A Handbook for Police and Crown Prosecutors on Criminal Harassment

Part 2: Guidelines For Police: Investigating Criminal Harassment

The investigation of criminal harassment cases involves basic case development as well as the use of crime detection strategies. It may differ somewhat from investigation of other violent offences in that criminal harassment often involves conduct that, in isolation, appears innocent and harmless. As criminal harassment is often a progressive crime that wears down its victims over time, early, effective intervention can go a long way toward preventing more serious psychological harm and escalation of the harassment into violence or homicide. The objective of a police investigation in these cases is two-fold: to stop the harassment, as well as any other acts of violence, at an early stage; and to collect evidence to present a compelling case for prosecution. Since criminal harassment is a crime that may include a pattern of behaviour carried out against the victim over an extended period, an investigation can be time consuming and may involve numerous police reports.

Many targets of harassment say that one of the most frustrating aspects of being harassed is "not being taken seriously" by those whom they tell about the harassment. "Many stalking victims spend an inordinate amount of time attempting to convince others that they are being stalked and that they are in danger. Stalking victims need their experience and their response validated as normal reactions to a very abnormal situation. They also need the risk they face, and their requirement for protection, to be taken very seriously."Footnote 83

Police practices and policies may vary from one jurisdiction to another. These guidelines should be considered in conjunction with other applicable policies (including provincial policies relating to spousal assault) and forms, as well as other remedial legislation (such as provincial civil legislation for victims of family or domestic violence). Keeping the victim informed and involved in the investigation is important in any offence, particularly in cases involving partner or spousal abuse.

The police guidelines in this handbook are based on strategies developed by the Vancouver Police Department's Criminal Harassment Unit. This unit has found that police intervention is most effective once the nature of the stalking case has been identified and a strategy has been developed to manage and, ideally, resolve the problem.

Investigators should be aware of "false victimization syndrome" involving cases where a complainant may falsely allege a case of criminal harassment. The motives for these complainants to falsify an allegation of stalking include: the need for an alibi or excuse for personal behaviour; the desire for reconciliation or a closer attachment to someone by placing that person in the role of rescuer; the need for revenge against someone who has rejected them or threatens their security; or to attract attention and sympathy.Footnote 84 Note that it should not be concluded that a victim is making false accusations without extremely thorough investigation: "all victim reports warrant careful, complete, and timely investigation characterized by professionalism and respect that will prevent any secondary victimization by the investigating process."Footnote 85

2.1 Complainant Interview

This section of the Handbook, and many of the sections that follow, suggest methods of collecting evidence and types of evidence to collect. Courts in different jurisdictions may look for specific types of evidence, so it is important to be familiar with and use local precedents and inventories where they exist. Consulting with specialized police officers and units with expertise in the area of your investigation, for example criminal harassment, intimate partner violence, or child victims is highly recommended whenever possible.

Interview the complainant thoroughly. Advise the complainant to be specific and accurate, and to neither minimize nor exaggerate. Police also must not minimize the situation. The possibility of stalking and the future risk of physical violence should be considered whenever a harassment-type offence is reported (such as harassing or obscene phone calls, following, or unusual incidents involving mischief or vandalism).

Do not disregard the context in which the stalking behaviours are happening. "The whole story needs to be heard" from the perspective of the complainant's history with the suspect in order to properly assess the reasonableness of the complainant's fear in the circumstances.Footnote 86

Be sensitive to the personal situation of victims and their state of mind, including the psychological and emotional distress that they are likely experiencing. They may require the assistance of a support person and/or interpreter. Keep in mind that due to the cumulative effect of repeated harassment and fear, targets may become hyper-sensitive and appear to be overreacting to individual incidents, if not considered in light of all that has occurred.Footnote 87

Inform the complainant that criminal harassment is a criminal offence. Emphasize the seriousness of the offence. Be clear with the complainant regarding the potential threat.

Obtain a detailed chronology of all relevant incidents, including words uttered or gestures made by the suspect, and conversations and other communications with the suspect. Complainants usually need sufficient time, a calendar, and access to their own papers and documents to produce a clear chronology. Determine whether and how the victim has directly or indirectly, through family or friends, indicated to the suspect that any contact is unwelcome. Ascertain where and when the conduct occurred, as these factors can affect the victim's fear.

Ascertain whether the incident(s) involved others or occurred in the presence of others (such as family, friends, co-workers or neighbours).

Obtain background information on any previous relationship between the victim and the suspect (such as whether there have been any previous incidents of domestic violence; whether the victim has communicated to the suspect any interest in a reconciliation; or whether any friends or family have been pressuring the victim to reconcile with the accused or to not contact the police).

