Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 51 - Evidence
OTTAWA, Wednesday, February 3, 1999
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-445, to change the name of the electoral district of Stormont--Dundas; Bill C-464, to change the name of the electoral district of Sackville--Eastern Shore; Bill C-465, to change the name of the electoral district of Argenteuil--Papineau; and Bill S-17, to amend the Criminal Code respecting criminal harassment and other related matters, met this day at 3:30 p.m. to give consideration to the bills.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I see quorum.
The floor is yours, Mr. Kingsley.
Mr. Jean-Pierre Kingsley, Chief Electoral Officer: Madam Chairman, honourable senators, I thank you for inviting me to appear before you to address the issues raised by Bills C-445, C-464 and C-465, each of which proposes to change the name of an electoral district from that adopted pursuant to the 1996 representation order.
I would like to take this opportunity to make some observations on the redistribution procession as it relates to the selection of electoral district names, and to draw to your attention the administrative impact of electoral district name changes.
As senators know, the process of redistribution allows for consultation on the boundaries, as well as on the name of the district.
First, each commission must hold at least one public hearing before completing its report. The time and location of public hearings are widely advertised so that interested individuals, groups and members of Parliament have the opportunity to appear before a commission to express their views on the commission's proposals.
Second, once a commission has completed its report, it is referred to Parliament through the Chief Electoral Officer and, in turn, the Speaker refers it to the Standing Committee on Procedure and House Affairs.
Members of Parliament have 30 days to make objections. In the 1996 redistribution, 11 of the 81 objections related to the names of the electoral districts and were returned to commissions for decision. Of the 11 objections, eight were accepted and three were rejected by commissions. Two were rejected because the proposed changes did not comply with the guidelines of the Canadian Permanent Committee on Geographic Names. The third was rejected because it did not reflect the community of interest.
I should like to point out that Bill C-347, which received Royal Assent, changed the names of two of these electoral districts to the names suggested in the objections, despite the fact that they had been reviewed and rejected with justification by the commissions.
Notwithstanding the broad consultation of the public and of members of Parliament during the redistribution process, there is a marked increase in electoral district name changes sought between redistribution periods. Since the January 1996 proclamation of a representation order, still seven years away from the next decennial order, 41 electoral distinct names have been changed.
The three changes under consideration by the present bills would bring the total to 44. For comparison purposes, after the 1976 redistribution, there were 37 legislated name changes. After the 1987 redistribution, there were 18. The number is growing quite significantly.
Another trend observed over the last three representation orders is that the commissions are selecting longer electoral district names. For example, in 1976, 40 per cent of the electoral districts had a single-word designation, as opposed to 27 per cent in 1996. In 1976, 5 per cent of the electoral districts had a compound name of four or more words. By 1996, this figure had doubled to 10 per cent. This trend is evident in the bills relating to electoral district name changes that have been passed or which have been under consideration since the last redistribution.
While the longer electoral district names may be acceptable pursuant to the various selection criteria, the trend raises the issue of standards for geographic names. When selecting the name of electoral districts, electoral boundaries commissions are advised to follow the guidelines issued by the Canadian Permanent Committee on Geographic Names. This committee is a national coordinating body which develops standard policies for the treatment of geographic names and terminology. The committee has representatives from each province and territory, as well as from various federal departments concerned with mapping, translation, statistics, archives, defence, First Nations lands, and national parks. The committee publishes guidelines specifically for the use of electoral boundaries commissions.
[Translation]
Under these guidelines, constituencies with only one geographical name are easier to understand, and designations with two or three names are acceptable if they comply with other criteria. Under the guidelines, designations with four or more geographical names should be avoided because they are too long and too cumbersome, and can create problems on printed lists.
Now that I have made a few observations on the selection of constituency names, I would like to talk about the administrative implications of name changes. As soon as possible after the proclamation giving effect to the representation order, Elections Canada is required by law to print geographical maps for the country. We also produce descriptions of polling divisions, guides to electoral districts and street keys. The amounts printed depend on the estimates of needs over ten years, that is until the next redistributing exercise. Needless to say, other public information documents are also affected by constituency name changes. When a name is changed between redistributing exercises, Elections Canada issues errata until the supplies of geographical material are exhausted. While this practice is less costly than reprinting all the documents in question, it nonetheless requires additional efforts in the distribution of products and in communication with the public.
The most likely element to suffer from these changes is our data processing system. It was designed for 50 characters, including spaces and hyphens. The limit is the result of Elections Canada's first efforts to computerize, in 1988, when on the average, the longest constituency names were between 30 and 40 characters. Thus we added 25 per cent to what the maximum was at the time. It would cost about a half-million dollars to redefine this application, if we decided to accept names longer than 50 characters.
At the present time, there are two constituencies with names exceeding 50 characters: Beauport--Montmorency-- Côte de Beaupré--Île d'Orléans, which had 28 characters until Bill C-410 was passed in 1998, and Kamouraska-- Rivière-du-Loup--Témiscouata--Les Basques, which had 38 characters before Bill C-347 was passed in 1996. Elections Canada got around the problem by replacing the double dash, prescribed by the Canadian Standing Committee on Geographical Names to connect geographical names in constituency designations, by a single dash.
