A Handbook for Police and Crown Prosecutors on Criminal Harassment

Part 4: Guidelines For Crown Prosecutors (continued)

4.8.3 Dangerous and Long-Term Offender Applications

  • In appropriate cases, consideration may be given to bringing a dangerous or long-term offender application, given that a conviction of criminal harassment can qualify as a "serious personal injury offence", which is the prerequisite for a dangerous offender or long-term offender application.Footnote 179 On July 2nd, 2008, significant reforms to the dangerous and long-term offender provisions came-into-force, designed to respond to the Supreme Court of Canada decision in Johnson, 2003 SCC 46. The Court in that decision held that for the provision to be constitutional, a sentencing court could not imprison the offender indeterminately if the offender could be successfully managed under a lesser sentence, such as a long-term offender supervision order. The 2008 amendments changed the procedure so that where an offender meets the dangerous offender criteria, the court shall designate the individual as a dangerous offender, and then impose the appropriate sentence, either an indeterminate sentence, a determinate sentence with a long-term offender supervision order or a regular sentence. In a major reform to the provisions, if an individual designated as a dangerous offender but sentenced to a long-term supervision order eventually breaches a condition of the order once released into the community, the individual is sentenced as an existing dangerous offender. If the court is satisfied that the risk the offender poses to public safety cannot be successfully managed in the community, an indeterminate sentence may be imposed.
  • For an example of a case in which an offender who had been convicted of criminal harassment was found to be a dangerous offender, and an indeterminate term of imprisonment was imposed, see May (2007) 78 WCB (2d) 372 (Ont Sup Ct) (QL), where the accused, who had assaulted his girlfriend, broke into her house and continuously called her. His previous criminal record included stalking and threatening to kidnap two former girlfriends after they had ended the relationship. Following one episode, weapons—including an axe and a loaded rifle—were found in his vehicle, which was parked outside the girlfriend's house. His violent behaviour escalated with alcohol consumption. The accused was diagnosed as a psychopath and a pathological liar, unlikely to be able to follow through with rehabilitation. He presented a high risk of violence in a future domestic relationship. The victim impact statements were very similar and attested to the profound life-changing fear that the accused instilled in the victims.
  • In other cases, a long-term offender designation was found to be more appropriate. See Desjarlais, 2008 ABQB 365, where the Crown sought a dangerous offender designation, but the accused was instead designated as a long-term offender and received a global sentence of 10 years imprisonment followed by 10 years of community supervision. The predicate offence was a conviction for aggravated assault, criminal harassment and kidnapping of a woman with whom the accused had previously lived. The accused's criminal record comprised more than 60 offences; however, only 7 of those were considered violent offences. Even though the predicate offence was violent and there was a substantial risk of reoffending, there was no pattern of violence against a particular type of victim, no lasting physical injuries were inflicted, and there were sufficiently long intervals of time between previous offences.
  • In Elizee (2007) 72 WCB (2d) 777(Ont Sup Ct), the accused was declared a long-term offender, and given a sentence of 5 years' imprisonment followed by a 10-year community supervision order, even though he fit the profile of a dangerous offender, since the Court found there was a reasonable possibility that the risk could be managed in the community. The accused was convicted of criminal harassment, assault causing bodily harm, unlawful confinement, attempted extortion and possession of prohibited weapons. He had been simultaneously involved in several intimate relationships with vulnerable young women, on whom he inflicted serious domestic violence.
  • Where a Crown brings a dangerous offender application but the court finds the criteria for such a designation is not met, the court may instead impose a long-term offender sentence without further application of the Crown.
  • When an application for a dangerous or long-term offender designation is not successful, consideration should be made to submitting information about the offender to the National Flagging System ("NFS") High-Risk Offenders (see 2.15 The National Flagging System (NFS) for High-Risk Offenders).