Obtain information about the impact that the suspect's conduct has had on the complainant. One effective way to do this is to ask the complainant to describe a typical day before the criminal harassment began, and then to describe a typical day since the criminal harassment has begun.Footnote 88 Has the conduct caused the complainant to fear for his or her safety, or that of someone known to him or her? If so, how? Has the complainant taken any security or preventative measures, such as getting an unlisted telephone number, or changing his or her residential or work address? Has the complainant sought medical treatment or counselling?Footnote 89 (See the list of specific examples of types of impacts in 2.13 Police Report to Crown Counsel).

Where the complainant and suspect had a prior intimate relationship involving children, ask the complainant whether they are currently involved in a custody or access legal action. Determine what, if any, custody and access, or parenting order, terms and conditions apply.

The interview with the complainant is an important source of information that will help police complete a thorough background check on the suspect. Note that this is merely in addition to a thorough police records check. Sometimes, the complainant may be able to provide details that may not appear in a police records check, such as information on the existence of a civil protection order. Ask the following questions, for example:

Be aware that certain victims in special circumstances may face additional difficulties inaccessing the criminal justice system. These vulnerable victims include the following:Footnote 90

2.2 Advice to the Complainant

Remind complainants that the potential threat remains, even if they have reported the incident to police and/or obtained a restraining order. Advise them that they have a primary role to play in ensuring their own safety. Recognize that, although it is not fair, victims may be required to alter their lifestyle and usual routines, schedules, transportation routes and places regularly frequented. Emphasize the importance of self-care in order to avoid extreme stress and exhaustion, which may decrease their ability to stay alert or follow a safety plan.Footnote 93

Advise the complainant not to initiate contact with the suspect or agree to such contact.

Advise complainants to tell the stalker to leave them alone only once and not to respond to the stalker's subsequent communications, regardless of whether they are threatening or polite. Victims should also avoid trying to bargain or reason with the stalker, as such actions may be perceived by the stalker as encouragement or a sign of weakness, and thus increase the potential risk of harm to the victims.Footnote 94

Advise the complainant to maintain a log of all contact (date, time, nature and summary of contact) with the suspect, including drive-bys and all unusual events, no matter how trivial they seem or whether they can be definitively attributed to the suspect. Advise the complainant that this includes keeping records of any indirect contact the suspect initiates by having the suspect's friends and relatives contact the complainant on the suspect's behalf.

Advise the complainant to retain for police all notes, gifts, telephone answering machine tapes and messages, e-mail and postings, and any other evidence related to the investigation. Ask the complainant not to handle or open any items received from the suspect, in order to prevent further distress and to avoid contaminating evidence that might be needed for purposes of forensic analysis.

Advise the complainant to use available telephone services that may help police trace telephone calls. Such pay-per-use services may include "last call return" (which enables the victim to find out who called last by entering the appropriate tracing code immediately after every call and before any other call is received) and "name that number" (which enables the victim to obtain the name and locality associated with a given telephone number). The complainant should be advised to consider subscribing to other telephone services, including call screening and call display. Whether a victim should change his or her phone number or get an unlisted one can be controversial. For example, some victims would rather get the unwanted calls than change their number as they feel more secure being able to track and record phone calls, rather than just having the suspect show up unexpectedly on their doorstep. If this is the case, complainants may get some relief by getting a second number to share with only trusted individuals, and keeping the original one solely to record messages without having to answer it and risk having to speak to the suspect. Investigating officers should consult the telephone company for current services and tracing codes. Officers should also advise complainants as to the best type of answering machine or answering service to have for the purpose of recording and retaining messages for use as evidence.

Advise the complainant to consult with someone who has been trained to advise victims on ways to use technology strategically to increase safety and privacy, and assist them in considering ways in which their technology use may make them vulnerable to the suspect. For example, they may want to consider changing cell phone numbers, and e-mail addresses, as well as removing their profiles and photographs from social networking sites such as Facebook, MySpace, and Twitter, as well as asking friends, family and other contacts not to reference them or post photos that include them on such sites. They may also want to consider: whether they use any GPS capable devices from which the suspect could use data to help stalk and locate them; how easily their cordless phones, baby monitors and cell phones can be monitored; whether the suspect may be hacking into or recording their computer use; and whether they have any passwords or pins that the suspect may know or be able to guess easily. Some police and victim services may be knowledgeable in this area, or be able to refer the victim to someone who is.Footnote 95 If you are not able to find anyone who can advise the victim on these issues, you may want to suggest they contact the American "Safety Net Project" at 1-800-799-7233 or http://nnedv.org/projects/safetynet.html.