Among the bills currently being studied, none of the suggested changes would introduce a constituency name of more than 50 characters. Thus the only consequence for Elections Canada would be the printing of errata, as I mentioned a moment ago. However, the changes that I outlined suggest that future name changes could have an even more significant administrative impact.
I would like to point out that in addition to their administrative consequences for Elections Canada, name changes also affect organizations that process and publish information containing constituency names, for example the House of Commons, the Senate, Statistics Canada, Natural Resources Canada and Human Resources Development Canada, just to name a few.
Thank you for inviting me here today. We are at your disposal if you wish to look at any issues related to management of the electoral process.
Senator Beaudoin: Did I understand correctly when you said that you can change a name even if the commission does not agree? Do I understand the meaning of the Act correctly?
Mr. Kingsley: A bill which becomes law can change a name even if the commission does not agree. The committee on names does not have veto power. A commission makes a final decision concerning the coming into force of the proclamation and of the constituency name. Any name change made thereafter must be done through a bill such as the three that are before you today.
Senator Beaudoin: I have no objection to this bill. I am trying to understand just how changes are made. It's not just a whim; you must have a good reason to change the name of a riding or constituency. Everything is based on that. You assess the application on its merits, do you not?
Mr. Kingsley: Elections Canada does not play a part in the name changes proposed to Parliament by its members. The members are the ones who decide to go ahead and introduce private bills. Elections Canada is not consulted. When the boundaries commissions in each of the provinces examine the names, they do so in light of the recommendations of the committee on geographical names, that I talked about, made with provincial participation. Elections Canada is not involved in this process either. Our expertise does not lie in the country's historical development, as far as the use of names or geographical locations is concerned. Elections Canada is not involved except for consequences when changes are made in what has already been printed, and the type of major impact that occurs if we ever have to rewrite our software to go beyond 50 characters for constituency names. That was the $500,000 cost I referred to.
Senator Beaudoin: I have noticed that constituencies often have the name of famous people in Canada's history. That is to be expected. There must be some control over that. But when you use compound names such as Stormont--Dundas, Sackville--Eastern Shore and Argenteuil--Papineau, it becomes a little more complicated, even though they have been quite widespread in Canada over the years.
Mr. Kingsley: Certainly. The boundaries commissions do not reject compound names. They even propose them. And the geographical names committee -- the short title -- accepts them also. It agrees to there being two or three names, and even four. They try to make sure that it has some historical relevance with the place. It must also make sense and connect the voter with his or her constituency. Since the members of Parliament can express their views concerning constituency names when the commissions initially report, I feel that this is how name changes should really occur, rather than having private bills presented and bringing in other costly and sometimes extremely costly measures. This is not the case with the three bills before us. Let me make it quite clear that the constituency name changes set forth in these three bills is not very expensive.
Senator Beaudoin: And as you say, it does have a historical connotation.
Mr. Kingsley: It was looked at thoroughly when the boundaries commissions did their work. There were consultations with this committee which hears provincial representations to make sure that it is consistent at the provincial level; going beyond this with a bill would change it somewhat, I feel.
Senator Nolin: Even if the cost is under $500,000, when there are fewer than 50 characters, what is your administrative cost?
Mr. Kingsley: I would say a few thousand dollars for a constituency.
Senator Nolin: Since there are three, it would be three times fifteen, if the changes were done at the same time?
Mr. Kingsley: Yes, but the cost is for each constituency. The errata have to be printed for each constituency. Those are our costs. It isn't major.
Senator Nolin: Up to 50 characters, the cost is a few thousand dollars.
Mr. Kingsley: The reason why it is expensive with software is because a whole series of other electronic applications have to be redone; I referred to a few of them in my presentation.
[English]
The Chairman: What would the committee dealing with geographic names do if, for example, Argenteuil--Papineau --Mirabel had been named Argenteuil--Papineau-- Chatham--Mirabel? Both Chatham and Mirabel are very common names in Ontario as well.
Mr. Kingsley: First, they probably would go back to the commission and say that they do not recommend the use of this name for this riding; that it has no historical pertinence to this area of Canada.
The Chairman: It would in this case because there is a town called Chatham in Argenteuil--Papineau.
Mr. Kingsley: If it did, then they would consider that. At any moment in time, this tendency to include every village and every township name within the name of the riding will, frankly, eventually take us beyond the pale as it relates to the pertinence of the names to the electorate.
The Chairman: Although the names would mean something to the people in those particular areas, there would be, in that particular example, a possibility for real confusion between the two different areas. I am thinking of an example in Ontario where there is a town of Durham and a regional municipality of Durham.
Mr. Kingsley: Presumably this committee's work is to rationalize all of this and to allocate the use of the names to those areas where it is most pertinent to use those names.