4.8.4 Conditional Sentences

Not available when proceeding by indictment

Conditional sentences are available for a conviction of criminal harassment, when the Crown has proceeded summarily. A conditional sentence has not been available for a conviction of criminal harassment, where the Crown proceeds by indictment, since December 1, 2007. As of November 20, 2012, amendments to the conditional sentencing regime under section 742.1(f) the Criminal Code, state that conditional sentences are not be available for the offence of criminal harassment under section 264 when prosecuted by way of indictment.Footnote 180 Between December 2007 and November 20, 2012, subsection 742.1 stated that a person convicted of a "serious personal injury offence" as defined in section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment (the maximum term of imprisonment being 10 years or more) was not eligible for a conditional sentence. The definition of a "serious personal injury offence" includes conduct likely to inflict severe psychological damage upon the victim, which captures the offence of criminal harassment, and removed the possibility of a conditional sentence where it was prosecuted by way of indictment.

When proceeding on summary conviction

A conditional sentence may nevertheless be an appropriate disposition in a criminal harassment case, where the Crown elects to proceed summarily.

The Supreme Court of Canada stated clearly in Proulx, [2000] 1 SCR 61, that there should be no judicial presumption for or against the use of conditional sentences for any category of offence. The existing pre-requisites, in section 742.1 of the Code, for the use of a conditional sentence were then as follows: that the offence not provide for a minimum penalty; that the sentence be less than two years; that the offender not be a danger to the community; and that the sentence be consistent with the purpose and principles of sentencing, including denunciation, deterrence and incapacitation. The Court also emphasized that conditional sentences should include both punitive and rehabilitative objectives, and that conditions such as house arrest or curfew should be the norm. Bailey (1998), 124 CCC (3d) 512 at para 17 (Nfld CA), considered the types of conditions that may be imposed as part of a conditional sentence and stated that Parliament's intention in enacting the conditional sentencing provisions would be best "served by conditions which may limit the liberty of the subject but allow him or her to serve the sentence in the community."

The factors that have frequently led courts to reject imposing a conditional sentence for a criminal harassment conviction, where a sentence of less than two years is appropriate, include the following: a significant risk of reoffending; victim safety; and the fact that a conditional sentence would not provide the specific and general deterrence warranted by the gravity of the conduct in question.

Conditional sentences granted

In Colquhoun, 2007 ONCJ 499, the accused repeatedly contacted his former partner and damaged her car after she refused to take him back following a break-up that he initiated. Aggravating factors included persisting with harassing communications despite warnings from the police and a complete lack of remorse. The Court stated that the sentence would have been served in jail had it not been for mitigating factors, which included the accused's "impeccable" background, exemplary family members, favourable references from a past employer and payment of restitution in the amount of $1,000, as well as the fact that the accused had undergone counselling and had been given a good prognosis. A 60-day conditional sentence was imposed, followed by 18 months on probation.

In DIDB, 2006 QCCA 460, the accused began harassing the complainant after the latter ended their three-year romantic relationship. The Court described the appellant's conduct as extremely possessive and stated that its repetitive nature, along with the "diverse means by which he brought it about", was consistent with the concept of criminal harassment. The accused telephoned the complainant relentlessly and left numerous messages at her home and work, frequently visited her without warning, followed her on the street, hovered around outside her apartment and filmed her at work. He also sent nude photographs of the complainant to her workplace and threatened to show a video of their sexual activity to her parents, friends and colleagues. At trial, the accused was convicted of criminal harassment, mischief, sexual assault, extortion and assault, and sentenced to 18 months in prison. After acquitting the accused of sexual assault and mischief, the Quebec Court of Appeal substituted a 12-month conditional sentence, allocated for 12 months on one count of criminal harassment (with 6 months for extortion and 1 month for assault to be served concurrently). The accused was ordered to remain at his residence for the first 6 months and a curfew was imposed for the remaining 6 months. The sentence was followed by a two-year probation period.

