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Family Violence Initiative

CRIMINAL HARASSMENT:

A HANDBOOK FOR POLICE AND CROWN PROSECUTORS

THE LAW

3.1 Prohibition of Criminal Harassment

As outlined in Part 1.2, the criminal harassment provisions have only been in force since 1993. A significant factor in the swift enactment of section 264 was the increasing concern among criminal justice personnel that existing Criminal Code provisions did not adequately capture “stalking” conduct, which was emerging as a new form of violence against women.

The need for the criminal law to evolve and address new forms of criminal conduct such as criminal harassment was expressly recognized by Madame Justice L’Heureux-Dubé in R. v. Hinchey (1996), 142 D.L.R. (4th) 50 at 66 (S.C.C.):

The notion of criminality, thus, is not a static one, but one which very much changes over time. As society changes, the conception of what types of conduct can properly be considered criminal evolves. There are a myriad of different activities which at one point in time were considered legal, but which we now consider criminal. The offence of criminal harassment is one obvious example. For many years, it was not recognized as criminal to persistently follow someone and cause them to fear for their safety, so long as no contact was made. Now, that has distinctly changed with the addition of s. 264 of the Code, which makes this conduct a crime.

3.2 Criminal Code Provisions

3.3 Charter Challenges

Charter challenges have argued unsuccessfully that section 264 is vague and overly broad and therefore void under sections 2(b) (freedom of expression) and 7 (life, liberty and security of the person). See R. v. Hau, [1994] B.C.J. No. 677 (Prov. Ct.) (QL), (see also R. v. Hau, [1996] B.C.J. No. 1047 (S.C.) (Q.L.), which upheld the constitutionality of the section but allowed an appeal and ordered a new trial). In R. v. Sillipp (1997), 120 C.C.C. (3d) 384 (Alta. C.A.), leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 3 (QL), Berger J.A. found that s. 2(b) of the Charter does not apply to ss. 264(2)(a) or (c) of the Code, and denied a s. 7 argument that s. 264 allows the morally innocent to be punished. At trial, in justifying any 2(b) violations under s. 1, Murray J. had characterized this form of “expression” as “attempts by persons to convey meanings of latent physical violence and direct psychological violence to other persons” (R. v. Sillipp (1995), 99 C.C.C. (3d) 394 at 413 (Alta. Q.B.)). In R. v. Doody, [2000] Q.J. No. 934 (C.A.) (QL), Michaud C.J.A. dismissed an application for leave to appeal, finding, among other things, that there was no merit to a constitutional challenge of s. 264(2)(c) of the Code.

In R. v. Davis (1999), 143 Man. R. (2d) 105 (Q.B.), aff’d (2000), 148 Man. R. (2d) 99 (C.A.), the Court followed Sillipp with respect to the s. 7 challenge on vagueness of the mens rea component of the offence and found that the legislation does not violate rights of association under s. 2(d) of the Charter. While accepting the Crown’s concession that the communication component of the provision violates s. 2(b), the Court found “that the laudable objective of the criminal harassment legislation far outweighs the negative impact that it has on freedom of expression.” In R. v. Krushel (2000), 142 C.C.C. (3d) 1 (Ont. C.A.), leave to appeal to S.C.C. refused, [2002] S.C.C.A. No. 293 (QL); the Ontario Court of Appeal also followed the Alberta Court of Appeal decision in Sillipp with respect to s. 7 challenges for vagueness and insufficient mens rea requirements, and the Sillipp Queen’s Bench decision in relation to the freedom of expression challenge. See also R. v. Cloutier, [1995] Montreal No. 500-01-005957 (Qc. (Cr. Div.)).

In responding to a Charter challenge, Crown counsel may also wish to review the legislative history of the criminal harassment provisions.

House of Commons

• First Reading of Bill C-126 (An Act to amend the Criminal Code and the Young Offenders Act) – April 27, 1993
• Second Reading – May 6, 1993 (see Hansard, House of Commons Debates, at 19015–19019 for the Minister of Justice’s Second Reading Speech)
• Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-126 – Issue No. 1 (May 11 and 25, 1993); Issue No. 2 (May 26, 1993); Issue No. 3 (May 27, 1993); Issue No. 4 (June 1, 1993); Issue No. 5 (June 2, 1993); and Issue No. 6 (June 2, 1993)
• Report of Legislative Committee – June 3, 1993
• Third Reading – June 10, 1993

Senate

• First Reading – June 14, 1993
• Second Reading – June 17, 1993
• Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs – Issue No. 50, First Proceedings (June 21, 1993); and Issue No. 51, Second and Final Proceedings (June 22, 1993)
• Report of Committee – June 22, 1993
• Third Reading – June 23, 1993

Royal Assent received on June 23, 1993, and proclaimed into force on August 1, 1993. See S.C. 1993, c. C-45.

See also Nicholas Bala, “Criminal Code Amendments to Increase Protection to Children and Women: Bills C-126 and C-128” (1993) 21 C.R. (4th) 365.