The Chairman: If there are no further questions, I thank you for appearing today. We will now proceed to clause-by-clause consideration.
Mr. Kingsley: Thank you. We appreciated this opportunity.
The Chairman: We will proceed to clause-by-clause consideration of, first, Bill C-445. Would someone please move that this bill be reported to the Senate without amendment?
Senator Fraser: I so move.
The Chairman: All those in favour? Opposed? Abstentions?
Carried.
It is moved by Senator Nolin that Bill C-464 be reported to the Senate without amendment.
All those in favour? Opposed? Abstentions?
Carried.
It is moved by Senator Beaudoin that Bill C-465 be reported to the Senate without amendment.
All those in favour? Opposed? Abstentions?
Carried.
The next item on our agenda is Bill S-17, to amend the Criminal Code respecting criminal harassment and other related matters. Senator Oliver is joining our committee in its consideration of this matter.
Senator Oliver: I thank the committee for agreeing to hear me at this time. I am aware that these private members' bills are not a great priority. I would especially thank Madam Chairman for agreeing to allow me appear.
I have submitted a brief summary of the bill. With your leave, I will speak for about eight minutes generally on why I am here and why I am doing this.
In one sense, it can be said that this is a life-and-death matter because, had the bill that I am proposing been law in Canada five years ago, many innocent Canadians who are now dead would be alive. They were killed after being victims of stalking.
The biggest problem with the harassment law as set out in the Canadian Criminal Code today is that most people do not take it seriously. The perception is that harassment is just a very small matter, that it is not serious, and that no serious consequences can flow therefrom.
I would draw your attention to the words of the definition in section 264. Stalking is generally defined as "repeatedly following" and "repeatedly communicating" with another person. You may ask what is wrong with communicating with another person. Is that a crime? Repeatedly "watching" another person's house is mentioned, as is standing outside someone's house or workplace -- is that wrong? -- or directly threatening another person or any member of his or her family. Well, that is probably a common assault.
What about causing persons to fear for their safety or the safety of someone known to them?
As a result of such wording, judges, Crown prosecutors and lawyers have said that this is not a very serious allegation, and they have not taken it very seriously. That has been the fate of the section.
As you may know, in 1990, California was the first state to introduce an anti-stalking bill. Shortly thereafter, all other states in the United States adopted similar bills. In Canada, in 1993, Don Black, an NDP member, brought a private member's bill very much like Bill S-17 to the House. The government thought it was such a good idea that they introduced a government bill in April. In August it was the law of the land. That was in 1993.
In 1996, our justice department decided to have a look at our new stalking law or anti-harassment law in Canada, to study it, analyze it, and determine how it well it was working. The justice department determined that, first, the crime is not treated seriously enough by prosecutors, lawyers and judges. They made that determination by examining the charges that were filed and how they were addressed, and whether the accused was fined, imprisoned, et cetera.
Second, the number of criminal harassment charges withdrawn or stayed by the Crown and the number of charges withdrawn in exchange for a peace bond are extremely high in comparison to the charges for specific categories of crimes. Twenty-nine per cent of all charges were dropped in exchange for a peace bond, again, because we do not consider this to be very serious.
Almost 60 per cent of criminal harassment charges are withdrawn or stayed by the time they get to court; 20 per cent are dropped or stayed unconditionally. Seventy-five of those convicted of criminal harassment received either probation only or a suspended sentence. They did no time.
In my opinion, no constitutional questions or problems arise in Bill S-17. The essence of this bill is the toughening and the tightening up of the sentences both on summary conviction and on indictment. The question before this committee and before the Senate, I submit, is this: Is it good public policy to tighten up the punishment sections of our harassment law so that the Crown, the judges, the prosecutors and the stalkers will know that we mean business?
In some of the writing being done on this topic, it is clear that it is not just a physical touching that can cause damage and harm to people. It is the psychological threat that some type of harm will occur.
I have some personal interest in this. We have a daughter in Halifax who has a friend who has been the victim of a stalker for years. The police must drive by her home several times a day. The man has been charged, convicted, and been put under a peace bond on several occasions.
This particular lady can be walking up the street and turn around and there is he. She does not know whether he has a knife or a gun, and she lives in constant fear. As a result, she has developed medical problems. She cannot live a normal life. She cannot go out on her own.
I have another friend who practises law in Dartmouth, Nova Scotia. One day when I was talking with him he suddenly had to leave because, as he told me, his daughter was going to the pond to skate. Later, when I phoned him, he told me that his daughter and his wife have been stalked for years. When his wife is grocery shopping, if she looks between the shelves, she will see the man who is stalking her peering at her. When she walks out of the store, he walks out behind her. He follows them in their car. With the law as it presently is, they can do nothing about it. When I asked my friend why they did not lay a charge, he told me that the harassment law is not taken seriously. He said, "People do not realize that there is nothing else we can do. We just have to learn to live with it."
