A Handbook for Police and Crown Prosecutors on Criminal Harassment
Part 4: Guidelines For Crown Prosecutors
The Department of Justice Canada's 1996 research report, A Review of Section 264 (Criminal Harassment) of the Criminal Code of Canada, reviewed the implementation of the 1993 criminal harassment provisions in six cities (Vancouver, Edmonton, Winnipeg, Toronto, Montreal and Halifax). The report identified a number of barriers to effective implementation and made several recommendations to enhance the effectiveness of the existing provisions. The following guidelines were developed to address these findings and recommendations, as well as to reflect consultations with Crown prosecutors and the developing case law to date.
Crown practices and policies vary from one jurisdiction to another, including in the use of victim witness assistance programs, for example. These guidelines should be considered in conjunction with other applicable legislation and policies, including provincial policies relating to spousal assault and to diversion/alternative dispute resolution. A primary objective in criminal harassment cases should be to keep the victim safe, informed and involved.
4.1 Process Considerations
Where possible, make the same Crown counsel (and any Victim Witness Assistant) responsible for carrying a criminal harassment case from start to finish.
Document all actions in each criminal harassment case on a case record sheet. This task includes identifying all actions taken and reasons for Crown decisions.
Ensure sufficient time for case preparation.
Seek early hearing dates and oppose unreasonable adjournment requests. Although not all delays are avoidable, "delays" can affect different victims differently: they may increase stress for some people and decrease stress for others. Note that it is always important to assess and re-assess the ongoing safety of the victim, and the adequacy of any no-contact conditions and other measures, during these intervening periods.
In all domestic violence occurrences, consider whether there is any evidence of criminal harassment. If there is a reasonable likelihood of conviction and it would be in the public interest to proceed, consider laying chargesFootnote 156 where such evidence exists.
In criminal harassment cases where the accused is self-represented, the Crown can apply under subsection 486.3(4) for an order appointing counsel to cross-examine the victim. This reform reflects the serious nature of criminal harassment, including its impact on the safety and well-being of victims, by preventing the victim from having to endure further harassment by a self-represented accused. In these cases, counsel must be appointed unless doing so would interfere with the proper administration of justice.
Make testimonial aids (screens, closed circuit television and support persons) available to facilitate the testimony of vulnerable victims and witnesses, such as victims (and their children) of spousal abuse, sexual assault and criminal harassment. For adult victims and witnesses, the aids are available, on application under section 486 of the Criminal Code, where it can be demonstrated that because of the surrounding circumstances (including the nature of the offence and any relationship between the victim/witness and the accused), they would be unable to provide a full and candid account without the testimonial aid. Under section 486.2, in cases where children or witnesses who may have difficulty giving testimony by reason of physical or mental disability are testifying, testimonial aids are to be made available to the child once a request has been made.
For witnesses under age 18 or with a disability, consider the use of video recorded statements in evidence under section 715.1 of the Criminal Code. For witnesses outside the jurisdiction, consider an application, under sections 714.1 through 714.8, for the witness to testify by audio or audio/video technology.
Ensure that the victim is given an opportunity to prepare a victim impact statement to file with the court as soon as possible. (For more information see 4.10 Victim Impact Statements)
4.2 Victim Interview
Involve the victim throughout the process. For example, consult with the victim and provide the victim with timely information, particularly with respect to the release of the accused on bail and to the results of the trial and sentencing.
Where possible, interview the victim before the date of the accused's first court appearance.
Prepare the victim to testify in court. Be sensitive to the victim's personal situation and state of mind, including the psychological and emotional distress he or she is likely experiencing. The victim may require the assistance of a support person and/or an interpreter. If the victim has not yet been referred to victim services, help the person contact victim services for support and assistance as soon as practicable.
