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Family Violence Initiative

CRIMINAL HARASSMENT:

A HANDBOOK FOR POLICE AND CROWN PROSECUTORS

2.9 Threat and Risk Assessments, and Level of Intervention

The safety of the victim 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/risk assessments are contextual²⁵ and only relevant for a specific period of time. 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.²⁶

The appropriate level or type of intervention in a given case cannot be determined until a threat assessment or risk assessment has been made. The term “threat assessment” is used to describe the process of assessing the risk of violence that the suspect poses to the victim and assessing the potential impact of the type of intervention on the victim’s safety. “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 …”²⁷ Many jurisdictions in Canada have developed or are developing risk assessment protocols for use by police, prosecutors and victim services providers.²⁸ However, both terms are often used interchangeably.

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 victim (for example, it should consider all acts of violence, including threats, damage to property and harm to the victim’s pet). 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 longer term problems or a history of violence.²⁹

Once the threat assessment has been completed, the investigation and case management strategy should be formulated and implemented. Options are listed below; however, these are not exclusive and can be used in combination, depending on the situation.

2.9.1 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 specialists (or profilers), forensic psychiatrists, or other professionals who can provide insights and additional information.

2.9.2 Face-to-Face Deterrence

A meeting with police may affect the suspect’s state of mind, as well as the victim’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 victim that the police have taken their complaint seriously, and informs the offender that the behaviour is inappropriate. It also gives the offender an opportunity to explain their 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 is 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 accused continues the harassment, that the accused knew that the victim 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-like meeting can provide information about the suspect’s thinking and behaviour patterns, and can provide 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 victim. Keeping this in mind can help investigators develop interrogation themes and establish a rapport with the offender.

2.9.3 Sections 810 and 810.2 Peace Bonds, and Civil Protection Orders

This level of intervention should be considered when the victim fears for their safety and the suspect poses a risk of physical violence, but there is insufficient evidence to support a charge. Peace bonds and civil protection orders³⁰ are not substitutes for criminal charges. Charges should be laid where there is evidence to support the charges.³¹

An application for an order under s. 810.2 should be considered where there is fear that the suspect will commit a “serious personal injury offence.” In appropriate cases, consideration may be given to bringing a dangerous offender application.³² Note that the definition of “serious personal injury offence” in s. 752 includes “severe psychological damage.” More extensive conditions are available for a recognizance under s. 810.2 than under s. 810, including a condition that prohibits the defendant from being in possession of firearms or ammunition, and a condition that requires the offender to report to police or a correctional authority. 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 accused has contacted the victim again.

Eight provinces and territories have now passed civil domestic violence legislation: Saskatchewan (1995), Prince Edward Island (1996), Yukon (1999), Manitoba (1999), Alberta (1999), Ontario (2000), Nova Scotia (2001) and Northwest Territories (2003).³³ 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 longer term victim assistance order, sometimes called a protection or prevention order.³⁴

All section 810 peace bonds are tracked through CPIC; civil restraining orders are not necessarily recorded on CPIC.³⁵ Civil restraining orders, peace bonds, and conditions of bail and probation are more effectively enforced if they are readily accessible to police agencies that are called to intervene in domestic disputes. The Chief Firearms Officer in each jurisdiction has immediate access to court orders issued in family violence or stalking cases where an individual’s privilege to possess a firearm is curtailed. Note that although subsection 810(3.1) 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 victim to immediately report any³⁶ breach of conditions of the peace bond or civil protection order so that prompt action can be taken against the suspect. Also advise the victim of the limitations of a peace bond and remind them of the continuing need to take precautionary measures.

2.9.4 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 seizure³⁷ and the Application for Disposition³⁸ 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 a person is 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 add to the storage security requirements already in place or to store the firearms at another location for a period of time.