After the bill was introduced in the Senate, my phone rang off the hook from hosts of talk shows across Canada asking me to appear on their shows, and I did appear on some of them. I did one at a radio station in Alberta. I am told that station reaches a good part of Calgary and Edmonton. The audience is quite broad. A number of men, women and children came on that show and told their stories. Two of the women told of how they no longer live in Alberta. They were among the 65 women who had to change their identity and leave the province because of stalking and harassment and because the law could not provide them with ample protection.
One lady told a horrifying story of how she was constantly followed; how she was constantly threatened; how dead animals would be left on her front doorstep; how threatening notes would be left on her windshield; and so on. She had psychiatric treatment and finally had to leave the province. She is now living elsewhere in Canada under an assumed name. That is a direct result of our weak sexual harassment laws.
The essence of the bill is to allow for the imposition of longer and tougher sentences for both summary conviction and indictable offences. Currently, under section 264 of the Criminal Code, a judge can impose a sentence of up to six months or a fine of up to $2,000 on any person convicted of criminal harassment. My recommendation is that the sentence should be 18 months and that the option of imposing a fine be eliminated. The reason for that -- since my desire is to try to make our courts, which is judges, lawyers and prosecutors, aware that this is a serious offence -- is that if a person on summary conviction were facing 18 months, with no option of a fine, people would recognize that we consider this to be a serious offence.
The other proposed amendments relate to tightening and making more stringent the penalty, both on summary conviction and on indictment.
The Chairman: Is the proposal that they be made more stringent in much the same proportion?
Senator Oliver: Presently, under section 372, subsections (2) and (3), which deal with indecent and harassing telephone calls, on summary conviction the sentence can be six months and $2,000. If this bill were passed that would be increased to 18 months; and, on indictment, two years.
Under section 423, which deals with the offence of intimidation, on summary conviction the sentence can be six months or a $2,000 fine. That would go up to 18 months.
In regard to section 752, I propose that criminal harassment be included in the definition of "serious personal injury offence." This suggestion came from the Attorney General in British Columbia. I must say that, in doing the background research for this bill, the Province of British Columbia and their Attorney General's department were incredibly forthcoming and helpful. Indeed, I would read two paragraphs of a letter that was sent by the Attorney General. He wrote:
In some cases there is also an extremely high risk of actual physical violence from the stalker. This is particularly the case where there is a history of physical abuse in a marriage or other intimate relationship. In Vancouver, for example, we have several women so obviously at risk of harm from their ex-partners that they are equipped by police with panic alarms. The Vancouver program is similar to others in place in several major cities across Canada, including Calgary, Winnipeg and Ottawa.
Another category of high risk cases recognized in the literature involves stalking by the sociopathic or pathological stalker, that is, the serial murderer or sex offender stalking potential victims (for example, Ted Bundy or Paul Bernardo).
The Department of Justice study mentioned above suggests that sentences imposed for criminal harassment have generally been "weak relative to what was hoped for.."..
I believe that increasing the sentence to 10 years would send a very clear signal that this behaviour is extremely serious.
As to my request that criminal harassment be included within the definition of "serious personal injury offence" as defined in section 752 of the Criminal Code, this would permit dangerous offender proceedings to be initiated in appropriate cases based upon a conviction for criminal harassment.
That suggestion relating to that particular clause of my bill came from the Attorney General of British Columbia, and it is based on that department's experience and the work they have done.
The Chairman: Thank you, Senator Oliver.
Senator Beaudoin: I understand your objective and intention. The remedy that you are proposing is the imposition of stronger sentences. You are probably right that this is one way to render the question of harassment much more important than it is now. However, I have one doubt and, thus, one question. Do you not think that sometimes we may be dealing with people who may be sick or who may have a certain problem? Do you think that having stronger sentences is the remedy in that type of situation?
I am not an expert in that field. If the mere fact of having stronger sentences may cure the evil, I will vote for the bill, obviously, but I should like to know a bit more about it.
Senator Oliver: I do not think stronger sentences will cure the evil, no. Paul Bernardo, in my opinion, was sick, although I am not a psychiatrist. It seems to me that he did, in fact, stalk his victims. If he had been picked up, he could have been given a psychiatric assessment, and psychiatrists may have been able to see that this person had certain problems that had to be corrected.
I am a lawyer, although not a criminal lawyer. I have not practiced criminal law for over 33 years, and I do not know what happens when a person goes to jail. I thought there were provisions for psychiatric assessment and treatment in certain circumstances. If, under my proposals, a person were sentenced to 18 months in jail and they were "sick," to use your word, it may be possible that some kind of psychiatric treatment would be available to them there as part of their rehabilitation.
Senator Beaudoin: I have no problem with the concept of increasing the sentence in these cases. These people will probably receive psychiatric treatment while they are incarcerated, and that may adequately cure the evil. Is that your suggestion?
Senator Oliver: Yes.
The Chairman: Or a convicted felon can be declared a dangerous offender.
Senator Beaudoin: That is another matter, of course. That is not dealt with in the bill. Perhaps I should leave that question to my colleague.
Senator Nolin: You indicated that there is some evidence that the Crown is not prosecuting because it is considered to be too minor an offence. Is that assertion supported by some research?