Crown counsel should ensure that the following critical information is documented in the file:
- A description of all incidents of prohibited conduct in which the accused is alleged to have engaged;
- Details of any words uttered or gestures made by the accused during the conduct;
- The nature of the location and the time of day when the conduct occurred (these factors can affect the victim's fear);
- Whether the incidents involved others or occurred in the presence of others, such as family, friends, co-workers and neighbours;
- Whether the victim communicated—either indirectly through an intermediary, or directly—his or her displeasure with the accused's conduct (in other words, whether there is any direct evidence that the accused had actual knowledge of the harassing nature of the conduct, or was reckless as to the effect of the conduct on the victim);
- Whether the victim has been required to alter his or her lifestyle or actions because of the accused's conduct (one effective way to do this is to have the victim describe their typical day before the stalking began, and the describe their typical day since the criminal harassment has begun);Footnote 157
- The history of any prior relationship between the victim and the accused, particularly details of past incidents of abusive or violent behaviour toward the victim, and criminal convictions for violence against the victim; and
- The physical stature and gender of the victim and the accused.
4.3 Approval or Review of Charges
Police lay charges in all provinces with the exception of British Columbia and Quebec, where the decision to lay charges is made by the Crown. In New Brunswick, the decision to lay charges is made by police after receiving advice from the Crown. (See also 2.11.5 Arrest and Charges)
When deciding whether to lay charges, consider the following:
Is there independent evidence supporting the charges?
Consider laying both the separate charge and the inclusive count of criminal harassment, where one or more of the incidents giving rise to the complaint of criminal harassment can be construed as a single criminal offence. For example, where appropriate, consider also laying one or more of the following charges:
- intimidation (section 423)
- uttering threats (section 264.1)
- wilful promotion of hatred (subsection 319(2))
- mischief (section 430)
- mischief in relation to data (subsection 430(1.1))
- forcible confinement (section 279)
- indecent or harassing telephone calls (section 372)
- defamatory libel (sections 298–301)
- trespassing at night (section 177)
- voyeurism (section 162)
- assault (sections 265 and 266); assault with a weapon or causing bodily harm (section 267)
- aggravated assault (section 268)
- sexual assault (sections 265 and 271)
- sexual assault with a weapon, threats to a third party or causing bodily harm (section 272)
- aggravated sexual assault (section 273)
- causing death in the course of committing criminal harassment (first degree murder) (subsection 231(6))
- unauthorized use of a computer (section 342.1)
- identity theft (subsection 402.2(1))
- identity fraud (subsection 403(1))
- failure to comply with a condition of undertaking or recognizance (subsection 145(3))
- disobeying a court order (section 127))
- breach of recognizance (section 811))
- failure to comply with probation order (section 733.1)
Consider laying counts relating to serious incidents in the past.
Consider seeking a peace bond order under sections 810,Footnote 158 810.01, 810.1, or 810.2 of the Criminal Code where there is insufficient evidence to support charges. However, peace bonds are not normally an alternative to criminal charges where there is sufficient evidence to support charges. (See also 2.11.3 Peace Bonds, Civil Protection Orders, and Civil Restraining Orders).
In cases involving domestic violence, decisions to stay or withdraw charges should only be made after due consideration of all relevant facts, such as the history of violence between the accused and the victim, and whether the accused is influencing the victim's willingness to testify. While all victims want the harassment to stop, a complex array of factors may result in their reluctance to cooperate with the prosecution. Some of these factors particular to situations involving former intimates include the following: fear of the offender, perceived powerlessness, low self-esteem, social and economic dependency, lack of confidence in the justice system's ability to protect them, fear of authority and fear of child apprehension. The impact of these factors may be compounded by other experiences for Aboriginal women, women who are living in poverty, refugee or immigrant women, or women with disabilities. "Victim reluctance is considered by experts to constitute a significant risk factor warranting more, rather than less, criminal justice intervention."Footnote 159 Victim services play a central coordinating role in the provision of information and support to victims.