Conditional sentences denied

In Cooper, 2009 BCCA 208, a joint submission asking for a conditional sentence of 15 to 18 months was denied in view of the offender's possessive and violent conduct following a marriage breakdown. The Court found that the offender was unlikely to abide by a conditional sentence, given his history of previous breaches of probation and recognizance orders and it was, therefore, reasonable for the joint submission to be set aside at trial. In Hudgin, 2008 ABPC 87, a conditional sentence was held to be inappropriate in part due to the fact that the accused trivialized the offences and refused to take any responsibility. He was also at a moderate to high risk of reoffending and needed psychiatric counselling.

In Kelly (2004), 233 Nfld & PEIR 108 (Prov Ct), the Court denied a conditional sentence, which was being sought to protect his employment. The accused repeatedly called, threatened and followed the complainant after she had ended their 24-year marriage. He pleaded guilty to all the charges, consisting of criminal harassment, three counts of breach of a recognizance order and uttering death threats. The accused was 51 years old with no previous criminal record and was responsible for the support of one minor child and two adult children. The Court held that imposing a conditional sentence "would be tantamount to the Court saying to the accused: even though you have ignored the Court's order on three separate occasions, you will now be released on another Court order."A 60-day intermittent sentence served on weekends, followed by two years of probation, was found to be more appropriate.

Compulsory conditions of conditional sentence order (subsection 742.3(1))

Keep the peace and be of good behaviour.

Appear before the court when required to do so by the court.

Report to a supervisor

  • within two working days, or such longer period as the court directs, after the conditional sentence order is made; and
  • thereafter, when required by the supervisor and in the manner directed by the supervisor.

Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor.

Notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or supervisor of any change of employment or occupation.

Optional conditions of conditional sentence order (subsection 742.3(2))

Abstain from

  • the consumption of alcohol or other intoxicating substances; or
  • the consumption of drugs except in accordance with a medical prescription.

Abstain from owning, possessing or carrying a weapon.

Provide for the support or care of dependants.

Perform up to 240 hours of community service over a period not exceeding 18 months.

Attend a treatment program approved by the province:

  • For example, completion of an intensive sexual offender treatment program: See PLA, 2003 ABPC 179, where the accused was given a conditional sentence of two years less a day, and three years' probation. The accused had repeatedly watched and driven by two female 13-year-old complainants as they each walked home from school. When the police seized his van, they found duct tape, gloves, a balaclava, and a case containing film, condoms and rubber gloves. The accused had one previous conviction for attempted rape and was a suitable candidate for community supervision, but without counselling, he had a moderate risk of re-offending.

Comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences. Some conditions that have been imposed as "other reasonable conditions" are as follows:

  • No contact or communication with the victim: Almost all conditional sentences for criminal harassment convictions include a condition prohibiting the offender from contacting or communicating with the victim, either directly or indirectly. Where the offender and victim have children together, see text box: What to do about the children when there's a no-contact order between the parents for considerations to take into account.
  • House arrest: In Perrier (1999), 177 Nfld & PEIR 225, at para 30 (Nfld SC (TD)), the Court imposed a condition requiring the accused to stay in his home, with a list of exceptions specifying when he could leave. For example, these exceptions allowed him to receive medical and dental treatment, attend meetings with legal counsel, and pursue employment or education. See also, DIDB, 2006 QCCA 460, where the accused was ordered to remain at his residence for the first six months and a curfew was imposed for the remaining six months. The sentence was followed by a two-year probation period.
  • No operation of a motor vehicle unless a named person is a passenger in the vehicle: See the remarks at sentencing for Gerein, (April 7, 1999), Vancouver C39753-01-DD (BC (Prov Ct)); finding of guilt reported at [1999] BCJ No 1218 (Prov. Ct.) (QL).
  • No possession of a camera while in a motor vehicle: See the remarks at sentencing for Gerein, (April 7, 1999), Vancouver C39753-01-DD (BC (Prov Ct)); finding of guilt reported at [1999] BCJ No 1218 (Prov Ct) (QL).
  • No operation of a motor vehicle unless the accused has previously provided his supervisor with the following information in writing: year, make, model, colour, vehicle identification number, name of registered owner and licence number. See PLA, 2003 ABPC 179 (facts outlined above).
  • Requirement to report any romantic relationship or sexually intimate relationship to the conditional sentence supervisor: See Carvalho, [2002] BCJ no 2819 (Prov Ct)(QL).