Senator Oliver: Yes, research done by the Department of Justice here in Ottawa.
Senator Nolin: Will we hear from the department on that?
The Chairman: I think they are included in our list of witnesses.
Senator Nolin: That is very important. We can create all the offences we want in the Criminal Code, but if the prosecutors do not pursue the intent of this Parliament, we will have a bigger problem than the one we are facing now.
I believe there may be two aspects to the problems that have arisen. Is it that the sentencing limitations are too low and, as I gathered from your introductory remarks, that you believe that the burden of proof that is required to be met for a conviction is too high? Is that your opinion?
Senator Oliver: I believe that is so. Under section 264 -- and I went through the words one by one -- one can be merely standing outside of someone's house.
Senator Nolin: That is very important.
Senator Oliver: It is difficult to imagine someone being sentenced to a jail term of 18 months for just looking at a house. A case must be built. The accused must be doing more than just looking at a house. There must be evidence of repeated acts, and that is covered in the stalking literature.
However, the prosecutor must take the allegations seriously and attempt to build a case. He cannot just rely on a statement from a complainant such as: "Look, I got a letter from this person. Here is the letter. He left a note on my car and a dead cat on my doorstep. Please do something." The prosecutor must do some forensic investigation and build the prosecution's case. That should not be left to the victim. Based upon the cases that we have heard and read about, if the prosecutors took the allegations seriously and made their cases, there could be convictions.
Senator Nolin: We will hear from the departmental officials. Would you have any objection to this committee amending the bill?
Senator Oliver: No.
Senator Nolin: Perhaps we should consider amending the bill. As it is drafted, I am not convinced it will do the job. If there is a problem, it lies with prosecutors. They do want to lay charges because they have a significant amount of evidence to gather and to go through and they may consider that to create too much of a problem. However, we will hear from the department about that.
The Chairman: I am sure that Senator Oliver will be following the debate and the discussions here. He may also suggest amendments if he deems them to be warranted.
Senator Joyal: I would commend Senator Oliver for the concern he has demonstrated in relation to this type of offence.
I also want to hear from the departmental officials as well as from representatives of the various bar associations. Perhaps Senator Oliver has been in touch with the bar associations and can give us some idea of what their response has been to the introduction of this bill.
I understand the importance of this problem. However, I feel I am lacking information that would convince me that all the aspects and implications of this proposal have been investigated by those who will have to carry the ball once we have done our work as a legislative body.
As my colleague said, there are two elements that will be important to the effectiveness of the proposed legislation.
I would refer to clause 2 of the bill, which reads as follows:
Subsection 372(2) of the Act is replaced by the following:
Every one who, with intent to alarm or annoy any person, makes any indecent telephone call to that person, is guilty of...
My concern is that the notion of repetition is not addressed. Harassing someone means that you repeat an action or gesture that constitutes harassment. It is not just one gesture; it is a repetition of the same gesture to create the condition of alarm.
Unless I misunderstand it, I read that making one phone call classifies a person in the same category as a person who has repeatedly made the same kind of phone call. This is the first element of my concern.
The Chairman: Clause 2(2) reads:
Every one who, with intent to alarm or annoy any person, makes any indecent telephone call to that person is guilty of
(a) an offence punishable on summary conviction...
That is the law now.
Senator Joyal: I believe that the central element of the harassment is the repetitive nature of the gesture or action.
If we are to legislate such a severe penalty, we should, perhaps, consider a graduated penalty so that a person who makes one phone call is not treated in the same way as someone who has repeatedly called the victim and created a feeling of panic or alarm. There is an element of gravity that should be considered, in that the victim feels threatened in his or her own integrity because he or she has been subjected to harassment.
As Senator Nolin has said, the mens rea of a person who makes only one indecent phone call is not the same as the mens rea of a person who makes countless calls. There is a difference. Perhaps the Criminal Code is defective in that it makes no distinction between one phone call and repetitive phone calls that create that feeling of panic or alarm.
The Chairman: Senator Joyal, on page 2, subclause 2(2) deals with the amendment to subsection 372(3), that is the present law. In this bill, Senator Oliver proposes that there be an increase in the term of imprisonment. This section deals with repeated telephone calls being made. The proposal in this bill is that there be a gradation in the sentencing structure. I believe Senator Oliver proposes that there be an increased penalty for each part of the present legislation.
Senator Joyal: That is exactly the point. How do we determine the seriousness of the offences? That seems to be a very important element. I am open to reviewing the penalty that should be imposed on someone who is harassing an individual, but when it comes to the penalty which is appropriate for another person who makes only one phone call, that is a different matter. The gravity of the offence is not comparable, and I would like to see that reflected in the proposed penalty clauses, senator.
Since I do not believe I have enough information on hand, I cannot come to any conclusions at this time. I require more information before I can support this proposal. However, I do not question the pertinence of this bill.
Senator Oliver: That is a good point.
