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Family Violence Initiative

CRIMINAL HARASSMENT:

A HANDBOOK FOR POLICE AND CROWN PROSECUTORS

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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);9 ⁵¹
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 1000 metres of any specified places, such as the victim”s residence and place of employment (subsection 515(4.2)).9 ⁵²

4.5.2 Firearms/Weapons Prohibition

(See also Part 2.9 – Threat and Risk Assessments, and Level of Intervention)

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)).
Section 115 provides that the weapons in the possession of the accused are forfeited unless the prohibition order states otherwise. In the past, there was some confusion about whether this provision also applied to bail conditions under s. 515; however, this uncertainty has now been clarified by Bill C-10A, which amended s. 115 to specify that it does not apply to judicial interim release orders under s. 515.9 ⁵³
Section 116 provides that when someone is prohibited from possessing weapons, any documents relating to those weapons are revoked or amended when the prohibition order commences. However, pursuant to subsection 116(2), created by Bill C-10A, when the prohibition order is made under s. 515, the revocation or amendment applies only “in respect of the period during which the order is in force.”9 ⁵⁴
Section 113 allows for the partial lifting of a prohibition order where the person establishes that they require 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

A justice may impose other reasonable conditions, and 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;9 ⁵⁵
- report at specified times to a peace officer or other designated person;
- notify a peace officer or other designated person of any change in their address, employment or occupation. Consider requiring/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. It sometimes happens that an accused notifies the designated person that they have moved to an address that is close to the complainant’s residence or place of work, but not so close that they are 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 in their place of residence between specified hours, unless they obtain written permission from a designated person (where the criminal harassment occurred during the night);
- require/request that responsible sureties 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 their availability to supervise the accused.9 ⁵⁶
- Where the accused is also bound by a civil court order that imposes different conditions from those imposed at the bail application hearing, ask the justice to advise the accused that they are obliged to obey the most restrictive aspects of the two orders.
- 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 their access rights.

4.5.4 Follow-up with Victim and Police

Advise the victim, police and victim services 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. Ask police to input any information relating to release conditions, including weapons prohibitions, on CPIC.

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.9 ⁵⁷

Where the accused breaches bail conditions, consider the following:

having the accused arrested pursuant to subsection 524(1)(a) of the Code;9 ⁵⁸
charging the accused under subsection 145(3) and possibly charging the accused with a new count under section 264; and
bringing an application pursuant to subsection 524(8)9 ⁵⁹ to have all previous releases cancelled (see preconditions of that subsection).

This approach is advantageous because where the justice finds that the conditions in subsections 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 heard at the same time as 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 their 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.

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, is a penalty in excess of six months’ imprisonment likely?
Would a preliminary hearing and possible trial by judge and jury pose a greater burden on the victim?
Will the election have any implication on plea negotiations?

Statistics Canada’s Adult Criminal Court Survey (ACCS) data for 2001–2002 include the following fact.

Of all criminal harassment cases, 57% proceeded by summary conviction and 12% proceeded by indictment (election was unknown for 31% of the cases).

4.7 Case Preparation

Determine whether the Information is accurate and complete—in other words, that 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 have been laid that arise from the evidence the police gathered.
Contact the victim as soon as practicable to advise them 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 made or decisions taken.
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, R. v. Fraser (1997), 33 O.R. (3d) 161 (C.A.), where based on information obtained in a psychiatric assessment done for sentencing purposes, the Crown moved to set aside a conviction for criminal harassment and the Court found that the accused was not criminally responsible on account of mental disorder.
Where evidence of the accused’s prior conduct/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 to appoint counsel for the purposes of cross-examining a child victim or a key witness (subsection 486(2.3)). See R. v. Grey, [1996] O.J. No. 4743 (Prov. Div.) (QL). (Note that Bill C-12, An Act to Amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, introduced in the House of Commons on February 12, 2004, seeks 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.)9⁶⁰

Endnotes
⁵¹	Under subsection 515(4.1), this condition is mandatory for the offence of criminal harassment, unless the justice decides that it is not necessary.
⁵²	Caution should be used to ensure that no-contact or radius clauses do not reveal a new address, phone number, location or workplace of the victims or other involved.
⁵³	Bill C-10A, An Act to amend the Criminal Code (firearms) and the Firearms Act, s. 5 proclaimed into force August 15, 2003.
⁵⁴	Bill C-10A, An Act to amend the Criminal Code (firearms) and the Firearms Act, s. 6 proclaimed into force August 15, 2003.
⁵⁵	This condition is only appropriate where there is evidence that such substances were involved in the offence.
⁵⁶	For more detailed suggestions, see D. Garth Burrow, Bail Hearings (Scarborough, Ontario: Carswell, 1996).
⁵⁷	In these situations, a bail review hearing under s. 525 of the Code might also be appropriate.
⁵⁸	See Part 2.9.5 – Arrest and Charges.
⁵⁹	Note that where the previous form of release was made under subsection 522(3) (in relation to s. 469 offences), subsection 524(4) applies.
⁶⁰	This amendment was originally introduced in the House of Commons on December 5, 2002, in Bill C-20, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act. 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.