Suggest that the complainant inform relatives, neighbours, friends, co-workers, employers, property managers and doormen of the ongoing harassment and, if possible, provide them with a photograph of the suspect. These people should alert the victim and/or police about any contact. This will enhance the complainant's safety and provide a larger pool of potential witnesses.

Help the complainant contact victim services for support and assistance as soon as practicable after the complaint has been made. Early intervention by victim services enhances the victim's safety and increases the likelihood of cooperation with the criminal justice system. Victim service workers play a significant role in helping victims to identify risks and to develop and implement a personal safety plan for themselves and their children. Referrals should be made as soon as possible to allow the complainant to receive emotional support, appropriate referrals, information about the justice system and assistance in developing a safety plan.

Provide the complainant with an occurrence report or incident number, and advise her or him to quote that number when making future complaints or inquiries. Provide the name of one officer who will be responsible for coordinating the investigation, even if other officers become involved.

Advise the complainant of any decision to lay charges, of dates of significant proceedings, and of decisions made to detain or release the suspect from custody.

Advise the complainant of other available types of protective relief such as civil protection orders, restraining orders and no-contact orders, available through family court orders, if applicable, and civil domestic/family violence legislation. (For more information see 2.11.3 Peace Bonds, Civil Protection Orders, and Civil Restraining Orders).

Ensure that the complainant is provided with copies of conditions of release and sentencing and advise the complainant to carry a copy of any criminal or civil protection/restraining orders at all times.

2.3 Victim Welfare

Take appropriate action to increase the complainant's security, such as the following:

Inform the complainant about the importance of security measures, such as making safety or contingency plans; carrying a fully charged cellular phone; installing better locks, improved lighting and a security system; getting a guard dog; and identifying safe places, including police stations, domestic violence shelters and busy public areas.

Have a panic alarm installed, either privately or through local victim protection programs, where available.

Flag the complainant's address on police databases (such as premise history on CAD systems).

Ensure patrol officers are aware of the complainant and suspect, and are provided with the complainant's address details, suspect photo and vehicle information, and priority response.

If the suspect does not have any firearms, apply for a preventative prohibition order under section 111 of the Criminal Code. If the suspect does have firearms, seize the firearms pursuant to section 117.04 of the Criminal Code.

Relocate the complainant when the threat level is high or, in extreme cases, it may be advisable to explore the possibility of a secure identity change. Contact the Confidential Services for Victims of Abuse (CSVA) within the relevant jurisdiction or federally, through Service Canada, for more information.

Address the special needs of complainants who face particular barriers. Cultural, communication, mobility, age and other barriers can increase the victim's risk.Footnote 96

Help complainants protect their children by identifying local services for children who may be affected by violence. Children's safety and emotional health are affected, whether or not they witness the threats or violence.

Note that stalker violence is usually affective, as opposed to predatory,Footnote 97 so complainants and officers need to be aware of dramatic moments, such as the termination of a relationship; the arrest of the suspect; court dates, particularly those when court orders are made and sentences are rendered; custody proceedings; and release or escape from custody.Footnote 98

2.4 Collecting Evidence: Information to Investigate and Document

Ask the complainant about, and query all relevant databases for, information on the suspect. Search under known aliases as well. Databases queried should include Canadian Police Information Centre (CPIC), Canadian Firearms Registration Online (CFRO),Footnote 99 Special Interest Police (SIP), Firearms Interest Police (FIP), local and provincial information systems, and available probation information sources (for summary conviction offence details not captured by the Criminal Name Index (CNI)/Level II). Where applicable, immigration and refugee authorities may have relevant information. In some cases, consider contacting prison institutions for further information on the conduct of the suspect, or relevant information relating to the complainant. These queries should include searches for criminal records, prior contact with police and contact with police in communities where the suspect may have previously lived. If the criminal record indicates similar charges, determine the identity of the victims in those cases and the nature of their relationship with the accused.Footnote 100 These queries should cover the following:

In cases of former intimates involving children, include any history of involvement with child protection authorities.

Determine possession of or interest in weapons or access to weapons (search CPIC, including CFRO and FIP, as outlined in Appendix A: Experts: Police Specialists). Determine the following, for example:

Any information discovered should be entered into the FIP database. This would include any conduct that gives rise to concerns about violence, including criminally harassing behaviour. If the information is not entered in FIP, then Chief Firearms Officers (CFO) will not be advised. They will not know whether to consider revoking existing licences and will not have this information when considering new applications. This type of information is crucial when CFOs are deciding whether to issue or revoke a licence.