Senator Fraser: Senator Oliver, I was struck by your statement that stalkers, in the broad sense that you are using the word, generally escalate the nature of their acts over time. There are classes of people who demonstrate that to be true such as the women who are killed by the violent spouses they have left, for example.
When I was a student sharing an apartment we were the victims of a series of obscene calls. I recall the university authorities telling us that most stalkers of that nature -- strangers -- do not escalate their activities and that we did not have to worry because all this creep was ever going to do was telephone people. Can you tell us more about this particular aspect?
Senator Oliver: Yes, there is evidence on the subject which is the result of research done in British Columbia.
The letter from the Attorney General in British Columbia, which I will table with the committee, deals with the behaviour of a stalker, the background of a stalker and how the behaviour or a stalker escalates. The escalation of the behaviour of stalkers is also dealt with in the Department of Justice report of 1996. There is documented evidence that certain stalkers do escalate their behaviour, and that each act they carry out becomes more threatening.
Senator Fraser: Could you give the committee the reference for that particular passage in the Department of Justice report so we can have it circulated?
Senator Oliver: I will be glad to provide that to the committee. I will also provide the letter from the Attorney General dated June 4, 1998, as well as other correspondence that was sent to the then Minister of Justice, Allan Rock, in 1996 and 1997. I will send all of that to the clerk.
The Chairman: We would appreciate that.
What you have just said bothers me. During the gun control debates in 1975 and 1976, our children were threatened. We were told by the RCMP at that time that we need not worry too much because people who make telephone threats rarely carry them out. Perhaps I should have worried a great deal more than I did. I certainly worried a lot.
Senator Pearson: I am in agreement with the intent of this bill. All of us hope it will make a difference. However, it may not, since we are dealing with the area of pathology.
Senator Oliver: We are trying to change attitudes, but it is difficult to do that through legislation.
Senator Pearson: I am particularly sympathetic to your proposals concerning the imposition of a fine. A person being stalked needs some respite. If the accused is convicted and the only sentence imposed is a fine, that offers no respite to the victim and no assurance that the stalker will not continue this criminal activity.
Senator Oliver: Is that not true of many physical crimes? Let us take common assault as an example. If a person punches you in the nose, that is a common assault. If a charge is laid and the accused is found guilty and fined, they are at liberty and can commit the offence again. That is a common assault. We have had civil and criminal common assaults in our codes for centuries.
Senator Pearson: I think people are aware of that.
With respect to common assault, can someone quite easily get off with a fine?
Senator Oliver: Yes. They sometimes get an absolute discharge.
Senator Pearson: We are then into the area of proving something beyond a reasonable doubt, and that brings me to the question of one telephone call. It must be extremely difficult to prove beyond a reasonable doubt that you received a telephone call, particularly if you were not expecting it, because you would probably not be recording it.
Senator Oliver: If I were a prosecutor and someone claimed that they had received a threatening phone call, I would want to build a good case against the accused to ensure I was not wasting the court's time in taking a frivolous case to court. I would have the victim contact the telephone company and have them secure the line in an attempt to trace the call. Any prosecutor would require more evidence than the mere claim of having received one threatening phone call.
Senator Pearson: A charge was laid against someone who phoned and threatened the Prime Minister. I am not referring to the man who broke into his residence. This accused was discharged. However, clearly only one call was necessary to precipitate the action. I am not so concerned about that part of the text because I am assuming, in reality, a prosecutor will use that to build a stronger case.
Senator Oliver: Exactly.
Senator Pearson: It will be of interest to all of us to hear more about whether this is likely to make a difference. If it will, we will support it, but we must consider what else can we do. This is a serious issue. Some 65 people had to incur the expense of changing their identities. It is costing a lot of money.
Senator Oliver: It is also traumatic.
Senator Pearson: Yes. The loss of an identity you have had all your life for this reason is a huge assault to your person. I hope we can do something about it.
Senator Moore: Senator Oliver, I, too, wish to commend you for this initiative. You may not have the information I require, but perhaps we can get it from officials in the Department of Justice. It appears to me that you are trying to have the provisions taken more seriously by increasing the penalties.
Under section 264, the criminal harassment section, the maximum penalty is six months and/or a $2,000 fine. Is there any information about the periods of incarceration or the fines that are being imposed by the courts?
Senator Oliver: That information is contained in the Department of Justice study. The statistics that I have indicate that 60 per cent of criminal harassment charges are withdrawn or stayed, and 75 per cent of those convicted of criminal harassment receive either probation only or a suspended sentence, not a fine.
Senator Moore: You are proposing that the maximum penalty be 18 months and no fine. Is it worth considering a minimum period as well as a maximum? If we do not, is it not possible that the same sentences will be imposed in the future? I am trying to give it more teeth.
Senator Oliver: Are you suggesting, for example, not less than 12 months and not more than 18 months?
Senator Moore: Yes, as an example.
Senator Oliver: That is certainly a possibility.
Senator Moore: What types of fines are being imposed for this offence?
Senator Oliver: As you know, I am trying to eliminate fines.
