicide to bullying" Leader Post (Regina) (15 April 2011).
 PREVNet/SAMHSA Fact Sheets, "Physical Health Problems and Bullying": http://www.prevnet.ca/LinkClick.aspx?fileticket=5VWe%2f3H%2bbwI%3d&tabid=392 (accessed 7 May 2012); and see also Canada. Parliament. Senate. Standing Senate Committee on Human Right. Proceedings. (Issue No. 6, December 11, 2012).
 Elizabeth Carll, quoted in American Psychological Association, News Release, "Dealing with the Cyberworld’s Dark Side" (6 August 2011), online: http://www.apa.org/news/press/releases/2011/08/cyberworld.aspx (accessed 1 September 2011).
 In this case the Court highlights the need to protect young victims from the inherent harms of cyberbullying as these cases are brought through the justice system. The case involved a 15 year old victim of Facebook cyberbullying who requested to proceed anonymously in her application for an order requiring disclosure of the perpetrators' identities. In the judgement, Justice Abella references the 2012 Report of the Nova Scotia Task force on Bullying and Cyberbullying noting that the girl's privacy interests are tied to the relentlessly intrusive humiliation of sexualized online bullying. The Court found that while evidence of a direct, harmful consequence to an individual applicant is relevant, courts may also conclude that there is objectively discernable harm. The ruling allowed the teenager to pursue the case using only her initials but did not impose a publication ban with respect to the non-identifying Facebook content. A.Wayne MacKay, Respectful and Responsible Relationships: There’s No App for That: The Report of the Nova Scotia Task Force on Bullying and Cyberbullying (Feb.2012), (accessed 12 October 2012).
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