Diversion or alternative measures are generally not appropriate in criminal harassment cases, particularly in cases involving intimates. In jurisdictions where alternative processes are available, such processes should only be used where proper safeguards are in place. Alternative measures may be appropriate where all of the following circumstances are in place:
- The referral to the alternative justice process is made post-charge on Crown approval;
- Trained and qualified personnel, using validated risk assessment tools, determine that the case is not high-risk (in other words, if after a consideration of a variety of factors, including any history of violence, threats of serious violence, prior breaches of protective court orders, the use or presence of weapons, employment problems, substance abuse and suicide threats, the offender is assessed to be at low risk of re-offending and therefore of low risk of harm to the victim's safety, as well as that of her children and other dependents, both throughout and after the process);
- The alternative justice process offers the same or greater measure of protection of the victim's safety as does the traditional criminal justice process;
- The victim is fully informed of the proposed alternative justice process and her wishes are taken into consideration. In addition, victim consent is required and victim support must be provided where the victim will be asked to participate in the alternative justice process;
- The offender fully accepts responsibility for his action;
- The alternative justice process is part of a program approved by the Attorney General for the purpose of providing alternative justice responses to spousal abuse and is overseen by the Attorney General or the court;
- The alternative justice process is transparent (that is, it maintains formal records of the actions taken by those engaged in the process) and it is undertaken in a timely and reasonable manner;
- The alternative justice process has the capacity to deal with spousal abuse cases and is delivered and supervised by persons possessing the requisite skill, training and capacity, including the ability to recognize and address any power imbalances, as well as cultural differences; and
- The possibility of criminal conviction and sentence remains if the process fails.Footnote 160
Inform the victim, police and victim services of any decision to reduce, withdraw or stay charges.
Ensure that disclosure procedures are set up so that any information that would reveal a new address, phone number, location, or workplace of the victim or others involved is not disclosed.
4.4 Pre-Trial Release
(See also 2.12 Release From Custody)
4.4.1 Where the Accused Is Not in Custody
Where the accused is not in custody when charges are approved, Crown counsel should seek a warrant for the arrest of the accused where there is need to seek the detention of the accused or to ensure that the protective conditions of release are imposed. On the issuance of the warrant, Crown counsel may oppose any endorsement of the warrant authorizing the release of the accused pursuant to section 507.
Where the accused has been released by police, Crown counsel may consider seeking a warrant for the arrest of the accused under section 512, if it is necessary to protect the public interest.
Where the accused has been released by a justice or police on conditions, Crown counsel should consider the sufficiency of those conditions and possible variation or review of them.
4.4.2 Evidence at Bail Application Hearing
Before the show-cause hearing, Crown counsel should consider consulting with the police and/or the victim regarding any information missing from the file, as well as any new developments or concerns regarding risk factors. Note that in some jurisdictions, such as Alberta, the courts may have specific minimum requirements regarding which information is vital in the Crown's submissions at a bail application hearing. In Bleile, 2000 ABQB 46, Martin J identified the following essential information to be included in the Crown submissions:
- Whether there is a history of violence or abusive behaviour, and, if so, details of the past abuse;
- Whether the complainant fears further violence if the accused should be released and, if so, the basis for that fear;
- The complainant's opinion as to the likelihood of the accused obeying terms of release, in particular to no contact provisions; and
- Whether the accused has any drug or alcohol problems, or a history of mental illness.Footnote 161
In preparing bail submissions, see also information suggested to be included in 2.13 Police Report to Crown Counsel. When necessary to obtain complete information, the Crown should request an adjournment of the proceedings under subsection 516(1) of the Code.
At a bail application hearing, Crown counsel should do the following:
Oppose pre-trial release where:
- Accused poses a danger to the safety of the victim or a witness; or
- Accused has breached a previous or existing no-contact order or condition (see Baggs,  NJ No 95 (SC (TD)) (QL)).
Present evidence of the history of the harassment, as well as of any past incident of abuse or criminal conviction.
Advise the Court of any indicators of high risk as reflected in the circumstances of the allegations, the relationship between the accused and the victim, and the background of the accused. Where possible, a risk assessment should be completed before an accused applies for judicial interim release. See, for example, Skinner (2009), Nfld & PEIR 70 (Prov Ct), where bail was denied due to the accused's long-term obsession with the complainant and his multiple breaches of court orders. A psychological assessment of the accused showed he had a history of sexual deviancy. This, in connection with his prior obsessive behaviour, was found to indicate a high risk of reoffending.
Present evidence of prior breaches of no-contact orders or conditions. Consider calling the charging police officer as a witness.
Present evidence of the victim's concerns for his or her personal safety if the accused is released on bail.