Senator Moore: Yes. Have fines been imposed or have most sentences involved a period of incarceration?
Senator Oliver: In most cases, charges have been withdrawn or the sentences have been probation only or a suspended sentence. There is little evidence of anyone serving time.
In the case from Halifax about which I told you, the man did go to jail for three days, but he is out and is still stalking his victim.
Senator Moore: I just offer that as a way to toughen up the sentencing structure.
Senator Oliver: I like the suggestion, which is that, on summary conviction, the penalty shall be not less than 12 months and not more than 18 months, or some other figures. That seems reasonable, and it gives the court more discretion.
Senator Moore: It may also act as a deterrent to repeat offences.
Senator Oliver: That is a good point.
Senator Buchanan: I wish to say how pleased I am that Senator Oliver has introduced this bill. Two years ago, I received a call from a woman who lived in my former constituency. I knew the problem she was facing with a former boyfriend who had moved away to Ontario after having harassed and stalked her repeatedly. When he moved, she thought it was over. However, two and a half years ago, he returned. She called me and told me that he was back, that he was calling her repeatedly, and that she would see him outside her apartment every second or third night. I advised her to call the police. She said that she would.
About a week later, I called her and asked her what the police had done. She said that she had not called them. I asked why not. She said it was because a friend of hers who was in a similar situation with another man had reported that man to the police. The police interviewed that man and decided that they would not be able to obtain a conviction at that time. There had been no assault or any such thing. The police dropped the matter.
She told me that she did speak to a friend of hers in the Halifax police force who told her that the courts were not really punishing these people. They might receive probation, a suspended sentence or a small fine, but they were on the streets again almost immediately and continuing the harassment.
What happened to this lady was most unfortunate. She did nothing about it because she did not believe the justice system would do anything about the stalker.
About three months later, I read in the paper that this fellow was alleged to have broken into her apartment, surprised her when she came home, and beat her up, breaking her arm and some ribs. He was then charged, of course. Unfortunately, he was given a two-month suspended sentence and he was back on the streets again. That is the problem.
Under this bill, if this happened again, this person would not receive a suspended sentence or a small fine, but would actually go to jail.
The problem with statistics is that many women are being stalked and harassed but they have not reported it because they do not think anything will happen. If they do report it and nothing happens, the stalker gets more aggressive and what happened to the woman I just told you about will happen to them. Therefore, they just hope that it will end.
I believe that this bill will be passed by the Senate. I can only hope that it will be passed by the House of Commons and become law because there are many women who are afraid to lay a charge or even to report it to the police.
I wish to congratulate Senator Oliver for this initiative.
Senator Oliver: In response to questions from Senators Fraser, Pearson and Joyal about whether I have background information, statistics and facts, a major study was done by the Law Reform Commission in 1997 and I have it here. That is available. There is an excellent article in the McGill Law Journal, Volume 39, which I will make available.
One of the best articles is to be found in the University of British Columbia Law Journal entitled "People Who Stalk People." This investigates all aspects of stalking and answers, in particular, the questions raised by Senator Fraser.
If I may, I will read one small paragraph on page 43 of this article by Bruce MacFarlane, entitled "People Who Stalk People." Under the heading, "Profile of a Stalker," Mr. MacFarlane states:
In general, stalking involves one person's obsessive behaviour toward another person. The stalker's actions may be motivated by an intense affection for or an extreme dislike of the victim. Stalking behaviour may be overtly irrational or violent, or it may be anchored on benign acts that in other contexts may be welcomed or considered flattering by the recipient.
The following is the key paragraph:
Many stalkers are not violent but all are unpredictable. The irrational mania that drives them to pursue their victims is beyond comprehension within the normal framework of social behaviour. It is this unpredictability that generates the most fear, coupled with the knowledge that, in some cases, the stalker's behaviour may, without warning or apparent reason, rapidly turn violent. Escalation of the level of threat forms one of the most common features of stalking.
That is one small paragraph in this excellent article by Bruce MacFarlane that I will also table with the committee.
Senator Beaudoin: I should like to return to the question of the definition of "harassment." I agree with Senator Joyal that, prima facie, we are concerned about repeated acts, not an isolated incident.
Senator Oliver: Section 264 of the Criminal Code includes the word "repeatedly."
Senator Beaudoin: Yes. My concern is the following. I can imagine a conversation that is so direct and violent, in the language that is used, that it may be classified as harassment. Could that not be classified as harassment under the legislation even though it happened only once? I am not an expert in that field of the law, but I think it is possible.
In criminal law, the definition of words is fundamental -- that is, what is "murder"? What is "theft"? What constitutes the commission of any crime? The language used must be precisely defined. "Harassment" is certainly a word which must be clearly defined. Even if, in 99 per cent of the cases, it involves repetitive actions, I still think it is possible that the crime of harassment can be committed in only one conversation. It depends on what is said.
Some conversations may be very direct. Threats, for example, may be sufficient in one conversation to cause panic in the victim. Have you paid any attention to that?