4.8.5 Probation Conditions

Mandatory conditions (subsection 732.1(2))

Keep the peace and be of good behaviour: See Solomon (2007), 74 WCB (2d) 262 (Ont Sup Ct), where the accused appealed the length of his probation order, which required him to keep the peace for two years. The accused had been convicted of criminal harassment after he had driven his truck to within 10 to 15 feet of the complainants' home and began yelling threatening obscenities. The Court dismissed the appeal, since a requirement to keep the peace for two years toward the complainants cannot be seen as an onerous sentence.

Appear before the court when required to do so by the court.

Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

Optional conditions (subsection 732.1(3))

Do not contact or communicate with the victim, either directly or indirectly. Note that where the complainant and accused have children together, the court may need to consider how a non-communication order prohibiting communication between the parents will impact on the ability of either of the parents to have contact with the children, while addressing the safety needs of the complainant. For considerations that should be taken into account with these types of conditions, see Text box: What to do about the children when there's a no-contact order between the parents.

Refrain absolutely from being present at, or within a specified distance of, the victim's place of employment and place of residence (as well as those of any other named persons, such as family, friends or other intimates).

Refrain absolutely from being present at other designated locations: In Sayyeau, [1995] OJ No 2558 (Prov Div) (QL), the offender was prohibited from being present within the city of Cornwall on Sundays, as well as at certain other locations (malls, restaurants and parks on specified days, or at specified times), to allow the victim the freedom to walk about without any fear of further molestation. See also Bailey (1998), 124 CCC (3d) 512 (Nfld CA), where the Newfoundland Court of Appeal upheld a condition that prohibited the offender from participating in a regatta for the term of his conditional sentence; this condition gave the victim true freedom of choice to continue participating in the event. The Court of Appeal did, however, strike out a condition that prohibited the offender from coaching young females, as the evidence did not support the conclusion that he had demonstrated a pattern of harassing women attending the regatta.

Be under the supervision of the probation officer and report to the probation officer forthwith and thereafter at such times and places as the probation officer shall direct.

Make efforts to seek and maintain employment or education, as approved by the probation officer (Gares, 2007 ABPC 60). See also Lankin, 2005 BCPC 1.

During the term of probation, undergo whatever assessment, counselling and treatment the probation officer or any other professional deems necessary, in light of the offender's conduct that gave rise to the charge, or in light of any other concern:Footnote 181 Treatment programs that address spousal abuse may be imposed; see Prakash, 2009 ONCJ 197 (QL), where the Court imposed the condition to complete the Partner Assault Response (PAR) program and any other counselling the conditional sentence supervisor recommended.

Abstain from consuming alcohol or other intoxicating substances or drugs, except in accordance with a medical prescription: See Brake, [2007] NJ No 359 (Prov Ct) (QL), where the offender was prohibited from the use, possession or consumption of alcohol due to the fact that many of his crimes were committed while he was under the influence of alcohol. Attending treatment or counselling programs to address substance abuse may be imposed as a term of probation (O'Connell, [2005] OJ No 4783 (Ct J) (QL)). However, note Shoker, 2006 SCC 44, where the Court held that a condition to provide bodily samples for testing to ensure compliance with a condition to abstain from drugs and alcohol was not authorized by the Criminal Code. In response to this decision of the Supreme Court of Canada, Bill C-30, which restores the authority for a court to impose a drug and alcohol prohibition as a condition of probation, was passed by Parliament and given Royal Assent on March 23, 2011, but had not yet come into force at the time this Handbook was published.