Emphasize that the victim's rights must also be considered. Paragraph 515(10)(b) of the Criminal Code makes it clear that bail decisions must take the safety of the victim into account. Mills,  3 SCR 668, can be cited, if necessary, as standing for the proposition that the court must also consider the victim's Charter rights, in addition to those of the accused, in making its decisions.
Present any evidence that the accused possesses firearms, weapons, or a related licence, registration, certificate or authorization.
Where the accused is ordered detained in custody, seek a direction from the justice that the accused abstain from communicating, directly or indirectly, with the victim, witness or any other person named in the order (subsection 515(12)). Crown counsel should also request such an order for an accused who has been remanded into custody before the commencement or completion of his or her judicial interim release hearing (subsection 516(2)). If any such direction or order is made, follow procedure in your jurisdiction to ensure that remand facilities and police provost personnel are made aware of the order at the earliest opportunity.
4.5 Conditions for Release
4.5.1 Mandatory Considerations
When the accused is released on bail, the court shall consider whether it is desirable, in the interests of the safety and security of any person, particularly a victim or witness, to include conditions prohibiting the accused from doing the following:
- Possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, explosive substance or all such things (the condition should also address the method and time of surrendering any of these items) (subsection 515(4.1));Footnote 162
- Communicating, directly or indirectly, with the victim, a witness or any other person expressly named in the order (subsection 515(4.2)); and
- Going to any place within 200, 500 or 1,000 metres of any specified places, such as the victim's residence and place of employment (or any other place that the victim is normally known to frequent),Footnote 163 or within defined street boundaries, which can be set out on a map for clarity (subsection 515(4.2)).Footnote 164
What to do about the children when there's a no-contact order between the parents
Where the victim and offender have children together, courts often consider how an order prohibiting communication between the parents will impact the children, and whether the offender should also be prohibited from having contact and/or communication with the children. The following are examples of some such orders that have been made: Alberts (2000), 147 BCAC 90 2000 BCCA 628: no contact with [name(s) of child(ren)] "except as may be ordered in child custody or access proceedings subsequent to the coming into force of this probation order by a court of competent jurisdiction"; and Dhillion, 2007 BCPC 92, where the Court imposed a similar condition for the accused not to contact children "except through legal counsel or pursuant to child custody…or access proceedings…". However, many factors come into play in determining the best wording for each fact situation. As in the examples above, the criminal courts will often defer to the family court, to determine what will be in the best interest of a particular child. Other authorities to whom the court can defer decisions surrounding contact with the children are child protection authorities and child psychologists. For this reason, it will be helpful if the police or Crown have information from the victim or their civil lawyers about what other legal proceedings the family is involved in—such as family or child protection proceedings—and what other court orders members of the family might be subject to. Where there is to be any contact between the accused and their child, it is important that the Crown propose that the order be precise about how the contact will be arranged—for example, through a third party, or by e-mail, text messages or voice mail on a specific phone number. This type of specificity will leave an evidence trail of the nature of communication that is occurring. (For discussion of protection orders concerning children from a family law perspective see Linda C. Neilson, "Enhancing Safety: When Domestic Violence Cases are in Multiple Legal Systems (Criminal , Family, Child Protection). A Family Law, Domestic Violence Perspective." (June 30, 2012), at pp. 73-72. Available online at: http://www.learningtoendabuse.ca/sites/default/files/Enhancing_Safety.pdf
4.5.2 Firearms/Weapons Prohibition
Where the conditions of judicial interim release include a weapons prohibition, the following points apply.
- The justice must specify what is to be done with the weapons the accused already possesses, as well as how weapons-related documents are to be surrendered (subsection 515(4.11)).
- Note that section 115, which provides that, where there is a weapons prohibition order, the weapons in the possession of the accused are forfeited unless the prohibition order states otherwise, specifies that it does not apply to judicial interim release orders under section 515.
- Section 116, which provides that when someone is prohibited from possessing weapons, any documents relating to those weapons are revoked or amended when the prohibition order commences, pursuant to subsection 116(2), applies only "in respect of the period during which the order is in force," when the prohibition order is made under section 515.
