A Handbook for Police and Crown Prosecutors on Criminal Harassment

Part 4: Guidelines For Crown Prosecutors (continued)

4.8.2 Custodial Sentences

The chart that follows provides further insight into factors that courts take into consideration in making sentencing decisions for the offence of criminal harassment. The cases are presented in chronological order and provide trend information and guidelines in sentencing in this area. This chart only contains some of the cases in which custodial sentences were ordered, and is not an exhaustive listing of all the dispositions that have been made. For information on cases in which other types of sentencing orders were made, see the various sections after the chart.

See also Brownlee, 2006 BCPC 395, where the court emphasized that relentless and repeated conduct, such as demonstrated by the accused, can be extremely dangerous and is known to often end in tragedy. The accused called his pregnant ex-girlfriend, who had ended the relationship, over 20 times a day, followed her to home and work, watched and beset her at her house, and threatened to take her baby away.

Factors that courts take into consideration in making sentencing decisions for the offence of criminal harassment
Key Case Characteristics Case Name Sentence Profile of Accused Nature of the Harassment Aggravating Factors Mitigating Factors

Prior convictions relating to victim

Breach of court orders

Former common-law partner

Edwards
[2009] OJ No 4764 (Sup Ct) (QL)

S. 264: 4 years' custody and 3 years' probation (reduced to 16 months after credit for pre-trial custody).
Ss. 264.1: 1 year concurrent.

Other: s.109 weapons prohibition; ss. 487.051(3) DNA order.
Suggested range: 2 to 4 years' custody for serial harassers.

Male, 61 years old, 11-year period of harassment began after termination of a 24-year common-law relationship with the complainant.

Prior criminal record: 14 convictions, all post-separation, relating to threatening or harassing, and breaches of recognizance and probation orders.

Two phone messages at the complainant's workplace, containing threats of violence and death threats against the complainant and her bosses.

Victim impact statement: The complainant has lived in a state of perpetual fear and apprehension for past 10 years.

  • – Harassment of the same complainant.
  • – Domestic nature of the relationship.
  • Ineffectiveness of previous and increasingly harsher sentences.
  • – Guilty plea with no trial required.
  • – History of alcohol abuse.
  • – No criminal record before the age of 50 (when the harassment began).

Use of technology

Former same-sex intimate partner

Impact on victim

Endangerment through involvement of third parties

Disrupting complainant's work

Wenc
2009 ABPC 126; 2009 ABCA 328

S. 264: 90 days' custody, served intermittently
(the ABCA found that “the appropriate sentence in this case is 12 months' Imprisonment”).Footnote 177

Suggested range: 9 to 24 months' custody for harassment of this duration and sophistication.

“…victim of cyber-stalking is less able to escape or hide from their tormentor …[d]eterrence and denunciation are the primarily applicable sentencing principles in these …cases.”(ABPC)

Male, 37 years old, harassed his same-sex former intimate partner for 2 years after the break-up. The couple originally met online.

Prior criminal record: No.

The harassment took the form of hundreds of e-mails, false Internet postings and phone calls sent following their break-up. It continued for over 12 years. Phone calls interfered with the complainant's business by jamming the voice mail system. The accused also impersonated the complainant in chat rooms and caused strangers to arrive at the complainant's residence with expectation of sexual encounters. The victim did much of the initial investigation linking the accused to the anonymous harassment.
  • – Planned and deliberate, and inventive.
  • – The persistent, unrelenting nature of the harassment (over 1 years).
  • – Caused extreme fear and humiliation.
  • – Showed extreme insensitivity and cruelty.
  • – Minimized involvement, blamed the victim, and showed little insight into his conduct.
  • – The accused and the complainant had had an intimate relationship.Footnote 178
  • – Danger posed to the victim with involvement of third parties.
  • – Guilty plea (though the effect was diminished by the fact that the plea was 3 years after the arrest and after the preliminary inquiry started).
  • – No prior record (though the effect was diminished since the offence occurred over a long time period).

No prior criminal record

Harassment during intimate relationship

Violence

Said
[2009] OJ No 1243 (Sup Ct)

S. 264: 3 months' custody

Global sentence: 8 months' custody (includes 264, 266, and 2 x 264.1.)

Other: 2 years' probation order (including Partner Assault Response program); s. 109 weapons prohibition; ss. 487.051(3) DNA order.

Male, harassment began several months into an 11-month relationship with the complainant.

Prior criminal record: No.