Reside in a designated mental health institution as a condition of the probation order: See Rosato, [2007] OJ No 5481 (Sup Ct) (QL), where the accused was compelled to reside in a psychiatric hospital for a period of three years.

Probation conditions prohibiting or limiting Internet access may be appropriate when a computer was used to commit the crime. In RWG, (2007)] BCPC 441, where the offender was a troubled young man with an extensive criminal record who harassed and threatened a teenage girl whom he met on an Internet social networking site, the Court imposed such a condition prohibiting access to any Internet sites or services that allow for social interaction. See also Cholin, 2010 BCPC 417. These are in contrast to Wenc, 2009 ABPC 126, varied 2009 ABCA 328, where the Court chose not to limit access to a computer despite prolonged and serious online harassment, including the use of false identities and third-party computers.

Prohibiting or restricting computer access for child sexual exploitation cases

Another area where probation conditions prohibiting or restricting access to computers or the Internet is in sentencing for Internet child exploitation (child pornography or luring cases). In the child exploitation context, there does not seem to be any dispute that probation conditions dealing with access to computers are appropriate since the offences were committed through use of a computer. In fact, effective August 9, 2012, section 161 of the Code has been amended to require a judge to consider prohibiting suspected or convicted child sex offenders from having any unsupervised use of the Internet or other digital network.Footnote 182 This issue is complicated by the fact that computers are becoming ubiquitous in modern society and the courts have begun to carve out special protections and rules for the investigation or search of computers and the data they contain. In some cases, a complete prohibition of computer use has been seen by the courts as problematic, so instead conditions restricting computer use and allowing for monitoring of compliance through conditions permitting the police to search the residence of the offender or requiring the installation of computer monitoring software have been used. (See for example Kwok (2007), 72 WCB (2d) 533 457 (Ont Sup Ct)). However, many courts deciding child exploitation cases prefer to ban the possession or use of computers by the offender in their home due to the perceived unconstitutionality of enforcing or monitoring compliance with conditions restricting computer use. The conditions monitoring compliance tend to rely on random search clauses aimed at gathering evidence for enforcement purposes, which are being found to be unconstitutional as per Shoker, 2006 SCC 44. See for example Smith, [2008] OJ No 4558 (Sup Ct)(QL), in which, though the Crown was prepared to allow computer and Internet use in the home if it was monitored and subject to random searches, the Court preferred to prohibit all use of computers, outside of the workplace, to the unconstitutionality of such monitoring; and Unruh, 2012 SKPC 51, in which the Court held it was unconstitutional to order such monitoring, even where the accused was prepared to consent to it. In Yau, 2011 ONSC 1009, the Court was not prepared to order any conditions banning the use of computers, other than that in paragraph 161(1)(c), prohibiting the use of computers for the purpose of communicating with persons under the age of 16.Footnote 183 Unruh further illustrates that in order for such conditions to be appropriately authorized as reasonable conditions for the protection of society and facilitating the offender's reintegration into the community, under paragraph 732.1(3)(h), the conditions must not contain broader restrictions than are necessary to protect society, within the context of the offence for which the sentence is being imposed, nor making it too difficult for the offender to successfully reintegrate into society, especially given the need for using technology in the workplace.

4.8.6 Breach of Probation

Consider charging the offender with any breach of probation conditions (section 733.1) or alleging any breach of conditional sentence conditions (section 742.6). See, for example, Boyd, [2008] OJ No 4434 (Ct J) (QL), where the Court sentenced the offender to a global jail term of 13 months and four days', plus three years' probation for threatening death, harassing phone calls, and four counts of breaching probation (no contact and keep the peace provisions). The Court imposed 3 months' concurrent custody on one of the breach of probation charges, and 3 months' consecutive on the other since the offender's criminal record already contained a number of breach charges. See also Hudson, [2004] NWTJ No 44 (Terr Ct) (QL), where the Court imposed a sentence of 11 months for two charges under section 264, 1 month for a breach of probation and 1 month for a breach of undertaking.