- Section 113 allows for the partial lifting of a prohibition order where the person establishes that he or she requires a firearm or restricted weapon for sustenance hunting or employment purposes.
- If the justice does not impose a weapons prohibition as a condition of release, the justice must give reasons for this decision (subsection 515(4.12)).
- 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).
4.5.3 Additional Conditions
When it is in the interests of the safety and security of any person, particularly a victim of or a witness to the offence or a justice system participant, a justice may impose other reasonable conditions. Crown counsel should consider seeking other conditions necessary to reflect the specific needs of the victim and accused, including the following:
- Abstain from the consumption of alcohol or other intoxicating substances or drugs, except in accordance with a medical prescription;Footnote 165
- Report at specified times to a peace officer or other designated person;
- Notify a peace officer or other designated person of any change in his or her address, employment or occupation. Consider requiring or seeking the condition that the accused is not to move without receiving prior permission of the court. This gives the court some control over where the accused might move. Sometimes, an accused notifies the designated person that he or she has moved to an address that is close to the complainant's residence or place of work, but not so close that the accused is breaching another condition. When the accused is required to come to court to change an address, the police or the Crown can check the proposed address against those frequented by the complainant to ensure some element of safety and peace of mind for the victim;
- Abstain from driving a motor vehicle (where one has been used in committing of the offence of criminal harassment);
- Obey a curfew requiring the accused to be home between specified hours, unless he or she obtains written permission from a designated person to be out (where the criminal harassment occurred during the night);
- Responsible sureties must come forward to closely supervise the accused. This condition is often the most significant factor the Crown considers when deciding whether to consent to release or oppose bail. However, it is very important to thoroughly assess the suitability and capabilities of proposed sureties. Such an assessment should normally include a criminal record check of the proposed surety, an inquiry into what knowledge the surety has of the accused (including criminal history), an inquiry into whether the surety fully appreciates the responsibilities of a surety, and general information about the surety, including his or her availability to supervise the accused;Footnote 166 and
- If the alleged harassment involved the use of a computer or other electronic device, consider a request for a condition limiting or prohibiting the possession or use of such a device. (See discussion of conditions prohibiting or limiting use of technology at 4.8.5 Probation Conditions).
Where the accused is also bound by a civil court order, every effort should be made to provide the justice with the text of the civil order. To the extent that the civil order imposes different conditions from those imposed at the bail application hearing, ask the justice to advise the accused to obey the conditions of the criminal order, and the aspects of the civil order that are not contradicted by the criminal order.
In cases involving former intimates with children, consider whether the exercise of the accused's rights to child access may conflict with a no-contact order with the victim. Recommend that, in the event of any such conflict, the accused shall forgo exercising his or her access rights.
4.5.4 Follow-Up With Police, Victim Services and Complainant
Have a system in place so that the police, victim services, and the complainant are advised of the date of the bail hearing and the outcome of the hearing, including any conditions imposed as part of the pre-trial release or detention. Systems should be put in place so that police will ensure any information relating to release conditions, including weapons prohibitions, is input into CPIC as soon as possible.
4.5.5 Breach of Bail Conditions
Given the nature of the threat to criminal harassment victims, pre-trial release is typically opposed where the accused breaches a previous or existing no-contact order or condition, or where new allegations suggest that the accused poses a danger to the safety of the victim, witnesses or other members of the public.Footnote 167
Where the accused breaches bail conditions, consider the following:
- Having the accused arrested pursuant to paragraph 524(1)(a) of the Code;Footnote 168
- Charging the accused under subsection 145(3) or 145(5.1) and possibly charging the accused with a new count under section 264; and
- Bringing an application pursuant to subsection 524(8)Footnote 169 to have all previous releases cancelled (see preconditions of that subsection), and either opposing release on any new subsection 145(3) or 145(5.1) charges, or tailoring the conditions to address the new offences as well.
This approach is advantageous because when the justice finds that the conditions in paragraphs 524(8)(a) or (b) are met, the justice must cancel all existing forms of release. The onus is then on the accused to show cause why detention is not justified, in relation to both the new charges and the old charges (for which previous forms of release have been cancelled). The application to cancel previous forms of release is usually made during the judicial interim release hearing. If the accused is subsequently released, it will be under one form of release (in other words, one set of conditions) for all charges for which the existing forms of release were cancelled. If the accused is detained, it will be for all outstanding charges. Where subsection 524(8) applies, the laying of new charges will bring the accused's entire course of conduct before the bail court.