1997 Amendments – Bill C-27

The 1993 criminal harassment provisions were amended by Bill C-27, An Act to amend the Criminal Code (child prostitution, child sex tourism, criminal harassment and female genital mutilation), to make murder committed in the course of criminally harassing the victim a first degree murder offence, irrespective of whether it was planned and deliberate; and to make the commission of an offence of criminal harassment in the face of a protective court order an aggravating factor for sentencing purposes.

House of Commons

• First Reading of Bill C-27 (An Act to amend the Criminal Code (child prostitution, child sex tourism, criminal harassment and female genital mutilation)) – April 18, 1996
• Second Reading – June 10, 1996
• Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs – Issue No. 4 (October 1, 1996); and Issue No. 6 (November 1, 5, 7, 19, 21, 26, 27, and 28, and December 3 and 4, 1996)
• Report of Committee (Sessional Paper No. 8510-352-63) – December 5, 1996
• Debated at report stage – April 7 and 8, 1997
• Third Reading – April 14, 1997

Senate

• First Reading – April 15, 1997
• Second Reading – April 15 and 16, 1997
• Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs – Issue No. 59, First and Final Proceedings (April 17, 1997)
• Report of Committee – April 17, 1997
• Third Reading – April 21, 1997

Royal Assent received on April 25, 1997, and proclaimed into force on May 26, 1997. See S.C. 1997, c. 16.

2001 Amendments Bill C-15A

criminal harassment provisions were further amended by Bill C-15A, An Act to amend the Criminal Codeand to amend other Acts, which doubled the maximum sentence for criminal harassment from 5 to 10 years’ imprisonment when proceeding on indictment.⁴³

House of Commons

• First Reading of Bill C—15A, then named Bill C-15, (An Act to amend the Criminal Code and to amend other Acts) – March 14, 2001 (see Hansard, House of Commons Debates, at 1646 for the Minister of Justice’s First Reading Speech)
• Second Reading – May 3 and 7, and September 20 and 26, 2001 (see Hansard, House of Commons Debates, at 3581 for the Minister of Justice’s Second Reading Speech)
• Minutes of Proceeding and Evidence of the Standing Committee on Justice and Human Rights – Issues No. 21 and 22 (October 2, 2001); Issue No. 23 (October 3, 2001); and Issue No. 24 (October 4, 2001)
• Bill divided into C-15A and C-15B – October 3, 2001
• Report of the Committee – October 5, 2001 (Sessional Paper No. 8510-371-74); concurred in October 18, 2001
• Third Reading – October 18, 2001 (see Hansard, House of Commons Debates, at 6312 for the Minister of Justice’s Third Reading Speech)

Senate

• First Reading – October 23, 2001
• Second Reading – November 6, 2001
• Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs – Issue No. 20, First Proceedings (December 5, 2001); Issue No. 21, Second Proceedings (December 6, 2001); Issue No. 22, Third Proceedings (December 12, 2001); and Issue No. 24, Fourth and Final Proceedings (February 7, 2002)
• Report of Committee – February 19, 2002; debated and adopted February 20, 2002
• Third Reading – February 21, and March 5, 12, 13, 14 and 19, 2002

Royal Assent received on June 4, 2002, and proclaimed into force on July 23, 2002. See S.C. 2002, c. 13.

2002–2004 Proposed Amendment

Bill C-12, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, includes amendments to the Criminal Code that seek to facilitate testimony by children and other vulnerable persons, including victims of criminal harassment. Specifically, proposed subsection 486.3(4) would require the trial judge to appoint counsel for a self-represented accused to conduct the cross-examination of the victim, thus preventing any continuation of the harassment that might occur if the accused is permitted to personally cross-examine the victim.⁴⁴

House of Commons

• First Reading of Bill C-20 (An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act) – December 5, 2002 (see Hansard, House of Commons Debates, at 2291 for the Minister of Justice’s First Reading Speech)
• Second Reading – January 27; February 3, 20 and 27; March 21 and 31; and April 1, 2003 (see Hansard, House of Commons Debates, at 2689 for the Minister of Justice’s Second Reading Speech)
• Minutes of Proceedings and Evidence of the Standing Committee on Justice and Human Rights – Issue No. 63 (September 25, 2003); Issues No. 66 and 67 (October 7, 2003); Issue No. 68 (October 8, 2003); Issue No. 69 (October 9, 2003); Issue No. 71 (October 21, 2003); Issues No. 73 and 74 (October 23, 2003); and Issue No. 77 (October 29, 2003)
• Report of Committee – October 30, 2003; debated November 6, 2003

Bill C-20 died on the order paper with the prorogation of Parliament on November 12, 2003. It was reintroduced as Bill C-12 on February 12, 2004, in the same form as Bill C-20 at the time of prorogation of the previous session.

• First Reading of Bill C-12 (An Act to Amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act); deemed read the second time and referred to a committee; deemed considered in committee and reported – February 12, 2004
• Debated at report stage – February 18 and 23, 2004
• Concurred in at report stage with amendments – February 24, 2004⁴⁵

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