4.8.7 Fine

The imposition of a monetary penalty, in combination with probation, and restitution may be appropriate. See Wall (1995), 136 Nfld & PEIR 200 (PEISC (CA)). In this case, the Court imposed a $1,000 fine, a restitution order and three years' probation.

4.8.8 Restitution

Under section 738, the court may order restitution to the victim for ascertainable costs arising from the commission of the offence. See, for example, Siemans (1999), 136 CCC (3d) 353 (Man CA).

4.9 Ancillary Sentencing Orders

4.9.1 Firearms/Weapons Related Orders

(a) Firearms/Weapons Prohibition

Where the offender is convicted, or discharged under section 730 of the Criminal Code, of criminal harassment, subsection 109(1) of the Criminal Code provides for a mandatory prohibition order, in addition to any other punishment that may be imposed (or any other condition prescribed in the discharge).

  • First offence: The court must prohibit the offender from possessing any firearms, other than a prohibited or restricted firearm, and any cross-bow, restricted weapon ammunition and explosive substance for at least 10 years after the offender's release from prison (or ten years after the date of the conviction or discharge where no imprisonment is imposed); and the court must prohibit the offender from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
  • Second or subsequent offence: The court must prohibit the offender from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life. Note that various provincial appellate courts have held that, under subsection 727(1), the mandatory 10-year prohibition order is not available unless the Crown proves that the accused was notified that the Crown would be seeking greater punishment due to earlier convictions. See Jobb (1988), 43 CCC (3d) 476 (Sask CA); Ellis (2001), 143 OAC 43 (CA); and Caplin, [2001] JQ no 5941 (Qc CA)(QL).

It is still possible to obtain a firearms prohibition order where there has not been a conviction for criminal harassment, or another offence requiring a prohibition order under section 110. A peace officer or firearms officer may also apply to a provincial court judge for a firearms prohibition order under section 111 where he or she "believes on reasonable grounds that it is not desirable in the interests of the safety of the person against whom the order is sought or any other person that the person against whom the order is sought should possess any such thing".

Section 113 allows for the partial lifting of a prohibition order where the person establishes, on a balance of probabilities, that he or she requires a firearm or restricted weapon for sustenance hunting or because the prohibition order would deprive the offender of the only viable employment available to him or her.

For an example of a lifetime weapons prohibition in an extreme case of spousal abuse, see Shears, [2008] O.J. No. 4897 (Sup Ct) (QL). In this case, the accused had a history of perpetrating intimate partner abuse and was also under the restriction of a 10-year weapons prohibition during the offence for which he was being sentenced, where he threatened his common-law partner by holding a gun to her head.

(b) Requirement to surrender

Section 114 provides that the authority making the prohibition order may require that the person against whom the order is made to surrender "(a) any thing the possession of which is prohibited by that order that is in the possession of the person on the commencement of the order, and (b) every authorization, licence and registration certificate relating to any thing the possession of which is prohibited by the order that is held by the person on the commencement of the order".

(c) Forfeiture

Section 115 provides that weapons in the possession of a person who has been prohibited from possessing weapons are forfeited unless the prohibition order states otherwise.

(d) Authorization Revoked or Amended

Section 116 provides that any documents relating to weapons that a person is prohibited from possessing are revoked or amended when the prohibition order commences.

(e) Offence of possession of prohibited item contrary to order

When the individual continues to possess the prohibited items, contrary to the prohibition order, commits an offence under section 117.01, which carries a maximum penalty of ten years imprisonment on indictment.

(f) Chief Firearms Officer

Where a court makes, varies or revokes a firearms prohibition order, the court must notify the Chief Firearms Officer without delay (section 89 of the Firearms Act).