Note that where subsection 524(8) does not apply, subsection 515(6) may still place the onus on the accused to show why his or her detention in custody is not justified.
4.6 Election: Summary Conviction or Indictment Considerations
Issues to consider in determining whether to proceed by way of summary conviction or indictment include the following:
Is the offence date more than six months old? If so, you cannot proceed summarily unless both the Crown and defendant agree to do so.Footnote 170 Given the repetitive nature of criminal harassment conduct, there are times when some of the repeated acts may have occurred more than six months ago. In Barton, 2010 ONSC 3562, Hockin J held that even though only one of the acts of repeated communication had occurred within the limitation period set out in section 786(2) of the Code, the court could look to the totality of the evidence causing the complainant to fear for her safety, including the conduct that occurred outside of the statutory limitation period. Note that the courts have frowned on the prosecution electing to proceed by indictment, when it is clear that if the six month limitation period had not expired, the prosecution would have proceeded summarily (see Quinn,  JQ no 1632 (Que CA) (QL); and Bridgeman,  JQ no 2319 (Que CA) (QL)).
Does the case require a quick response and solution by the criminal justice system?
Do the nature and seriousness of the conduct in question warrant a strong response by the criminal justice system?
Given the facts of this case, and the suspect's criminal record, is a penalty in excess of six months' imprisonment likely?
Would a preliminary hearing and possible trial by judge and jury impose a greater burden on the victim?
Will the election have any implication on plea negotiations?
If the six month limitation period has expired, can the delay be attributed to the Crown, and if so, was it possible for the Crown to have completed the investigation and laid charges within six months of the date of the offence, given the nature of the offence and evidence to be investigated?
4.7 Case Preparation
Determine whether the Information is accurate and complete—in other words, whether it reflects all of the necessary elements of a charge under section 264—or whether it needs to be amended. The Information and charges should also be reviewed to determine whether all of the charges arising from the evidence gathered by police have been laid.
Contact the victim as soon as practicable to advise him or her of responsibility for the case. (In some jurisdictions, the Crown's office may make this initial contact through the victim witness assistance program.) Be sensitive to the victim's personal situation: some victims may prefer or need to be interviewed well before the preliminary hearing or trial date; others may prefer or need to be interviewed closer to the preliminary hearing or trial date. Take notes of all meetings with the victim and record the following on the Crown case record sheet: the date of the meetings, the persons present, the issues discussed, and the recommendations or decisions made.
Advise the victim that all information provided to the Crown is subject to Crown disclosure obligations.
Where appropriate, seek the assistance of experts, such as police threat specialists and forensic psychiatrists. See, for example, McCartney, 2005 BCPC 493, where, due to a psychological assessment indicating that the accused was schizophrenic and suffered from delusions, he was found not criminally responsible for a section 264 charge stemming from his harassing phone calls made to a politician and to RCMP officers, on account of a mental disorder.
Where evidence of the accused's prior conduct or history will be led to address the reasonableness of the victim's fear, ensure that all of this evidence is available and properly documented.
Where the accused is self-represented, bring a motion well in advance to appoint counsel for the purposes of cross-examining the victim of the criminal harassment (subsection 486.3(4)), or any children or other vulnerable witnesses (subsections 486.3(1) and (2)). Specifically, subsection 486.3(4) requires the trial judge to appoint counsel for a self-represented accused to cross-examine the victim, thus preventing any continuation of the harassment that might occur if the accused is permitted to personally cross-examine the victim.