The accused was possessive of the complainant. He would strike her in the face during sexual relations and loiter at her place of work. On one occasion, he threatened to kill her and harm her child.
  • – The harassment occurred over a long period of time.
  • – Assault occurred during sexual intimacy.
  • – There was a long-lasting effect on the victim.
  • – Threats of death and bodily harm were terrifying.
  • – No prior criminal record.
  • – Pleaded guilty.
  • – Showed remorse.
Short duration of harassing behaviour Rubletz
2009 ABCA 191
S. 264: 3 months' custody plus 3 years' probation (i.e., time served between sentencing and successful appeal of 2-year custodial sentence at trial).

Male.

Prior criminal record: Extensive record, including a prior s. 264 charge involving the same complainant.

24 unanswered phone calls within a 2-hour period. No threatening or abusive voice mail messages.

The Crown conceded the sentencing judge had “mischaracterized the seriousness of the communication”.

  • – Not addressed in the reported decision.
  • – Not addressed in the reported decision.

Harassment of employees' professional regulating body

Prior charges of criminal harassment

Mental health issues

Breach of court order

Bédard
2009 QCCS 2278

S. 264: 54 months' custody (reduced to 28 months after two-for-one credit for 13 months' pre-trial custody).

Other: s. 487.051(3) DNA order.

Male. Harassed employees of the Engineering Order of Quebec.

Prior criminal record: Three prior s. 264 convictions. The accused was on probation at the time of this offence.

The accused terrorized the staff with frequent and aggressive phone calls, which prompted the complainants to install an alarm button at reception. The accused was aggressive and disruptive at trial and at times had to be removed from the courtroom and observe the proceedings on closed-circuit television from another room in the courthouse. The accused was unstable and dangerous when not taking psychiatric medication.
  • – Prior criminal record for s. 264 offences.
  • – Breaching court order at the time of this offence.
  • – None.

Victim a stranger

Single incident

Kohl
2009 ONCA 100, varied, 2009 ONCA 254, leave to appeal to SCC refused, [2009] SCCA No 130 (QL)
S. 264: 2 years' custody(ONCA originally imposed a 3-year probation condition as well, but in a subsequent judgment, the Court struck the probation order since it was illegal, as the accused was serving 5 years' custody at the time)
(originally 3 years' custody at trial level).

33-year-old male. Stranger to the complainant.

Prior criminal record: Significant; included robbery, assault and sexual assault.

Accused jumped out of the bushes while the complainant was jogging, blocking her way, and then chased her down the street. Although it was an isolated incident of a relatively short duration, the conduct was deemed to be “highly threatening and persistent.
  • – Not addressed in the appellate decision.
  • – Not addressed in the appellate decision.

Former common-law partner

Ongoing intimate partner abuse

Use of a weapon

Shears
[2008] OJ No 4897 (Sup Ct) (QL)

S. 264: 2 years' custody.

Global sentence: 5 years' custody (shortened to 3 years after two-for-one credit for time served) for criminal harassment, assault causing bodily harm, uttering threats to cause bodily harm, pointing a firearm, possession of a restricted weapon and breach of a court order.

The Court stated that the sentence had to “reflect the society's revulsion of [the accused's] conduct towards a vulnerable victim, a conduct that was not the result of one incident but of several incidents."

Male. 5-year common-law relationship with the complainant. The accused also has a young child with the complainant.

Prior criminal record: Lengthy criminal record dating back to his youth, including assaults against former common-law partner.

The couple had separated and, during an argument, the accused pointed a rifle at the complainant's head. The rifle went off and injured her leg. Subsequently, the accused harassed the complainant to prevent her from reporting the shooting to the police.
  • – An escalating pattern of threats and violence to prevent the complainant from reporting the shooting.
  • – An extreme case of abuse of a common-law partner.
  • – Use of a weapon while under a weapons prohibition.
  • – Extensive criminal record, including a previous domestic assault on a different common-law partner, and breach of conditions of past sentences.
  • – A period of good behaviour for the 3 years previous to this incident.
  • – No prior weapons offences.

Prior marriage

Disrupting complainant's work

Malakapour
2008 BCCA 326
S. 264: 30 months' custody
(shortened to 2 years after two-for-one credit for 6 months of pre-trial custody).

Male, 52 years old, began harassing his wife after she left their marriage.

Prior criminal record: One breach of court order.

The harassment took place over 15 months and consisted of thousands of phone calls, many of which disrupted the complainant's work; watching and besetting of the complainant; and death threats if she would not come back to the marriage. The harassment continued despite arrest and a peace bond.
  • – Not specified in the appellate decision.
  • – Not specified in the appellate decision.