2.5 Additional Investigative Techniques

Investigative techniques to gather corroborative evidence might include the following:

Photograph any items vandalized, damaged or written on;

Check for fingerprints on vandalized items or other objects sent to or left for the complainant;

Obtain telephone and cellularFootnote 102 phone records of the complainant and suspect, which may provide evidence of calls. Because many service providers have limited retention periods for texting and phone records, it is prudent to obtain a production order for these records as soon as possible;

Have the complainant acquire a telephone answering machine and retain recorded messages;

Interview any potential witnesses, such as neighbours, family members, friends and co-workers;

Research the suspect's whereabouts during the times of alleged acts to rebut or verify "alibi defences";

In serious cases, consider surveillance, which may include static surveillance of the complainant's residence or other locations where harassment is occurring, mobile surveillance of the complainant at points of vulnerability (such as times when he or she is travelling between home and work) to gather evidence that the suspect is following the complainant, and surveillance of the suspect; and

To support previous claims of intimate partner violence where injuries required medical treatment (for the complainant and/or children, if applicable), consider getting the complainant's consent for the release of his or her medical records. Also, try to secure any records relating to previous incidents of intimate partner violence, including those that were not reported to the police.

2.6 Collecting Technological Evidence

Investigators should not be intimidated by collecting evidence related to technology; everything they already know about investigation and law is still valid. However, it is important to not get overconfident with examining technological evidence. Computers should only be investigated by the appropriate experts. Data are extremely volatile and there is a great risk of accidentally erasing key data. For this reason, it is also important to act quickly to obtain volatile technological evidence, such as data on a computer and records at an Internet Service Provider (ISP), while the data is still available.

Several types of evidence can be used to prove that criminal harassment has occurred through the use of technology, for example: saved or printed screen captures of websites or e-mail correspondence from a complainant's computer; records from the ISP; and data or records from the suspect's computer or storage devices. Evidence may also be obtained from other devices, including cell phones, voice mail services, GPS instruments, and cameras. When the complainant consents to the viewing of cell phone information, such as text messages, it is possible to take note of the date, time and phone number from which the messages were sent, and the wording of the message. Sometimes this can be done by taking photographs of the phone's screen to capture an immediate record of the details and to corroborate the complainant in the event that the data cannot be retrieved from the phone at a later date, is lost by the time of the trial, or cannot be obtained from the service provider. Seizing the victim's evidence-containing electronic devices will help to preserve the evidence and will be useful for forensic examination.

Detailed instruction on how to locate and collect this type of evidence is beyond the scope of this publication.Footnote 103 It is important, however, to be mindful that because of the rapid growth of technology, and its use in society, specific laws, procedures, and court interpretation related to technological evidence are evolving at a faster pace than most of the other laws on criminal harassment. Consequently, it is critical to keep abreast of legal requirements for search warrants, production orders, data preservation requests and foreign cooperation requests when conducting investigations involving technological evidence. While police officers are the primary actors in obtaining this type of evidence, Crown attorneys are important advisors in determining the appropriate means of legally obtaining this evidence.

It is important to collect evidence that proves that the suspect was the one using the technological devices at the time of the offence, for example that places them at the keyboard or in possession of the cell phone at the relevant time, if possible. This might require evidence from others who live with the suspect and have access to his computer.

Once all technological evidence is collected, it is important to consider the need for forensic examination and analysis reports and testimony.

2.7 Physical Evidence

Seize all physical evidence; do not leave this evidence with the complainant. Common sources of physical evidence include the following:

If necessary, seek advice from experts (listed at Appendix A: Experts: Police Specialists) to assess the type of stalking behaviour in question, in order to determine what collateral material might be included in the warrant, and whether to seek a public safety warrant under section 117.04 of the Criminal Code or a weapons search warrant under section 487.

Where reasonable grounds exist, consider executing search warrants of the suspect's residence, vehicle and any recreational property to seek the following:

Note that firearms and weapons are treated separately under the Criminal Code, as shown by the following examples:

2.9 Expert Assistance

When dealing with cases involving criminal harassment or stalking, investigators may wish to seek the assistance of experts in this area, who may include forensic psychologists and psychiatrists, criminal police threat specialists, computer forensic specialists and firearms investigation specialists. Expert assistance can include help with the following:

See Appendix A: Experts: Police Specialists for police agencies with expert personnel who provide additional guidance in criminal harassment cases, where required.