2.9.5 Arrest and 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 Part 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 and probable 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 subsection 495(2)(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 Part 2.11 – Release from Custody, and Part 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:

• intimidation (section 423);
• uttering threats (section 264.1);
• mischief (section 430);
• indecent or harassing telephone calls (section 372);
• trespassing at night (section 177);
• assault (section 265);
• assault with a weapon or causing bodily harm (section 267);
• aggravated assault (section 268);
• aggravated sexual assault (section 273);
• first degree murder (subsection 231(6));
• failure to comply with a condition of undertaking or recognizance (subsection 145(3));
• disobeying court order (section 127);
• breach of recognizance (section 811); and
• failure to comply with a probation order (section 733.1).

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

An accused who has outstanding charges against them and (a) has contravened, or was about to contravene, their form of release,³⁹ or (b) has 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 Part 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.

2.10 Coding or Scoring Files/Incidents

Many police agencies collect statistical information on the occurrence of criminal harassment incidents. The Royal Canadian Mounted Police collect statistical information on the incidence of crimes using the Operational Statistical Reporting (OSR) system.⁴⁰ Police agencies using the OSR system of coding or scoring files for incidents of criminal harassment should follow the OSR tables, as follows:

• Code: AC41
• Nature of Event: criminal harassment or stalking crimes
• Effective Date: 1993-08-01

Officers using systems other than the OSR system should consult the appropriate people in their agencies to determine the appropriate coding to use in reporting incidents of criminal harassment.

2.11 Release from Custody

(See also Part 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 an undertaking prohibiting contact with, or proximity to, the complainant or other witnesses. If possible, the police should speak to the victim before deciding whether to release the suspect; such a discussion will help the officer assess the risk to the victim and determine which conditions might decrease that risk if the suspect is released. The following undertakings should be considered:

• abstaining from communicating, directly or indirectly, with the victim or other specified person;
• abstaining from going within 200, 500 or 1000 metres of any specified places, such as the victim’s residence and place of work;
• abstaining from consuming alcohol or other intoxicating substances or drugs, except in accordance with a medical prescription;⁴¹
• abstaining from possessing firearms, and surrendering any licence, registration certificate or authorization;⁴² and
• reporting at specified times to a peace officer or other designated person.

Where the accused is released on a recognizance, forward the 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 victim of the fact of the release and any release conditions.

2.12 Report to Crown Counsel

The Report to Crown Counsel must clearly address and document the key elements of the offence (see also Part 3.4 – Key Elements). Practices vary among jurisdictions. However, 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 they need to deal with various stages of court proceedings, including the following details.

• Information on the prohibited conduct.
• Reasons why the victim reasonably fears for their 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. For example, note whether the victim has done any of the following:
  
  
  • moved to a new location or obtained a new phone number;
  • recorded all telephone conversations and messages;
  • told friends, family, co-workers or building security of the harassment and given photos of the suspect to these persons;
  • arranged escorts to their car and work site;
  • changed their work schedule or route to work;
  • stopped visiting places previously frequented;
  • taken a self-defence course;
  • installed a security system;
  • acquired a guard dog;
  • received counselling or other psychotherapy; or
  • altered their behaviour in any other ways.
• Evidence of the suspect’s intent to harass the victim, or of the suspect’s recklessness as to whether the victim was harassed. For example, did the victim indicate to the suspect their displeasure with the suspect’s conduct, either directly or indirectly? For example, did someone else advise the suspect of the victim’s displeasure, on the victim’s behalf? Did the suspect continue to engage in the conduct after such communication, or after contact with the police? Did the suspect engage in the conduct in contravention of an existing peace bond, civil restraining order, recognizance, bail condition or probation condition?
• Any steps the accused has taken since the incident to address emotional, attitudinal or other problems. What factors in the accused’s life tend to show either stability or instability (for example, place to live, family support, job changes, and stability of employment)? If the accused is experiencing a number of stressors, they may be less able to control their impulses and may pose more risk to the victim. Are there suitable people in the accused’s life who could act as effective sureties?
• All available information necessary for a bail application hearing relating to a detention order or to pre-trial release conditions. This information should specifically address the risk to the victim if the accused is released. Consider recommending appropriate or necessary conditions that the Crown should seek at a pre-trial release hearing. (See Part 4.4 – Pre-Trial Release for a list of possible bail conditions.)

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