Continued harassment in custody

Former common-law partner

Cromwell
2008 NSCA 60

S. 264: 36 months' on appeal (26 months after 10-month credit for time in remand). (Originally 4 years' custody at trial level).

The trial judge relied on the sentence in O'Connor, which was subsequently reduced by the Ontario Court of Appeal.

Male. He had a common-law relationship with the complainant and was the father of three children with the complainant.

Prior criminal record: Extensive record, including for previously harassing the complainant.

While in custody for conviction for harassing his wife and subjected to no-contact court orders, the accused continued to contact the complainant via a series of letters. The first letter attempted to reconcile; the others were harassing and controlling.
  • – Not specified in the appellate decision.
  • – Not specified in the appellate decision.

Former intimate partner

Repeated offences against victim

Violence

Family support for perpetrator

Feick
[2008] 77 WCB (2d) 719 (Ont. Sup Ct)

S. 264: 1 year's custody.

Global sentence: 4 years' custody (reduced by 3 months' credit for pre-trial custody) for 2 counts of break and enter, sexual assault, repeated telephone calls under ss. 372(3), and criminal harassment.

The Court noted that this case called for denunciation and deterrence, while rehabilitation was a secondary consideration.

60-year-old male had an intimate relationship with the complainant while he was in a common-law relationship with another woman.

Prior criminal record: Some prior convictions, including one prior assault of his common-law spouse.
After the complainant ended their intimate relationship, the accused engaged in threats and assaults, breaking into the complainant's residence to sexually assault her on three occasions. This harassment and abuse continued over a 3-year period. He also followed her and embarrassed her in public places, including at her business.
  • – The accused's refusal to accept end of relationship.
  • – The prior criminal record contained convictions for violence and breach of court orders.
  • – The repeated nature of the harassment and the prolonged length of time over which it occurred.
  • s. 718.2(a)(ii) did not apply, since their relationship was not a domestic one and each had other spouses while they were romantically involved.
  • – Good behaviour in the period between the charge and the time of sentencing.
  • – Family support available.
  • – Drug or alcohol abuse was not a factor.
  • – Self-employed for 25 years.

Protection of the public

Mental health issue

Harassment of a Children's Aid Society caseworker

Richard
2008 ONCJ 343

S. 264: 18 months' custody and 3 years' probation.

Note: Extensive probation conditions were also imposed to ensure the safety of the complainant upon the accused's release, with the non-contact and non-association portions to begin immediately.

Other: s.109 weapons prohibition for life; and ss. 487.051(3) DNA order.

The need to protect the complainant and to denounce the accused's behaviour was also taken into account.

Male. Began harassing a Children's Aid Society caseworker and, incidentally, her family, out of anger at her involvement with his children.

Prior criminal record: A variety of property, narcotics and assault charges.

The accused made repeated phone calls to the home of the caseworker using coarse language and implicitly threatening the safety of the employee and her family.

The pre-sentencing report revealed obsessive beliefs about the Children's Aid Society and an inability to move away from his fixation.

  • – Prior criminal record.
  • – A 15-year gap in the criminal record immediately prior to this incident.

Continued harassment in custody

Former common-law partner

Hudgin
2008 ABPC 87

S. 264: Three charges: 6 months' custody concurrent on each of the first two charges and 1 month's custody consecutive for harassment from custody.

Global sentence: 7 months (also had two more concurrent 6-month sentences for uttering death threats, and break and enter and theft).

Male, 28 years old. He had a common-law relationship with the victim. The harassment began upon breakdown of the relationship. The accused refused to accept the end of the common-law relationship. The harassment took place during a three-month period. It began as persistent letter writing, phone calls, and visits to the complainant's home and workplace, then escalated into death threats. The accused broke into her home and damaged her property. The accused turned himself into the police but continued to call the complainant from jail, despite a s. 515(12) prohibition.
  • – The victim could not feel safe in her home because the accused had invaded it.
  • – The accused was persistent in harassing her after he was charged and in custody.
  • – Turned himself into police.
  • – Guilty plea.
  • – Minimal prior criminal record.
  • – The young age of accused.

Extensive criminal record

Former intimate partner

Breach of court order

Protection of the public

Victim impact statement

O'Connor
2008 ONCA 206 rev'g [2006] OJ No 3017 (Ct J)(QL); leave to appeal to SCC refused, [2008] SCCA No 279 (QL)

S. 264: 3 years' custody on appeal (30 months plus 414 days of time served). (Originally 6 years' custody at the trial level.)

Global sentence: 4 years for criminal harassment, assault and breach of probation.

The Court cautioned that this case does not establish a 3-year “outer limit” in sentencing serial harassers.