2.10 Threat and Risk Assessments

The safety of the complainant is of paramount concern at all times and takes priority over "evidence-gathering" or "making a case." Each case must be treated seriously until evidence indicates otherwise. It is crucial to keep in mind that threat and risk assessments are contextualFootnote 108 and only relevant for a specific period. Factors should be updated and re-evaluated as needed for subsequent decision-making. Furthermore, although this process can help the parties make decisions, the absence of "identified risk markers" does not mean that violence will not occur.Footnote 109

The appropriate level or type of intervention in a given case cannot be determined until a threat assessment or risk assessment has been made. While the terms are often used interchangeably, "threat assessment" refers to the process of assessing the risk of violence that the suspect poses to the complainant and assessing the potential impact of contemplated type of intervention on the complainant's safety. The term "risk assessment" refers more specifically to a developing body of research and tools aimed at improving the ability of various professionals in the criminal and civil (forensic) justice systems to evaluate "individuals to (a) characterize the risk that they will commit acts of violence and (b) develop interventions to manage or reduce that risk …".Footnote 110

Threat assessment, which need not be "formal," should consider the typology of the stalker and the history or nature of the relationship between the suspect and the complainant. For example, it should consider all acts of violence, including threats, damage to property and harm to the complainant's pet. It is also important to watch for a sudden change in the frequency or severity of harassing behaviour; both an escalation and a sudden decrease in stalking activity may indicate a heightened risk of violence.Footnote 111 Assessment tools for one type of offence may not be applicable to another offence. Threat assessment should involve considering all available evidence, as well as all records of police action. It should take into account relevant research findings, such as the facts that the risk of physical harm to a victim fleeing domestic violence is highest during the first three months of separation, and that such violence often arises from long-term problems or a history of violence.Footnote 112

Several risk assessment and management tools are now being used across Canada. Justice Canada's 2009 report, Inventory of Spousal Risk Assessment Tools Used in Canada,Footnote 113 lists these tools, as well as investigative protocols and checklists used across the country.Footnote 114

In choosing tools and protocols to use to assess and manage the risk of criminal harassment and related violence, remember that each tool has been developed to predict the likelihood of a certain outcome within a certain context. In fact, many of the tools used across Canada were developed specifically for use in cases of intimate partner violence. For example, the Spousal Assault Risk Assessment Guide (SARA) was designed to assess the risk of an individual being violent against a spouse. On the other hand, the Danger Assessment has two parts: the first is a tool to help raise the victim's awareness of the degree of risk he or she faces; and the second "presents a weighted scoring system to count yes/no responses of risk factors associated with intimate partner homicide."Footnote 115

A few risk assessment and management tools were designed specifically for use in responding to stalking. In Canada, the Guidelines for Stalking Assessment and Management (SAM) were created to guide the professional judgment of law enforcement, criminal justice, security and mental health personnel in situations involving stalking.Footnote 116 The developers of the SARA and the Risk for Sexual Violence Protocol (RSVP) also created the SAM, which is used in cases where there is a known or suspected perpetrator with a history of stalking a single primary victim. The SAM focuses on three categories of factors: the nature of the stalking, the perpetrator risk factors and the victim vulnerability factors. Those using the SAM should have prior training or experience in working with stalking victims or perpetrators, as well as expert knowledge of the relevant literature.Footnote 117 The SAM User Manual suggests a number of ways to provide the recommended one to two days of training.

With such a variation in the approaches to risk assessment and the tools available,Footnote 118 professionals need to consider a number of factors when determining which tool to use in which circumstances, including the following:

The RCMP; the Ontario Provincial Police (OPP), Behavioural Sciences and Analysis Section, Threat Assessment Unit; and the Sûreté du Québec (SQ) Behavioural Science Section; all have threat and risk evaluation specialists who can perform these types of assessments for the law enforcement community. In Alberta, the Integrated Threat and Risk Assessment Centre (I-TRAC) is a joint-forces multi-disciplined unit that provides law enforcement, child protection, prosecutors and corrections with threat assessment services and proactive approaches to reduce acts of intimate partner violence and intimate and non-intimate acts of stalking. I-TRAC services include assessing the level of risk an individual poses, providing case management strategies, training, safety planning, expert testimony and facilitating access to external agencies including mental health, and specialized law-enforcement and criminal justice units. All of these organizations have robust training programs for their specialists, who can assess violence potential in many types of cases, not just criminal harassment cases.

Once the threat or risk assessment has been completed, the investigation and case management strategy should be formulated and implemented. Options are listed below; they can be used individually or in combination, depending on the situation.

2.11 Level of Intervention

The level of intervention in cases of criminal harassment must always be carefully tailored to the individual perpetrators and complainants involved. Bear in mind that a victim's response will affect the level of risk. In a 2005 study, researchers looked at four risk assessment tools and at the accuracy of the victim's predictions that her partner or ex-partner would physically abuse or seriously harm her in the next year. They examined the correlations between recurrence of violence and protective measures that victims had taken.Footnote 119 It appears from the results that different protective measures have different effects on repeated perpetration, depending on whether the original offence was minor assault, severe assault or stalking. For example, some protective actions, such as going to a shelter or arresting the perpetrator at the time of the original offence, seemed to be most effective for all three offence types studied. However, other actions like getting a protection order appeared to be much more effective at preventing further victimization in situations when one has been assaulted as opposed to when one has been stalked. The researchers also examined other protective measures, including going to a place where the victim thought the perpetrator couldn't find her, no longer living with or being intimate with the perpetrator, avoiding voluntary contact with the perpetrator and filing a criminal complaint.Footnote 120 What emerges from the research is the importance of fitting the response to the situation. There is no one solution for all instances of stalking or intimate partner violence.