4.9.2 Victim Surcharge

A victim surcharge will be imposed in every case unless the offender satisfies the court that payment of the surcharge would cause undue hardship to the offender and his or her dependants. See Rowe (1994), 126 Nfld & PEIR 301 (Nfld SC (TD)).

Case law has confirmed that a victim surcharge is appropriate in cases of criminal harassment, since it is the type of offence that can cause long-term harm to the victims, who often find themselves in need of various assistance programs (DWH, [2005] BCSC 24768, aff'd Hawkins, 2007 BCCA 487). In this case, the accused was ordered to pay $300 in relation to the criminal harassment charge and $100 pertaining to the charge of uttering threats.

The court may exempt the offender from payment of the victim surcharge where the offender satisfies the court that, prior to incarceration, the offender did not have stable employment for many years (Shears, [2008] OJ No 4897 (Sup Ct) (QL)). The court may also waive the victim surcharge where the offender is unemployed (RWG, 2007 BCPC 411) or impecunious (Brake, [2007] NJ No 359 (Prov. Ct.) (QL) and Strickland, [2004] NJ No 368 (Prov Ct)(QL)). See also Richard, 2008 ONCJ 343, in which no victim surcharge was imposed in view of the offender's incarceration and the fact that he had previously lived on a disability pension.

Note that on April 24, 2012, Bill C-37, Increasing Offenders' Accountability for Victims Act, was introduced. This Bill would amend the Criminal Code by doubling the victim surcharge that offenders must pay, and ensuring that the surcharge is automatically applied in all cases. The proposed amendments would make the victim surcharge mandatory for all offenders, repealing the current provisions that allow offenders who can demonstrate undue hardship to be exempted from paying the surcharge.

4.9.3 DNA Orders

The Crown should consider making an application for a DNA order upon sentencing. Criminal harassment is a secondary designated offence under section 487.04 of the Criminal Code. Therefore, a DNA collection order may be granted if the judge is satisfied that it is in the best interests of justice to do so. The burden of proof is on the Crown to convince the court to make the order. In deciding whether to grant the order, the courts are required to consider the following factors:

  • the criminal record of the person or young person
  • the nature of the offence and the circumstances surrounding its commission
  • the impact such an order would have on the person's or young person's privacy and security of the person

4.10 Victim Impact Statements

The Criminal Code requires the court to consider statements that victims have submitted to the court, in accordance with subsection 722(2), for the purpose of determining the sentence to be imposed on offender. Victim impact statements may be prepared for submission at the sentencing hearing. These statements provide an opportunity to describe the harm done to, or loss suffered by, the victim as a result of the commission of the crime.

Victim impact statement programs exist in some provinces to help victims complete their statements. Practices regarding when and how the statement is gathered vary among jurisdictions.

Section 722 of the Criminal Code directs the victim to file her or his statement with the court. The court provides a copy of the statement to the offender, or their lawyer, and the prosecutor after a determination of guilt. Having the victim provide a copy of the victim impact statement directly to the court, rather than to the police or prosecutor, prevents a situation in which the prosecutor would be obligated to disclose the statement to the defence prior to a finding of guilt. If this were to occur, it might provide the defence with additional information on which to cross-examine the victim.

Judges are required to inquire whether the victim has been informed of the opportunity to prepare a statement and may adjourn the proceedings to permit the victim to prepare a statement. Upon request, the victim shall be permitted to read the statement.

In Gares, 2007 ABPC 60, evidence of lasting psychological damage presented in the victim impact statement was considered an aggravating factor. The accused was sentenced to serve 13 months in prison, having spent 5 months in pre-trial custody. See also Cedros, 2007 ONCJ 556, where the Victim Impact Statement attested to a "drastically diminished sense of safety", loss of trust in people and deep humiliation experienced by the family of the complainant. In this case, the accused had repeatedly called the complainant and her family, and made serious threats of violence against the family members.

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