The Court felt there was a need to protect the public and to denounce the conduct of the accused.

Male, in a relationship with the female complainant.

Prior criminal record: 8 convictions for violence and 47 convictions against the administration of justice.
The charge stemmed from an incident where the accused followed and intimidated the complainant and her young son.

  • – The accused's prior criminal record showed a history of preying on vulnerable women.
  • – He was breaching a court order at the time of this offence.
  • – He prevented the complainant from getting help.
  • – The victim impact statement described very negative effects on the complainant.
  • – None of any significance.

Former intimate partner

Victim impact statement

Mental health issue

Use of technology

Breach of court order

Cedros
2007 ONCJ 556

S. 264: 150 days' custody on one count, and 60 days' custody consecutive on the other.

Global sentence: 275 days' custody and 3 years' probation for two counts of criminal harassment, and three counts of uttering threats and breaching bail conditions.

Other: A mandatory 10-year weapons prohibition under s. 109.

25-year-old male with no prior criminal record. He had a former dating relationship with the complainant. He sought psychiatric help throughout the period of harassment. The accused called her house up to 23 times a day; called her vulgar names; uttered numerous death threats directed at the victim, her family and her boyfriend; and threatened to rape her mother. The accused also sent threatening e-mails and texts. He hacked into a website of a professional organization of which she was a member and altered her first name to “Slutolana” and changed her password to “who_owns_you”.
  • – Duration and intensity of the illegal acts.
  • – Breach of bail conditions.
  • – Threat to rape the complainant's mother.
  • The victim impact statements attested to a “drastically diminished sense of safety”, loss of trust in people and deep humiliation experienced by the family.
  • – Guilty plea.
  • – Remorse.

Post-marriage break-up

Extensive criminal record

Victim impact statement

Brake
[2007] NJ No 359 (Prov Ct) (QL)

S. 264: 1 years' custody and 3 years' probation.

The Court noted that a shorter sentence would not adequately serve the objectives of denunciation, deterrence and retribution, which are of particular importance in cases involving domestic violence.

Male. He harassed his wife after their separation.

Prior criminal record: Extensive, including threatening the same complainant.

The accused called the complainant over 100 times and left messages with a threatening undertone. The calls continued after the complainant changed her number. Victim impact statement sets out the torment she experienced.
  • – None specifically labelled as aggravating factors.
  • – Guilty plea.

Multiple stranger victims

No prior criminal record

Victim impact statements

Leasak
2007 ABCA 38;
aff'g [2006] AJ No 431 (QB) (QL)
S. 264: 7 years' custody for nine counts under s. 264.

The accused was a 39-year-old male with no previous relationship with his 32 female victims.

Prior criminal record: No.

There were 283 separate incidents over an 11-year period (with some individual complainants being harassed for 8 years). Activities included following the victims, making obscene calls, looking up the victims' skirts, and placing pornographic graffiti on the victims' vehicles or mailboxes.
  • – Planned and deliberate.
  • – Post-offence, contacted five victims while prohibited from doing so.
  • – Significant mental impact on the victims.
  • – Duration of the offences.
  • – No prior criminal record (carries little weight when offences took place over 11 years).
  • – Guilty plea.
  • – Family support.
  • – Steady employment history.
  • – Willingness to undergo treatment.
  • – Cooperation with the police.

Breach of court orders

3 separate former intimate partners

Aboriginal offender

Stuart
2006 ABCA 168, aff'g [2005] AJ No 1409 (QB) (QL)

S. 264: 3 years' custody (1 year consecutive for each of three counts).

Global sentence: 45 months for three counts under s. 264 and two counts of breach (peace bond and undertaking).

Male of Aboriginal descent. He was in a common-law relationship with two of the victims and lived with the third for several months. Evidence of prior abuse of all three complainants.

Prior criminal record: Two prior assault charges.

The accused made repeated “manipulative, demeaning, belittling and obscene” phone calls to three complainants over a 3-year period.
  • – Record of intimate partner abuse.
  • – Committing the offences while on release.
  • – Absence of remorse.
  • – None mentioned.

Stranger to victim

Extensive criminal record

Breach of court order

Ohenhen
(2005) 200 CCC (3d) 309 (ONCA); leave to appeal refused, [2006] SCCA No 119 (QL)

S. 264: 3 years' custody (reduced to 18 months after two-for-one credit for 9 months of pre-trial custody) and 2 years' probation.

On appeal, the sentence was found to be appropriate.

Male. No prior relationship to the victim. Met the victim at the Canadian National Exhibition and phone calls began shortly after. Section 264 charge stemmed from conduct while on probation for the uttering threats conviction.