2.11.1 No Intervention

In a small number of cases, it may be best to monitor the situation without taking action. This is particularly true for cases involving mentally disordered stalkers who may escalate their activity if the victim or police respond. While monitoring the situation, consider consulting criminal police threat assessment specialists, forensic psychiatrists, or other professionals who can provide insights and additional information.

2.11.2 Face-to-Face Deterrence

A meeting with police may affect the suspect's state of mind, as well as the complainant's safety. This level of intervention should be carried out only after considering all known facts and evidence, and at the appropriate stage of the investigation. Warning the alleged offender shows the complainant that the police are taking his or her complaint seriously, and informs the offender that the behaviour is inappropriate. It also gives the suspect an opportunity to explain his or her conduct at an early stage, so that police can make more informed case management decisions.

Many stalkers may be deterred by a face-to-face meeting with police in which the consequences of continuing the behaviour—that is, that criminal charges will be laid—are clearly set out. Any warning must be documented so that this information is accessible to future investigators, should the warning be ineffective. Warnings should be written whenever possible. However, it is crucial that the language used be carefully considered. A written warning is a constant reminder that establishes boundaries for the offender. It can also provide evidence of the exact wording used to warn the accused. Although the warning is not legally binding, it does serve as evidence, if the suspect continues the harassment, that the suspect knew that the complainant was harassed, or that the accused was reckless or wilfully blind to that fact. It is counterproductive to give multiple warnings to a suspect.

An interview can provide information about the suspect's thinking and behaviour patterns, and can yield admissions or corroboration. Any interview with the suspect should be conducted in accordance with the usual cautions and should also be documented. Experience has shown that the most common psychological defences of a stalker involve denial, minimization and projection of blame onto the complainant. Keeping this in mind can help investigators develop interrogation themes and establish a rapport with the suspect.

2.11.3 Peace Bonds, Civil Protection Orders, and Civil Restraining Orders

This level of intervention should be considered when the complainant fears for his or her safety and the suspect poses a risk of injury or of an offence resulting in physical violence, or other conduct such as the infliction of severe psychological damage. There is often insufficient evidence to support a charge. Peace bonds and civil protection ordersFootnote 121 are not substitutes for criminal charges. Charges should be laid where there is evidence to support them.Footnote 122

An application for an order under section 810 of the Criminal Code should be considered where there is fear that the suspect will cause personal injury to an individual or the individual's spouse or child, or under section 810.2 where there is fear that the suspect will commit a "serious personal injury offence," which by definition also includes psychological damage. Peace bonds are also available under section 810.01 where the complainant is within a subsection 423.1(1) category, such as a justice system participant or journalist, and there is a fear for that person's safety; or under section 810.1 when the suspect's conduct involves prohibited sexual conduct against persons under age 16.

While sections 810 and 810.1 peace bond applications can be made by any individual before a provincial court judge, 810.01 and 810.2 applications may only proceed with the consent of the Attorney General of the jurisdiction where the application has been brought. While a section 810 peace bond has a maximum duration of 12 months, the other three peace bonds may be in effect for up to 24 months where the defendant has been previously convicted an offence related to the respective peace bond. These bonds can be renewed or varied by application to the court.

Section 810.2 has been particularly useful in cases where prior incidents of physical harm resulted in a sentence that is now finished, and the perpetrator has contacted the victim again. Where a violent or sexual offender under an active penitentiary sentence has been detained by Correctional Services of Canada until their Warrant Expiry Date because they are of high risk to commit a serious personal injury offence, the local police where the individual is planning to reside and/or the original charging police agency are advised of the offender's pending release into the community 90 days prior to release. This allows for a section 810.01, 810.1, or 810.2 peace bond application to be brought before the individual is released so that there are appropriate conditions imposed from the moment of release.