Senator Oliver: Yes, I have. It is dealt with now in section 264 of the code. It uses the very language that you just used.
For instance, "stalking" is defined as repeatedly following or communicating with another person; repeatedly watching another person's house or workplace; or directly threatening another person or member of their family. You can directly threaten with a phone call or by word of mouth directly.
Senator Beaudoin: Can you be threatened directly by just one phone call?
Senator Oliver: Yes.
Senator Nolin: "Repeatedly" does not refer to that.
Senator Beaudoin: The repetition is not essential. That is your thesis. The definition itself is of such a nature that, even if it is most often a question of repetition, there is the possibility of an isolated direct threat.
Senator Oliver: Yes. It is similar to the traditional Blackstone definition of "assault and battery." The traditional assault could be committed in one act.
Senator Beaudoin: Yes, but the generally held view is that repetitive acts constitute harassment. However, I do not think that is the case in every instance.
Senator Oliver: Repeated activity is caught by the section. For example, if the same man is standing outside the window of a woman's house every evening for a week, or if someone is following her car every day, then that kind of repeated activity is caught by the section.
Senator Nolin: What if there is only one conversation? Forget about the notion of repetition.
Senator Oliver: If it amounts to a threat, then that is covered by the section. However, if a man stands outside the window of the woman's house one night only and she phones the police and says "I am being harassed," it does not apply.
Senator Nolin: Mens rea is a problem in that case.
Senator Oliver: Yes, it is not "repeatedly."
Senator Beaudoin: That is a question of evidence. It does not mean that one act is not good enough. It depends on the degree. For example, a threat may be terrible and isolated but it is still harassment. You say that is already included in the Criminal Code.
Senator Oliver: Yes. It is included in section 264.
Senator Nolin: Does the study from McGill University refer to that?
Senator Oliver: Yes.
Senator Nolin: Did you refer to a study by the Canadian Bar Association?
Senator Oliver: No, it was the Law Reform Commission report on stalking in 1997.
Senator Nolin: You have been in touch with at least one provincial minister. All the provincial ministers and the federal minister and officials have ongoing discussions on all the criminal matters and amendments they want to see made by Parliament. Are you aware if stalking and harassment is part of those discussions?
Senator Oliver: I am not certain, but I believe the Attorney General of British Columbia has raised it at meetings of the Attorneys General of Canada, yes.
Senator Beaudoin: The Minister of Justice may be able to answer that question.
Senator Nolin: Yes. We will hear from the department on that.
Do your statistics indicate how many charges have been laid under subsection 372(2)?
Senator Oliver: I do not know.
Senator Nolin: If we knew how many charges had been laid and the outcome of those charges, that could give us some indication of the amount of evidence that is required to convict. To prove intent based on one telephone conversation would be difficult. If there has been a conviction in such a case, I would be interested in reading it.
Senator Beaudoin: You told us that prosecutors do not take those allegations seriously.
Senator Oliver: That is not my conclusion. It is the conclusion of the Department of Justice. They studied the sections that introduced and added "stalking" in 1993. About three years later they did a study to see how those sections were being enforced and to determine whether or not they had used the right language in the legislation. The first conclusion they reached was that this was not being taken seriously by prosecutors, lawyers and judges.
Senator Nolin: And offenders?
Senator Oliver: Exactly.
Senator Beaudoin: That is factual?
Senator Oliver: Yes.
Senator Beaudoin: The purpose of your bill is to raise the sentences which can be imposed in order to reach the goal you have in mind. I hope it is that simple. I am certainly in favour of this. However, I doubt whether that will solve the problem, but it may be the only remedy this committee can propose. Although we might try, our Legal Committee cannot change the world.
Senator Nolin: Do you think that by raising the sentence we can change the behaviour of those offenders? As Senator Beaudoin said, we are certainly willing to try to find a solution to this problem.
Senator Oliver: It is up to the courts. If the judges and the prosecutors begin to take this seriously, they will certainly send out a message.
Senator Nolin: That is a start.
The Chairman: Realistically, all we can hope to change is the behaviour of the courts and the police.
Senator Joyal: On that very point, if we wish to change the behaviour of the courts, we should not leave much discretion. We should establish a floor. If I read Senator Oliver's proposal correctly, there is still a wide discretion in the court.
Senator Oliver: Senator Moore made a good suggestion.
Senator Joyal: A minimum and a maximum.
Senator Oliver: Exactly.
Senator Beaudoin: Even with passage of the bill, if they stick to their prior philosophy, nothing will change.
The Chairman: Since it will be some time before we resume our study of this bill, I will ask that the minutes of today's meeting be circulated to all members so that we can refresh our memories before we continue our study. We are compiling a list of possible witnesses from the department, from the Canadian Bar Association, provincial representatives and, certainly, victims and when that has been completed we will forward it to you.
Senator Nolin: We will also have the papers to which you referred. That information will also provide some answers.
Senator Fraser: I would suggest we invite representatives of the police as well. They may have some reasonable points to make.
The Chairman: The committee adjourned.