In reviewing cases for sentencing purposes, Crown counsel should remember that a number of specific sentencing provisions apply to criminal harassment sentencing decisions. Specifically, the commission of an offence of criminal harassment in the face of a protective court order is an aggravating factor for sentencing purposes (subsections 264(4) and (5)). As well, effective July 23, 2002, the maximum sentence for criminal harassment was increased from 5 to 10 years, when proceeding on indictment, making it possible to argue that criminal harassment fits the criteria of a "serious personal injury offence" for the purpose of peace bonds under section 810.2 of the Code. Evidence that the offender, in committing the offence, abused his or her spouse or child is an aggravating factor for sentencing purposes (paragraph 718.2(a)(ii)). Moreover, evidence that the offence was motivated by bias, prejudice or hate on the listed or analogous grounds is also an aggravating factor for sentencing purposes (paragraph 718.2(a)(i)). Recent reforms to the conditional sentencing regime restrict the applicability of conditional sentences for criminal harassment convictions (see 4.8.4 Conditional Sentences). Consideration may also be given to bringing a dangerous or long-term offender application.
4.8.1 Relevant Factors
The length of sentences in criminal harassment cases appears to have been increasing since section 264 was enacted in 1993. Just as there is a wide range of types and severity of criminal harassment, there is a wide range in the sentences that are being imposed for this offence. The 1994 decision of the Ontario Court of Appeal in Denkers (1994), 23 WCB (2d) 149, has been cited frequently, given the overwhelming number of criminal harassment cases that occur as a result of the inability of the accused to accept the termination of an intimate partnership:
This victim, and others like her, are entitled to break off romantic relationships. When they do so they are entitled to live their lives normally and safely. They are entitled to live their lives free of harassment by and fear of their former lovers. The law must do what it can to protect persons in those circumstances…Footnote 171
The Prince Edward Island Court of Appeal's 1995 decision in Wall also continues to guide sentencing courts dealing with criminal harassment convictions:
The fact an offender shows any propensity toward this kind of conduct, regardless of his unblemished past, is cause for great concern and for a very careful and judicious approach to sentencing. Factors such as the absence of a prior criminal record and expressions of remorse, which must necessarily be considered on sentencing, should not be given undue weight in the sentencing of this offence.Footnote 172
Wall was followed in Bates (2000), 146 CCC (3d) 321 (Ont CA), one of the leading cases in the country on sentencing in cases involving spousal violence and those involving criminal harassment. In this decision, Moldaver and Feldman JA noted the egregious nature of cases involving spousal abuse:
Crimes involving abuse in domestic relationships are particularly heinous because they are not isolated events in the life of the victim. Rather, the victim is often subjected not only to continuing abuse, both physical and emotional, but also experiences perpetual fear of the offender.Footnote 173
On the need for strong sentences in cases of criminal harassment, the Court quoted the clear intent of legislators to "strongly denounce criminal harassment in Canadian society"Footnote 174 and went on to say:
The number of recent cases continuing to reach this court emphasizes the extent of the problem of criminal harassment and the need for sentencing courts to respond to this type of offence in the most forceful and effective terms, sending the message of denunciation and general deterrence to the community, and specific deterrence to individual offenders.Footnote 175
And more recently in Cooper, 2009 BCCA 208, at the other end of the country, the British Columbia Court of Appeal affirmed the trial court's following ruling on the importance of denunciation in cases like this:
It is important that in a small community such as this, where violence, spousal abuse and interference with witnesses are serious and difficult problems, that the Court should express its repugnance at the offences committed by Mr. Cooper. To the extent it is possible, Mr. Cooper and others who might be tempted to conduct themselves similarly should appreciate that a fixed term of imprisonment will be the likely result.Footnote 176
Factors to consider at sentencing include the following:
- whether the offence was calculated and planned
- the magnitude and impact of the crime
- the use of violence
- the use of a weapon
- the offender's previous criminal record, including offences relating to the victim, and breaches of restraining and no-contact orders
- the history and context of the offender's relationship with the victim
- aggravating or mitigating factors
- pre-sentencing, medical or psychological reports, including any risk assessment related to the victim in particular and the public in general
- the offender's insight into the crime, and any feelings of remorse
- punishment, deterrence and rehabilitation
- the victim impact statement or other victim impact information
- guilty plea
- time spent in pre-trial custody
- firearms prohibitions
- conditional sentence conditions
- probation conditions
- family support
- the ability to abide by court orders
- the prolonged duration of conduct
- the impact of a criminal record on employment
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