Civil protection orders may also be available to the complainant, either under legislation or through the common law. The superior courts have inherent jurisdiction to grant protective injunction orders to protect litigants during the litigation process. Restraining or no-contact orders are also available under provincial or territorial law legislation if the victim is going through a separation or divorce. Nine provinces and territories have also passed civil domestic/family violence legislation: Saskatchewan, Prince Edward Island, Yukon, Manitoba, Alberta, Nova Scotia, Northwest Territories, Newfoundland and Labrador, and Nunavut.Footnote 123 Most provincial domestic violence legislation applies to cohabitants, family members or individuals who are living together in a family, spousal or intimate relationship, and to persons who are parents of children, regardless of their marital status or whether they have lived together. This legislation generally provides for two types of protective orders: a short-term emergency intervention or protection order, and a long-term victim assistance order, sometimes called a protection, prevention, or restraining order.Footnote 124 Many of these orders offer additional assistance to complainants that are not available through the criminal justice system, such as exclusive possession of the matrimonial home for a specified time period, orders directing a peace officer to accompany a specified person to the residence to safely collect personal belongings, and orders directing a peace officer to remove the alleged offender from the residence. It is helpful for the purposes of thorough protection planning, for officers to be aware of which civil protection orders are available in their jurisdiction, and who is available to assist complainants in obtaining these protections.Footnote 125 These protections can be particularly useful in situations where there is not enough evidence to lay a charge or obtain a criminal justice system protection order.

All section 810 peace bonds are tracked through CPIC, but civil restraining orders are not necessarily recorded there.Footnote 126 Civil restraining orders, peace bonds, and conditions of bail and probation are more effectively enforced if their terms are readily accessible to police agencies that are called to intervene in domestic disputes. The CFO in each jurisdiction has immediate access to court orders issued in family violence or stalking cases where an individual's right to possess a firearm is curtailed. Note that although subsection 810(3.1) (and 810.01(5), 810.1(3.03) and 810.2(5)) requires the justice to consider whether a firearms or weapons prohibition is desirable as a condition of the recognizance, it is important to specifically ask for one where appropriate and to provide the justice with any relevant information.

Advise the complainant to immediately report any breach of conditions of any court orders so that prompt action can be taken against the suspect. Be sure the victim understands that it is imperative to report all breaches in order to maintain offender accountability. Letting "little" breaches slide can entrench the offender in increasingly serious conduct. Also advise victims of the limitations of a peace bond and remind them of the continuing need to take precautionary measures.

2.11.4 Prohibition Against Possessing Weapons

Where appropriate, obtain a weapons prohibition order as a preventive measure.

If the suspect does not currently possess weapons and police want to prevent the suspect from obtaining them in the future, police can apply to a provincial court judge for an order under section 111 of the Criminal Code prohibiting the person from possessing weapons where they have reasonable grounds to believe that it is not in the interests of public safety for the person to possess weapons. This prohibition may last up to five years.

If the suspect possesses weapons and police have seized them, there will be a disposition hearing (provided the Return to a Justice was made immediately after the seizureFootnote 127 and the Application for DispositionFootnote 128 was made within 30 days of the seizure). At the hearing, the judge may impose a weapons prohibition order lasting up to five years.

Consider, as well, an application under section 117.011 of the Criminal Code. When people are prohibited from possessing weapons, this provision is designed to limit their access to weapons belonging to someone with whom they live or associate. Accordingly, even if the suspect is already prohibited by a court order from possessing weapons for up to five years, if the suspect lives with another person who is not prohibited from possessing weapons and who has several firearms, an application can be brought to a provincial court judge for an order against this other person to restrict the suspect's access to the firearms. While these orders must be minimally intrusive, they are still an important preventive measure that may require the other person to either enhance the storage security measures already in place or to store the firearms at another location for a period of time.

2.11.5 Arrest and Charges

Police lay charges in all provinces except British Columbia and Quebec, where the Crown does so. In New Brunswick, police lay charges after receiving advice from the Crown. (See also 4.3 Approval or Review of Charges)

A strong and consistent response to criminal harassment requires that all allegations of criminal harassment be taken seriously. If there are reasonable grounds to believe that the suspect has committed the offence of criminal harassment, arrest and charge(s) should likely result in all but the most exceptional circumstances (keeping in mind that different considerations apply in determining whether to make an arrest versus whether to lay charges). Arrest will often be necessary under subparagraph 495(2)(d)(iii) in order to prevent the continuation or repetition of the criminal harassment, either by having the suspect enter into an undertaking to abide by certain conditions or by seeking to have the suspect detained in custody. (See also 2.12 Release From Custody and 4.4 Pre-Trial Release)

Where one or more of the incidents giving rise to the complaint of criminal harassment can be construed as a single criminal offence other than criminal harassment, consider laying both the separate charge and the inclusive count of criminal harassment. Examples of other criminal offences include the following:

Consideration should also be given to laying charges related to serious incidents in the past.