Prior criminal record: Long history of criminal behaviour, including assault with weapons and prior conviction for uttering threats against this same complainant.

The accused placed a series of harassing phone calls, which started as amicable but turned abusive, threatening and derogatory. Following conviction for uttering threats against the same complainant, the accused also sent letters to her.
  • – Prior criminal record.
  • – Prior charge for uttering threats against the same complainant.
  • – None mentioned.

Racially motivated

Neighbour complainants

Lankin
2005 BCPC 1
S. 264: 60 days' custody
(reduced to 32 days after credit for pre-trial custody) and 2 years' probation.

19-year-old male with a history of drug and alcohol abuse. He has limited reading and writing skills, and a Grade 9 education.

Prior criminal record: No.

The accused harassed his neighbours, who were of Chinese descent, by leaving notes on their property containing racial slurs and by leaving dirty clothes on their porch. His behaviour was attributed to a belief that employers were hiring minorities to save money.
  • – Motivated by bias, prejudice or hate based on race.
  • – Planning of offences, damage to property.
  • – Multiple incidents involved.
  • – Offender's young age.
  • – No criminal record.
  • – Expressed remorse.
  • – No further offences while on bail.

Breach of court orders

Post-intimate relationship break-up

Hudson
[2004] NWTJ No 44 (Terr Ct) (QL)

Global on two counts under s. 264 and two breaches: 9 months' custody and 1 years' probation.

(2 months' custody on the first s. 264 count and 1 month on the related breach of undertaking; and 5 months on the second s. 264 count, and 1 month on the related breach of probation—all consecutive.)

Male with a prior intimate relationship with the complainant.

Prior criminal record: On probation for a suspended sentence for harassing the same complainant.

The harassment began when the complainant ended their relationship. While on probation, the accused showed up in her bedroom, emotionally blackmailing her and threatening suicide if she had another boyfriend. Upon arrest, he phoned her from jail.
  • – Breach of probation order.
  • – None mentioned.
Prior marriage

Prior criminal record

Breaches of court order

Absence of violence

Finnessey (2000), 135 OAC 396 (CA); leave to appeal to SCC refused, [2000] SCCA No 565 (QL)

This case precedes the 2002 increase to s. 264's maximum penalty

S. 264: 2 years' and 8 months' custody, consecutive to other charges, on appeal (reduced to 2 years and 4 months after credit for pre-trial custody).

(Originally, 18 months' custody, concurrent with other charges, at the trial level).
Global sentencing: 4 years' custody (on appeal) for s. 264 charges, breaking and entering, damage to a police vehicle, and threatening a police officer.

The Court held that a lack of violence is not a mitigating factor in a charge of harassment.

29-year-old male. Separated from his wife, the complainant. Evidence that he suffered abuse as a child.

Prior criminal record: 36 prior convictions, including prior assault and break and enter charges, and a history of violating parole conditions.

The accused broke into his ex-wife's home and terrorized her for several hours, threatening to kill her and her family. Over the next 15 months, the accused harassed the complainant. He phoned her hundreds of times, broke into her home, evaded arrest, and taunted her and the police.
  • – Extensive criminal record, including breaches of court orders.
  • – Violation of parole and escaping from custody.
  • – A prior s. 264 conviction involving the same complainant.
  • – Not applicable.

Deterrence and denunciation of domestic violence

Former intimate partner Breach of court orders

Bates (2000), 146 CCC (3d) 321 (Ont CA)

This case precedes the 2002 increase to s. 264's maximum penalty

Global sentencing: 30 months' custody on appeal for 11 charges, including one count of criminal harassment, one count of uttering a death threat, three counts of assault, and six breaches of judicial interim release orders.

(Originally 14 months' custody and three years' probation at the trial level.)

The Court emphasized the need for denunciation and general deterrence to the community, and specific deterrence to individual offenders.

Male. He had an intimate relationship with the complainant. He was married to a different woman during and after the affair and afterward. He had a history of depression.

Prior criminal record: Two prior convictions for driving offences.

The harassment began when the complainant broke off their relationship after he assaulted her. The accused continually contacted and threatened her. At one point, the complainant's father found the accused waiting in the complainant's home when she was out.
  • – Escalating pattern of harassment over 3 months, including an assault.
  • – Predatory following.
  • – Harassing the complainant's friends.
  • – Ineffectiveness of three prior court orders.
  • – Final threat of homicide and suicide with a realistic-looking weapon.
  • – Guilty plea on some counts, (though the Court noted that the complainant still had to testify at trial).
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