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Family Violence Initiative

CRIMINAL HARASSMENT:

A HANDBOOK FOR POLICE AND CROWN PROSECUTORS

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 through a Case Record Sheet. This task includes identifying all actions taken and reasons for Crown decisions (see Appendix E for a sample Crown Case Record Sheet).
• 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/re-assess the ongoing safety of the victim, and the adequacy of any no-contact conditions and other measures, during these intervening periods.

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 for testifying in court. Be sensitive to the victim’s personal situation and their state of mind, including the psychological and emotional distress they are 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 them 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:
  
  • 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—of their 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 their lifestyle or actions because of the accused’s conduct;
  • the history of any prior relationship between the victim and the accused, particularly details of past incidents of abusive or violent behaviour towards 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 Part 2.9.5 – 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 the following charges:
  
  
  • 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 condition of undertaking or recognizance (subsection 145(3));
  • Disobeying court order (section 127);
  • Breach of recognizance (section 811); and
  • Failure to comply with probation order (section 733.1).
• Consider laying counts relating to serious incidents in the past.
• 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, poor women, 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.”⁴⁸ 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:
  
  
  1. the referral to the alternative justice process is made post-charge on Crown approval;
  2. 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);
  3. the alternative justice process offers the same or greater measure of protection of the victim’s safety as does the traditional criminal justice process;
  4. 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;
  5. the offender fully accepts responsibility for his action;
  6. 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;
  7. 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;
  8. 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
  9. the possibility of criminal conviction and sentence remains if the process fails.⁴⁹
• Consider seeking a recognizance order under sections 810 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 the charges.(See also Part 2.9.3 – Sections 810 and 810.2 Peace Bonds, and Civil Protection Orders.)
• 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 Part 2.11 – 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, either to seek the detention of the accused or to ensure that 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 in the public interest.

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 missing information from the file, as well as any new developments or concerns regarding risk factors. 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
  
  
  • the accused poses a danger to the safety of the victim or a witness; or
  • the accused has breached a previous or existing no-contact order or condition.
• Present evidence of the history of the harassment, as well as of any past incident of abuse or criminal convictions.
• 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, R. v. Fuson, [1998] B.C.J. No. 1441 (Prov. Ct.) (QL) where bail was denied to an accused with a serious criminal record, which included sexual assault. A psychological assessment showed that the accused was at a high risk of re-offending. Cf. R. v. Lepore, [1998] O.J. No. 5824 (Gen. Div.) (QL).
• 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 their personal safety if the accused is released on bail.
• Emphasize that the victim’s rights must also be considered. Bill C-79⁵⁰ amended subsection 515(10)(b) in 1999 to make clear that bail decisions must take the safety of the victim into account. R. v. Mills, [1999] 3 S.C.R. 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 prior to the commencement/completion of their judicial interim release hearing (subsection 516(2)).

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