Accused persons who have outstanding charges against them and (a) have contravened, or were about to contravene, their form of releaseFootnote 129 or (b) have committed an indictable offence after having been released in any of the manners described in subsection 524(8) should be arrested under section 524, as well as under the provisions related to the breaches. Being arrested under section 524 gives the accused notice that any previous forms of release may be cancelled. (See 4.5.5 Breach of Bail Conditions).

Promptly advise the victim of the decision to lay charges and of the outcome of any judicial determination in relation to the charges.

2.12 Release from Custody

(See also 4.4 Pre-Trial Release)

Given the nature of criminally harassing conduct, when an officer in charge determines that it is appropriate to release the accused pursuant to section 499 or subsection 503(2.1) of the Criminal Code, such a release should normally be made subject to the suspect entering into a recognizance under paragraph 499(1)(b) or (c) or pursuant to an undertaking under subsection 503(2) prohibiting contact with, or proximity to, the complainant or other witnesses under subsection 499(2) or 503(2.1). If possible, the police should speak to the complainant before deciding whether to release the suspect; such a discussion will help the officer assess the risk to the complainant and determine which conditions might decrease that risk if the suspect is released. The following conditions should be considered:

Where the accused is released, forward the police file (herein after referred to as "Police Report to Crown Counsel") as soon as possible so that Crown counsel can address any application by the accused to change bail conditions before the first appearance.

Advise the complainant of the fact of the release and any release conditions.

2.13 Police Report to Crown Counsel

Forms used for the purpose of reporting to Crown Counsel must clearly address and document the key elements of the offence (see also 3.4 Key Elements). Practices vary among jurisdictions. Some jurisdictions have tailored a specific investigation report form for the collection of pertinent facts. Police agencies and prosecution services that work together should use an agreed-upon format or checklist of information that will provide Crown counsel with the information needed to deal with various stages of court proceedings, including the following details:

Information on the prohibited conduct;

Reasons why the victim reasonably fears for his or her physical, emotional or psychological safety (include all historical information that has contributed to the fear, such as details of previous incidents of domestic abuse);

Details of changes the victim has made in response to the fear, such as whether the victim has:

Evidence that the accused knew their actions harassed the victim or was reckless as to whether the victim was harassed, such as the fact that:

All available information necessary for a bail application hearing related to a detention order or to pre-trial release conditions, bearing in mind that in some jurisdictions, such as Alberta, the courts have specified the type of facts that the Crown is expected to be aware of and to speak to;Footnote 132

Any steps the accused has taken since the incident to address emotional, attitudinal or other problems;

Information on factors related to those problems, such as:

Information that specifically addresses the risk to the victim if the accused is released, such as:

consideration should be given to recommending appropriate or necessary conditions that the Crown should seek at a pre-trial release hearing (see 4.4 Pre-Trial Release for a list of possible bail conditions).

2.14 Coding or Scoring Files for Incidents

Many police agencies collect statistical information on criminal harassment incidents. As of August 2005, the RCMP and other police services have been using the Uniform Crime Reporting (UCR) Scoring System. To search files prior to 2005, criminal harassment cases can be searched under the Operational Statistical Reporting System (OSR).

Under the UCR system, the scoring for criminal harassment is spelled out, however, the specific scoring and sub-scoring is 1625.0010.

Police agencies using the OSR system of coding or scoring files for incidents of criminal harassment should follow the OSR tables, as follows:

2.15 The National Flagging System (NFS) for High-Risk Offenders

Officers who have been investigating an offender who they believe is at high risk of committing serious violent or sexually violent crimes should consider contacting their provincial or territorial NFS Coordinator in order to obtain information about the offender and/or to suggest the offender be added to the National Flagging System (NFS) for High-Risk Offenders. This system identifies the highest risk violent and sexually violent offenders nationally who are considered prime candidates for Dangerous and Long-term Offender applications. In addition, the system provides for a flag on CPIC, facilitating broad sharing of information about these offenders nationally among police and Crowns, regardless of which provincial or territorial jurisdiction made the identification. Each province and territory has a National Flagging System Coordinator who identifies individuals that should be flagged, and who coordinates the collection of information about the offenders. The coordinators also facilitate the transfer of this information to police and Crown prosecutors upon request.

When police conduct a criminal records check of a subject being investigated who is a "flagged offender", they will see a SIP entry indicating that the person has been flagged as a high-risk offender and see the contact information for the NFS Coordinator of the jurisdiction that requested the flag. The police can then contact the NFS Coordinator for information and, where appropriate, notify the Crown that he is a flagged offender.

The NFS alerts police to the fact that they are dealing with a high risk violent offender immediately upon the officer or member performing a CPIC check, and alerts Crowns to potential dangerousness. This assists in the proper handling of the individual from his or her encounter with police through to sentencing.